Thursday, September 20, 2012

Plain and Simple: Making the Case for Fair Treatment of Trans Students

by Laura Kiritsy, Manager of Public Education

GLAD has litigated two cases in Bangor, Maine. The first was Bragdon v. Abbott, in which Senior Attorney Ben Klein represented a woman with HIV who was denied treatment by a dentist who had a written policy of refusing to treat anybody with HIV. Ben argued that case all the way to the U.S. Supreme Court, where he won a landmark victory in 1998 that established anti-discrimination protections for people with HIV under the Americans with Disabilities Act.

Fourteen years later, Ben and I drove the 440-mile round trip in his 2001 Honda Civic DX (with manual locks and windows) back and forth to Bangor so he could argue another important case, Doe v. Clenchy. GLAD is representing Susan Doe (a pseudonym), a transgender girl who had her education disrupted when the public school she attended did an “about face” by excluding her from the girls’ bathroom after a male student repeatedly harassed her. 

The hearing took place on Wednesday in Penobscot County Superior Court in downtown Bangor before Judge William R. Anderson. The day before his court appearance, Ben followed his standard argument preparation on our drive to Northern Maine. First, he lowered the volume of the Glee soundtrack and treated me to a preview of his argument on the drive up. It was nearly flawless, although I didn’t interrupt with umpteen questions, as judges often do. Then, after a sumptuous dinner at the local Longhorn Steakhouse, Ben retreated to his hotel room for a final review of his notes and a session of yoga and meditation. Meanwhile, I retreated to my room to eat a Snicker’s bar and watch a Civil War documentary.

At counsel table along with Ben were Jennifer Levi, the director of our Transgender Rights Project; John Gause, counsel for the Maine Human Rights Commission, which is also a party to the case, and Jodi Nofsinger, a Maine attorney who is also part of our litigation team. Susan, who is now a sophomore in high school, was seated close behind them, along with her very supportive mother and father.

To give some context for this case, Maine has a statewide law prohibiting discrimination against people based on gender identity and expression in all areas, including public education and public accommodations, plain and simple. To defend against what otherwise seems to be a cut and dry case of discrimination, the school has pointed to a Maine Human Rights Commission regulation that permits schools to have separate restrooms for boys and girls, a regulation the school interprets to mean it can ignore a student’s gender identity in that one instance.

Ben countered that the Commission’s regulation cannot override the state’s non-discrimination law, making his arguments quite thoroughly and forcefully, despite the anticipated barrage of questions from the judge. He made the case that the plain language of Maine’s non-discrimination law prohibits the school from denying a girl access to facilities that other girls use simply because she’s transgender. Lastly, he argued that the school violated the law because not only did it exclude Susan from the girls’ bathroom thereby treating her differently than all other girls, it forced her to use a separate facility thereby treating her differently than all other students. 

Ben was satisfied that the arguments “went as well as they could have,” as the judge really seemed to be wrestling with the issues presented in the case. That’s a common experience; our litigation frequently raises new and novel legal issues that judges are often encountering for the first time. Indeed, just as Judge Anderson is wrestling with the rights of transgender people, the judge in the Bragdon case wrestled with the issue of proper access to care for people living with HIV/ AIDS 14 years earlier. Now, it’s simply a no-brainer that people can’t be discriminated against in any setting because of their HIV/AIDS status. We’re working toward the day when treating transgender people equally and respectfully is also a no-brainer.

As with so many of our cases, we understand that the argument before Judge Anderson is just the first step in a long process that may potentially lead to a full trial, and ultimately a decision from the Maine Law Court, the state’s highest court. So now, we await a ruling.

Stay tuned.

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