Last month the Maine Human Rights Commission (MHRC) issued new guidance for schools regarding the rights of transgender students. The MHRC had hoped to issue formal regulations but Governor LePage blocked that effort. The new MHRC guidance explains how schools are supposed to approach the issues of transgender students’ restroom and locker room access as well as participation in athletics. The MHRC issued more limited guidance in 2013 for employers who employ transgender employees. This new guidance for schools may also help clarify the MHRC’s position in the employment context.
(The MHRC’s new guidance for schools defines “transgender” as “an umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex/gender they were assigned at birth.”)
The MHRC issued its 2013 guidance for employers in response to a question about whether an employer could require a transgender employee to use the restroom that matches the sex that they were assigned at birth. The MHRC’s guidance stated that employers must reasonably accommodate an employee’s gender identity. Thus, if a transgender woman (a person who has a female gender identity but was assigned the male sex at birth) requests to use the women’s restroom, an employer would probably have to permit her to use the women’s restroom because she has a female gender identity. This 2013 guidance left unanswered, however, how an employer is supposed to know what an employee’s gender identity is. The new MHRC guidance helps to answer that question.
According to the new MHRC guidance for schools, in “general, an educational institution should accept a student’s assertion of their gender identity when there is consistent and uniform assertion of the gender identity, or any other evidence that the student’s gender identity is sincerely held as part of their core identity.” However, “[i]f the educational institution has a credible, objective reason to believe that a student’s gender identity is being asserted for an improper purpose, it may request additional evidence supporting the student’s stated gender identity.” The guidance then provides some examples of such additional evidence which include a statement from a parent and passports or other formal documents. The guidance also clearly states that a school may not require medical records as proof of the student’s gender identity.
Although this new MHRC guidance applies to schools, it would make sense if the MRHC applied some of these same principles to the workplace. The MHRC would likely say, as with schools, in general, an employer should accept an employee’s assertion of their gender identity when there is consistent and uniform assertion of the gender identity, or any other evidence that the employee’s gender identity is sincerely held as part of their core identity. However, it is less clear whether the MHRC would ever permit the employer to seek “additional evidence” of the employee’s gender identity. When dealing with adult employees, as opposed to child students, the rationale for seeking “additional evidence” seems less strong. As such, the MHRC and/or the courts will likely need to provide further clarification on this issue.