HOW MUNICIPALITIES IN MAINE SHOULD ADDRESS THE MAINE SUPREME COURT'S RECENT DECISION ON TRANSGENDER ACCESS TO SEX SEPARATED FACILITIES
March 28, 2014
In the much publicized case of Doe v. RSU 26, 2014 ME 11, the Maine Supreme Judicial Court recently held that a school discriminated against a transgender student, a biological male who identified as a female, when it refused her access to the girl's restroom. Municipalities in Maine should be aware of this case because it was decided under the public accommodations section of the Maine Human Rights Act, and most municipal facilities are public accommodations. The holding in Doe therefore applies not only to public schools in this state, but also to cities and towns.
The Doe decision held that a place of public accommodation may not limit access to traditionally sex-separated facilities based solely on biological sex. Rather, public accommodations must provide access that corresponds to the individual's gender identity in instances where that gender identity is clearly established pursuant to an accepted diagnosis and where providing access is necessary for the individual's well-being. As the Maine Supreme Court specifically noted, this does not mean that places of public accommodation must provide individuals with casual access to bathrooms of their choice "based solely on their self-declaration of gender identity or confusion." Thus, this decision does not require cities and towns to allow members of the public to access the restrooms of their choice on demand. It is only where an individual is able to produce an accepted diagnosis and work out a plan for access with the public accommodation that the law will require that access be granted.
As a practical matter, the Maine Supreme Court's holding in Doe will likely only come into play for those municipalities that operate municipal pools and other recreational programs that include sex separated facilities where members of the public have an ongoing relationship with the program. In those circumstances, the municipality may be required to comply with a request by a transgender individual for access to sex separated facilities that are different from his or her biological sex. Because instances of transgender request for access are on the rise in Maine, we believe municipalities with recreational programs that may give rise to such requests would be well served to develop procedures establishing how requests for access will be addressed before issues arise. These procedures should, at a minimum, affirm the municipality's commitment to avoiding discrimination and spell out who in the organization is responsible for handling requests for access and what documentation will be required to permit access. If you have any questions please feel free to contact anyone in our Municipal Law Group.