Should “George” be allowed to play alongside “Cindy” and “Cathy” on a girls basketball team and then later accompany them into the privacy of a locker room or shower facility that formerly was “biology-based”?
That’s the question that will be addressed Monday when the Maine Human Rights Commission meets to talk about “transgendered” students.
Guidelines have been proposed that would specify what commission officials believe all schools must do to make accommodations for any biological boy who asserts he’s female, or biological girl who asserts she’s male.
Under discussion will be the suggested guideline:
Transgender students must be allowed access to bathrooms that correspond with their gender identity or expression or, if they prefer, to existing single stall bathrooms.
With respect to locker rooms and shower facilities that involve undressing in front of others, transgender students must be provided with accommodations that meet their needs and that take into account the legitimate privacy concerns of all student involved.
Steve Martin, host of the Aroostook Watchmen Radio Program, said the proposed guidelines go far beyond what the people in Maine were promised when the 2005 human rights law passed.
“The 2005 law was written to add sexual orientation as a protected class and what the law also covers is public accommodation,” Martin said.
Listen to an interview with Martin:
“We were assured that the law would not apply to schools or anything other than the workplace, but the language doesn’t read that way. So you can’t, as we’ve all learned, go by what a politician says,” Martin said.
But Maine Human Rights Commission legal counsel John Gause said the proposal is just misunderstood.
“The proposed guidelines are the commissioners’ interpretation of the law. It’s not a binding regulation. They may decide to adopt the proposed guidelines, but they may not. I’m not sure what they’re going to decide to do, but they will address the proposed guidelines,” Gause said.
Listen to an interview with Gause:
He said the meeting Monday will be to discuss guidelines that related to the state’s 2005 Discrimination Law and the Human Rights Statute.
“What we’re all operating under is the Statute and the Human Rights Act. Since 2005 the statute has prohibited discrimination in the schools based on gender identity and sexual orientation,” Gause said.
“Discrimination is defined in the statute to include segregation. It doesn’t deal with specific situations that arise in terms of discrimination generally. So, what the commission is doing here is offering its interpretation of how the law applies to specific situations. The guidance isn’t binding. Ultimately a court will decide that,” Gause said.
However, information obtained under state Freedom of Access Act requests by the Maine Family Policy Council is raising alarm.
The council’s Mike Hein said it shows Gause is misrepresenting the commission’s intentions.
An e-mail indicated the guidelines will be adopted as official policy, and they would then have the force of law. The Jan. 20, 2008, statement from Gause to an HRC intern said, “The commission is in the beginning stages of promulgating regulations addressing ‘sexual orientation’ in education.”
It continued with the explanation that employment regulations are being used as a springboard for the education regulatory process.
“During our meeting, I gave you a copy of the statutory and regulatory (in employment) definitions of ‘sexual orientation.’ I also gave you a copy of the statutory section dealing with discrimination in education and a copy of our education regulations addressing ‘sex’ discrimination,” Gause wrote.
“As you can see by comparing the statutory and regulatory provisions, the regulations provide significantly more detail and guidance concerning who and what is protected. Both the statute and the regulations have the full force of law and must be followed,” Gause wrote.
“During your internship, you will be assisting us in identifying the focus areas for our ‘sexual orientation’ regulations,” Gause told the intern.
Further, in a Feb. 8 memorandum to commission members, both Human Rights Commission Executive Director Patricia Ryan and Gause wrote that the guidelines for review are intended to be more than suggestions.
“The commission’s guidance should reflect your views in this area. It will be used to inform students, schools and colleges of their rights and responsibilities under the Maine Human Rights Act. The commission’s guidance will not have the force of law but is entitled to great deference by the courts unless the statute plainly compels a contrary result.”
In another document obtained under state version of FOIA, the Human Rights Commission offered suggestions for how HRC staff members should issue the new guidelines:
“The guidance should be sent to school administrators with a cover letter. That letter should include a statement such as: ‘We recommend that school policies regarding discrimination, bullying and harassment include specific listing of sexual orientation and gender identity/expression in keeping with this law.'”
A lobbyist for a homosexual organization argued that “an anatomy or biology-based rule for bathroom usage cannot be used to bar transgender students from using a facility consistent with their gender identity.”
Even with the disclaimers to the contrary, Aroostook Watchmen host Steve Martin said that like every other regulatory body, the HRC guidelines will eventually be enforced as law.
“This is the Human Rights Commission. It’s just like any other regulatory body in the state of Maine. It’s like the forest service or the game warden. Whatever rules they promulgate, while they’re not lawmaking in the standard sense, it’s regulatory law that can indeed be applied to individuals,” Martin said.
“If there’s a suit brought for example by a little girl who’s not happy that a fully naked little boy is in her shower stall with her, then she can be sued for sexual harassment if she complains about that. That’s my understanding of where this is all going,” Martin said.
Paul Madore of the Maine Grassroots Coalition says that in reality, the guidelines are already law.
“As a matter of fact the issues of gender identity are already law. They were made law by the statute in 2005, so the meat of the guidelines is already in place,” Madore said.
The restroom and shower portion of the guidelines is what concerns the Maine School Management Association. In a letter obtained by the Maine Family Policy Council, association spokesman Bruce Smith writes that the guidelines push the issue even farther than the text of the statute.
“None of these provisions can be found in the language of the Human Rights Act
regarding sexual orientation discrimination in education or public accommodations,” Smith wrote.
In another section of the letter, Smith wrote, “The guidance you have proposed extends this law far beyond its text, and in a manner that fundamentally conflicts with long-standing policies and practices, especially regarding use of bathrooms and locker rooms and participation in sports.”
Smith’s letter to the HRC raised the issue as to how far-reaching the guidelines to be discussed will be. The commission’s legal counsel said that the guidelines will be used by the commission in determining the outcome of a case heard by the commission.
“The commission process, people bring cases through the commission initially
before going to court. That is to help people understand what happens when we investigate the facts of the case,” Gause said.
“Individuals have the right to go to court, after going through the commission, whether the commission finds for or against them. They can obtain the same relief as long as they’ve first gone through the commission,” Gause said.
Martin believes that the commission’s role in the process and the extension of the statute by guidance is intentional because the guidelines will eventually become either regulations or the law.
“We fully believe that the guidelines will indeed be promulgated as regulations
that will have the force of law. We believe the Human Rights Commission has
every intention of doing that,” he said.
Martin said he believes the language for the guidelines was forced on Maine from the outside.
“These are not rule-making decisions that are coming from inside the state of Maine. The rules that are about to be considered on Monday, were lifted directly, cut and pasted, copied, from the GLAD offices in Boston. So these aren’t even rules that were created here in Maine. They’re being forced on us from the outside,” Martin said.
And he said the HRC is not obligated to respond to the public.
“What happens will depend on how many people show up to express concern. But let me be clear on one thing. The Human Rights Commission is not under any obligation to respond to the citizens with regard to this issue,” Martin said.
“Every single person there could testify against it and they could still promulgate the proposals as written,” Martin said.
Madore has little confidence the proposals will be derailed.
“We’re accustomed to dealing with the commission. They fully intend to get what they want because it’s the goal of the legal system to accept homosexuality as normal. The only way out of this is to repeal the sexual orientation law,” Madore said.
“However, the Monday meeting is simply a show to make the people think they have any input into the process,” Madore said.
The current push apparently started over a commission decision last year that found a school in Orono, Asa Adams School, discriminated against a boy by denying him access to the girls’ restroom.
The ripples from that ruling now are being felt. According to documents obtained in the state, the University of Maine already is expressing alarm.
A letter from the university office of equal opportunity noted, “There will likely be cases in which allowing a transgender student to participate in gender-segregated sports in accordance with the gender identity or expression will raise legitimate concerns about fairness in competitive interscholastic sports. …”
The letter pointed out “unintended consequences,” such as “a transgendered individual’s participation on a gender-segregated team could result in the NCAA’s treating that team as a mixed team. This would have a number of serious consequences including potentially impacting the institution’s compliance with Title IX.”
Currently, Colorado, Iowa, Washington state, Washington, D.C., and San Francisco have rules, policies or laws dealing with transgender restroom accommodations. The Maine rules would make Maine the first state in the U.S. to adopt the policies for elementary and secondary school students and the first to extend the rules to private and sectarian schools.
WND has reported on the Christian Civic League of Maine’s call for the public to contact state legislators and oppose imposition of the regulations.
This is not the first time the argument has arisen. WND previously reported when the city council of Tampa, Fla., voted unanimously to include “gender identity and expression” as a protected class under the city’s human rights ordinance, leading some to fear the council has opened the city’s public bathroom doors to sexual predators masquerading as protected transsexuals.
A statement from the American Family Association explained, “Tampa Police arrested Robert Johnson in February 2008 for hanging out in the locker room–restroom area at Lifestyle Fitness and watching women in an undressed state. The City of Tampa’s ‘gender identity’ ordinance could provide a legal defense to future cases like this if the accused claims that his gender is female.”
WND also reported on a similar plan adopted by fiat in Montgomery County, Md., which opponents said would open up women’s locker rooms to men who say they are women.
The issue also has come up in Colorado, where Democrat Gov. Bill Ritter signed into law a plan that effectively strikes gender-specific restrooms in the state.
And city officials in Kalamazoo, Mich., only weeks after adopting a “perceived gender” bias plan, abandoned it in the face of massive public opposition.