In 2005, Maine voters endorsed a law protecting gay, lesbian, and transgender individuals. Despite opposition to the law from organizations like the Christian Civic League and several efforts before its passage to carve out exceptions to it, the law passed with overwhelming support. Efforts at partial repeal since its endorsement have also failed. Nonetheless, the question of whether businesses and public entities in Maine have to allow transgender individuals to use bathrooms consistent with their own sense of who they are as male or female — their gender identity — rather than their “assigned” sex at birth has proved quarrelsome. This is particularly true when the individual in question has completed gender transition by taking cross-gender hormones but has not had any sex reassignment surgery. Such surgery is expensive and generally not covered by insurance. In a case I handled last year along with GLAD (Gay and Lesbian Advocates and Defenders), Denny’s Restaurant in Auburn required a transgender woman to continue using the men’s room even though my client identified and lived as female and had developed female characteristics through medically supervised gender transition. Denny’s claimed its policy required individuals to use the restroom of their assigned sex at birth.
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