Dr. Jillian T. Weiss

Maine Court Favorable Ruling on Trans Bathroom Use

Filed By Dr. Jillian T. Weiss | June 17, 2010 1:00 PM | comments

Filed in: The Movement, Transgender & Intersex
Tags: Androscoggin Country, bathroom policies, Freeman v. Denny's, Freeman v. Realty Resources, Maine, public accommodations

On May 27, the Maine Superior Court, Androscoggin County, ruled on a case involving a claim of unlawful public accommodation discrimination by a transgender person.dennys-breakfast.jpg

In this case, the public accommodation involved was the bathroom of a Denny's restaurant in Auburn, Maine.

In Freeman v. Realty Resources Hospitality, LLC, d/b/a Denny's of Auburn, No. CV 09-199, the Maine Superior Court held, in a fairly simple decision, that, if it were true that the manager prohibited the plaintiff from using the women's bathroom based on her gender identity, then that would be a violation of the Maine Human Rights Act.

It is, as far as I know, the first judicial decision in the U.S. on a claim of transgender public accommodation discrimination involving bathroom use. In the two previous bathroom use cases, one involved an employment discrimination claim based on bathroom rules, and the other involved a rental discrimination claim based on bathroom rules. I think the difference may be important, for those two cases denied the discrimination claims based on truly illogical reasoning.

The holding of the Maine court seems a straightforward enough proposition. However, this is the only standing decision in the country to correctly interpret the law. For that reason, this is a huge big deal.

The Facts

The plaintiff in this case, whom the Court described as "a male to female transgender individual undergoing a medically recommended male to female transgender process," was a regular patron of the restaurant for many years. She received a diagnosis of gender identity disorder, and began to transition from male to female in 2007. She expressed her gender identity as a female by wearing women's clothing, makeup, jewelry and perfume.

In mid-summer of 2007, she discussed her transition with a Denny's manager, explained that she was undergoing this transition, that she had a female gender identity, and that, in accordance with this medically recommended process, she was using female bathrooms. She received permission from the manager to continue using the women's restroom at Denny's, and she did so three or four times per week without incident.

Everything went smoothly until late October of 2007, when a new manager came on board. He ordered her not to use the women's restroom any more because he perceived her to be biologically male, despite her identification as a female. The new manager's prohibition was unacceptable to Ms. Freeman, and, with the help of GLAD, and the awesome Professor Jennifer Levi, among others, she brought a lawsuit.

The Legal Procedure

After answering Ms. Freeman's complaint, Denny's made a motion for a judgment in its favor without a trial. This means it asked the judge to throw the case out of court.

Denny's argument was that, even if the facts as stated by Ms. Freeman were 100% true, it would not constitute a violation of the Maine Human Rights Act. Therefore, a trial would be an unnecessary exercise.

One major problem with this argument is that Ms. Freeman specifically stated in her complaint that she is female. If, as Denny's argued, they accepted her facts as 100% true for purposes of this motion, then it's contradictory to turn around and claim she's "really" male. When there's contested facts, a motion like this is loser, because then a trial to determine the facts really is necessary.

Denny's further argument, as stated in its motion papers, was that the restaurant manager did not prohibit Ms. Freeman from using the women's room because of her gender identity. Rather, the manager prohibited her from using the women's room because of her perceived biological maleness.

This is a strange argument. Essentially, Denny's conceded that it discriminated based on gender identity, but tried to say that's okay because they don't agree with her gender identity.

Jeez, if that's all it took to defeat a discrimination claim, then a race discriminator could win by saying that they didn't agree with the plaintiff's asserted race.

And then Denny's lawyer showed that he didn't really understand the whole transgender discrimination thing at all.

Importantly, there is no allegation suggesting that Plaintiff was somehow prevented from using the restroom that is designated as the men's restroom.

Importantly, indeed. As you may recognize, this quote from Denny's lawyer seems to assume that "not discriminating" against Ms. Freeman based on her gender identity required them to ignore her gender identity, and focus instead on her sex at birth.

Well, if one knows nothing about the purpose of the statute, the idea could have some superficial appeal, in Bizarro World.

The Maine Human Rights Act

The Maine Human Rights Act prohibits discrimination in public accommodations, such as restaurants, based on, among other factors, gender identity or expression.

The Maine law is an example of those non-discrimination laws that define "sexual orientation" to include "gender identity or expression." While it does not conform to the commonly-held theory that sexual orientation and gender identity are separate concepts, it nonetheless provides legal protection to transgender persons. However, one reading the Court's opinion may be surprised to read that the plaintiff is protected because of her "sexual orientation." The Court is using that term as defined by the Maine Human Rights Act, rather than the ordinary sense of the term as we know it.

The Judge noted that the Maine Human Rights Commission has provided additional explanation of the definition of "gender identity" and "gender expression." The term "gender identity" means gender-related identity "whether or not that 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."

This is a very important definition, though the Court doesn't explain why. The reason it's so important is that it makes a clear distinction between the subject of protection, i.e., gender-related identity, and the "legal" sex of the subject, i.e., the assigned sex at birth.

That part of the definition is common enough. However, it's one of a very few statutes that I've seen that make reference to the term "transgender." I don't recall seeing any that refer to "androgynous" identity.

In other words, this section of the Maine Human Rights Act protects one's identification as male or female, regardless of the sex on the birth certificate. The statute omits any requirement of changing one's sex at birth in order to receive the protection of the statute.

The Maine Human Rights Commission also explains that "gender expression" is protected, meaning "the manner in which an individual's gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle," again, regardless of whether or not that expression is different from that traditionally associated with that individual's assigned sex at birth.

In other words, not only is my identification as male or female (or something else) protected, but also the ways in which I express that identification.

This section on gender expression is interesting in that it is specifically linked to gender identity. According to my understanding of this language, protection is not accorded to dress, appearance, manner, etc. alone. In plain language, one cannot simply put on a dress or a suit and claim protection. Rather, the expression must be an expression of one's identity. A subtle difference, perhaps, and yet significant.

In any event, let's get back to Denny's argument that letting a transgender woman use the men's bathroom satisfies the Maine Human Rights Act.

What Does This Gender Identity Thing Mean?

Denny's argument completely ignores the fact that the Maine Human Rights Act specifically says that a public accommodation owner may not discriminate based on gender-related identity "whether or not that 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." The whole point of this statute is that one may not privilege sex at birth over gender-related identity.

In other words, you can't point to my "gender identity" and say "ah ha -- I'm going to segregate you because your sex at birth is different from your gender identity."

As GLAD's legal brief pointed out, a court-created exemption based on biological sex would eviscerate the statute's intent to ensure full participation in society for people regardless of gender identity, including if their gender identity is different from their ascribed sex at birth. It could also lead to requiring patrons to disclose private medical info to managers of all sorts of public accommodations.

Like asking if a masculine-looking woman has the, ahem, proper genitalia to be in the women's bathroom. "The Legislature could not have intended for a restaurant patron to be subject to either physical inspection or the required disclosure of private information."

The Goins Case

Denny's lawyers pointed to a 2001 case from the Minnesota Supreme Court, Goins v. West Group. While a Minnesota case is not binding on a Maine state court, Denny's lawyers like the reasoning used in that case, and hoped to persuade the Judge to adopt it.

But the Maine court ignored the Goins case, and didn't even mention it in their decision. That may have something to do with the fact that the Goins opinion makes little sense.

It follows the same illogic as the Denny's argument outlined above: The Minnesota Supreme Court said that the employer's bathroom rule discriminated based on biological sex, not gender identity. Therefore, it did not violate the statute against gender identity discrimination.


So if you ignore and violate my gender identity, it's okay because it's only sex discrimination? Even though the statute says that I'm supposed to be protected regardless of sex at birth?

Oh, brudder, as Bugs Bunny would say. What a maroon.

Even if the employer's rule were interpreted as gender identity discrimination, the Minnesota Supreme Court questioned whether there was any intent to change the "cultural preference" for same-sex bathrooms. Since there was no legislative history on this point to clear up what the legislators intended, the Minnesota Supreme Court decided that the words of the statute did not apply to bathroom usage.

It's amazing the tricks you can do with language. In other words, the statute didn't say not to use a crazy made-up meaning, so it's okay if we do?

Oy. What can one say to that?

But interestingly, in Maine, the legislative record is different from that in Minnesota. The Maine legislature had twice considered language excluding trans people from bathrooms and locker rooms, and rejected it. While failure to pass a bill doesn't mean one can ignore the plain language of an existing statute, some courts consider that evidence as to what the words of the existing statute mean. But the Maine court

The Minnesota case also had another important difference from the Maine case. The Minnesota case involved employment discrimination. The Minnesota court said that proof of anatomical femaleness was required because of the specific legal format of the employee's case. It called that case a "disparate impact" case, a technical legal distinction applied to employment cases involving "disparate impact" of employer rules on a protected class of employees. (I'm pretty sure, as the intermediate appeals court said in finding that the employer had violated the law, that it's not a "disparate impact" case, but I don't want to get all technical on you.)

The blog format is not a good one for explaining complicated points of law, so suffice it to say that "disparate impact" cases have special rules requiring the complainant to show they have the proper "qualifications" for the job. The Minnesota court basically said that proof of sex reassignment surgery is the "qualification" for using the women's bathroom.

But the Maine case is different from the Minnesota case. The Maine case isn't an "employment discrimination disparate impact" type of case. It's a public accommodation case, where a member of the public, who isn't an employee subject to the orders of an employer, wants to use the services freely available to every member of the public. There's no requirement of proving any qualifications for a job. So the Goins case, from Minnesota, really doesn't apply.

I discussed eight criticisms of the Goins case in a blog post from 2006, so take a look here if you want more analysis of Goins.

Bottom Line

There were many other arguments about the law in this case, but I'm not sure they're worth parsing here.

What makes this case note-worthy is the fact that the Maine court agreed that, if it were true that the manager prohibited the plaintiff from using the women's bathroom based on her gender identity, then that would be a violation of the Maine Human Rights Act.

At this point, the case is heading for discovery, meaning each side gets to ask for information from the other side, which, according to GLAD, should conclude about early Fall. At that point, either side might make another motion to try to get rid of the case without a trial, and failing that, there will be a bench trial at some point later in the year or the following year.

I note that Ms. Freeman waived her claim for damages, as a result of which the judge said Denny's doesn't have a right to a jury trial under Maine law. That's a good thing, in my opinion, because educating a jury about trans issues can be very, well, trying. The remaining relief requested by Ms. Freeman includes the civil penal damages for violation of the Human Rights Act, capped at $20,000, and an injunction permitting her to use the women's rest room at Denny's.

After the verdict, there could be an appeal to the Maine Supreme Court (there is no intermediate appeals court in Maine). Theoretically, a Maine Supreme Court ruling could be appealed to the U.S. Supreme Court, if there someone could figure out a federal issue, but I don't really see one here.

Cases like this often settle. I can't see this being a winner for Denny's at this point. I imagine they'll see reason. It sounds like no patrons or employees in the restaurant had any problem with Ms. Freeman's use of the bathroom. A battle over this seems senseless. But then again, prejudice is often senseless.

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Amy Hunter Amy Hunter | June 17, 2010 2:47 PM

Thanks for putting this out Jillian.

Michigan does not have a state law which provides employment, housing or public accomodations protections against discrimination based on sexual orientation, gender identity or expression. We, like some other states have needed to fight it out city by city.

Kalamazoo passed a non-discrimination ordinance in 2009 and it is arguably one of the best municipal ordinances in the country. We dealt with the dreaded "bathroom issue" in the following manner, (excerpted from a memo from me to city commission and city attorney)

"It is my recommendation to strike 18-25.L. The second sentence, “Nothing in this ordinance shall require the construction or provision of unisex, single-user restrooms, changing rooms, locker rooms, or shower facilities” should be renumbered as “18-20.C”, a stand alone portion under the public accommodations section.

Finally, an additional section, “18-20.D”, would read, “Restrictions on the basis of gender for restrooms, changing rooms, locker rooms, or shower facilities shall be based on applicable state law, provided that all individuals are able to use gender appropriate facilities and it is not a violation of state law.”

What makes this work is that Michigan state law is silent on the matter.

Sadly I live in Michigan but not in Kalamazoo. I did contribute to that effort to pass that law through One Kalamazoo so at least if I find myself in that city I can legally use the restroom. This said I routinely go to the restroom that is inline with my gender presentation. So far I have not had any issues in that area.

This, and the recent Wal-Mart "yellow vest" case highlight the need to continue pushing HARD for a FEDERAL ENDA that includes housing and public accommodations. Jillian, is there any chance that ENDA can still get passed during the Lame Duck session after November?

Melissa Dunagan | June 18, 2010 5:11 AM

Thanks Jillian I do hope she wins her case.

I have a simple, though unpopular question.

Having previously cast some doubt on the ultimate value of defining gender identity/gender expression as sexual orientation:

Are there no possibilities of unintended, and unfortunate, consequences?

I know the argument that says trans** people are dying, and we have to do, pell mell, whatever we can do as quickly as we can, anything quickly to do this.

I have been wondering, given the prejudices of some gay men against surgery, what happens when they collide with the need of transsexual women for surgery?

Can the law be used as leverage to force, the state, insurance companies, whatever, to provide surgery?

I cannot see a problem when the legal categories are separate, but when, in law, the case will be to use sexual orientation to leverage transsexual surgery?

Maybe, the same people who argued against my concern at this convenience will now argue that surgery, since it is unnecessary for them, it will be unnecessary for others.

In Canada, this has been a specific use to which human rights law has been put. Though, despite the claims in Alberta, the human rights case in Ontario did not lead to SRS being relisted in Ontario medicare--it was plain, old fashioned lobbying.

Nevertheless, the question remains?

Can sexual orientation as a human rights category be used to leverage surgery?

I doubt there would be a similar problem with transsexual men seeking surgery under sexual orientation.

That's what I was wondering: "Why is Denny's fighting this?" If discovery goes until fall, plus a trial, plus appeals, etc., etc., that's far more than $20K. And did the manager violate their policy? Which manager was in the right, according to Dennys? If their policy is that the first one was right, then they should have just apologized to this woman and reprimanded/educated the second manager. If their policy is that the second one is right, then.... Well, it's hard for me to think that a corporation like Denny's would have that as a policy and be willing to take a huge stand in court for it.