Last week a judge in Maine finally dispensed some common sense on sex and school bathrooms. Parents of a boy attending a public school in Orono, ME had sued to force the school to allow their son the use of the girls’ room. This troubled youth, identified only as “Susan Doe” in court filings, suffers from gender identity disorder, believing he is a girl trapped in a boy’s body. Although the facts agreed upon by all parties show that the school had been very accommodating by developing a special education plan for the student, hiring a full time staff member to watch over him after allegations of bullying, and allowing “Susan” to use a staff restroom because she was not comfortable using the boys’ room. However, none of this was enough. “Susan’s” parents decided to sue the school for discrimination. Fortunately, Superior Court Judge William Anderson found that the “school’s decision to exclude Susan from the girls’ room was explicitly permitted by [the law in Maine].. because Susan’s biological sex was that of a male.” He also dismissed the parents’ arguments that the school’s actions were intentionally discriminatory by stating that it was “unrealistic to conclude that Maine public schools would naturally understand that existing law required them to permit students having the assigned sex of male to share shower, locker room and restroom facilities with students having the assigned sex of female.” Such an interpretation of Maine’s antidiscrimination laws, the judge ruled, would run “fundamentally contrary to accepted societal practice.”

Unlike the Human Rights Commission regulations in Maine, the Massachusetts transgender rights bill, passed just over a year ago, does not include an explicit reference to restroom and locker room use. This is why transgender activists have already pledged to come back this spring with a “public accommodations” bill to legally force their way into whatever single-sex facility they choose. This would indicate that even the most strident activists understand that the current law in Massachusetts does not allow them to do that. Chapter 272, Section 92A of our Massachusetts General Laws specifically states that restroom facilities “may be segregated on the basis of sex.” Schools and other places of public accommodation, particularly those with children, should look to that law for guidance on this issue. It is also our hope at MFI that Massachusetts judges will look to Judge Anderson’s opinion as a model for handling this issue. In his survey of other cases with similar claims of discrimination in restroom assignments where the law on the books was less than clear, the judge noted that “Courts decided that a sexual orientation discrimination claim was trumped the by the inherently acceptable practice of designation of restroom use by assigned sex.”

Here at MFI, we have already received multiple reports of confused young boys and girls using the opposite sex’s restrooms at public schools and have learned that teachers and administrators believe that the current law gives them the right to do so. If you hear of any examples of this, please contact us so we can keep our young children safe, and help steer this issue to a common sense resolution, as was accomplished in Maine.

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