The rights of a transgender girl from Orono were violated when school administrators made her use a staff bathroom at her elementary school instead of the girls’ restroom, the Maine Supreme Judicial Court ruled Thursday.

The ruling is the first in which a state supreme court has affirmed a transgender person’s right to equal access to restrooms in places of public accommodation.

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Lawyers representing Nicole Maines, who is now 16, said the decision could lay a foundation for other states’ courts that are facing questions about the emerging rights of people who identify as the opposite of their birth gender.

“I’m extremely proud of our state and our leaders, of what they did,” said Wayne Maines. His daughter was attending the Asa Adams School in Orono in 2007 when the guardian of another student objected to her use of a communal girls’ bathroom. Administrators intervened, telling Nicole to use a separate, unisex faculty bathroom.

In brief, emotional remarks Thursday, Wayne Maines spoke of the importance of educating the public about transgender issues, and said the legal process worked for his daughter.

“It sends the message that you can believe in the system,” he said.

The court’s 5-1 ruling is the first interpretation of a 2005 amendment to the Maine Human Rights Act that added language protecting transgender people in schools.

“Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly,” the court wrote in its majority opinion. “Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination.”

The decision overturns a lower court’s ruling that sided with the school district. Arguing before the supreme court, attorneys for the district said a 1983 law requiring schools to offer sanitary bathrooms segregated by sex created a pre-emptive exception to the Maine Human Rights Act.

But in its ruling, the court said it would be illogical to interpret a statute designed to require clean toilets as inconsistent with a law passed 22 years later, meant to ensure equal access to public facilities regardless of sexual orientation or gender identification, among other protected classes.

The two portions of the law may co-exist, the court wrote, without the purpose of either provision trampling the purpose of the other.

SCHOOL HAD PLANNED FOR GENDER ISSUES

Although the case stems from an incident that occurred when she was in fourth grade, Nicole Maines – born Wyatt Maines – had identified as a girl since as early as age 2.

School officials became aware of her gender identification when she was in the third grade, when students and teachers began referring to Nicole as “she.”

Nicole was using the girls’ bathroom, which in the lower grades accommodated only one person at a time. By the fourth grade, Nicole was dressing and appearing exclusively as a girl, the court wrote.

In 2007, when Nicole was in the fourth grade, her family and school counselors, teachers, doctors and others formed a plan for how her gender status would be handled in future grades. Teachers and students were encouraged to stop using the name Wyatt and call her Nicole.

She was later diagnosed with gender dysphoria, a recently formed medical diagnosis that describes the psychological distress experienced by people whose gender identification is contrary to the gender they had at birth.

Nicole has undergone extensive treatment to address the psychological and medical effects. The groundbreaking regimen includes hormone therapy to stop puberty before it begins, making gender reassignment surgery easier in the future.

The school’s support staff recommended that when Nicole enter the fifth grade, she be allowed to use the communal girls’ bathroom, part of the psychologically important steps of living socially as a female. A faculty bathroom that was not gender-specific was identified as an alternative if her use of the communal bathroom became “an issue.”

Her use of the communal bathroom was uneventful until one boy, at the direction of his legal guardian – his grandfather – followed Nicole into the girls’ bathroom twice, arguing that he, too, was entitled to use it. In the ensuing controversy, the school administration reversed its course, barring Nicole from using the communal girls’ bathroom.

A SUCCESS FOR IDEALS OF EQUALITY

Thursday’s ruling included a strongly worded concurring opinion by Chief Justice Leigh Saufley, who lauded the work of the school system, which was “working in uncharted territory and undertook a rational and compassionate approach to the challenges presented to it.”

She called on the Legislature to correct a contradiction in the language of the Human Rights Act, which includes “sex” as a protected class. In light of Thursday’s ruling, it appears logical that a restaurant, for instance, could not bar a man from using a women’s bathroom.

A similar point was made in the lone dissent, by Justice Andrew Mead, who agreed with the opinion of the court but wrote that societal custom of gender-segregated bathrooms is on “collision course” with the Human Rights Act. Mead called on the Legislature to amend the 1983 cleanliness statute so its language would no longer be in conflict with the law protecting transgender people.

Attorneys for the Maines family said the case is a step forward in affirming long-held ideals of equality.

“We think it was very important in this case that the court emphasize the principle that we have in law, that the discomfort of other people cannot trump the law,” said Ben Klein, a senior attorney with Gay and Lesbian Advocates and Defenders, which helped argue the case.

Klein said the school’s staff was extraordinarily sensitive in planning for Nicole’s education, and he placed blame for the debacle on administrators who reversed that decision.

“All of those teachers and guidance counselors understood that the only way a transgender girl could go to school (was) if she was treated as a girl,” Klein said. “It was the school administrators who came in when one student tried to disrupt Nicole’s use of the girls’ restroom.”

Superintendent Joanne Harriman, who was not leading the district when the issue arose, deferred comment to the school attorney, Melissa Hewey of the Portland firm Drummond Woodsum. Calls to the school board chairman, Wayne Scott, were not returned.

Hewey said she was surprised by the ruling, but it brings clarity to the emerging issue of transgender students in public schools.

“At the core of that decision is a recognition that tolerance is important,” Hewey said.

Matt Byrne can be contacted at 791-6303 or at:

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