by Peter D. Lowe and Connor Beatty
On Thursday, January 30, Maine’s Supreme Judicial Court issued a groundbreaking and controversial decision. The Law Court ruled that a school district discriminated against one of its students when it told the student she couldn’t use the female restroom because she is transgendered. Although this decision directly affects places of public accommodation, it also may have major ramifications for employers. The decision calls into question whether it’s permissible to have separate-sex bathrooms at all under current law.
Maine Employment Law Letter first wrote about this case back in 2010, when it was before the Maine Human Rights Commission. To refresh your memory, the student in question was born male but began to express a female gender identity as early as age two. Since the third grade, the student began dressing as a girl and was referred to by students and teachers as “she.” She also began using the school’s female restroom.
This continued without incident for quite some time until a male student followed the transgendered student into the female restroom, allegedly at the urging of his guardian, who disapproved of the school’s decision to allow her to use the female restroom. Following that controversy, the school told the student she could no longer use the female restroom and instead should use the single-stall faculty restroom. No other female student was forbidden to use the female restroom.
In a split decision, the majority ruled in favor of the student and held that the school discriminated against her on the basis of her gender identity in violation of the Maine Human Relations Act (MHRA). Although the specific provision of the MHRA at issue in this case was nondiscrimination applicable to places of public accommodation, employers are similarly forbidden from discriminating against employees on the basis of their sex, sexual orientation, or gender identity. Therefore, we would expect that employers could face similar claims of discrimination based on limits imposed on bathroom use based on sexual orientation, gender expression, and gender identity.
What it means
The Law Court’s decision creates as many questions as answers. As both the concurring and dissenting justices pointed out, if a school is unable to prevent a student from using a particular restroom on the basis of sexual orientation or gender identity because they’re protected classifications under the MHRA, does that mean a school also can’t segregate bathrooms on the basis of sex because that, too, is a protected classification? A logical interpretation of this decision is that a public accommodation may not exclude a man from a woman’s bathroom based on the fact that he is male.
We expect that there will be calls for legislative changes. In fact, the court practically begged the legislature to amend the relevant statutes so they could continue to prevent discrimination on the basis of gender identity without also holding that all forms of bathroom segregation are impermissible. But this is a complicated and controversial issue. We will keep our readers posted on any new developments in this area that would affect employers.
Peter D. Lowe is a partner with Brann & Isaacson and an editor of Maine Employment Law Letter. You can reach him at firstname.lastname@example.org. Connor Beatty is an associate with Brann & Isaacson and a contributor to Maine Employment Law Letter. You can reach him at email@example.com.