The local school board’s Policy Committee has updated its proposed anti-discrimination policy for transgender and gender-expansive students to address legal concerns around withholding information about a student’s gender identity from their parents or guardians.

The changes make it clearer that school officials would only withhold information about a student’s gender identity from their parents or guardians if there is a strong indication that informing them would lead to abuse or neglect of the student.

Approved during a well-attended committee meeting on Wednesday, Sept. 6, the changes were based on advice from Maine School Administrative District 75’s attorney, Peter Lowe, of the Lewiston-based law firm Brann & Isaacson.

Lowe noted in his legal review of the initial policy draft that, because of ongoing litigation around the issue, the changes still would not give the district ironclad protection from lawsuits if the policy is adopted by MSAD 75’s Board of Directors.

“It should be noted that one of the central issues — the role of parents — is presently being litigated in Maine, and a decision in this case will have important consequences for the legality of the policy,” Lowe’s Aug. 4 memo to the district says. “The role of parents in name and gender changes is one of intense interest to many groups, and we expect that more litigation and case law, and possibly legislation, will impact this policy in the future.”

After months of discussion and debate, MSAD 75’s Policy Committee has settled on proposed language for what would be the district’s first-ever policy intended to protect trans students from bullying and discrimination. The school board could vote on the policy as soon as Thursday, Sept. 14, when its next meeting is scheduled to occur at 6:30 p.m. at Mt. Ararat High School, 68 Eagles Way, Topsham. The district covers Harpswell, Topsham, Bowdoin and Bowdoinham.

The policy draft is based largely on language recommended by the Augusta-based Maine School Management Association, or MSMA, and vetted for potential legal issues by MSMA’s law firm, Portland-based Drummond Woodsum. It also contains several paragraphs lifted from policies adopted by other school districts, including Portland and Yarmouth.

While being transgender was regarded as a psychological disorder as recently as 10 years ago, it is now widely viewed by medical professionals as a natural variation of human diversity, according to the American Psychiatric Association.

According to the American Medical Association, a landmark 2018 study in the Journal of Adolescent Health found that transgender youth who were allowed to use accurate names and pronouns experienced 71% fewer symptoms of severe depression, a 34% drop in reported suicidal thoughts and a 65% decrease in suicide attempts.

Lawsuit raises concerns

One ongoing lawsuit that has raised concerns among Maine school districts was filed April 4 in U.S. District Court by Amber Lavigne, a parent who is suing officials at Great Salt Bay Community School in Damariscotta, according to education news outlet Education Week.

Lavigne alleges the district failed to inform her that a school counselor had used the pronouns and name her child asked to go by at school, which were different from the ones associated with the child’s gender assigned at birth.

The counselor also allegedly gave the child a chest binder, a tight-fitting garment worn around the chest to flatten breasts, and told the child they were not required to tell their parents, and that school officials wouldn’t tell them either, according to Education Week. Lavigne is being represented by the Goldwater Institute, an Arizona-based conservative think tank.

Based on Lowe’s legal advice, the MSAD 75 Policy Committee made two key additions to the policy draft under the section about how to decide whether to inform parents that their child has asked to be recognized as trans at school.

The first addition says: “In resolving the matter, the Superintendent should evaluate whether there is evidence of substantial risk to the student by notifying the parent of the student’s request to change their name and/or pronouns.”

The second addition says: “No part of this policy precludes a student from confidentially speaking with a school counselor or social worker about transgender or gender-expansive issues. Such conversations are confidential to the extent set forth in applicable law.”

While committee members disagreed on a few details related to the additions, the language adopted by the Policy Committee was virtually identical to what Lowe recommended, with only minor adjustments.

At an earlier meeting, the committee had adopted a handful of other changes to the sample policy recommended by MSMA, a statewide, nonprofit federation of local school boards and superintendents. Those changes included adding a section taken from Portland’s policy that allows school officials to request medical evidence of a student’s trans identity if officials believe the student is asserting a different gender identity for “an improper purpose,” language a leading Maine LGBTQ+ rights advocate has called outdated and unnecessary.

The committee also had removed a line from the MSMA sample policy that says a medical diagnosis should not be required to recognize a student’s gender identity.

The committee also had added a line emphasizing that the policy’s intent is “not to withhold information from parents/guardians, but to protect the privacy of students,” but that line was subsequently removed from the draft policy at the committee’s Sept. 6 meeting.

Passion and disruption

Several audience members voiced strong opinions about MSAD 75’s proposed policy, both for and against, during the Sept. 6 meeting. Several parents who were critical of the policy also made numerous outbursts during the committee’s discussion, shouting comments such as, “We’ll just sue you!” and “You have no authority over parents’ rights!”

The draft policy’s stated purpose is to guide school faculty and staff in their efforts to “foster a learning environment that is safe and free from discrimination, harassment and bullying,” and “assist in the educational and social integration of transgender and gender expansive students” in local schools.

There is no state or federal requirement that school districts adopt a written policy regarding trans students. Rules around participation in interscholastic sports and related issues are handled at the statewide level by the Maine Principals’ Association. Still, other districts in Maine have been adopting their own policies in recent years with help from MSMA.

For the most part, MSAD 75’s draft policy mirrors the one recommended by MSMA. It defines relevant terms and provides a framework for how to accommodate students who assert a different gender identity from the one they were assigned at birth.

For example, the policy advises school personnel on setting up a meeting with the student and, if necessary, developing a plan that meets their particular circumstances and needs. It says school personnel should address trans students by their preferred name and pronouns, and allow them to use the bathrooms and locker rooms that most closely align with their gender identity.

Former school board member Eric Lusk, of Harpswell, summarized conservative parents’ concerns about the proposed policy during the Sept. 6 meeting’s public comment period.

“Parents are charged with the well-being of their children,” he said. “Why would you want to conceal something from (parents)?”

Lusk also criticized the policy draft for not addressing the rights of students who don’t want to share intimate spaces such as bathrooms and locker rooms with trans students, and he urged the committee to await the outcome of pending lawsuits before approving the policy.

But other audience members, including two teachers, spoke in favor of the policy and said there are situations where it makes sense not to inform parents about their child’s trans identity, especially if there is evidence it might result in harm to the student.

Policy Committee member Brandy Robertson, of Bowdoin, said during the Sept. 6 meeting that the changes adopted by the committee reflect a strong bias against withholding information from parents.

“It’s clear that we can’t just say, ‘A student is scared to tell their parents, and therefore we can keep a secret from their parents,'” Robertson said.

Allen Sarvinas, Maine’s senior organizer for Parents’ Rights in Education, an Oregon-based advocacy group whose website says it opposes “radical gender ideology” and “anti-American, anti-white, and anti-capitalist sentiments” being taught in schools, has been a regular presence at the Policy Committee’s recent meetings. He said the stricter standards imposed by the committee would help promote family unity at home.

“Any decision a school makes that jeopardizes or severs this home environment automatically decreases the educational outcomes for the student,” Sarvinas said via email. “That’s why we have to make sure there is evidence of actual and substantial harm prior to any privileged communications (being) withheld from parents.”

Have a comment or news tip? Please contact J. Craig Anderson via email.