New Gender Discrimination Guidelines Stir Controversy

By: Tom Porter – mpbn.net

The Maine Human Rights Commission today released draft guidelines designed to protect students against discrimination based on sexual orientation. The guidelines assert the rights of transgender students to have access to the bathrooms and to the sports teams that correspond with the way they see their sexual identity.

Transgender students are defined as those whose identity differs from their biological, or assigned sex at birth. So a biological boy who identifies as a female should have the right to play for the girls’ team, says John Gause, an attorney with the Maine Human Rights Commission.

“What we hope to do is give students, schools, colleges, athletic associations, some answers to the questions that we’ve thought about for a long time, and hopefully those answers will enable students who are transgender to participate equally in schools,” Gause says. In 2005 the Maine Human Rights Act was amended to include sexual orientation, and these guidelines, says Gause, offer protection to all students, up to and including college level.

The issue hit the headlines after a 2007 court case in Orono, in which a transgender fifth grader, who was born a boy, was denied access to the girl’s bathroom. There is, however, real concern over the guidelines among those directly involved in public education.

“The guidelines say that a student who says he or she is transgendered shall be entitled to use the bathroom that’s consistent with his or her gender identity,” says Bruce Smith, attorney for the Maine School Management Association, which represents the state’s school boards and superintendents. “We think that presents problems in schools, not because it can never work, in some situations it may work, but given the realities of what goes on in schools and the potentials for harrassment, and the fact that bathrooms in particular are a place where students are not necessarily always on their best behavior, that it may not be the right thing to, in all cases, allow transgrender students to use the bathroom consistent with their gender identity.”

Smith was among those invited to review the preliminary guidelines at a meeting in December, but he says the drafting of the guidelines should have been more public. “The guidelines have not undergone any meaningful public review that would involve, particularly, input from schools, school boards, administrators, teachers, students, the whole range of people that we think could potentially be affected by these guidelines.”

“The MPA had concerns from early on when we first heard about the guidelines that there wasn’t enough input from constituencies who are going to be directly affected,” says Attorney Meg LePage, who represents the Maine Principals Assocation, which oversees high school athletics in the state.

She agrees with Smith that the process has gone on behind closed doors. LePage also shares Smith’s view that the guidelines go far beyond the Maine Human Rights Act. “The commission invited whoever they wanted to be at the table and heard primarily from advocates of the gay and lesbian community and those advocating for rights for transgendered and bisexual students and that’s mostly what they heard.”

The Human Rights Commission’s John Gause maintains that the organization has been seeking feedback from schools and colleges during the two years it took to draw up the guidelines. He also fired back at critics who say the guidelines are particularly unfair for girls who may have to compete in sports against a transgendered, biological male.

There are says Gause, many factors that contribute to athletic ability. “On an individual basis, however, it’s nearly impossible to determine whether a student is better at the sport because they are a boy or a girl. So it’s not appropriate to exclude students who are transgendered from sports altogether.”

“When it comes to athletics, unlike other aspects of education, biological sex matters, and it makes a real profound difference in terms of a student’s competitive advantages,” says Meg LePage. LePage says the commission has taken a step back in failing to recognize this.

She cites the example of a recent state cross-country championship meet, in which the best performing girl athlete, who competes at a national effort, had the same time as the boy who came in 95th in the race.

Student tennis player Mason Friedmen agrees that boys have a physical advantage. “Females in general are supposed to have more fat on their bodies than males in order to actually be pregnant or have their period, normally,” says Friedman, a junior at the University of Southern Maine who’s majoring in human biology. “So males tend to be leaner and have stronger cores, especially in high school.”

And as for the subject of sharing bathrooms with transgendered biological males, “That doesn’t really bother me,” she says. “Because if somebody thinks they’re a girl they’re not going to be in there checking out chicks, they’re just going to be in there to go to the bathroom. It’s not some ridiculous thing. I mean I’ve been to France where guys sneak into the bathroom and look over the stalls, that’s weird, but if you think you’re a girl, you think you’re a girl.”

Senior Kyle Bryan and freshman Emily Walters have a similar laissez faire attitude on bathroom use in colleges. “I’m not particularly concerned with it, I think that gender roles in society are little too strict anyway, and most bathrooms should be co-ed,” Bryan says.
“I don’t think it should be an issue — I think they should be able to express themselves however they want, if and they feel like they want to use that restroom they should be able to,” Walters says.

The guidelines on sexual orientation in schools and colleges have been sent to Maine’s human rights commissioners for review, and they’re due to give their verdict at a meeting on March 1st.