John Doe v. Reg'l Sch. Unit 26

• Decision Date: 30 January 2014
• Docket Number: Docket No. Pen–12–582.
• Citation: 96 A.L.R.6th 715,2014 ME 11,86 A.3d 600
• Parties: John DOE et al. v. REGIONAL SCHOOL UNIT 26.
• Court: Maine Supreme Court

86 A.3d 600

2014 ME 11

96 A.L.R.6th 715

John DOE et al.

v.REGIONAL SCHOOL UNIT 26.

Docket No. Pen–12–582.

Supreme Judicial Court of Maine.

Argued: June 12, 2013.

Decided: Jan. 30, 2014.

John P. Gause, Esq. (orally), Maine Human Rights Commission, Augusta, on the briefs, for appellant Maine Human Rights Commission.

Jodi L. Nofsinger, Esq. Berman & Simmons, P.A., Portland, and Jennifer Levi, Esq. (orally), and Bennett H. Klein, Esq., Gay & Lesbian Advocates & Defenders, Boston, Massachusetts, on the briefs, for appellants John and Jane Doe.

Melissa A. Hewey, Esq., and David M. Kallin, Esq. (orally), Drummond Woodsum, Portland, on the briefs, for appellee Regional School Unit 26.

Richard O'Meara, Esq., Murray, Plumb & Murray, Portland, on the briefs, for amici curiae Maine Chapter of the American Academy of Pediatrics; The Maine Psychological Association; The National Association of Social Workers–Maine Chapter; GLSEN Downeast Maine; GLSEN Southern Maine; Trans Youth Equality Foundation; The Maine Women's Lobby; Parents, Families and Friends of Lesbians and Gays (PFLAG); PFLAG Portland; PFLAG Machias; and Maine Transgender Network, Inc.

Zachary L. Heiden, Esq., American Civil Liberties Union of Maine Foundation, Portland, and Amanda C. Goad, Esq., American Civil Liberties Union Foundation, LGBT & AIDS Project, New York, New York, on the briefs, for amici curiae American Civil Liberties Union of Maine Foundation and American Civil Liberties Union Foundation LGBT & AIDS Project.

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.

Majority: SAUFLEY, C.J., ALEXANDER, SILVER, GORMAN, and JABAR, JJ.

Concurrence: SAUFLEY, C.J.

Dissent: MEAD, J.

SILVER, J.

[¶ 1] John and Jane Doe, parents of Susan Doe,¹ and the Maine Human Rights Commission appeal from a summary judgment entered in the Superior Court (Penobscot County, Anderson, J.) in favor of Regional School Unit 26 on the Does' complaint pursuant to the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4592(1), 4602(4) (2013). RSU 26 argues that the public accommodations section of the MHRA conflicts with a statutory provision regarding sanitary facilities in schools, 20–A M.R.S. § 6501 (2013). We are called upon for the first time to interpret the MHRA, and particularly several amendments enacted by the Maine Legislature in 2005, as it applies to transgender students in schools. We vacate the Superior Court's judgment.

I. BACKGROUND

A. Facts

[¶ 2] The following facts are supported by the summary judgment record, viewed in the light most favorable to the Does and the Commission as the nonprevailing parties. See Trott v. H.D. Goodall Hosp., 2013 ME 33, ¶ 2, 66 A.3d 7.

[¶ 3] Susan Doe is a transgender girl. She was born male, but began to express a female gender identity as early as age two. Beginning in the first grade, she attended Asa Adams School in Orono. Susan generally wore gender-neutral clothing to school until her third-grade year, when her identity as a girl became manifest. At that time, the school principal first became aware that Susan was transgender.

[¶ 4] All third and fourth grade students at Asa Adams used single-stall bathrooms. Susan used the single-stall girls' bathroom with the support and encouragement of school staff. In third grade, teachers and students began referring to Susan as “she.” By fourth grade, Susan was dressing and appearing exclusively as a girl.

[¶ 5] In early 2007, midway through Susan's fourth-grade year, school personnel implemented an educational plan, commonly referred to as a “504” plan,² to address Susan's gender identity issues and her upcoming transition to the fifth grade, where students used communal bathrooms separated by sex.³ The 504 process is generally designed to identify impediments to learning for individual students and to implement steps to help those students succeed in school.⁴

[¶ 6] By the time she was preparing to enter the fifth grade, Susan had received a diagnosis of gender dysphoria, which is the medical term for psychological distress resulting from having a gender identity different from the sex that one was assigned at birth. School officials recognized that it was important to Susan's psychological health that she live socially as a female. They did not interpret 20–A M.R.S. § 6501, or any other law, as prohibiting a person with Susan's diagnosis from using the girls' bathroom.

[¶ 7] A team consisting of Susan's mother, her teachers, the school guidance counselor, and the director of special services met in March 2007 to develop the 504 plan. The team agreed that school staff should refer to Susan, and encourage students to refer to Susan, by her female name. The school counselor expressed to the group that, for a transgender girl like Susan, using the communal girls' bathroom was the best practice. The team agreed that requiring Susan to use the boys' bathroom was not an acceptable option; the principal later testified that it would not have been safe for Susan to do so. The minutes of the 504 meeting reflected the team's recommendation that Susan use the girls' bathroom. The minutes also reflected the team's awareness that a unisex staff bathroom was available for Susan to use in the event that her use of the girls' bathroom became “an issue.”

[¶ 8] Susan began the fifth grade in September 2007. Her use of the girls' bathroom went smoothly, with no complaints from other students' parents, until a male student followed her into the restroom on two separate occasions, claiming that he, too, was entitled to use the girls' bathroom. The student was acting on instructions from his grandfather, who was his guardian and was strongly opposed to the school's decision to allow Susan to use the girls' bathroom. The controversy generated significant media coverage. As a result of the two incidents, the school, over the Does' objections, terminated Susan's use of the girls' bathroom, requiring her instead to use the single-stall, unisex staff bathroom. That year, Susan was the only student instructed to use the staff bathroom.

[¶ 9] The 504 team met again in December 2007 to discuss Susan's upcoming transition to middle school. Over the Does' objections, school officials determined that Susan would not be permitted to use the girls' bathroom at the middle school. Again, Susan was required to use a separate, single-stall bathroom. As a result, at the end of Susan's sixth-grade year at Orono Middle School, the Doe family moved to another part of the state.

B. Procedural History

[¶ 10] On April 10, 2008, while Susan was still in elementary school, Jane Doe filed a complaint with the Commission alleging that the superintendent and other school district entities ⁵ violated the MHRA by excluding Susan from the communal girls' bathroom at Asa Adams. The Commission unanimously found reasonable grounds to believe discrimination had occurred. See5 M.R.S. § 4612(1)(B) (2013). The Does, as parents and next friends of Susan, and the Commission filed a complaint in the Superior Court on September 23, 2009, asserting claims for unlawful discrimination in education (Count I) and unlawful discrimination in a place of public accommodation (Count II) on the basis of sexual orientation.⁶See5 M.R.S. § 4612(4)(A) (2013).

[¶ 11] After the Superior Court denied the defendants' motion to dismiss all counts pursuant to M.R. Civ. P. 12(b)(6), the Does and the Commission filed an amended complaint on May 11, 2011, adding facts to Counts I and II based on Susan's exclusion from the girls' bathroom at Orono Middle School. The Superior Court granted RSU 26's motion for summaryjudgment on all counts on November 20, 2012. SeeM.R. Civ. P. 56(b). The Does and the Commission appeal the Superior Court's entry of summary judgment on Counts I and II.⁷

II. DISCUSSION

[¶ 12] This is the first case that has required us to interpret the Legislature's 2005 amendments to the MHRA that prohibit discrimination based on sexual orientation in public accommodations, educational opportunities, employment, housing, and other areas. See P.L. 2005, ch. 10. Particularly where young children are involved, it can be challenging for a school to strike the appropriate balance between maintaining order and ensuring that a transgender student's individual rights are respected and protected. Many of the school officials involved in Susan's education exhibited tremendous sensitivity and insight over several years. The record reveals that her counselors and teachers strove to provide her with a supportive environment and were largely successful. As a result of its efforts, the school came under intense public scrutiny, which caused it to reconsider the propriety of the steps it had taken up to that point and ultimately to reverse course. We appreciate the difficulty of the situation in which the school found itself; nevertheless, we must assess schools' obligations pursuant to the Legislature's amendments to the MHRA without regard to the public's potential discomfort with the result. It is for the Legislature, not this Court, to write laws establishing public policy, and we must respect that constitutional division of authority, absent the Legislature adopting a law violative of the Maine Constitution or the United States Constitution. There is no issue of the Legislature exceeding its constitutional authority in this case.

[¶ 13] “We review a grant of summary judgment de novo.” Levesque v. Androscoggin Cnty., 2012 ME 114, ¶ 5, 56 A.3d 1227. Summary judgment is properly granted “if the record reflects that there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law.” Id. (quotation marks omitted.)

[¶ 14] This case requires us to examine the relationship between the public-accommodations provision of the MHRA and a provision of the Sanitary Facilities subchapter of title 20–A, which regulates education. “[O]ur first task when interpreting a statute is to ascertain the real purpose of the legislation.”...