Commission postpones vote on transgender issue, opts for public hearing

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After a heated meeting in which some audience members grew frustrated over the lack of a public comment period, the Maine Human Rights Commission decided Monday to put off any vote regarding school accommodations for transgender students. It will instead schedule a public hearing on the issue.

Although they hadn’t been among those upset audience members, representatives from both the Maine Principals’ Association and the Maine School Management Association cheered the decision.

“We are certainly pleased that the commission chose not to act on the guidelines today,” said Richard Durost, executive director of the Maine Principals’ Association. “It was very clear to me from all five (commission) members that they definitely believe that there’s been the missing step of not having any opportunity for public input.”

The commission’s proposed guidance says schools should allow transgender students to dress, play sports and choose bathrooms based on the gender with which they identify, rather than their birth gender. The guidance is meant for public and private schools, including preschools, elementary schools, high schools and colleges. It does not cover privately funded religious schools.

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Patricia Ryan, executive director of the Maine Human Rights Commission, said the guidance was created in response to questions and concerns raised by educators, students and others over how the 2005 Maine Human Rights Act — which prohibits discrimination based on sexual orientation — applies to schools. The commission has said the proposal is its interpretation of the Maine Human Rights Act and reflects several rulings it has made in discrimination cases since 2005. It said the advice does not have the force of law and schools cannot be sued for not following it.

But some schools, the Maine School Management Association and the Maine Principals’ Association say they take the commission’s guidance seriously and worry about lawsuits if they don’t follow it. At the same time, they’re concerned about maintaining student safety in schools and fairness in sports if they do follow it.

The commission met Monday to discuss the proposal. Although the commission had always said public comment would not be allowed during the meeting, a number of people attended expecting to be heard. The meeting grew heated at times.

By the end of the afternoon, one commission member questioned whether the commission even had the authority to create such guidance in connection to the Maine Human Rights Act. It’s a point others have made.

“We think this is a legislative judgment, whether to impose specific requirements regarding transgendered students’ access to bathrooms, locker rooms and athletics,” said Bruce Smith, lawyer for the Maine School Management Association. He added, “We think it’s good that they’re slowing down and taking a more considerate approach to this.”

The commission has not yet set a date for public comment. Ryan said she hopes it will be scheduled for this spring.

In the meantime, Smith said the Maine School Management Association and its constituent organizations, the Maine School Board Association and the Maine School Superintendents Association, may seek feedback from their members about the proposal. They may also encourage those members to speak up if they feel strongly about the issue.

Maine Principals’ Association officials have not yet decided whether to speak during a public forum. They may instead submit their comments in writing.

“I have a feeling when that day occurs, there’s going to be an awful lot of emotion on both sides of the issue,” Durost said.

 ltice@sunjournal.com

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