No, Letting Boys Use the Girls’ Bathroom Is Not “Settled Law” in Maine

Maine’s public institutions, especially the government-run schools, have been consumed in recent years with crafting policies on the basis of left-wing gender ideology. Specifically, this ideology clings with religious fervor to the idea that biological sex is meaningless, that gender is purely a social construct, and that a man should be free to invade spaces previously protected for girls and women if he decides, at any given moment, to identify as something other than a man.

The gender ideologues have found no better partner in this perversion of science, law, and reality than the Portland-based law firm Drummond Woodsum. That law firm has engaged in the very profitable, taxpayer-funded work of instructing schools and school boards how to convince taxpayers that they have no choice but to do whatever the pink-haired extremists on the left say because questions of transgender accommodation are settled law.

There’s only one problem: That’s not true at all. In fact, it’s a pernicious lie — a lie that has been repeated ad nauseum such that even Mainers with commonsense may believe it’s true. Indeed, the Drummond-Woodsum-approved policies proliferating throughout schools may in fact amount to unconstitutional violations of the right to privacy held by all students.

The Supreme Court has long recognized sex as an immutable characteristic, much like race or national origin. It’s a lottery of birth, not a fashion statement. On this basis, Maine law requires schools provide separate facilities for the sexes. Most people whose brains haven’t been warped by TikTok understand exactly why it’s a good and healthy idea for teen and pre-teen girls and boys to have separate bathrooms.

Simultaneous to what Maine law requires in terms of sex-based facilities, the Maine Human Rights Act champions equal access regardless of “gender identity.” It’s a legal tension that schools have, so far, attempted to reconcile by siding with transgender activists and pointing at Drummond Woodsum’s taxpayer-funded stooges as though they are infallible arbiters of the law.

However, if you actually read the Maine Law Court case (Doe v. Regional School Unit 26, 2014) that dealt with transgender bathroom access at schools, the narrow ruling does not say what transgender activists have regularly insisted that it does. Just yesterday, in fact, Asst. Senate Majority Leader Mattie Daughtry (D-Cumberland), while opposing a bill to protect young women from having boys lurk in their school restrooms, insisted that the “Supreme Court case really did settle this.”

Daughtry may believe what she said is true, but that doesn’t make it so. This appears to be a case where left-wing activists have just repeated a talking point long enough and loudly enough for school officials, taxpayers, elected officials, and voters to be battered into submission.

Contrary to what Daughtry and her comrades on the left have asserted, Maine’s Law Court was explicit that their decision was specific to the individual plaintiff and not a broader rule about bathroom policies. The Court did determine that RSU 26 was required to accomodate the individual student, but a substantial part of their decision relied on an actual medical diagnosis, rather than a personal, fleeting assertion of gender identity by a minor.

Here’s what the Maine Supreme Judicial Court ruled when they vacated the lower court’s more expansive ruling:

“[W]e emphasize that in this case the school had a program carefully developed over several years and supported by an educational plan designed to sensitively address Susan’s gender identity issues. The determination that discrimination is demonstrated in this case rests heavily on Susan’s gender identity and gender dysphoria diagnosis, both of which were acknowledged and accepted by the school. The school, her parents, her counselors, and her friends all accepted that Susan is a girl.

“Thus, we do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are present in this case. Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice. Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly. Where, as here, it has been clearly established 14 that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA.” (Emphasis Added)

In other words, a school district would only need to accomodate a young man who claims he’s “nonbinary” and wants to use the ladies’ room if that young man had a medical diagnosis. A transient claim that a student identifies as one of the new genders that have been invented in the last decade is not sufficient to mandate a school provide accommodation. The Law Court wisely and reasonably observed a distinction between long-established, medically recognized gender dysphoria versus a young guy who decides one day it would make him more interesting to say he’s a genderqueer pansexual furry.

Justice Andrew M. Mead, in his dissent, pointed out the obvious: when you have two laws at loggerheads – one demanding sex segregation in restrooms, the other preaching the gospel of non-discrimination – you’re essentially setting the stage for a legal showdown. Doe did not resolve this tension totally, but that hasn’t prevented left-wing activists from pretending as if it did. Instead of actually reading the Law Court’s decision, many schools in Maine have decided that young men may, on a whim, invade spaces customarily reserved for females and thereby undermine their right to privacy.

The deliberate choice school officials have made to prioritize radical left-wing ideology over the psychological and biological well-being of young Mainers is outrageous. For too long, those who have stood up in favor of common-sense, sane school policies — policies that accord with the Maine Law Court’s aforementioned ruling — have been shouted down by extremists who ignore the law, science, and the growing medical consensus around the harms inflicted by so-called “gender affirming care.” Enough is enough.

The U.S. Supreme Court hasn’t yet had its final say on the bathroom debate. Until it does, any declaration of “settled law” is premature. Those who are engaged in the fight to protect the dignity and privacy of young Maine women should demand that left-wing extremists actually read what the Maine Law Court has said on the matter, rather than merely pointing to well-paid Portland area leftists with law degrees. Only when the Supreme Court finally weighs in will we know whether we’re returning to the historical norm of sex-segregated bathrooms or charting a new course that prioritizes leftist fantasies over reality.

In the meantime, the clear letter of the law is on the side of sanity and common sense, and Maine parents should not be cowed into thinking otherwise simply because they have blue collars and calluses on their hands rather than Italian suits and $10,000 watches.