By Klever Descarpontriez
On Friday, May 13, the Departments of Justice and Education of the Obama administration sent out a letter telling every school district in the country to allow transgender students to use the bathrooms that match their gender identity.
This sweeping directive comes in the midst of a legal fight between the federal government and North Carolina over the state’s controversial bill that would force transgender people to use the bathroom in accordance with the sex assigned at birth. North Carolina says the bill maintains safety, arguing that sexual predators could dress up as the other gender and sexually assault women in their own bathroom. Research repeatedly has disproven the validity of such a claim. There is not a single known case of a predator committing sexual assault dressed up as a woman in the opposite bathroom. That might be one of the reasons why the Obama administration, in response, told schools to ensure none of their students are discriminated against.
Maine is not stranger to this issue. A law – dating from 1920s – required separate bathrooms for boys and girls in schools. In 2005, the Maine Human Rights Act was amended to make discrimination on the basis of sexual orientation, including gender identity and gender expression, unlawful.
In 2007, Nicole Maines, a transgender student at Asa Adams School in Orono, was told by the administrators to use a separate, unisex faculty bathroom, rather than a facility reserved for pupils.
The incident erupted after one of the boys from the school – following the direction of his grandfather, who also is his legal guardian – followed Maines into the girl’s bathroom on two occasions arguing that he, too, was entitled to use it. Maines’ parents argued that the school’s decision to make her use a faculty bathroom was discriminatory and filed a lawsuit.
In January 2014, the Maine Supreme Judicial Court sided with Nicole Maines, overturning a superior court justice’s ruling against the Maines family. Most importantly, the Supreme Court’s 51 decision was the first interpretation of an amendment to the state’s Human Rights Act that added language protecting transgender people in schools. The court also ordered the Orono School to pay Nicole $75,000 in damages.
In October 2015, the Maine Human Rights Commission (MHRC) and the Department of Education proposed rule changes to guide school administrators on how to abide by the court’s decision. The binding regulations drafted by the commission – mandating the state’s schools to allow transgender students to use the facilities of their choice – are not that different from those circulated by the Obama administration.
The only difference is that the Obama administration did not make those regulations legally binding. They just tied billions of dollars from the federal budget for education to the state’s compliance with the rules. Many federal agencies are reviewing North Carolina’s new transgender bathroom bill to see if it violates civil rights. Dorie Nolt, a spokeswoman for the Department of Education, said that the agency “will not hesitate to act if students’ civil rights are being violated.” North Carolina got $4.3 billion last year from the federal government for kindergarten through college.
The governor of Maine, Paul LePage, vetoed the proposed changes from the Human Rights Commission and the Department of Education – arguing that the ruling requires the legislature, not an unelected bureaucratic board, to bring the law into accordance with the court ruling.
Notwithstanding, the discussion around transgender people goes beyond the mundane act of using a bathroom. At its core, there is an underlying wave of transphobic hysteria in the United States. Bills like the one passed by North Carolina and LePage’s abusive use of his executive veto powers are examples of how unwelcoming and nonaccepting of transgender people some conservative republican states can be. While the U.S. debates where transgender people can pee and whether we should put a bouncer in front of every bathroom, in Canada, Prime Minister Justin Trudeau is preparing to introduce a bill that would add transgender people to groups protected by Canada’s legal and human rights policies.
In the coming years, and as the bathroom war drags through the court – with the possibility of reaching the Supreme Court eventually – LePage could start by allowing his own administration to go ahead with the changes proposed by the Human Rights Commission to avoid risking federal funds for education like the ones North Carolina is facing now. Or as Ben Klein – senior attorney with Gay and Lesbian Advocates and Defenders, involved in the Maines case – clearly puts it in reference to the court’s ruling, “the discomfort of other people cannot trump the law.” LePage has to come to terms with the fact that his conservatism is in direct conflict with human rights, and it is time that he follows suit. It is 2016 after all.
Klever Descarpontriez is a resident of Bar Harbor and student at College of the Atlantic.