Transgender rights groups are following a case in Maine in which a transgender woman has been banned from using the woman's restroom at the Denny's in Auburn. Brianna Freeman of Lewiston is suing the owner of the Denny's franchise, Realty Resources Hospitality, in Androscoggin County Superior Court.

Freeman says she is not seeking damages, just the right to use the women's room. "I live and breathe as a female every day. I dress it, I portray it. I exhibit it," Freeman says. "I see a counselor about three times a month. And I see a doctor regularly and get hormone treatments every day."

Freeman says she had been using the women's room at Denny's for about a year before she was told to stop by a restaurant manager in October 2007. Freeman, a 45-year-old former software developer who is saving up for a gender reassignment surgery, says she doesn't belong in the men's room.

"I would feel too vulnerable and very much at physical risk of being attacked by any of the male patrons," Freeman says. "There are some men around here that think this is wrong and people like this don't deserve to live. I'm not willing to take that chance."

But the Denny's management sees Freeman as a man. Rockland attorney Patrick Mellor represents Realty Resources Hospitality. "It's our position that Denny's took the appropriate step and asked the plaintiff, whose legal name is Bruce Freeman and who was described as the sex of male at birth, to use the men's restroom. That's not a discriminatory action."

Mellor says that female patrons had complained to the restaurant about Freeman being in the women's restroom. "The obvious concern with a business like Denny's is the safety of its patrons. And we're not suggesting the plaintiff would take any inappropriate actions when using the woman's restroom, and have never suggested that this plaintiff has done anything inappropriate. The problem is that another individual with inappropriate motives could abuse the policy that permitted a male to use the woman's restroom."

Attorneys for both the plaintiffs and defendants say the case is unusual, not just for Maine, but for the rest of the country.
Mellor says it may be because transgender individuals are a minority in the country.

But Freeman's attorney, Jennifer Levi, says most other restaurants have more open-minded policies about their bathrooms. "Once they understand more about transgender people, and what that experience is, just respect the person's gender's identity,"

Levi says that none of the complaints related to public restrooms use by transgender people in the New England states served by her group, Gay & Lesbian Advocates & Defenders, have gone as far down legal channels as the one in Maine.
"So most restaurants would say, 'That's fine, you're a woman, than you should have access to a woman's bathroom.'"

The lawsuit proceeds as the transgender community celebrates a change in U.S. passport policy. People no longer need to have had sex assignment surgery to designate themselves as transgender. Proof of clinical treatment is all that is needed.

But advocates say that the Maine case -- as well as a separate ongoing controversy in Maine over restroom use by transgender students -- is a reminder of the need to uphold anti-discrmimination laws in the dozen states that have them, such as Maine.

The Androscoggin Superior Court referred to the Maine Human Rights Act to reject Denny's bid to have the case dismissed. Mara Keisling is executive director of the National Center for Transgender Equality, "It's very interesting, and troubling to see that a large, national corporation would try to circumvent a pretty clear law in order to, I don't know, suppress diversity."

A spokesperson for Denny's says the company can't comment on pending litigation, or whether there are brand standards when it comes to restroom use in franchises. More than 85 percent of Denny's are franchises.

The case is supposed to go before an Androscoggin Superior Court judge sometime in the next year.