Feathers Ruffled, Rights Upheld in Restroom Case Involving Transgender Child

Controversy surrounds the finding by the Maine Human Rights Commission that a transgendered child should have been allowed to use the girls' bathroom because she identifies as female.

A July 1 article at the Bangor Daily News reported that the Commission found against a Maine school district, ruling that the Orino School Department had subjected the child to discrimination.

The article reported that the lawyer for Orino School Department foresaw difficulties ahead as Maine schools try to implement inclusive restroom policies; meantime, some parents (and grandparents) are angry with the outcome, and say that boys and girls belong in their designated washrooms.

However, for GLBT equality groups, the Commission's finding is a step forward for a poorly understood population that is often subjected to vilification and misunderstanding.

Trangendered individuals believe, innately and unchangeably, that they are of a given gender--even if their physical characteristics belong to the other gender. Thus, a transgendered child may believe, and insist, that she is a girl, even if anatomically she is male.

But transgendered individuals may not necessarily be homosexual; indeed, some men who seek gender reassignment are heterosexual and continue to pursue relationships with women even after they have, themselves, transitioned physically to the female gender.

Such physical transitions often, but not always, involve surgical procedures. They also involve hormone treatments and lifestyle changes: even without surgery, a woman in a man's body may begin wearing women's clothing and makeup.

Such transitions also reportedly give a sense of peace and rightness to transgendered individuals, who may never have felt comfortable in the gender roles and clothing assigned to them by society at large.

The incidence of trangenderism is low, but transgendered people are common enough that such debates and controversies are becoming more frequent.

Because transgendered individuals experience a deep-seated and persistent conviction that they actually belong to the other sex, regardless of their anatomical characteristics, very young children might declare themselves to be girls, or boys, to the consternation of their parents--who naturally may be inclined to see their child's gender according to his or her anatomy, rather than the child's internal sense of who he or she fundamentally is.

The depth and duration of a transgendered child's conviction of belonging to the gender opposite his or her anatomy far exceeds any transient phase when a child might pretend to be the other gender; in many cases, transgendered adults recall being convinced from early life of their true gender identification.

But society at large does not yet comprehend the differences between sexual identity and sexual orientation, and often the idea that a child can have a clear and distinct sense of his or her own gender are dismissed.

Nonetheless, some child health professionals have begun to recognize that children may know better for themselves who they are than the adults around them--and some advise that parents, educators, and other caregivers allow the children to take the lead in such cases.

There are practical considerations to be taken into account, however, pointed out attorney Melissa Hewey, who represented the school department.

The article quoted Hewey as saying, "I'm not sure that it takes into account practicalities that face educators around the state.

"You can understand [the ruling] intellectually," Hewey went on.

"You can agree with it intellectually.

"But practice is sometimes different--and I think that's what may have escaped some people in this case."

Though the ruling might result in heated debate and uncertainties about how to accommodate transgendered school children, the Maine Civil Liberties Union's legal director, Zachary Heiden, saw the ruling as a mark of progress, the article reported.

The Bangor Daily News quoted Heiden as saying, "This ruling is a huge step forward for a vulnerable population that is entitled to the full protection of the law.

"There will always be voices who claim we're not ready, we're not there yet, the time to end discrimination is next year, or next session," Heiden continued.

"But victims of discrimination should not have to wait."

The attorney for the child and her parents, Eric Mehnert, noted, "The message that was sent from the superintendent said that it is OK to segregate this child, it is OK to ostracize this child."

The article quoted Mehnert as saying, "I think [the parents'] biggest challenge is their fear--it's a very real fear--that the Orono school system has told them that they don't think they can protect the child."

The case concerned the reaction of school officials when a fifth-grader, who had been permitted to use the girls' restroom, began to suffer harassment from another student, who reportedly called her anti-gay names and at one point followed her into the girls' lavatory.

The student who was allegedly harassing the transgendered girl was suspended for his behavior, but the transgendered pupil also was affected by the school's decisions: she was instructed no longer to use the girls' facility, but rather to confine herself to the use of a separate, single-occupant restroom.

The incident took place in 2007, and led to the Human Rights Commission's hearing and ruling.

The Commission also heard from the grandfather of the student who was suspended; Paul Melanson, the article said, posited that his grandson had also been the victim of discrimination for not being allowed to use the girls' restroom.

Reportedly, Melanson had told his grandson that he could also use the girls' room if the other "male" student in question was being allowed to do so.

Melanson's argument was rejected by the Commission, which noted that Melanson's grandson was not transgendered and did not regard himself as a girl; therefore, the school was within its rights to restrict him to use of the boys' restroom.

Melanson was quoted by the newspaper article as responding to the Commission by saying, "Little boys do not belong in the little girls room, and vice versa.

"This isn't just about my kid," Melanson added. "A lot of children have come up to me and said that this isn't right."

Said Hewey, "You can hope that most people won't use their children as pawns to make political statements."

The article noted that in a previous finding, the Commission issued a May 18 ruling that said a transgendered adult had been subjected to discrimination when she was denied the use of the women's restroom at a Denny's restaurant.

The individual in that case was pre-operative, meaning she retained male external genitalia.

A May 20 article in the Bangor Daily News reported similar reactions to that ruling, with critics fearing that businesses across the state could be negatively affected.

Chad Cloutier, a lawyer for the corporate owner of Denny's, publicly spoke out against businesses being compelled to accommodate transgendered customers, identifying "sexual perversion," privacy issues, and "the health and safety of [the restaurant's] customers, particularly children" as areas of concern.

The newspaper quoted Cloutier as saying, "It's almost an untenable position for businesses."

Added the lawyer, "It really is a slippery slope. This claimant may be perfectly safe and use the bathroom in a perfectly normal way, but what's to prevent a person of some devious intent [from asserting the same right]?"