June 13, 2013

Maine high court hears appeal of transgender teen

By Scott Dolan sdolan@pressherald.com
Staff Writer

BANGOR -- Nicole Maines, who was born biologically male but has always considered herself a girl, said she hopes no other transgender person ever has to go through what she went through in the fifth grade, when she was banned from using the girls' bathroom at Asa Adams Elementary School in Orono and bullied for her sexual identity.

click image to enlarge

Jonas Maines, left, and his transgender twin sister, Nicole Maines, appear Wednesday outside court in Bangor. Nicole, who was born male but has always considered herself a girl, says the Orono school district discriminated by banning her from the girls' bathroom.

The Associated Press / Robert F. Bukaty

Maines, now 15, spoke after walking out of the Penobscot Judicial Center in Bangor with her parents and identical twin brother after they brought their case before the highest court in the state to appeal a Superior Court judge's ruling in favor of the former Orono School District, now Riverside RSU 26. The Superior Court ruling found school officials had not discriminated against Maines by forcing her to use a unisex bathroom instead of the communal girls room.

"I just want to tell you all how happy I am that the court heard our case today. I wouldn't want to wish my experience on any other trans person," Nicole said, standing beside her family. "I just hope they understand how important it is for students to go to school, get an education, have fun, have friends and not having to worry about being bullied."

Nicole and her family are asking the Supreme Judicial Court in their appeal to reinstate the lawsuit they filed along with the Maine Human Rights Commission against the school district and then-Superintendent Kelly Clenchy.

The case originated in 2007 when Nicole, referred to in the courtroom before the panel of judges as Susan Doe, was forced to use a staff bathroom after a grandparent of another student, a boy, complained that she was allowed to use the girls' bathroom.

The Maine Human Rights Commission found in 2009 that the school district had engaged in unlawful education and public accommodations discrimination because of Nicole's sexual orientation and filed suit along with Nicole's parents, Wayne and Kelly Maines. They amended the suit in 2010 after Nicole was also banned from using the girls' bathroom at Orono Middle School.

The Maine Human Rights Commission found in 2009 that the school district had engaged in unlawful education and public accommodations discrimination because of Nicole's sexual orientation and filed suit along with Nicole's parents, Wayne and Kelly Maines. They amended the suit in 2010 after Nicole was also banned from using the girls' bathroom at Orono Middle School.

"At the heart of this case is a fifth-grade girl who appeals to the court for protection," said attorney Jennifer Levi, who represents the Maines.

Levi said that it was undisputed that Nicole was treated as a typical girl at the school in the third, fourth and start of the fifth grade, when she had been allowed to use the communal girls' bathroom.

"The school changed that only after another student misbehaved," Levi said, referring to a male student who followed Nicole into the girls' bathroom.

A lawyer for the Maine Human Rights Commission, John Gause, argued that Nicole, who he referred to as Susan, should have been treated as a girl in all regards.

"Boys use the boys' facilities. Girls use the girls' facilities. There is no doubt that Susan is a girl," Gause said.

An attorney for the Orono School District, David Kalin, said school officials had worked closely with Nicole and her mother before the 2007 incident to develop a formal plan on how she would be treated and had discussed what would happen if others complained about her using the girls bathroom.

"Everyone agreed that Susan would not use the boys room even if that was an option," Kalin said. "The school is faced with a difficult position. Our view is the school does have to be flexible to deal with these students."

The Supreme Judicial Court made no immediate decision on the appeal, though individual judges asked many questions.

"The school appears to have done a very good job in uncharted territory," Chief Justice Leigh Saufley said. "Why did Susan have to be excluded from the communal girls room where she felt her community existed? If the triggering event was not the young man forcing his way into the girls room ... what was the triggering event?"

Another justice asked lawyers on both sides of the issue whether the case was "moot," because Nicole no longer attends school in Orono. Wayne Maines confirmed in a statement outside the courthouse that Nicole and her twin brother, Jonas, now attend high school in southern Maine but declined to specify which school.

"It's been a long road. I just want my daughter and my son to have the same opportunities as their friends at school," Wayne Maines said.

Levi, who in addition to representing the Maines is also the director of the Gay and Lesbian Advocates and Defenders transgender rights project, said she did not know on which of many issues raised the judges would focus their attention. She added that she felt it was a fair hearing.

Levi argued that the Legislature amended the Maine Human Rights Act in 2005 to include language that states that a person cannot be denied public accommodations, such as a public bathroom, based on "sexual orientation."

"This is a tremendously important issue. There are vulnerable children throughout the state of Maine who need these protections, which is the reason why they added these protections in 2005," Levi said. Another attorney for the school district, Melissa Hewey, said the law is clear that schools are required to segregate bathrooms by sex. She said that anything further requires a policy decision that is best left to the Legislature, not the courts.

"These are uncharted waters," Hewey said. "I think a lot of schools in the state of Maine and around the country are starting to struggle with transgender issues."

Nicole began to consider herself a girl at a very young age, according to court papers filed by her lawyers.

 

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