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Maine Child Welfare Groups Weigh in on Transgender Suit
05/03/2013   Reported By: Susan Sharon

The Maine Chapter of the American Academy of Pediatrics, along with the Maine Chapter of Social Workers and the Maine Psychological Association, are weighing in on a closely-watched court case involving a transgender girl who was forced to stop using the girls' restroom at her Orono elementary school. As Susan Sharon reports, the groups have filed a "friend of the court" brief on behalf of the girl, whose case is being appealed to the Maine Supreme Court.

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In their brief filed with the Maine Supreme Court, the child welfare groups say that a "girl who happens to be transgender should be fully recognized and respected as a girl - irrespective of whether she has undergone any particular medical treatments." To do otherwise, they say, "consigns her to a life of discomfort and distress."

The case began six years ago when the fifth-grade student, known as Susan Doe in her lawsuit, was forced to use a separate, staff-only restroom after another student's grandfather complained that she was a boy and shouldn't be allowed to use the girls' restroom.

Susan Doe, who has since been publicly identified as Nicole Maines, was born a boy but identified as a girl from a very young age. She dressed, acted and looked like a girl. Now 16, Nicole described herself this way in an interview with MPBN two years ago.

"The thought of me being a boy just kind of makes me cringe," she said. "I couldn't do it. So I would always wear the turtleneck shirt as long hair. I was always into the girl characters of everything. That's how I rolled. I was like, yeah, I'm a girl. I don't think I could be a boy."

The groups say in their brief that "from a medical and health persepctive, sexual identity...is the most important determinant of a person's sex." They say that for normal psychological development and educational growth, transgender students must be able to integrate how they feel into their life experience, and that, they say, must include the ability to use the restroom consistent with their gender identity.

Dr. Steven Feder is a Boothbay Harbor pediatrician and president of the Maine Chapter of the American Academy of Pediatrics.

"It's very well established that there is something called Gender Identity Disorder, or Gender Dysphoria, and there's a very specific plan of treatment for that, some of which can be medical but much of which is supportive and nurturing," he says.

Feder says his group, which includes 200 pediatricians in Maine, wants the court to recognize that anything that separates a child out because of a medical condition can be psychologically damaging.

The Maine Human Rights Act prohibits schools from discriminating based on a child's gender identity in any aspect of school life. And Nicole and her family filed a lawsuit aginst the school district in 2009 for unlawful discrimination in education and public accommodation.

But last year a Penobscot County Superior Court ruled that the school district "acted within the law under the public accommodation discrimination claim." Melissa Hewey is the attorney for the school.

"The law specifically allows for what the school did and therefore it can't be discriminatory," she says. "And there are certainly arguments on both sides of the issue, and that's an issue that the Legislature, not the courts, needs to grapple with."

In her own brief, Hewey points out that Maine law allows schools to separate bathrooms on the basis of sex rather than gender identity. She writes that "unless or until a statute mandates a different policy, separate bathrooms on the basis of sex is not unlawful discrimination under the Maine Human Rights Act."

The Maine Supreme Court has not yet scheduled oral arguments in the case.



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