AUGUSTA, Maine – A lawyer for the Maine Human Rights Commission told members of the state board today that requiring all students to use “biology-based” restrooms and locker rooms in the state’s schools is illegal and cannot be allowed to continue.

“Schools cannot discriminate against sexual identity or gender identification. Schools therefore cannot segregate students based on sexual orientation and identity,” commission legal counsel John Gause said at today’s commission meeting, where he was unsuccessful in convincing the board to adopt immediately a set of recommendations.

The commission’s vote was 4-1 to hold a public hearing on the adoption of guidelines that would allow biological males to play on girls’ athletic teams and use girls’ restrooms and locker rooms if they proclaim their gender identity is female.

Today’s public meeting was held before a capacity crowd in the main meeting room of the Senator Hotel in Augusta, Maine. The crowd was divided evenly between opponents and supporters of the proposed guidelines for students who have gender identity issues.

Speaking in favor of the guidelines, Gause said they should be adopted because they are how the 2005 Human Rights Law should be interpreted.

“It’s the commission’s job to interpret the Human Rights Law, and in many cases the courts defer to the commission on the interpretation,” he said.

“The guidelines are how the state will deal with education issues concerning students feeling an affinity for a gender that is not the biological one,” Gause told commission members. “The 2005 statute is worded broadly and is interpreted on a case-by-case basis. The guidance deals with sports teams, bathrooms use and accommodation of the student’s needs.”

Gause further believes deference should be shown to students who have identity issues.

“Students who are transgendered should be allowed access that is consistent with their identity or expression, not with their biological identity,” Gause said. “Also, we should not exclude students with questions of gender identity from
playing on the sports teams of their choice.”

He suggested, “We should adopt the guidelines sooner than later.”

However, the guidelines were developed in large part at a Dec. 15 meeting to which homosexual activists were invited but not opponents of the plan.

The meeting was attended by representatives of the Gay and Lesbian Advocates and Defenders; Gay, Lesbian and Straight Education Network; and other “gay,” lesbian, bi-sexual and transgender rights groups as well as the Maine Principals Association and the Maine School Administrators Association.

Representatives of the Maine Family Policy Council and other conservative groups say they were not invited to attend the December meeting.

Commission Chairman Paul Vestal questioned the wisdom of adopting the guidelines while a case is still under litigation.

“There is a case that is still in the courts now. I don’t think it’s wise to adopt these guidelines while the courts are still hearing the case from the Orono schools,” Vestal cautioned.

Vestal was referring to last summer’s commission hearing about the 11-year-old Asa Adams Elementary School student who was a biological male calling himself a female. The commission ruled in favor of the student and the case is still being heard in Penobscot County Superior Court.

Gause warned the court case could take months to resolve, and the commission shouldn’t wait for the court’s answer.

Commissioner Kenneth Fredette read a prepared statement on the dispute.

“I’m speaking here today as neither a Republican nor Democrat, neither a conservative or a liberal and neither gay or straight. I’m looking to the Constitution for my feelings on this issue,” Fredette read. “As I look at the Constitution, all power is inherently held by the people. I have to ask if the commission met the burden of transparency in this process. The answer is ‘No, we did not.'”

He continued, “Each of us must understand that our public schools and colleges are at the heart of our state. Education is of such great importance that our forefathers made reference to it in the Constitution. So when this commission seeks to authorize guidance for our schools, this commission acts beyond its authority,” Fredette said.

“I base my decision on the fundamental principles. Has the commission met its obligation to seek citizen input? Has the commission designed a system of due process that protects civil liberties? Has the commission acted in its delegated authority given to it by the authority?” Fredette read. “Now I condemn those who would threaten or bully those who identify themselves as transgendered. Their liberties are important too. We should protect those citizens too.

“I urge the commission to face this issue in a public and open manner and to not issue the proposed guidelines because we have not acted in an open and public manner. We don’t have to issue guidance. That’s the legislature’s authority,” Fredette said.

Two other commissioners also wanted public input.

The meeting, at which public comment was not allowed, irritated several members of the audience.

“Some of us drove four or five hours to get to this meeting, and it’s nice to know that a bunch of bureaucrats don’t care what the people have to say,” said one man before leaving.

Vestal said the man had a point.

“I think we need to have a public hearing. That’s the only way to make sure we issue guidance that applies to everyone. If you’re eliminating one group in favor of another group, you’re giving up part of your freedom,” he said.

Fredette said the whole concept was a little disconcerting.

“The way I understand it, a student who believes he or she is of a different sex has the right to use the bathroom of the sex with which he identifies. What effect will it have on a student who is of one biological sex and is in the bathroom and a biological person of the opposite sex who identifies with the opposite sex comes in?” Fredette asked.

The proposed 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.

The public hearing is expected to be set up sometime in April or May.

A lobbyist for a homosexual organization earlier argued “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.”

The current push apparently started over the 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 the 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.

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