http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2014/14me11do.pdf
The decision was quite narrow, does not really call for ANY legislative or regulatory action, in fact the court took the position that each case has to stand on its on sets of facts:
Thus, we do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are present in this case. Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice. Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly. Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA
The Concurring Opinion mentions the need for LEGISLATIVE action in this area of the law, but concurs with the Majority as to this one case (and concurs with the dissent on its analysis of the conflict of law in this case, but was willing to make a very narrow exception in this case only).
Put simply, it could now be argued that it would be illegal discrimination for a restaurant, for example, to prohibit a man from using the women’s communal bathroom, and vice versa. I agree with the dissent that it is highly unlikely that the Legislature actually intended that result. Accordingly, on this matter of public policy, it would benefit the public for the Legislature to act quickly to address the concern raised by the dissent in this matter
The dissent makes a very good point, the laws involved were BOTH pass by the State Legislature and as such must BOTH be followed unless they are EXPRESSLY ARE IN CONFLICT. In this case they are NOT, one law a law of a general nature, forbids discrimination based on sexual orientation but that ban does NOT includes transgender people. If the State Legislature wanted to include Transgender people they could have included them, but did not. The dissent also points out it is the policy of the courts to find laws are NOT in conflict if that is possible.
The Dissent also points out that the law has long taken the view that specific laws when they come into conflict of laws of a general nature (When both laws are State Laws), the Specific law is viewed as superior to the General Law. When it comes to bathrooms in schools, the law is quite specific that separation of the sexes by sex is required. That rule has no affect on Sexual Orientation, Gay males can not go into the Girls restroom, Gay Females can not go into the Males Restrooms, Gay males must go with the rest of the males, the Gay Females with the rest of the females. The sexual orientation of the student involved in this case never came up in the case, she may like boys or she may like girls. No one involved in the case cared enough about that issue to even bring it up.
The issue in front of the court was could a student who has the body of a male, but consider herself a Female, use the Female Restroom OR must that student use the Male Restroom? The School Code is quite specific, both sexes MUST use separate restrooms and it is clear what the legislature meant by separate sexes (Through it is also clear the State Legislature did not take into the consideration someone with the body of one sex but thinks themselves the other sex).
The dissent says this calls for legislative action to resolve this dispute NOT judicial action, The Court has to defer to the Legislature when it comes to changing the law. This was NOT a case of constitutional interpretation of the State Law, but interpretation of two state laws that came into conflict in this case. It is the job of the Legislature to fix this not the courts.
That position is consistent with traditional court rules when it comes to conflict of laws. Yes, Constitutional clauses are superior to laws passed by State Legislatures and Federal Law is superior to State Laws (and even State Constitutional provisions) but in this case you have TWO state laws in conflict. This was NOT a case of a conflict with a State or Federal Constitutional provision nor a conflict with any Federal Law. You had a very specific law (as to separate restrooms based on sex in the schools) and a very general law banning discrimination based on Sexual orientation (but not technically transgender). The general rule is Specific Law over comes General Laws when both are State Laws AND both laws must be read as if BOTH are valid and do not conflict if that is possible. It is a very good argument.
Accordingly, I depart from the Court’s casual dismissal of the fact that the plain language of a specific statute explicitly requires segregating school bathrooms by sex. The plain language of the provisions of section 6501 and the MHRA are in conflict, and I believe that principles of comity require us to defer to the representative branch of government to resolve the issue.
On the other hand requiring any change in the law or regulations is NOT in the ruling of the Majority in the above case. The Concurring opinion and the Dissent said such action is needed but that is all. The Majority did not call for any action by the Legislature or the Maine EEOC.
The Governor has said the Maine EEOC can NOT issue any regulations based on that ruling, for the court ruled on the underlying statute not any regulation. As the Chief Executive Officer of Maine, the Governor of Maine may have that authority (depends on what power the Governor has over the Maine EEOC, it may be independent of the Governor or under his complete control or something in between). If the Governor has the power to ban issuing any regulations, nothing in the Opinion forbids the Governor issuing such a ban.
On the other hand the State Legislature should address this issue. Again that is NOT required by the decision. On the other hand, when it comes to transgender people this case is a very narrow exception that most Transgenders will NOT come under. The reason for that narrow ruling is a broader ruling would technically permit a male to say he is a woman for any purpose based on mere saying he is a she and push out woman from female Sports teams or other female events (Technically a female could do the same with a male sport, but most sports relate to upper muscle strength which in males tends to be stronger then in females. Those sports where a males superior upper body strength is minor, and either unisex today or females prefer to stay in female sports for other reasons).
The majority clearly did NOT want to rule that mere statement by someone that they are of the opposite sex then they had been living is something the court wanted to avoid (The Majority went into details on the Student's life history from Second Grade onward and interaction with the schools, parents and other students to show that its ruling was very narrow). Thus, while not calling for Legislative action, the ruling calls for some sort of discussion as to what type of law the State Legislature should pass in cases like this. The Governor is taking that as saying the Legislature has to change the law. That is NOT what the Court actually ruled, but that is the Governor's position and it has some justification behind it.
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