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STEPHEN C. SMITH
JOHN E. BALDACCI, JR.
LEAH M. BALDACCI
IAN M. L’HEUREUX
CARL E. WOOCK
KAYLA M. ALVES
October 23, 2023
Hon. Lawrence Lockman
President, Maine First Project
P.O. Box 623
Brewer, ME 04412-0623
RE: Access to Bathrooms by Members of the Opposite Biological Sex
Dear Lawrence:
You asked me to research the legality of allowing biological males to use biological females’ restrooms, and vice versa. Specifically, you asked me to address whether the statement that allowing biological males to use biological females’ restrooms is “settled law.” For the reasons noted below, I conclude that such practices are likely unconstitutional and violate the fundamental, constitutional right to privacy held by all students to be free from intimate exposure to the opposite sex. Furthermore, only when the United States Supreme Court addresses this issue will it become “settled law.”
The Supreme Court has explained that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973). Maine law requires , in relevant part, that Maine schools provide sanitary facilities that are “[s]eparated according to sex and accessible only by separate entrances and exits.” 20-A M.R.S. § 6501. The Legislature’s language in 6501 is clear, that bathrooms must be separated according to sex and accessible only by separate entrances and exits.
The Maine Human Rights Act (“MHRA”) requires “equal access to places of public accommodation without discrimination because of race, color, sex, sexual orientation or gender identity . . . .”. In Doe v. Regional School Unit 26, the Maine Supreme Court, sitting as the Law Court, held that the Maine Human Rights Act required the school in that case to allow a particular transgender student to use the opposite sexes’ bathroom, even in light of 20-A M.R.S. § 6501. 2014 ME 11, ¶¶ 22-24, 86 A.3d 600. The Law Court made it clear that its ruling was narrowly confined to the facts of that case, and was not a broad, categorical rule that students may have casual access to any bathroom of their choice. Id. ¶ 24. The Law Court explained ‘the determination that discrimination is demonstrated in this case rests heavily on [the student’s] gender identity and gender dysphoria diagnosis, both of which were acknowledge and accepted by the school.” Id. ¶ 23.
The Doe case is likely the basis for the claim that allowing biological males to access biological females’ restrooms is “settled law.” However, the Doe case raises more questions than answers and creates a stark conflict between the requirements of the MHRA and 20-A M.R.S. § 6501. As noted in Justice Mead’s dissent, “the plain language of the MHRA and the unavoidable implications of the Court’s decision set a well-established societal custom (segregation of public bathrooms by sex) and the MHRA on a collision course.” Id. ¶ 33. Justice Mead applied well-established rules of statutory construction to note that the Maine Legislature purposefully left 20-A M.R.S.§ 6501 in its current form after amending the MHRA. Id. ¶ 36. The Legislature is “presumed to be aware of the state of the law when it passes an act.” Stockly v. Doil, 2005 ME 47, ¶ 14, 870 A.2d 1208. Thus, the Legislature’s intent was clear that bathrooms must be segregated based upon sex and nothing in the MHRA alters this.
Furthermore, the Law Court did not address the situation where a “cisgender” student, whose psychological well-being and educational success is dependent upon their use of a bathroom that fits their own gender identity. For example, a biological female, forced to share a restroom with a biological male, may fear to do so and refrain from using the bathroom. This would likely cause physical, psychological, and educational damage to the biological female and give rise to a claim of discrimination under the MHRA based upon the Law Court’s reasoning in Doe. Thus, allowing biological males to use biological females’ restrooms may violate “cisgender” students’ rights under the MHRA.
Moreover, the MHRA states that “this section does not require an entity to permit an individual to participate in or benefit from the goods, services, facilities . . . when the individual poses a direct threat to the health or safety of others.” 5 M.R.S. § 4592. “Direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.” Id. In the context of allowing biological males to use biological females’ restrooms, or vice versa, Maine schools should take seriously the risk that biological males may pose a direct threat within the meaning of the MHRA, and general tort law, against biological females. If this practice is continued to be allowed and complaints were to be made against a biological male, using the biological female restroom or locker room, for example, and the school did not take action, it would likely have liability under a theory of negligence and failure to protect its students.
The Law Court in Doe also did not address the fundamental, constitutional right to privacy of students to be free from intimate exposure of their body and intimate activities to a person of the opposite sex. See, e.g., Doe v. Luzerne County, 660 F.3d 169, 176 n.5 (3rd. Cir. 2011); Adams ex rel. Kasper v. School Board of St. Johns County, 57 F.4th 791, 804 (11th Cir. 2022); United States v. Virginia, 518 U.S. 515 at 550, n.19 (1996) (finding that admitting women to the Virginia Military Institute for the first time “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.”); Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 913 (7th Cir. 2010) (“[T]he law tolerates same-sex restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy needs.”); Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) ([Society has given its] undisputed approval of separate public rest rooms for men and women based on privacy concerns. The need for privacy justifies separation and the differences between the genders demand a facility for each gender that is different.”); Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (recognizing a “constitutional right to bodily privacy because most people have ‘a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating’”); Brannum v. Overton County School Bd., 516 F.3d 489, 495 (6th Cir. 2008) (“This court has held that the constitutional right to privacy, which includes the right to shield one’s body from exposure to viewing by the opposite sex, derives from the Fourth Amendment, rather than the Due Process Clause.”); Byrd v. Maricopa County Sheriff’s Dept., 629 F.3d 1135, 1141 (9th Cir. 2011) (“the desire to shield one’s unclothed figure from the view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.”); Cf. Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020) (holding that prohibiting a transgender male, biological female, from using the boys restroom, violated the Equal Protection clause); Whitaker v. Kenosha Unified School District, 858 F.3d 1034
(7th Cir. 2017).
The Eleventh Circuit recently held “[t]he protection of students’ privacy interests in using the bathroom away from the opposite sex and in shielding their bodies from the opposite sex is obviously an important governmental objective.” Adams, 57 F.4th 791, 804. For these reasons, the notion that allowing biological males to use biological females’ restrooms is “settled law” is false. Rather, there is a high likelihood that such policies that allow biological males to use biological females’ restrooms or locker rooms, or vice versa, is unconstitutional.
There is a current split amongst the Circuit Courts on this issue, as noted above, and the First Circuit has not yet provided a ruling. Ultimately, it is likely the Supreme Court will render a decision in the future on the constitutionality of allowing biological males to use biological females’ restrooms, and vice versa. A ruling by the United States Supreme Court upholding the Eleventh Circuit’s decision in Adams, for example, would overrule Doe. Thus, if the United States Supreme Court finds that students have a fundamental constitutional
right to privacy to be free from intimate exposure to the opposite sex, then Maine schools will have to go back to the longstanding historical practice of segregating bathrooms based upon biological sex. Then, and only after the United States Supreme Court rules on this issue, will it become “settled law.”
Finally, to the extent a school is allowing biological males to use biological females’ restrooms, or vice versa, the school should provide notification to parents. Parents have a fundamental liberty interest in the care, custody and control of their children. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000). This right encompasses the notification to parents that biological males will be using biological females’ restrooms and vice versa.
Do not hesitate to contact me with any questions.
Sincerely,
/s/ John E. Baldacci, Jr.
John E. Baldacci, Jr., Esq.
JEB/clr
cc: Client (via email)