The Most Important Thing

Kelly, Nicole, Jonas and Wayne Maines, with GLAD attorneys Jennifer Levi and

Ben Klein, outside the Maine Law Court after oral argument June 12, 2013

“I hope [the justices] understand how important it is for students to be able to go to school and get an education, have fun, make friends and not have to worry about being bullied by students or the administration and to be accepted for who they are. That’s the most important thing.” - Nicole Maines

Not long into yesterday’s Maine Supreme Court arguments in our case Doe v. Clenchy, our client Nicole Maines leaned in a little closer to her mother, bringing her head to rest on Kelly Maines’ shoulder. 

It’s good to have a supportive and loving parent around when things get tough, and listening to a cadre of lawyers and judges debating the difficult, discriminatory experiences of your life and your rights as a transgender girl can make for a tough day for a 15-year-old. Her dad Wayne and her twin brother Jonas were also by her side at the arguments.

The family has stuck together and supported each other through the stress of more than four years of legal proceedings and media attention related to the discrimination Nicole experienced as a 5^th grader at her Orono middle school, where administrators rescinded her access to the girls’ restroom after a male classmate followed her into the facility to make trouble. Nicole was forced to use a staff bathroom and separated from the other girls, in violation of Maine’s trans-inclusive non-discrimination law. The reversal forced Wayne and Kelly to withdraw their children from the Orono school system and move to another part of the state so they could attend school quietly and safely.

School’s Out – But You Still Have Rights!

Congratulations students on finishing up another school year!

The year may be winding down, but GLAD still wants you to know your rights.

Below is a summary of some of the more important rights you need to know. But remember, you can always contact GLAD’s Legal InfoLine with any questions, and you can check out our detailed information for each New England state.

Know Your Rights: GLAD's Youth Initiative

GLAD is expanding our Youth Initiative with the goals of both fighting for additional rights and protections for LGBTQ youth and, of equal importance, empowering LGBTQ youth through knowledge of the many rights and protections that currently exist in New England.  Knowledge is power. If you know your rights, you’ll know when they are being violated. GLAD can work with you to make sure that you are treated justly both in and out of school.

Let’s start in school. 

Know Your Rights: Violence, Harassment and Bullying

This week during No Name Calling Week, schools and organizations across the country are working to raise awareness of the need to stop the bullying and harassment of LGBTQ people.

Despite the fact that all six New England states have hate crime protections for gay men and lesbians, four of the six have explicit hate crime protections for transgender people, and all six have some of the strongest anti-bullying laws in the country, GLAD’s Legal InfoLine continues to receive calls from LGBT people who have been attacked after leaving a gay bar, students who are being so badly harassed at school because of their gender identity or sexual orientation that they no longer feel it is safe for them to attend, and victims of same-sex domestic violence who are not taken seriously by the police, just to name a few troubling issues.

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.

Another GSA is Born

Post by GLAD Attorney Vickie L. Henry

I recently received the exciting news that we had helped a high school student and his friends in Maine form a Gay Straight Alliance (GSA). I would have been happy to sue to found a GSA but it was just as satisfying to persuade the school to do the right thing because it was right for the school. Indeed, GLAD does a lot of work behind the scenes.

GSAs are a fun "case" for GLAD because the law is so good. If requested, just about every school has to permit a GSA. But that does not always mean school officials will quickly or easily approve a GSA. That's where we enter, behind the scenes or publicly as counsel for the students.

Generally speaking (lawyer-speak meaning there are limited exceptions), the Equal Access Act requires a public high school that allows any non-curriculum student group to meet on school grounds to also allow other student groups the same access to the school, including a GSA.

School officials have gotten creative across the country to avoid a GSA but the law is so broad that in nearly every case, the courts have supported the GSA. Some school officials try to stall a GSA, particularly if a senior is involved, because maybe the request will graduate with the senior. So having a younger proponent is helpful. Others try to change the name of the group, which is not permissible. Still others have actually eliminated all non-curriculum groups but that failed - you can just found a curriculum-related club to discuss a subject - say history - from an LGBTQ perspective. Still others have objected with a claim that a GSA would be disruptive. But the law protects the right to form a GSA as long as the GSA itself (versus those who don't like the idea of a GSA) is not causing the disruption.

I want to give a big shout out to the parent helping her child in this case. She went toe-to-toe with the school addressing its concerns and demonstrated - politely but relentlessly - that a GSA would be good for her child and for the school.

One more GSA approved. Today we have one more community where high school kids have an oasis of acceptance and support. Raise your glass (non-alcoholic of course; they're minors).

Did you go to your high school Prom?

Aaron Fricke and his date Paul talk to attorney John Gaffney just before the Prom.

Photo: Daniel G. Dunn/Picture Group.

LGBT students have dealt with that beloved/dreaded high school ritual - The Prom - in various ways throughout history. Some of us muddled our way through opposite-sex "dates", pretending to have the time of our lives while secretly longing to slow dance with our best friend. Some of us truly did have a great time, spending the evening with a best friend who was also queer. Some skipped the Prom entirely. Some - more, these days - actually did get that special slow dance with the very person they wanted.

In 1980, an 18-year-old student in Cumberland, Rhode Island took a courageous step that helped make it easier for LGBT students to have the Prom experience they deserve. Aaron Fricke went to court to fight for his right to take a male date to his high school Prom, and, with GLAD's help, he won. You can hear Aaron tell his story, along with Attorney John Ward, in this month's podcast (listen at right), Tuxedoes for Two: Fricke v. Lynch, and read more on the case - including press coverage in everything from Gay Community News to People magazine - on GLAD's website.

Did you attend your Prom? Tell us about your experience!


Other sites of interest:
Aaron Fricke at Gay for Today

Aaron Fricke on ourstory.com

School's Right to Teach About Family Diversity Upheld

The U.S. Court of Appeals for the First Circuit yesterday unanimously affirmed District Court Judge Mark L. Wolf's dismissal of a lawsuit brought by two sets of parents against the Lexington school system. In the suit, parents David and Tonia Parker and Robert and Robin Wirthlin claimed that a Lexington elementary school violated their constitutional rights by exposing their children to books portraying many different kinds of families, including non-judgmental depictions of families headed by same-sex couples.

Judge Sandra Lynch wrote for a unanimous court that the parents who brought the suit have no constitutional "right to be free from any reference in public elementary schools to the existence of families in which parents are of different gender combinations." Her decision further stated, "Given that Massachusetts has recognized gay marriage under its state constitution, it is entirely rational for its schools to educate their students regarding that recognition."

We're delighted that school systems remain free to include age-appropriate material featuring a wide variety of families, including those with two moms and two dads. As a result, gay and lesbian parents and their children can feel safe and supported in their schools, and all children can learn about the true diversity of the society we live in.

Who's in a Family?

In an ongoing legal dispute, a Lexington, MA, elementary school has become the focus of a battle waged by two families – and their conservative backers – against the notion of teaching about family diversity in the school.

The school included the books Who's in a Family and King and King in its curriculum, which teaches students about many different kinds of families. Both books present non-judgmental depictions of same-sex couples and their families.

The parents of two students - David and Tonia Parker and Robert and Robin Wirthlin - filed a lawsuit in federal court claiming the school violated their constitutional rights by exposing their children to this information. They assert that their religion considers homosexuality immoral, and that by including materials depicting same-sex families, the school violated their rights under the U.S. Constitution to control the upbringing of their children and to the free exercise of their religion.

The suit was initially dismissed in U.S District Court by Judge Mark L. Wolf, who said in his decision: “under the Constitution public schools are entitled to teach anything that is reasonably related to the goals of preparing students to become engaged and productive citizens in our democracy. Diversity is a hallmark of our nation. It is increasingly evident that our diversity includes differences in sexual orientation."

Judge Wolf went on to say: "The constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children and that teachings which contradict a parent’s religious beliefs do not violate their First Amendment right to exercise their religion.”

The dispute continues, however, as the Parkers and Wirthlin's have appealed the decision to the U.S. Court of Appeals for the First Circuit.

GLAD views this suit as an attempt to intimidate schools away from an inclusive curriculum. Public schools should feel confident about teaching this material. The most recent census data demonstrates that lesbian and gay families live in virtually every U.S. county. To the extent that a public school includes a curriculum about families and teaches about what makes a family, that curriculum ought to reflect the demographic reality that same-sex families exist.

Students learning about different kinds of families have a right to learn that a family can have two moms or two dads and still be a loving family.