STATE HOUSE

April 13, 2011

Legislation sorts bathroom users by 'biological sex'

By Rebekah Metzler rmetzler@mainetoday.com
MaineToday Media State House Writer

AUGUSTA -- State Rep. Ken Fredette, R-Newport, says he has a simple solution to a complicated issue that would ease uncertainty in schools and the business community.

However, dozens of opponents of his bill, L.D. 1046, say it would roll back the rights of some Maine citizens and add discomfort in an area where most prefer privacy: the bathroom.

Fredette's measure would allow businesses and schools to require people to use restrooms coinciding with their biological gender, rather than the gender with which they identify. It also would eliminate the ability of transgender people to sue based on discrimination if they are denied use of their preferred restrooms.

"(This bill) permits schools, colleges and private businesses to establish bathrooms based on biological sex and to not be sued in Superior Court for simply doing that," Fredette said in testimony Tuesday before the Legislature's Judiciary Committee. "In fact, this bill allows school boards and business owners to make accommodations for transgenders based on best business and educational practices, but at the local level and not mandated from Augusta."

Fredette's proposal stems from his service on the Maine Human Rights Commission, when it found unlawful discrimination in two cases concerning transgenders' bathroom use under Maine's Human Rights Act.

A case decided last year involved a middle school boy in Orono who identifies himself as a girl and wasn't allowed to use the girls' bathroom. In the other case, decided in 2009, a transgender woman was denied use of the women's restroom at Denny's Restaurant in Auburn.

Both instances prompted lawsuits, though the Denny's case was resolved out of court.

Fredette dissented in both findings by the commission.

As a lawmaker, he said, he's intent on providing "balance" in the law.

Gov. Paul LePage supports the measure, according to testimony from his chief legal counsel, Dan Billings.

"We agree that the way to deal with these issues is to try and work them out," he said. "(But) when you are sitting down to work out these things, one side of the discussion has a club, and that's the litigation that's currently allowed by the Maine Human Rights Act; and by passing this bill, you bring that back to a more even playing field."

For the many Mainers who spoke in opposition, Fredette's proposal represents an erosion of civil rights.

"Make no mistake about it, this is a repeal bill," said Jennifer Levi, director of Gay and Lesbian Advocates and Defenders' Transgender Rights Project. "The reality is that the current law is working and it's working fine. In nearly six years of nondiscrimination law being enforced, only three cases have ever been filed involving transgender people being denied access to restrooms."

Levi said the Denny's case "was an example of the workability of the current law and the demonstration of the disastrousness of the so-called biological rule."

The restaurant's management realized over time that to avoid getting sued for discrimination, it would have to ask every customer who wanted to use the restrooms to confirm their biological sex, Levi said.

Max Katler of Whitefield said many people he interacts with don't even know he is transgender.

"Until today, I have never had a problem using a public restroom, have never gotten so much as a dirty look," he said. "That would all change under this bill. Every day, whenever I was involved in public or civic life, like attending this hearing, I would be subject to public inquiry invading into the most private aspects of my life."

Others said the proposal would cause more discomfort, not less.

"Why make these people stand out even more when all they want is to blend in?" said Marissa Exchange, a teenager from Westbrook.

By approving a ballot question in 2005 that expanded Maine's Human Rights Act to apply to sexual orientation, including gender identity, Mainers weighed in on the issue, said Kate Knox, on behalf of Equality Maine.

In 2007, she said, lawmakers voted down a measure similar to Fredette's.

"In a just society, discrimination is intolerable in any measure. You either treat everyone fairly or you discriminate," Knox said.

The Maine School Management Association testified in support of Fredette's bill, as did representatives from the Christian Civic League of Maine and Concerned Women for America in Maine.

Groups lining up in opposition included the Maine Civil Liberties Union, the Center for Prevention of Hate Violence, the Maine Women's Lobby, Maine's Transgender Network, the Maine branch of the National Association of Social Workers and the Religious Coalition Against Discrimination.

The Maine Restaurant Association testified but did not take a position on the bill.

The Judiciary Committee will schedule a vote on the issue in the coming weeks.

Rebekah Metzler -- 620-7016

rmetzler@mainetoday.com

 

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