The Maine Human Rights Commission is meeting next week to decide on whether or not to adopt new guidelines for Maine's transgendered students from K through College.
If adopted, the guidelines will further define the Human Rights Commission's specifications on restroom and shower facilities and even whether or not a transgendered student may play on a sports team that is comprised of the opposite biological gender.
"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," the proposal states.
"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 proposal says.
Going Farther
Steve Martin is the host of the Aroostook Watchmen Radio Program and he says that the proposed guidelines go beyond what the people were promised when 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 explains.
"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 says.
Maine Human Rights Commission legal counsel John Gause claims proposed guidelines are misunderstood and will not be mandatory.
"The proposed guidelines are the Commissioner's 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 explains.
Gause emphasizes that the Monday meeting will simply discuss guidelines that related to the 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 says.
"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 states.
However, a document obtained by a Freedom of Access Act request by the Maine Family Policy Council shows the Commission's Council is misleading Maine voters. Mike Hein of the Maine Family Policy Council says that John Gause is misrepresenting the Commission's intentions.
What Do They Really Want?
An email obtained through a Freedom of Access Request indicates that the guidelines will eventually be made policy, which would have the force of law. The January 20, 2008 email written by Commission Counsel John Gause to an HRC intern says, "The Commission is in the beginning stages of promulgating regulations addressing 'sexual orientation' in education."
Gause's 2008 email goes on to say that the employment regulations are 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 writes.
"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 also writes.
"During your internship, you will be assisting us in identifying the focus areas for our 'sexual orientation' regulations," Gause tells the intern.
In a February 8, 2010 memorandum to Commission members, both Human Rights Commission Executive Director Patricia Ryan and HRC Legal Counsel John 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."
Even with the disclaimers to the contrary, Aroostook Watchmen host Steve Martin says 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 explains.
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 are already in place," Madore observes.
The bathroom and shower portion of the guidelines are what concerns the Maine School Management Association. In a letter obtained through the Freedom of Access Request 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 writes.
In another section of the letter, Smith writes, "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 raises the issue as to how far reaching the guidelines to be discussed will be. The Commission's legal counsel says 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 says, outlining the Commission's role in the process.
"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 explains.
Martin believes that the Commission's role in the process and the guidance's extension of the statute 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."
And he says the HRC is not obligated to respond to the public.
"Every single person there could testify against it and they could still promulgate the proposals as written," Martin adds.
Madore of the Grassroots Coalition has little confidence in Monday's meeting.
"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 observes.
"However, the Monday meeting is simply a show to make the people think they have any input into the process," Madore says.
Michael Carl - Michael Carl is a veteran journalist and pastor. With fifteen years of journalism experience, Michael's work and life have taken him to ...
