The Maine Supreme Court’s Bathroom Mess

by Ed Whelan

Yesterday, by a vote of 5-1, the Maine supreme court, purporting to reconcile two statutes, ruled that a public school is required to allow a “transgender girl”—that is, a boy who identifies as a girl—to use a girls’ bathroom. (Rather than requiring him to use the boys’ bathroom—which he didn’t want—the school had had him use a single-person “unisex staff bathroom.”)

As the dissenter argues, the ruling defies “the plain language of a specific statute [that] explicitly requires segregating school bathrooms by sex.” Further, the ruling construes the Maine Human Rights Act in a way that “inescapably lead[s] to the conclusion that an individual may not be denied access to public bathrooms based upon sex.” (Dissent, n. 12; see para. 32 of the dissent for fuller explanation.) The majority doesn’t dispute this proposition, and one member of the majority expressly agrees with it.

In other words, under the court’s logic, men in Maine may now use any public women’s bathroom, and women in Maine may now use any public men’s bathroom. By “public” bathroom, I mean any bathroom in a “place of public accommodation”—a very expansive term (see definition in subsection 8 here) that broadly includes, in addition to government buildings, any private facility that offer services to members of the public. Indeed, even labeling a bathroom in, say, a restaurant with a sign designating “Men” or “Women” violates the majority’s understanding of the MHRA.

[Update: I’ve made some additions to the preceding paragraph.]

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