The law in Maine protecting LGBT people from discrimination, passed in 2005, is pretty clear. If it weren’t, a 2014 decision by the Maine Supreme Court made it clear that a transgender student had the right to use the bathroom that matches her gender. But Gov. Paul LePage (R), fresh off his recent racist rant, has blocked the Maine Human Rights Commission (MHRC) from making enforceable rules for schools to make sure LGBT students have the protections the law guarantees.
Instead, the MHRC could only issue guidelines, which it did last month. Unlike rules, there are no consequences for violating guidelines. “While we would like to propose changes to the current Education Rule,” the memo states, “that avenue is unavailable at the moment.”
Adrienne Bennett, a spokeswoman for LePage, told the Bangor Daily News that her boss is not convinced by the Maine Supreme Court’s 2014 decision in favor of the transgender student. “The governor read the court’s opinion and agreed with Chief Justice Leigh Saufley’s concurrence that the matter requires legislative attention and that there is no requirement in [the court ruling] that rules be changed.”
“The judiciary rightly called upon the Legislature (not the executive branch) to address ambiguity in the statute and to make the plain language of the statute clear. It is my understanding that the governor does not believe it is appropriate for the executive branch to update regulations until the Legislature updates the statute, and he communicated that message to the Department of Education. He has also instructed the Department of Education to follow the law.”
Saufley’s concurrence does not support this claim. The majority opinion, which she and four other justices signed onto, in no way instructs the legislature to do anything. In her solo concurrence, the Chief Justice shared the lone dissenting justice’s fear that “it could now be argued that it would be illegal discrimination for a restaurant, for example, to prohibit a man from using the women’s communal bathroom, and vice versa.” Though the Court suspected this was not the intention of the 2005 law, Saufley “encouraged” the legislature to clarify as much — just in case such a situation came up.
Maine lawmakers have not taken up this concern, nor do they have to for the Maine Human Rights Act to continue to be enforceable law. LePage’s motivation for keeping it from actually being enforced is probably less related to his concern for the legislative process and more his own biases against transgender people.
In December, LePage joined several other states and state leaders in filing an amicus brief in the case of Virginia transgender student Gavin Grimm, who sued his school seeking access to the boys’ restrooms. Citing the dictionary, the brief sided against the student because “sex is a biological reality, unlike subjective or cultural constructions of gender or gender identity.”
The brief also worried that boys’ privacy will be violated when they use urinals because someone who does not have male genitalia would be in the restroom. “There is no authority for twisting equal protection to force schools to ignore the biology of urination and the privacy of adolescent boys’ reproductive organs,” it read.
LePage spoke candidly about lending his voice to the case, telling the Bangor Daily News — noticeably without using a single gendered pronoun — that the ACLU “might ruin this young person’s life.”
“I’m appalled at the lack of parenting that child’s received. I’m appalled,” he said. “A parent should at least prepare their child to move into a world of transgender, not just file a lawsuit at 11 years old.” LePage was apparently as unsure of the boy’s age as his gender; the Bangor Daily News noted that Grimm was 15 when the suit was filed, having come out as transgender at age 6.
The MHRC’s guidance recommends that transgender students be allowed to access facilities and play on sports teams in accordance with their gender identity. Without a rule, however, the commission has no mechanism to field a complaint if this guidance is not followed.