Students | Transgender Rights | Maine

All Maine public school students have the right:

• To be safe in school without being bullied,
• To access information about LGBTQ subjects including educational websites,
• To dress and present yourself in a manner consistent with your gender identity,
• To free speech and expression. This means you have the right to express ideas that may offend other people and you have the right to disagree with others, as long as you express those ideas in a respectful way.

All Maine public and many private school students have the right:

• To be protected from discrimination or harassment based on sexual orientation, gender identity or expression, or HIV status,
• To form a Genders/Sexualities or Gay/Straight Alliance (GSA) that gets treated the same as every other non-curricular group.  This means equal funding, access to facilities, and the ability to choose your group’s name.

Outside of school you have the right:

• To be protected from discrimination based on your actual or perceived sexual orientation, HIV status, or gender identity in employment, housing, and public accommodations (like restaurants or stores).
• To give your own consent to get tested for HIV without your parents’ permission. For more specific information, see the “HIV/AIDS” Issue Area.
• To report to the police anyone in or out of school who physically harms you, threatens you, or vandalizes your property.

There is no statewide guidance, but numerous school districts have created policies on the rights, responsibilities, and best educational practices for transgender and gender non-conforming students.

Here is the policy of the Portland Maine schools for transgender and gender-expansive students:  1) foster a learning environment that is safe, affirming, and free from discrimination, harassment, and bullying for all students; and 2) assist in the educational and social integration and development of transgender and gender expansive students in our schools.

Maine law applies to both public and private schools and makes the following discrimination on the basis of sexual orientation unlawful:

• to exclude a person from, deny a person the benefits of, or subject a person to discrimination in any academic, extracurricular, research, occupational training or other program or activity;
• to deny a person equal opportunity in athletic programs;
• to deny admission to the institution or program or fail to provide equal access to any information about an institution or program;
• to deny financial assistance availability and opportunity (5 Me. Rev. Stat. sec. 4602).

Yes. Any educational facility owned, controlled or operated by “a bona fide religious corporation, association or society” is exempt (5 Me. Rev. Stat. sec. 4602).

The definition of sexual orientation in the law includes a person’s “actual or perceived … gender identity or expression.”  This is explicit protection for transgender persons in Maine (5 Me. Rev. Stat. sec. 4553 (9-C)).

The Maine Human Rights Commission has also set out its view that employers must “reasonably accommodate” 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” (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (F) (1). Available at: http://www.maine.gov/mhrc/index.html).

In some situations 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. Hopkins (490 U.S. 228, 251 (1989)) and Rosa v. Park West Bank (214 F.3d 213 (1st Cir. 2000)).

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” (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.02(D) (2). Available at: http://www.maine.gov/mhrc/laws/index.html).

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” (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.02(D) (3). Available at: http://www.maine.gov/mhrc/laws/index.html).

For more information, see GLAD’s publication, Transgender Legal Issues in New England.

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 (5 Me. Rev. Stat. sec. 4553 (2) (A) (definition of “educational institution”)).

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 (5 Me. Rev. Stat. sec. 4611).

Yes, Title IX prohibits discrimination against students based on sex in any school or college that receives federal funds. In light of the Supreme Court ruling in Bostock v. Clayton County, which determined that sexual orientation and gender identity discrimination are forms of sex discrimination, the federal Department of Education, which enforces Title IX, has stated that it will interpret any sexual orientation or gender identity discrimination as sex discrimination.

To file a complaint with the federal Department of Education Office of Civil Rights, see:  https://www2.ed.gov/about/offices/list/ocr/docs/howto.html.

Complaints can be made to your school Title IX coordinator, as well as to:

Office of Civil Rights
The U.S. Department of Education
John W. McCormack Post Office & Courthouse, Room 222
Post Office Square
Boston, MA 02109

Additionally, some kinds of discrimination and harassment may violate a student’s constitutional rights.

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 should document any incidents of harassment or discrimination in writing with at least the date and time. 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.

If this fails, you may also wish to consider legal action against the town by contacting the Maine Human Rights Commission or the federal Department of Education Office of Civil Rights.

This is a complicated area of law as well as being emotionally challenging. Contact GLAD Answers by filling out the email form at GLAD Answers or by phone at 800-455-4523 (GLAD) to discuss options.

In 2012 Maine passed a law, “An Act To Prohibit Bullying and Cyberbullying in Schools” (available at: http://www.mainelegislature.org/legis/bills/bills_125th/chapters/PUBLIC659.asp).

  The Act defines bullying as any communication (written, oral or electronic) or physical act or gesture that:

1. harms or seriously threatens you or your property;
2. creates a hostile school environment; or
3. interferes with your academic performance or ability to participate in school activities.

The law identifies certain characteristics that are often a target for bullying, including actual or perceived race sexual orientation or gender identity and expression or association with another person with one or more of these actual or perceived characteristics.

By January 1, 2013, the Maine Department of Education must develop a model policy that must include:

• A requirement that school staff report bullying and procedures for school staff, students, parents and others to report bullying;
• A procedure for promptly investigating and responding to incidents of bullying, including written documentation of incidents and the outcome of investigations;
• A process for communicating with the parent(s) of a student who has been bullied the measures taken to ensure the safety of the student and to prevent further acts of bullying;
• Each school’s anti-bullying policy must be as stringent as the model policy and must be widely published and disseminated in written form annually to all students, parents and staff.
• Each school shall provide staff training in the best approaches to implementing the anti-bully policy.