Next Monday, the Maine Human Rights Commission may advise schools to allow transgender students to dress, play sports and choose bathrooms based on the gender with which they identify, rather than their birth gender.

The commission said the proposed guidance 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. They’re also concerned about maintaining student safety in schools and fairness in sports if they follow it. 

“We think these are problems just waiting to happen,” said Richard Durost, executive director of the Maine Principals’ Association. “I think it’s setting everybody up to go to court.”

The proposal defines transgender students as those who identify with a gender other than the one with which they were born, even if they have not had a medical diagnosis, surgery or hormone replacement therapy.

It says schools can ask for information showing a student is sincere in identifying as a particular gender if that student has requested accommodations and the school has reason to believe the student’s gender identity isn’t genuine. It says schools should not otherwise ask about a student’s gender identity or sexual orientation.

It also says students should be allowed to choose bathrooms based on their gender identity or use an existing single-stall bathroom if they prefer.

For locker rooms and showers, the proposal says schools should make accommodations for transgender students, taking into account the privacy concerns of all students. Under no circumstances, the proposal says, should students be forced to use bathrooms or locker rooms reserved for the gender they do not identify with.

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.

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.  

“What it’s meant to be is an explanation of the commission’s view at this point in time,” Ryan said.

Durost of the Maine Principals’ Association, which governs interscholastic sports, believes students should be assigned to teams based on their biological gender, not their gender identity, because biology can give boys an unfair advantage on girls’ teams.

“By the time biological males reach the high school years, for the most part, the typical male is bigger, stronger, faster than the typical female,” he said.

In the 1990s, the MPA fought and won a case against a boy who wanted to play on a girls’ field hockey team. Though that boy was not transgender, Durost believes today’s issue is similar. 

“As we understand it, all the student would have to do is present themselves as believing that they were of the opposite gender, he said. “There would be no surgery, no medical treatment or anything else to move them in that direction, so they would still be, essentially, a biological male, presenting as a female. So, from our perspective, that court case still has relevance.”  

He is also concerned about allowing all transgender students to use the bathrooms of the gender they identify with. He believes those students could be unsafe in unsupervised bathrooms, particularly biological girls who identify as boys and want to use the boys’ restrooms.

Many schools deal with transgender issues on a case-by-case basis. Bruce Smith, a lawyer for the Maine School Management Association, said he has heard from some schools that allow students to use the bathrooms of their choice, while others arrange for transgender students to use private bathrooms. The Maine School Management Association believes schools should continue to be allowed that flexibility.

“(Bathrooms and locker rooms) can be the least safe, not just physically unsafe, but in terms of harassment, teasing and bullying,” Smith said. “We’re not talking about insisting that a boy who identifies as a girl use the boy’s bathroom. What we’re talking about is looking at these situations case-by-case and making a judgment about what the best place for that student is, in consultation with the student and the family.”

School leaders agree.

Lewiston Superintendent Leon Levesque said he’s always worked to accommodate students’ needs. He feels the commission’s guidance goes too far and could force him to make a decision that’s not in the best interest of either transgender students or the students around them. 

“I guess I’m caught by surprise because I think most schools have always accommodated the specific needs of an individual,” Levesque said. “But now there may be a lot of young ladies who are offended by this, who don’t feel comfortable using a bathroom (with a biological boy). So what do we do with them now? What about accommodating their needs now? Or they don’t matter?” 

Although some school leaders believe the proposed guidance goes too far, they feel they may have no choice but to make it policy. Otherwise, they fear, they could be vulnerable to lawsuits.

“If something comes from the Maine Human Rights Commission, we take it to our policy committee and that policy would take a look at our policies, the way we do business and make appropriate changes,” said Mark Eastman, superintendent of the Oxford-area school system. “We usually look at it very seriously. Absolutely very seriously. Because if somebody finds us in violation, there’s a possible litigation.” 

The commission will discuss the proposed guidance Monday and could vote on it then. Although the meeting will be open to the public, comments will not be allowed.

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