KENNEBUNK — In the wake of last year’s landmark Doe v. Clenchy case that codified rights for transgender students in Maine public schools, districts like RSU 21 are looking to protect transgender students. They are adopting policies that clarify these students’ rights and creating proper administrative procedures.

While many hail these policies as long overdue, some question whether provisions in these new policies make changing records and ensuring medical privacy burdensome during a student’s transition.

Doe v. Clenchy was filed by a transgender student against the school district in Orono, which forced her to use a staff restroom rather than a student one. The Maine Supreme Judicial Court ruled that the student’s rights were violated by denying her access to the girl’s restroom. The case established a precedent for all Maine public schools, and led lawyers at Drummond Woodsum to draft a transgender student policy for Maine school districts.

The policy is intended to “foster a learning environment that is safe, and free from discrimination, harassment and bullying; and to assist in the educational and social integration of transgender students in our schools,” according to the proposed policy by RSU 21. A virtually identical one has been adopted by Millinocket schools. Districts such as the Oyster River Cooperative School District in Durham, New Hampshire and the Mat-Su Borough School District in Alaska have looked into policies that borrow the same language.

“I think that a fair amount of districts in Maine” are looking at policies for transgender students, said school attorney Melissa A. Hewey, who drafted the Drummond Woodsum policy. “A pretty good percentage are adopting procedures that are similar or identical, (and) a number of districts in New Hampshire as well other districts are using our policy as well.”

The policy provides guidance on which name and pronoun school staff should use and the rights of transgender students in gendersegregated activities and using facilities such as restrooms or locker rooms; all are to correspond with “the gender identity consistently asserted at school”.

However, a medical provision that gave RSU 21 school board members pause during their Aug. 3 meeting establishes that “the school may request documentation from medical providers or other service providers as necessary to assist staff in developing a plan appropriate for the student.” The policy later makes clear that under FERPA, schools must have a “legitimate educational interest in the information” and authorization from a parent or guardian. The policy states that gender identity does not necessarily require a medical diagnosis, but some advocates worry the vagueness of the policy could be open to misinterpretation by administrators.

“It might be completely innocuous language but … schools shouldn’t be looking for benchmarks, they should be accepting the student’s identity,” Zack Paakkonen, a lawyer on the board of the Trans Youth Equality Foundation whose Portland practice focuses on LGBT law. “Administrators may insist on certain medical benchmarks, which is not something that is part of Maine law. I would also be concerned for the privacy of transgender students and the precedent of having transgender students have to present medical documentation of some kind to school administration officials and having those become part of their record,” Paakkonen later wrote in an email.

Drafters of the policy said that the provision was informed by their reading of the Doe case and that it won’t be exercised frequently.

“If you read the Doe decision, the Supreme Judicial Court considered that an appropriate request for the schools to make,” Hewey said. But most schools don’t do that she said; the medical documents could be used for assistance. “That’s why (the language) is in there,” she said.

Ben Klein, a senior attorney for the Gay and Lesbian Advocates and Defenders or GLAAD, who represented Nicole Maines in the Doe case, said that medical records would likely not be seen as a requirement for access to bathrooms or sports in a court case.

“If a school has clear information that a student has a female gender identity then there’s an obligation under the law to provide access to the girls restroom,” Klein said. “And if a family decided not to grant access to medical and mental health records but the school still had clear information … I think the school would be in some legal peril.”

Language stating that gender identity “does not necessarily require a medical diagnosis” will be scrapped from RSU 21’s second reading of the policy, according to Superintendent Kathryn Hawes.

Another clause makes it clear that “official information will only be changed upon receipt of documentation that a student’s name or gender has been changed in accordance with any applicable laws.” This stringent standard could make things difficult for a student who wants to transition quickly to avoid being misgendered, according to Paakkonen.

“There are no laws in terms of how the gender is (but) there’s a requirement for changing gender on a license, SS card, and a total different requirement in changing one’s birth certificate,” Paakkonen said. “Each agency that creates or issues documents has different and often inconsistent procedures for changing gender markers, if a process exists at all.”

However Superintendent Hawes says that in progress reports, in person and any way a student accesses his or her information, they will be referred to by the gender or name of their identity. The official records requirement will pertain only to a state student information database called “MEDMS,” which Hawes says is purely “administrative” and students don’t interact with it.

With the absence of transgender policies after the Doe v. Clenchy case, districts are stuck between moving too slowly to protect students and quickly codifying vague or imprecise language. Most school board members at RSU 21 agreed that the district has gone for too long without a policy on transgender students, and that changes to the proposed policy may occur.

“We as a school district have been at a disadvantage by not having the clarity of a policy and I think that’s what this brings,” School Board member Matthew Fadiman stated during the Aug. 3 meeting, noting that there have been transgender students in the district who moved through the school system without administration having a clear policy that protects students. Faidman went on to say that he doesn’t want to “rush into anything” and that “this is an important policy.”

Woodsum attorney Hewey agreed that policies could be tweaked in the future, and that transgender policies are relatively new for Maine schools.

“I’ve been practicing school law for 30 years and even 10 years ago there were not (transgender policies) in schools,” Hewy said. “Now I’ll get a question once a week. It’s a real big issue and … since we’re all learning, things are going to change.

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