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| Gay & Lesbian Advocates & Defenders | ||
DiscriminationMaine Anti-Discrimination LawDoes Maine have an anti-discrimination law protecting gay, lesbian, bisexual and transgender individuals from discrimination?Yes. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, "An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation", passed by the Legislature and signed by the Governor in the spring of 2005. The law went into effect December 28, 2005. This marks the end of a long struggle in Maine to achieve legal protections for LGBT people. In November 1995, Maine voters rejected an attempt to limit the protected classes to those already included within the non-discrimination law. In May 1997, Maine approved an anti-discrimination law based on sexual orientation, but this law was repealed in a special election in February 1998. Then in November 2000, by the smallest of margins, Maine voters failed to approve a second anti-discrimination law that had been approved by the legislature. The law provides protection against discrimination based on sexual orientation which is defined as "...a person's actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression."1 Does it also protect people perceived of as gay, lesbian, bisexual and transgender?Yes. The non-discrimination law specifically covers people who are perceived to be lesbian, gay, bisexual or transgender. What kinds of discrimination does the anti-discrimination law address?The Maine law prohibits discrimination in:
Are there other non-discrimination protections available in Maine?Yes. Several cities and towns have enacted non-discrimination ordinances, including Portland, Falmouth, South Portland, Long Island, Orono, Sorrento, Westbrook and Bar Harbor. In Clarke v. Olsten Certified Healthcare Corp., the Maine Law Court assumed without so stating that the Portland ordinance is enforceable.3
1 5 Me. Rev. Stat. sec. 4553 (9-C). EmploymentTo whom does the non-discrimination law apply and what does it forbid?The non-discrimination law applies to governmental employers (local and state) and private employers with any number of employees.4 It forbids employers from refusing to hire, or discharging, or discriminating against the employee with respect to any employment matter, including hiring, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment. Nor may an employer use any employment agency that discriminates.5 Harassment based on sexual orientation is included within "terms and conditions" of employment. Employment agencies may not refuse to: classify properly; refer their customers for employment; or otherwise discriminate because of sexual orientation. Labor organizations (e.g. unions) may not deny apprenticeship, membership or any membership rights or otherwise penalize or discriminate against their members because of sexual orientation.6 The law also forbids any employer, employment agency, or labor organization, prior to employment or membership, from eliciting or recording information about a person's sexual orientation, printing any advertisement indicating any preference or limitation based on sexual orientation, or having a system of denying or limiting employment or membership opportunities based on sexual orientation.7 Does the law apply to every employer?No, there is a religious exemption that provides:
This appears to mean that certain non-profit religious entities (not individuals) are exempt from the law, and a religious organization may require all applicants and employees to conform to the religious tenets of that organization.9 The full scope of this exemption may be sorted out in specific court cases. Does the non-discrimination law have any impact on my employer's obligation to provide domestic partner benefits to my partner of the same-sex?Possibly yes. The non-discrimination law can be a powerful tool to equalizing treatment in compensation, and therefore, valuable "fringe benefits." As discussed below in the family section of this booklet, the state and several municipalities have already equalized some benefits like health insurance.10 Private employers in Maine are neither required to offer health insurance to their employees nor to offer spousal or family coverage. However, all employers have the option of providing health insurance to all their employees and their families. In addition, some employers who provide such coverage may be obligated to provide insurance to same-sex partners to comply with the Maine insurance laws and/or anti-discrimination law. This area of law is complicated and you should feel free to contact GLAD for information specific to your situation.
4 5 Me. Rev. Stat. sec. 4553 (4) (definition of employer). HarassmentDoes Maine law forbid sexual harassment?Yes, sexual harassment is expressly prohibited by state law.
Although the Maine Law Court has not specifically ruled on the question, it should be as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation. Other harassment is sexual in nature and more appropriately categorized as "sexual harassment." Both types of harassment can happen to the same person, and both are forbidden. Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws. Compare Oncale v. Sundowner Offshore Services12 (man can sue for sexual harassment by other men under federal sexual harassment laws) to Melnychenko v. 84 Lumber Co.13 (same-sex sexual harassment forbidden under Massachusetts state law). Are there any protections from sexual orientation harassment?Yes. In September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules that expressly acknowledged the existence of sexual orientation harassment.14 Under these rules, unwelcome comments, jokes, acts, and other verbal or physical conduct on the basis of sexual orientation constitute harassment when:
Employers or labor organizations are responsible for their actions and for those of their employees with respect to sexual orientation harassment.16
11 94-348 Rules of Maine Human Rights Com'n, 3.06 I (1). Available at: http://www.maine.gov/mhrc/laws/index.html. Public AccommodationsWhat is a place of public accommodation?A place of public accommodation means a facility operated by a private or public entity whose operations fall into categories such as lodging, restaurants, entertainment, public gathering, retail stores, service establishments, transportation, museums, libraries, recreation facilities, exercise or health facilities, schools and educational institutions, social service establishments, or government buildings. Generally, any establishment that caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from the general public is a place of public accommodation.17 What does the law say about discrimination in places of public accommodation?The law makes it illegal for places of public accommodation to discriminate on the basis of sexual orientation or "...in any manner withhold from or deny the full and equal enjoyment ... of the accommodations, advantages, facilities, goods, services or privileges of public accommodation." The law also makes it illegal to advertise that any place of public accommodation is restricted to people of a particular sexual orientation.18
17 5 Me. Rev. Stat. sec. 4553 (8) (definition of "public accommodation"). HousingWhat is prohibited by the housing anti-discrimination law in Maine?The fair housing laws apply to any person with the right to sell, rent, lease or manage residential housing. It covers any transaction related to housing - including advertising, inquiring, showing, selling, renting, leasing, pricing, evicting, misrepresenting availability or asking price, or failing to communicate an offer.19 The law declares that every individual has a basic civil right to secure decent housing in accordance with the individual's right to pay and without discrimination because of sexual orientation.20 Those who finance housing - whether financing for the acquisition, construction, rehabilitation, repair or maintenance of residential housing - are barred from discriminating. Are any landlords exempt from the housing anti-discrimination law?The following landlords are exempt from the law:
19 5 Me. Rev. Stat. sec. 4582. See also "Panel backs 2 men in housing complaint," Bangor Daily News, Sept. 18, 2007 (discusses first case where the Maine Human Rights Commission "found reasonable grounds to a housing discrimination claim based on sexual orientation.") CreditHow does the Maine anti-discrimination law protect people with regard to credit?It is unlawful credit discrimination for any creditor to refuse the extension of credit to any person solely on the basis of sexual orientation.22 The law requires that the Superintendent of Financial Institutions and the Superintendent of Consumer Credit Protection cooperate with the Maine Human Rights Commission in enforcing the credit anti-discrimination law.23
22 5 Me. Rev. Stat. sec. 4596. EducationHow does the Maine anti-discrimination law apply to education?Maine law applies to both public and private schools and makes the following discrimination on the basis of sexual orientation unlawful:
Are any educational institutions exempt from the law?Yes. Any educational facility owned, controlled or operated by "a bona fide religious corporation, association or society" is exempt.25
24 5 Me. Rev. Stat. sec. 4602. Transgender / Gender Identity DiscriminationWhat protections exist for transgendered people under the discrimination laws?The definition of sexual orientation in the law includes a person's "actual or perceived gender identity or expression." While this could be more artful, it is explicit protection for transgender persons in Maine.26 The Maine Human Rights Commission has also set out its view that employers must reasonably accomodate employees with respect to gender identity and gender expression issues in the workplace. The only legitimate reason for failure to do so is if doing so "would impose an undue hardship on the conduct of the business."27 In some cases a transgender person may also have a claim of sex or disability discrimination if he or she is adversely treated at work, in housing, in a place of public accommodation, in a credit transaction or at an educational institution. If the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a "real man" or "real woman," then this can be the basis for a sex stereotyping claim as well. See Price Waterhouse v. Hopkins28 and Rosa v. Park West Bank29. In September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules to add "sexual orientation" to the protected classifications under the Maine Human Rights Act. As part of these amendments, the MHRC defined both "gender identity" and "gender expression" as protected under the definition of "sexual orientation." The Commission defined "gender identity" as an "individual's gender-related identity, whether or not the identity is different from that traditionally associated with that individual's assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous."30 It has also defined "gender expression" as "the manner in which an individual's gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle."31 For more information, see GLAD's publication, Transgender Legal Issues, at: http://www.glad.org/rights/Transgender_Legal_Issues.pdf.
26 5 Me. Rev. Stat. sec. 4553 (9-C). Pursuing a ComplaintHow do I file a complaint of discrimination? What happens after I file?You should contact the Maine Human Rights Commission (MHRC) at (207) 624-6050; or at State House Station #51, Augusta, ME 04333-0051, or on the web at www.state.me.us/mhrc. The Commission prefers for people to file complaints in writing. For an overview of this process refer to the MHRC regulations, available at http://www.maine.gov/mhrc/laws/. The complaint must be under oath, state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the "respondent"). The complaint must set out the particulars of the alleged unlawful acts and the times they occurred.32 Once a complaint is timely filed, a Commissioner or investigator will seek to resolve the matter. If he or she cannot do so, the Commission will proceed with an investigation to determine if there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission has extensive powers during the course of the investigation. Among other things, it can examine persons, places and documents, and require attendance at a fact-finding hearing, and issue subpoenas for persons or documents. If the Commissioner or investigator concludes:
Once the Commission process is complete, and if settlement has failed, a person can file an action for relief in court. A person may also request a "right to sue" letter from the MHRC if there has been no court action filed and no conciliation agreement in place within 180 days of filing the complaint.36 The person may then file an action in the Superior Court.37 In some situations, the Commission may file an action in court on your behalf.38 Do I need a lawyer?Not necessarily. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find a lawyer to represent them throughout the process. Not only are there many legal rules governing the MHRC process, but employers and other respondents will almost certainly have legal representation. Please call the GLAD Legal InfoLine for help or for an attorney referral. What are the deadlines for filing a complaint of discrimination?A complaint must be filed with the MHRC within 6 months of the discriminatory act or acts.38 There are virtually no exceptions for lateness, and GLAD encourages people to move promptly in filing claims. Actions filed in Superior Court must generally be filed "not more than 2 years after the act of unlawful discrimination complained of."39 What are the legal remedies for discrimination?This is a complicated area and depends on a variety of factors, including the type of discrimination and its intersection with federal laws. As a general matter, the MHRC tries to resolve cases in which reasonable cause is found. It is not empowered to award emotional distress damages or attorney's fees, but the parties may agree to whatever terms are mutually satisfactory for resolving the issue.40 As a general matter, if a person has filed with the MHRC, completed the process there, and later files his or her case in court, then a full range of compensatory and injunctive relief is available.41 If a discrimination complainant takes his or her case to court without first filing at the MHRC, then only injunctive relief is available in court, such as a cease and desist order, or an order to do training or post notices.42 The relief ordered by a court may include: (a) hiring, reinstatement and back pay in employment cases; (b) an order to rent or sell a specified housing accommodation (or one that is substantially identical), along with damages of up to three times any excessive price demanded, and civil penal damages to the victim in housing cases; and (c) in all cases, where the individual has exhausted the MHRC process, an order for attorney's fees, civil penal damages, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices). Can I claim discrimination on a basis other than sexual orientation?Yes, but only if you are treated differently because of a personal characteristic protected by Maine law.
Are there other agencies at which I can file a complaint for discrimination?You may be able to file complaints with other agencies depending on the facts of your particular situation. This outline concerns only Maine non-discrimination law, and you may well have other rights. 1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation. 2. Federal Agencies: Sometimes an action states a claim for a violation of federal law in addition to state law. For example, federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation. Thus, a gay person who is fired from a job because of his or her sexual orientation can file with the MHRC only. In other instances, an employee can file with both the MHRC and the federal Equal Employment Opportunity Commission (for cases when physical disability is involved.) For example, a gay person with HIV who is fired from a job can file with the Commission as well as the federal Equal Employment Opportunity Commission (EEOC). Federal non-discrimination laws only apply to employers with at least 15 employees, and complaints must be filed within 300 days of the discriminatory act. For more information, see the EEOC website available at http://www.eeoc.gov. 3. State or Federal Court: After filing with the MHRC or EEOC (if you file with one on grounds protected by both state and federal law, your complaint is automatically cross-filed with the other), as discussed above, a person may decide to remove his or her discrimination case from those agencies and file in court. There are rules about when and how this must be done. In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example:
What can I do if my employer fires me for filing a complaint of discrimination?It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation. "Retaliation" protections cover those who participate in MHRC proceedings or otherwise oppose unlawful conduct, whether as a complainant or as a witness. If the employer takes action against an employee because of that conduct, then the employee can state a claim of retaliation.46 What can I do to prepare myself before filing a complaint of discrimination?In evaluating your potential claims, you have the right to request a complete copy of your personnel file at any time.47 Personnel files are the official record of your employment and are an invaluable source of information.48 Whether you leave a job voluntarily or not, be cautious about signing any documents admitting to wrongdoing, or that waive your legal rights, or that are a supposed summary of what you said in an exit interview. Sometimes employees are upset or scared at the time they are terminating employment, but the documents will likely be enforceable against you later. Please be cautious. As a general matter, people who are still working under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information and advice to make an informed decision. Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to your attorney an outline or diary of what happened on the job that you are complaining about. It is best if the information is organized by date and explains who the various players are (and how to get in touch with them), as well as what happened, who said what, and who was present for any important conversations or incidents. Try to obtain and bring copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.
32 5 Me. Rev. Stat. sec. 4611. Family LawMarriage, Civil Unions and Domestic PartnershipsCan same-sex couples marry in Maine?No. Some religious faiths perform marriages for same-sex couples within the rules of their faith, but without a state issued marriage license, these have no legal effect. In 1997, Maine passed a law forbidding marriage for same-sex couples, and refusing to recognize marriages of same-sex couples performed in other states.49 In 2005, the Maine Legislature squarely rejected a proposed constitutional amendment forbidding marriage of same-sex couples by votes of 88-56 in the House and 19-15 in the Senate. The amendment would have modified the state constitution to read: "Only a union between one man and one woman may be a marriage valid in or recognized by this State and its political subdivisions. This State and its political subdivisions may not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."50 Can Maine same-sex couples get married anywhere else?Yes. Canada does not have a residency requirement for marriage and permits same-sex couples to marry. See our publication, What Do I Need to Know About Getting Married in Canada? Some people may be able to wed in Spain, the Netherlands, Belgium, or South Africa, but the residency issues are much more complicated. As of May 2004, Massachusetts allows same-sex couples to legally marry. Although Massachusetts does not have a residency requirement for marriage, the former Massachusetts Governor revived an old law that says that non-residents may not marry in Massachusetts if their marriage would be "void" if contracted in their home state, as is the case in Maine. The former Governor used this law as a basis for instructing clerks to deny marriage licenses to same-sex couples from all other states. GLAD filed a lawsuit challenging this law, Cote-Whitacre v. Department of Public Health. This case was heard by the Massachusetts Supreme Judicial Court (SJC) and the final decision has been interpreted to mean that the only non-Massachusetts same-sex couples who can currently marry in Massachusetts are those who reside in Rhode Island, New Mexico, or indicate that they intend to reside in Massachusetts. Therefore, currently same-sex couples from Maine cannot marry in Massachusetts unless they both intend to reside there. If we are a legally married same-sex couple, will Maine respect our marriage?The general rule is that marriages are respected if they were valid where licensed and certified. The Maine legislature passed a law in 1997 that is an exception to the general rule. As a result, there will be no official state recognition. Public and private entities alike may nonetheless apply the general rule of validity to these marriages and accord marital benefits, protections and responsibilities to those couples. What protection will my partner and I gain if we go to another state with better legal protections and obtain a "civil union" or "domestic partnership"?It is GLAD's position that the legal status of civil unions and comprehensive domestic partner laws from Vermont, Connecticut, New Jersey, New Hampshire, Oregon and California should be respected in all other states just as marriages generally enjoy respect. Moreover, a civil union or domestic partnership is not a marriage. This means they are not within the scope of Maine's anti-marriage law. At the same time, respect for these other legal statuses will likely be won on a case by case basis. Can same-sex couples obtain any legal recognition of their relationships in Maine?Yes, although at present that recognition is not as complete as the recognition afforded to civilly married couples. In 2004, the Maine legislature approved and Governor John Baldacci signed a domestic partnership law titled "An Act to Promote the Financial Security of Maine's Families and Children."51 This law creates a domestic partnership registry in Maine and affords certain rights to registered domestic partners in the event of a partner's death or incapacity. It defines "domestic partners" as "2 unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other's welfare."52 The specific requirements for registration are set out below. What protections do I obtain by registering as a domestic partner under the state law?
Note: It is important to remember that in these matters, a written will and advance directive will supercede this law. Thus, if your partner has a written will or directive giving someone else any of these rights, that person will be given priority over you in asserting those rights, regardless of your registration as Domestic Partners. Who can register?Couples may become registered domestic partners in the State of Maine if they are "one of two unmarried adults who are domiciled under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other's welfare,"53 and they meet the following specific requirements:
How do you register in a registered domestic partnership?All Domestic Partner registrations are filed with the Office of Health Data and Program Management. To become registered domestic partners, the partners must jointly file a notarized form and pay the required filing fee of $35. Forms can be accessed at municipal offices, probate courts, Department of Health and Human Services offices and on the Office of Vital Records webpage: www.state.me.us/dhs/bohodr/domstcprtnrspge.htm. Once completed and notarized, the form needs to be returned to the Office of Vital Records in Augusta with the required filing fee, either by mail or in person. Once received, the registry will file the declaration and return two certified copies of it to the domestic partners at the address provided as their common residency.55 How do you end a registered domestic partnership?A registered domestic partnership is ended by:
What exists beyond the Statewide registry?
Does the State of Maine provide domestic partner benefits to state employees, such as health insurance for the employees' partners?Yes. State employees can receive health insurance for their domestic partners. The value of the state paid portion of the domestic partner health insurance coverage is income and taxable wages to the employee participant at both the federal and state level, unless the partner is also a tax dependent. Domestic partners of employees of the University of Maine System can receive health insurance, tuition waiver, access to university facilities, and all spousal benefits not restricted by federal law. Can cities and towns in Maine provide domestic partner health insurance benefits to their own employees?Yes. Many lawyers also believe this result is required by the non-discrimination law if the city or town provides benefits to heterosexual couples. It is also possible that under Maine's mini-COBRA law for companies with fewer than 20 employees (sexual orientation is not covered by the Federal COBRA law), employees with domestic partners will have the same right as heterosexual couples to maintain health insurance coverage after employment ends.71 Some employees provided these benefits before the non-discrimination law was amended to include sexual orientation. For example, the City of Portland extends domestic partner benefits, including health insurance, to qualified domestic partners of City and School Department employees. In order to qualify for such benefits, an employee must have his or her partnership registered by the City and must provide the City or School Department with two or more forms of proof exhibiting that they are jointly responsible for each other's common welfare and share financial obligations. Examples of such proof include the joint mortgage or ownership of property; the designation as a beneficiary in the employee's will, retirement contract or life insurance; a notarized partnership agreement or relationship contract; and any two of the following: a joint checking account, a joint credit account, a joint lease, or the joint ownership of a motor vehicle.72 Note that municipal domestic partner plans have withstood a court challenge. In 2004, GLAD, together with the Portland City Attorney and cooperating counsel, successfully represented the City of Portland in a challenge to the domestic partnership registry system and benefits offered there. The claim was that the domestic partnership law was superceded by the state anti-gay, anti-marriage law. See Pulsifer v. City of Portland, www.glad.org/GLAD_Cases/Pulsifer_Decision.pdf and www.glad.org/News_Room/press74-5-4-04.html. In addition, the cities of Bar Harbor and Camden and the County of Cumberland provide domestic partner health insurance benefits to their employees. Portland also maintains a domestic partner registry which allows people to register their relationships and receive family memberships and rights in city-run facilities. What kinds of domestic partner benefits may private employers provide?Private employers can provide to domestic partners many benefits, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. While it's hard to identify all employers providing benefits in Maine, they include L.L. Bean, Care Development of Maine, Fairchild Semiconductor, Idexx Laboratories, Inc., Energy East Corp., The Gale Group, Hannaford, Maine Coast Memorial Hospital, Maine Medical Center, TD Banknorth Group, the University of Maine System, the University of New England, and Bowdoin, Bates, and Colby Colleges.73 Even when employers provide these benefits, though, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of his or her partner's health insurance benefits (unless the partner is a tax dependent), but a spouse does not.74 Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent. As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. Now, beneficiaries may "roll over" the 401(k) into an IRA depending upon the employee's death whereas previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum.75 However, a domestic partner has no right to sign off if his or her partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on his or her partner's designation of another person for survivor benefits.
49 19-A Me. Rev. Stat. sec. 701(5) & 701(1-A). Legal Protections for Same-Sex CouplesWhat steps can a couple take to safeguard their legal relationship in Maine?1. Relationship Agreement or Contract: Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law. The Maine Law Court has not yet ruled on the subject, but that result comports with Maine contract law and the law of other states that have found such agreements to be enforceable.68 2. Durable Power of Attorney: Any competent person may appoint another person as his or her "attorney-in-fact" for financial and/or other matters in the event he or she becomes incapacitated or disabled.69 If no such appointment is made, then a "family" member will be empowered to make decisions for the disabled or incapacitated individual. A person may also nominate his or her guardian or conservator in the same document. This is a longer-term appointment that takes priority over the attorney-in-fact. This choice can only be rejected by a court for good cause or disqualification. The mere fact that a family member is not named as the guardian or conservator does not constitute good cause. 3. Durable Power of Attorney for Health Care: Medical care providers often look to next-of-kin to make health care decisions for an incapacitated individual. If an unmarried person wants someone other than his or her legal family to make these decisions, then a durable power of attorney for health care is a critical source of protection. In Maine, a person can appoint a health care agent to make decisions for him or her immediately, or upon incompetence.70 It must be signed by two witnesses (not including the person appointed as attorney-in-fact). It can only be revoked while he or she is still competent. Otherwise it must be revoked in court.71 While a written Durable Power of Attorney provides the most certainty that a person will be cared for by the person he or she wants to make those decisions, Maine law also has a procedure by which "an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse"72 can make health care decisions for an incapacitated person. This provision might be cumbersome to enforce, but provides a way for a partner to be involved in his or her incapacitated partner's health care decisions absent documentation. Within this Durable Power of Attorney for Health Care, or in a separate document called an "Advance Directive," a person may address end of life issues like artificial nutrition and other life-sustaining treatments.73 The Attorney General's Office has a model advance directive posted on their website, http://www.maine.gov/ag/index.php?r=healthissues&s=endoflife&t. While a written Advance Directive provides the most certainty that a person's wishes will be followed, Maine law also has a procedure for a person to make end of life decisions for another if they can prove they are family members.74 Spouses are given first priority, followed by "an adult who shares an emotional, physical, and financial relationship with the patient similar to that of a spouse"75. This provision might be cumbersome to enforce, but provides a way for a partner to be involved in his or her partner's end of life decision. 4. Will: Without a will and without having registered as a domestic partner, a deceased unmarried person's property passes to: (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as his or her partner, a will is essential. Even if a person has few possessions, he or she can name in the will who will administer his or her estate. If a person has children, he or she can nominate a guardian of the child which will become effective upon death. Such nominations are highly regarded by courts although they are not binding on the court. 5. Funeral Planning Documents: Upon death, a person's next-of-kin is given control of the deceased's body. This means that a person's own partner has no automatic right to remove the body or make plans for a final resting place.76 If a person has either (1) registered as a domestic partner under the state law; and/or (2) designated in writing that another person is to have custody and control of their remains (such as their partner or a friend), then that person will have control over the body as well as funeral arrangements and the selection of a final resting place.77 It is infinitely preferable to prepare funeral planning documents in advance than to leave instructions as part of a will since a will may not be found for days after death. Does a person need an attorney to get these documents?GLAD recommends working with an attorney on these documents. Although some forms are available, the form may not be suited to your individual needs and wishes and may not conform to the specific requirements of Maine law, which would render them invalid and unenforceable. Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members. In addition, many people find attorney assistance critical because same-sex couples are afforded different tax treatment from married heterosexual couples. Failure to consider tax consequences can lead to enormous difficulties upon death or separation. If a couple separates, what is the legal status of these documents?Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one. Absent an agreement, generally applicable rules about jointly owned property and accounts come into play. Some couples can get involved in costly and protracted litigation about property and financial matters but without the predictable rules of the divorce system to help them sort through it. It is notable that the Law Court has respectfully handled the dissolution of a same-sex domestic partnership under equitable principles and the law of joint tenancy.78 PLEASE NOTE: If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked -- with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person's present wishes.
68 See Wilcox v. Trautz, 427 Mass. 316 (1998). AdoptionCan a single gay individual adopt a child in Maine?Yes.79 Can same-sex partners together adopt a child in Maine?Yes, as the result of an appeal that GLAD made to the Maine Law Court concerning the refusal of a Maine Probate Court to assume jurisdiction of the joint adoption petition by a lesbian couple.80 In August 2007, the Maine Law Court ruled that the Probate Court did have jurisdiction and that state law allows for unmarried couples to adopt. This ruling makes it clear that joint or second parent adoptions by unmarried couples are permitted under Maine law. For more specific information on the process, see GLAD's publication, Joint Adoption Practice and Procedure in Light of Adoption of M.A.: Second Parent Adoption at http://www.glad.org/rights/Maine_Joint_Adoption.pdf What is the advantage of doing a second parent or joint adoption?An adoption is a court judgment that the child has two legal parents for all purposes. In addition to providing legal security, an adoption decree mirrors the actual family situation and thereby provides emotional comfort and security as well. Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings. With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization. With an adoption, if one parent dies, the other parent will automatically assume custody of the child. In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will. The child could also collect social security survivor benefits based on the deceased parent's work record. Finally if the couple separates, then the adoption means that both parents have the right to seek parental rights and responsibilities, and any disputes will be decided based on what is in the best interests of the child. Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?There are a number of steps which can be taken, although none offer the security of a second parent adoption. Among these are:
If same-sex parents raise a child together, but only one is the "legal" parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?This area of law is rapidly evolving in Maine. If the non-birth or non-adoptive parent is a "de facto parent," then he or she is entitled to be considered for an award of full parental rights and responsibilities, which may include custody or visitation.84 Although the Maine Law Court has not clearly defined who qualifies as a de facto parent, that Court has stated:
The Law Court added that a de facto parent "must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child's life."86 This area of law needs further clarification. For example, even though the Law Court has not required this, many judges and practitioners have imported a two year term of the child and de facto parent living together. For additional legal information about other states, see GLAD's Selected Bibliography of Recent Co-Parent Cases. Regardless of the status of a person's legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as his or her parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child's interests is strongly encouraged. See GLAD's publication "Protecting Families: Standards for Child Custody in Same-Sex Relationships."
79 18-A Me. Rev. Stat. sec. 9-301. Custody and VisitationI am in the middle of a divorce and I am now involved with a same-sex partner. Can my "ex" use this against me to deny me parental rights and responsibilities for my children?The Maine Law Court has not yet addressed a case like this, but the majority rule in the country is "No." Most states, and two Maine Superior Court cases, use the "nexus test" under which a parent's sexual orientation is not relevant unless there is actual evidence of harm to the child. Speculation and fear of harm or teasing is not enough. In Whitehead v. Black,87 a case decided by the Superior Court, an ex-husband from Georgia petitioned for a change of custody when he learned that his ex-wife, who had since moved to Maine, was a lesbian. The court ruled that the children had always lived with the mother, that she was otherwise fit, and she "was aware that her homosexual lifestyle could have an impact on her children and was intelligently seeking to minimize, if not totally eliminate, that impact."88 That reasoning from a court is good for its time. Finally, many reputable attorneys have refused even to make the argument that a parent's sexual orientation - standing alone - should be a factor in child welfare decisions. For more legal information, see GLAD's Bibliography of Custody and Visitation Cases Involving Divorce From A Different-Sex Spouse. What are the factors for making parental rights and responsibilities determinations generally?Courts consider the parents as equals, whether married or unmarried, and makes orders based on the best interests of the children. The permissible factors for consideration are set out by law. The factors focus on child welfare and none automatically advantages a non-gay parent over a gay parent. The law provides:
Are there different kinds of parental rights and responsibilities?Yes, and the courts may allocate some particular rights to one parent and others to another parent.69 The rights that may be divided include primary physical residence, visitation, support, education, medical and dental care, religious upbringing or any other matter. Sometimes a parent will be solely responsible for the child in all aspects; this is called "sole parental rights and responsibilities." Other times, the parents will share all of these issues; this is called "shared parental rights and responsibilities." Is it considered harm to the child if he or she is teased about having a gay or lesbian parent?It shouldn't be. One of the additional responsibilities of being a gay or lesbian parent is helping one's children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents' accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises. As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti,70 in which the U.S. Supreme Court reversed a Florida court's change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the perfectly fine custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, "The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."71 Does it matter if my "ex" knew I was gay or lesbian or might be before we separated?It may but does not necessarily make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a substantial change in circumstances. If a spouse did not know of your sexual orientation at the time of the initial court proceedings, but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody issues should be reviewed. There are many cases from around the country rejecting this as a basis for seeking modification. See GLAD's Bibliography of Custody and Visitation Cases Involving Divorce From A Different-Sex Spouse. Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.72 Can a court keep my kids from visiting when my partner is present?This issue has not been decided by the Maine Law Court, but a Superior Court case, Stone v. Stone,73 applied the right test. A mother went back to court seeking a restriction on her ex-husband's "overnight visitors," as he was now partnered with a man. The Superior Court struck the restriction imposed by a lower court because the father was discreet and there was no evidence of harm to the children. Moreover, visitation restrictions are inherently suspect. In Lawrence v. Texas,74 the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make "personal decisions relating to family relationships [and] child rearing," custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent's conduct, or "social condemnation" of their relationship should no longer be permissible factors, if they ever were. While courts have the power to do this, visitation should not be restricted unless there is actual evidence that the partner is causing harm to the child. The touchstone for these decisions is the best interests of the child.
87 2 BNA Family Law Rptr 2593 (Me. Super. 1976). Domestic ViolenceWhat is domestic violence?Under the law, "abuse" means that any of the following have occurred between people who are family or household members:
Do the domestic violence laws apply to people in same-sex relationships?Generally yes. The definition of "family or household members" includes domestic partners or former domestic partners, as well as people who are or have "liv[ed] together as spouses," as well as people who are sexual partners or are living together (or did so previously).76 The law applies equally to all people, but the application depends upon the nature of the relationship of the people involved. This section doesn't apply to non-sexual dating relationships regardless of sexual orientation, but otherwise covers most relationships. How do I get a court order protecting me from an abusive partner?To get protection, go to the District Court in the community where you live or where the abuser lives. The court clerk will have a packet of information for you to complete. There is no fee, and there is a means of keeping your address confidential from the public. You will have to allege abuse as defined above, and indicate where you think the abuser/defendant can be found so that he or she can be served with (given a copy of) the court papers. If the courts are closed, contact your local police who will locate a judge to help. On this basis, you may receive a temporary order of protection good for up to 21 days. In order for those orders to be enforceable, the police must serve a copy on the defendant/abuser, and a defendant cannot be arrested for violating orders if he or she has not been given a copy of them. The orders can restrain the defendant from coming near you or your children, keep the defendant away from your home, contacting you at all, and determine child custody issues on a short-term basis. The temporary orders will indicate the date set for the court hearing at which you can try to extend your court orders. At this point, the defendant will tell his or her side of the story as well, and you can be called upon to answer questions. At this stage, both parties often have attorneys. If the Court determines the defendant has made a credible threat to the physical safety of you or a child in your household, the relief may be extended for up to two years. If for some reason you decide not to go through with the order, it is important to show up in court on your assigned date and ask that the case be dismissed. Often, in cases involving same-sex couples, courts issue mutual restraining orders. This practice is forbidden in Maine. Violation of a protection order is a criminal offense.77 Where can I go to get help?In Maine, local domestic violence projects across the state provide direct services to victims of domestic violence. The Maine Coalition to End Domestic Violence is a coalition of the nine domestic violence projects in the state. There is a statewide domestic violence helpline at 866-83-4HELP. MCEDV maintains information for same-sex partners on their website. In addition to the local police, there are several other hotlines and on-line resources:
Maine Domestic Violence and Sexual Assault Hotline Numbers:
Does domestic violence play a role in parental rights and responsibilities decisions?Yes. It is a factor the court must consider in allocating parental rights and responsibilities, and courts may provide conditions upon an abuser seeing his or her children.78 68 19-A Me. Rev. Stat. sec. 1653(3).69 19-A Me. Rev. Stat. sec. 1501. 70 466 U.S. 429 (1984). 71Palmore, 466 U.S. at 432. 72See generally, 19-A Me. Rev. Stat. sec. 1653 (10). 73 Stone v. Stone, 1980 Me. Super. LEXIS 30 (1980). 74 539 U.S. 558, 574 (2003). 75 19-A Me. Rev. Stat. sec. 4002(1). 76 19-A Me. Rev. Stat. sec 4002 77 See generally 19-A Me. Rev. Stat. sec. 4001 et seq. 78 See generally 19-A Me. Rev. Stat. sec. 1653 (6). Hate Crimes / Sex Laws / PoliceHate Crimes & ViolenceDoes Maine have a hate crimes law?Maine has a hate crimes law that permits consideration of the nature of the crime during the sentencing phase.79 If the defendant selected a person or his or her property for criminal activity because of, among other things, sexual orientation, then that fact can be taken into account. The law, however, does not include gender identity or expression among the factors to be taken into consideration upon sentencing. Where can I call if I think I've been a victim of a hate crime?In addition to the local police, you may contact the Attorney General's Civil Rights Unit at (207) 626-8800, or online at: http://www.maine.gov/ag/index.php?r=civilrights&s=civilrightsenforcement&t= What additional protections against hate crimes and harassment exist in Maine law?1. General Criminal Laws: Hate crimes are prosecuted under existing criminal laws, such as assault and battery, assault and battery with a dangerous weapon, murder, and so on. These generic laws do nothing to address the fact that an assault was hate-motivated, but they provide for criminal accountability, and the selection of a person (or his or her property) because of sexual orientation can then be considered in the sentencing phase. 2. "Civil Rights Law": On the civil side, Maine law provides for civil remedies when a person violates another person's state or federal rights in certain circumstances.80 This provision, known as the "Maine Civil Rights Act" specifically states that a "person has the right to engage in lawful activities" without being subject to the infliction or threat of physical force or violence or the damage, destruction or trespass of property, motivated by reason of sexual orientation.81 Contact local law enforcement or the Attorney General's office if you have been a victim under this law as the State is the primary enforcer of this statute. More specifically, the law allows a person to bring a private action against someone who
in a manner that intentionally interferes or attempts to interfere with another person's exercise or enjoyment of their rights under state or federal law.82 If those elements are met, then a person may bring an action for legal and equitable relief. Aside from the possibility of recovering money damages, equitable relief means that the person suing can obtain an order forbidding the attacker from coming near him or her, whether at home, at work, in school, or even from telephoning him or her. Actions must be brought within 6 years, although moving promptly is always an advantage.83 In addition to whatever relief a restraining order may provide, it is also important that violation of a restraining order is a criminal offense that can be prosecuted. You should report any violations of a restraining order to local police, and keep careful records of any and all violations. The Attorney General's Office also has the power to bring civil rights actions on behalf of people who are harassed or threatened.84 The contact information is listed above. 3. Harassment Law : Maine law permits people to petition the District or Superior Court for an order preventing harassment.85 "Harassment" is defined as "any repeated act of intimidation, harassment, physical force or threat of physical force directed against any person, family, or their property or advocate with the intention of causing fear or intimidation or to deter free exercise or enjoyment of any rights or privileges secured by" the Constitution or laws of Maine or the United States. Under this law, a person may seek emergency orders, and later seek temporary orders, and ultimately seek final orders of protection. In addition, with final orders, a successful plaintiff may be awarded damages for direct losses caused by the harassment (e.g., lost earnings, property repair or replacement), reasonable moving expenses and court costs and attorney's fees.86 Violation of a court restraining order is a criminal offense.87
79 17-A M.R.S.A. § 1151 (8)(B). Criminal Sex LawsDoes Maine have a sodomy law?No, Maine long ago repealed its sodomy law. Moreover, in Lawrence v. Texas (2003), the U.S. Supreme Court struck down all sodomy laws, making clear that private, adult sexual conduct cannot be criminalized. Why do some gay people get arrested?All people are subject to the criminal laws. Sex in public, or with underage persons, or without consent, or with force, are illegal. Sex for pay -- as the customer or the provider -- i.e., prostitution, is also illegal. There is also an "indecent conduct" law that targets sexual activity or exposure which
The penalties may be increased under the law if a person has two or more convictions for this offense. The State has a legitimate law enforcement interest in protecting the general public from open displays of sexual activity -- whether the sex is between people of the same sex or of different sexes, but socializing and expressions of same-sex affection are not illegal, regardless of where they occur. No one should be hassled or arrested for handholding, talking, flirting, or other non-sexual touching. Sexual activity is not illegal simply because it takes place outdoors, in parked cars, or on public lands. However, as a practical matter, regardless of one's rights, having sex outdoors is a risky business. Based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people engaged in sexual activity in the same types of venues. Another concern is that some police "hunt" for gay people having sex outdoors in parklands and rest areas -- sometimes in uniform and sometimes as undercover decoys. Either way, a person can be charged with indecent conduct. What is the age of consent for sexual activity?Generally, the age of consent for sexual activity is 16.89 School teachers and other school employees may be charged with sexual abuse of minors if they have sex with a student who is under age 18.90 A person who is at least 19 and has sex with a 14 or 15 year old can be charged with sexual abuse of a minor if the adult is at least 5 years older than the minor.91 Does Maine have a "sex offender registry" or "Megan's" law?Yes. Every state now has such a law, although the terms differ from state to state. Violation of the Indecent Conduct law is not considered a registrable offense under Maine law. As of 2001, the three laws that dealt with sexual offenders were consolidated under the "Sex Offender Registration and Notification Act of 1999."92 The "Sex Offender Registration and Notification Act of 1999," applies to "a person defined as a 10-year registrant or lifetime registrant who has been sentenced on or after June 30, 1992."93 At the time of sentencing, the Court determines if a person is a 10-year registrant or a lifetime registrant. Sexually violent and repeat offenders must register with the State Bureau of Identification yearly for the duration of their life, while ten-year registrants must only do so for ten years. For a complete list of offenses, see 34-A Me. Rev. Stat. sec. 11203 (6-7). Current Maine law also now applies to juveniles and people who move to Maine from other states who have been convicted of crimes in other states analogous to those identified by the Maine Sex Offender law. Under the sex offender law, a person must register with the State Bureau of Identification and the law enforcement agency with jurisdiction in the area in which the person resides, works, or attends school within 24 hours of becoming a resident, beginning work, or attending school in that area.94 Information provided to the Bureau and local law enforcement agencies is made available to the public via the Internet, and additional information may be provided in the case of specific inquiries about a registered person. The State also conducts a "risk assessment" intended to predict the person's future dangerousness. Depending on the assessment, local police may notify others in the community of the presence of the offender if it is deemed appropriate to ensure public safety. How can I found out of what charges I have been convicted?To find out your criminal record, you can contact the State Bureau of Identification at (207) 624-7270 (voice) or (207) 287-3659 (TDD). You can also request information by mail if you send a check for $8 payable to the Treasurer of State along with a written request, your name, date of birth, and any aliases. The address is State Bureau of Identification, 45 Commerce Drive, Suite #1, Statehouse Station #42, Augusta, ME 04333. The website is www.informe.org/PCR/. What obligations are imposed on "sex offenders"?Most people will be informed of their duty to register because at the time of conviction, the judge will make a determination if the defendant is a sex offender or a sexually violent predator. These designations carry different obligations.95 Offenders must register with the State Bureau of Identification and provide personal information, home, school and work addresses, offense history, history of treatment for a mental abnormality or personality disorder, a photograph and fingerprints, and a description of offense. All of this information is shared with other law enforcement officials. Failure to register is a criminal offense. What information is available about "sex offenders"?As discussed above, the Criminal History Record Information Act governs access to registry information. Conviction data is available to the public for sex offenders just as it is for all other offenders. Police HarassmentIs it legal for the police to tell me to "move along" from public areas?Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity. Public places belong to everyone. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct.96 What are the general rules about interaction with police?The presence of individuals who appear to be gay, lesbian, bisexual or transgender -- whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason -- should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron. Police may of course approach a person, and make inquiries, but even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that alone is not grounds for the person to be arrested. Brief intrusions upon a person are permitted if an officer can say why he or she is concerned and that concern is reasonable. For example, if an officer is concerned about someone's safety, or suspects the person may have committed a crime, or suspects the person has committed a traffic infraction, then a stop is reasonable.97 An arrest can only occur upon "probable cause" that a crime has been committed.98 What can I do if I believe I have been improperly treated by the police?Complaints may be made to any individual police department for matters concerning its officers, and complaints to the Maine State Police may be made to the commanding officer of the alleged harasser. The contact person is Lieutenant Luce, Director of Internal Affairs (207) 624-7290. The State Police have a toll-free number at (800) 452-4664 . The complaint should specify the name or badge number of the officer, and state whether the complaint is for actual misconduct, harassment or discrimination. In some cases, an individual may decide to pursue a lawsuit -- because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can provide you with attorney referrals. People can also register serious complaints with the Attorney General's Office, Investigations Unit at (207) 626-8800.
88 17-A Me. Rev. Stat. sec. 854. Students' RightsHarassment and Discrimination in SchoolAre there any laws protecting gay, lesbian and transgender students in Maine?Yes. The state anti-discrimination law specifically protects students from discrimination based on sexual orientation, including gender identity and expression, in any academic, extracurricular, athletic, research, occupational training or other program or activity. It also protects students during the admissions process and in obtaining financial aid. The law defines "educational institution" as: "any public school or educational program, any public post-secondary institution, any private school or educational program approved for tuition purposes if both male and female students are admitted and the governing body of each such school or program. For purposes related to disability-related discrimination, ‘educational institution' also means any private school or educational program approved for tuition purposes."99 The complainant must file a complaint with the MHRC within 6 months. The MHRC will conduct the same type of investigation as it does in other types of discrimination cases.100 See the employment section in this booklet for more information about this process. Are there other laws which may protect me from discrimination and harassment because of my sexual orientation?Under federal law, public schools which receive federal funds may not discriminate on the basis of sex. Sometimes, the harassment of a LGBT student will be sexual harassment forbidden by this federal law, known as Title IX. Complaints can be made to your school Title IX coordinator, as well as to the federal Dept. of Education, Office of Civil Rights, in Boston.101 In addition, inaction in the face of pervasive harassment or discrimination can violate a student's rights under the state and federal constitutions. What can I do if I'm being discriminated against at school?There are many ways to approach the issue. One is to ask for support from a friend, teacher or counselor and talk to the people who are bothering you. That is not an option, however, if you don't feel safe doing so. Take a look at your school policies and notify whoever is supposed to be notified -- usually a vice principal or Title IX coordinator. You may wish to document any incidents of harassment or discrimination in writing. Once you meet with the right officials, write yourself notes about what you told them and on what date and ask when they will be getting back to you with a response. If they don't help you or don't follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination. At the same time, or after contacting the administration as set out above, you may contact the State Dept. of Education for further information at (207)624-6747 (ask for the Affirmative Action Officer). If this fails, you may also wish to consider legal action against the town. This is a complicated area of law as well as being emotionally challenging. Contact GLAD for further information and attorney referrals. Where else can I get support if I'm having a problem?In addition to the resources listed above, you may wish to contact Outright at (207) 828-6560 or P.O. Box 5077, Portland, ME 04101. Gay / Straight AlliancesDo students have the right to form Gay Straight Alliances in their schools even if the principal or community opposes it?Most student-initiated groups should be allowed to form. A federal law known as the Equal Access Act provides that secondary school students in schools that receive federal funding and have extra-curricular groups must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings. GLAD brought and won a case for students seeking to form a Gay Straight Alliance at West High in Manchester, New Hampshire on this very basis.102 PFLAG estimates that over 20 Southern Maine high schools have GSAs. In addition to GSAs, over 200 schools (including elementary schools) have "Civil Rights Teams" that work to reduce bias language and the behaviors that lead to threats and violence. These collaborations of students, faculty, and community advisors teach intervention strategies and peer education to reduce intolerance of all types and build an understanding of the Maine Civil Rights Act (discussed earlier in this publication). Additional information is available from the Attorney General's office.103 A list of the Civil Rights Teams can be found on GLAD's website at http://me.glad.org/rights/MECivilRightsTeams.pdf.
99 5 Me. Rev. Stat. sec. 4553 (2) (A) (definition of "educational institution"). |
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