Medomak Valley High School students delivered a petition in support of the district’s transgender student policy a day before the RSU 40 School Board voted on June 7 to roll it back. (Courtesy of Molly Rains/ Lincoln County News )
This month, a midcoast school district decided to delete a policy protecting transgender students after two contentious school board meetings and more than a hundred comments from parents, teachers and community members.
The future for trans students in the district — which represents Friendship, Union, Waldoboro and Washington — is now uncertain, echoing a nationwide trend of school boards targeting the rights of trans, gender nonconforming and nonbinary students, according to experts.
The RSU 40 school board vote to delete the student policy is also highly unusual. For one, school boards rarely delete policies without replacement, unless they are obsolete.
Also, a large majority of those who testified at the May and June meetings, including the superintendent, asked the board to keep the guidelines in place, citing its usefulness as a guide for how transgender and gender nonconforming students can expect to be treated in school.
“By supporting this policy we uphold the dignity and rights of some of our most vulnerable students, ensuring they learn and thrive alongside their peers,” Argy Nestor, a longtime former teacher, said during public comments in May.
“The presence of this policy sends a profound message to all members of our school community that our district values diversity and actively supports every student’s right to a supportive and equitable educational experience,” Nestor said.
Days after the final vote, some school board members were replaced in an election by more progressive members, but the policy is still gone.
There’s also concern that other districts may follow suit in walking back protections for trans students, according to former school board member Sue Campbell, who also serves as executive director of OUT Maine, an organization that conducts training on how to support LGBTQ+ students in schools across the state.
“What’s happening today in RSU 40 may very well be happening tomorrow in another school district in Maine,” Campbell said.
The rescinding of trans students’ rights is something the Maine Human Rights Commission is also watching closely, said Kit Thomson Crossman, the agency’s executive director, as it could signal the national trend may be taking hold in Maine.
What comes next in RSU 40?
Although the policy has been deleted, RSU 40 will continue to follow Maine law, which protects students from discrimination based on gender identity, said Superintendent Steve Nolan, as well as have administrative guidelines for teachers and other school employees for how they should treat trans and gender nonconforming students.
“I can appreciate that some students and families are upset and uneasy about this change,” he said. “I think procedurally, what we do going forward will look a lot like what we were doing under the policy, because ultimately the policy was guidance for how we were expected to follow the law.”
The district will be pulling from the former policy language, the Maine Human Rights Commission guidelines from 2016, changes in Title IX that explicitly protect trans students from discrimination in schools, and consulting with the district’s legal counsel before putting the new guidance into writing, Nolan said.
The retracted policy allowed trans students to have a specific plan in place at school to support their needs. Nolan said those plans will remain in place for the dozen students within the 1,800-student population that have them.
RSU 40 Superintendent Steve Nolan. (Courtesy of Bisi Cameron Yee / Lincoln County News)
Legal experts push back on arguments opposing trans student policy
Half a dozen board members spoke at the recent meetings in favor of deleting the transgender student guidelines, some citing discrimination and safety concerns, and others calling it redundant.
Board member Naomi Aho said the policy singled out transgender students, offering them “special rights.” She read out some protected classes under the Maine Human Rights Act, and said protecting transgender students is “discriminatory towards the other protected classes.”
Another member, Josh Blackman, said he is specifically concerned about parents’ right to know the gender identity of their child, and the bathroom and locker room aspect of the policy.
“How are we keeping the girls in our schools safe when this policy allows boys in bathrooms and locker rooms?” he asked, referring to transgender girls as boys. Blackman also described gender dysphoria as a mental condition, something that has been refuted by several medical organizations, including the American Psychiatry Association.
“We end up discriminating against the majority of the student population by protecting trans students,” he said.
But Barbara Archer Hirsch, counsel for the Maine Human Rights Commission, said that allegation would unlikely have any merit when the commission decides on discrimination cases.
“Simply allowing trans kids … to use the bathroom that corresponds to their gender identity, I think it would be a difficult case to make that you are discriminating against a female student on the basis of sex,” she said.
Election to determine balance of school board that repealed trans student protections
Several board members also said they thought the guidelines were redundant given that the district plans to comply with state law regardless.
Crossman with the Maine Human Rights Commission said while it’s technically correct that the district does not need a policy like this, “it also provides some reassurance to trans and gender nonconforming students that the district recognizes their identities as valid and is committed to protecting them.”
Both Crossman and Archer Hirsch argued that removing the policy will not only send a message to trans students and their families, but will also cause confusion about what pronouns, bathrooms and sports teams they can access, and may open the district up to complaints of discrimination.
Where Maine stands on transgender students in schools
Approximately 70 school districts in Maine have similar policies in place, according to Campbell of OUT Maine, which are meant to to “foster a learning environment that is safe and free from discrimination, harassment and bullying,” and “assist in the education and social integration of transgender and gender expansive students,” according to the policy language.
According to the Maine Integrated Youth Health Survey from 2019, more than one in seven students identified as gay, lesbian, bisexual or transgender. Maine data also shows that LGBTQ+ students are adversely impacted in schools because of cultural stigma, according to the Maine Department of Education.
While Maine does not have an explicit law protecting the rights of trans, gender nonconforming and nonbinary students, 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.”
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The Department of Education promotes— but does not mandate — a non-discrimination policy and transgender student guidelines similar to the one RSU 40 board members deleted.
Under state guidelines, all trans and gender nonconforming students have a right to privacy, which includes the right to keep their transition or gender presentation a secret. The policies do not mandate that staff inform parents of a child’s gender identity or expression. The student can also use bathrooms, locker rooms and pronouns that align with their gender identity as stated by them at school and staff are expected to come up with a plan for these students to be safe at school.
“Schools that have these policies in place, what I’ve heard from schools and from parents and from kids, it just gives everybody kind of a roadmap of what should be expected,” said Gia Drew, the executive director of Equality Maine.
We want parents involved. But we also have to recognize that not all parents are supportive and so we have to rely sometimes on working with the student.
– Sue Campbell, executive director of OUT Maine
“Unfortunately, you know, many schools don’t have these policies, and it kind of leaves people in a little limbo about what they actually should be doing,” Drew said.
There is no requirement for districts to adopt policies like this, according Melissa Hewey, an attorney at Drummond Woodsum. The law firm first drafted the state guidelines in 2013, after Nicole Maines, a trans student, sued the former Orono School District for discrimination. Most districts now use some version of that language, although some, like Portland Public Schools, tweak the Drummond Woodsum policy to encode further protections for trans students, she said.
The firm, which represents a large portion of Maine’s school districts, recommends having transgender student guidelines in place to provide “guidance to administrators, to students and community on how the things that are difficult to navigate are supposed to be handled.” Also, if there’s a complaint of discrimination on the basis of sexual or gender identity, the Maine Human Rights Commission “will examine the district’s relevant policies as part of the investigation,” Hewey said.
Trans students’ rights weighed against parental rights in federal court
In Maine and beyond, having policies that explain the rights of trans students has also been used as legal precedent in lawsuits against school districts.
Last year, a Newcastle parent, Amber Lavigne, unsuccessfully sued the Great Salt Bay Community School in Damariscotta in federal court for allegedly violating her parental rights by supporting the child’s social transition. Lavigne spoke at the May RSU 40 meeting, comparing the two districts’ policies and advocating for deleting it.
During public comment, Lavigne explained the details of her case, including finding a chest binder in her child’s room that a social worker had allegedly given her child, as well as finding out her child was using a different name and pronouns at school. She blamed the district for keeping information about her child’s gender identity from her.
After repealing trans student protections, RSU 40 school board gains narrow progressive majority
“Is this the type of situation you want to occur in your school system?” she asked the RSU 40 school board. “This policy … clearly encourages secrets about gender identity to be kept from parents, which is unconstitutional.”
Lavigne’s case gained national attention for being one of a few of its kind being fought in federal court. In early May a judge dismissed the case, though Lavigne is appealing to the First Circuit Court of Appeals in Boston.
In supporting the school board’s motion to dismiss, Judge John Levy said that while it is understandable that a parent might want to stay informed, the district, social worker or school board did not violate her rights by using the pronouns of her child’s choice and giving them a chest binder, as they were following the district’s transgender students guidelines.
Drew from Equality Maine said that ruling “affirms where we are, as a state, in terms of where our Maine laws are and where school policy should be.”
In that case, the transgender student policy helped the district’s case, as these policies are designed to, according to Hewey of Drummond Woodsum, which represented the district.
“The written policy helped the school district because it made it very clear that contrary to what the plaintiff was saying, they actually had a policy that contemplated parental involvement in these issues,” Hewey said.
Parents’ rights and trans students’ rights do not have to be at odds with each other, Hewey and Campbell said. Some board members at the RSU 40 meeting who spoke against the policy said they wanted parents to be involved in a child’s social transition, which according to Campbell, is not wrong.
“Parents are the number one protective factor. We want parents involved,” Campbell said. “But we also have to recognize that not all parents are supportive and so we have to rely sometimes on working with the student.”
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