Becoming Nicole: The Transformation of an American Family (22 page)

O
n a rainy day in September
2012
, Bennett Klein arrived at the Penobscot Judicial Center in Bangor a half hour early. Superior Court judge William Anderson wasn’t scheduled to hear arguments in
Doe v. Clenchy
until nine o’clock, but Klein and Jennifer Levi, both from GLAD, wanted to go over their notes. After a couple of dozen visitors, including the four Maines family members, took their seats in the small courtroom, the judge asked to see both the defendant’s and plaintiff’s lawyers in his chambers. In a rare move, the
Bangor Daily News
had asked the court if it could videotape the proceedings. Judge Anderson wanted to know if anyone had an objection. No one did.

The case was unusual from the start. When Klein and Levi wrote their court brief they decided to do something neither had ever done—include photos of their client. Referred to as “Susan Doe” in all the legal documents, Nicole never appeared on a witness stand or sat at a counsel’s table, because the issue at stake was legal, not personal. This was a suit to decide a question, really two questions, of law: Did a transgender girl have a right in the state of Maine to use the bathroom of her gender identity? And by forcing her to use a unisex bathroom, did the school discriminate against her? Neither Levi nor Klein was sure what judge Anderson knew about “Susan Doe,” or, for that matter, what it meant to be transgender. Everything, however, rested on that understanding, so included in the twelve-page statement that opened the plaintiff’s brief were six color photographs of Nicole in the fifth and sixth grades.

It was Levi’s idea to include the photos, and it was based on an observation she had made years earlier in one of the first transgender discrimination lawsuits she’d litigated. Accompanying Levi that day in court was a legal intern, a woman who eventually would transition to being a man. At the time, the transgender intern looked more masculine than feminine, but was still using a female name. The trans woman Levi was actually representing looked extremely feminine, but she was seated, like Nicole now was, in the gallery. The press that day made a wrong assumption. They identified Levi’s legal intern, sitting at the plaintiff’s table, as being the transgender woman involved in the case. Appearances, Levi learned, mean everything in transgender litigation. People will call to mind whatever the word means to them. For the media, back then at least, “transgender” meant the masculine-looking woman sitting beside Levi.

Although the Maines family would be sitting in the courtroom to hear the arguments, Levi and Klein knew they couldn’t count on the judge recognizing Nicole, so adding photographs to the statement was crucial. The lawyers in the GLAD office in Boston debated long and hard about the choice of pictures, their size, order, and arrangement. Should they lead with the one of Nicole holding the family cat? And if so, how large? They did lead with it, and medium sized. It was a candid shot of Nicole, dressed simply in jeans and a blue blouse, with the family’s gray cat in her lap. In the photo she is looking up at the camera with a half smile, her hair spilling over her shoulders. It’s a snapshot of a sweet-faced, ordinary nine-year-old girl, except that Nicole wasn’t an ordinary nine-year-old girl, and Klein and Levi were able to make both points early and succinctly in their brief. Beneath the photograph with the cat was another picture of Nicole, in the sixth grade, posed outside and wearing a pink top and pink plaid skirt. Under the photo, the statement began with these two sentences:

Susan Doe is a girl. She is also transgender.

Nine words—but those two sentences were the heart of the matter.

Judge Anderson, a balding, avuncular man, was, like most judges, difficult to read, in terms of how he might be leaning. Klein gave the main argument for the plaintiff’s side, taking up about fifteen minutes of his allotted time. This was the second case he’d litigated in Bangor. Fourteen years earlier, he had been a senior attorney in the case of
Bragdon v. Abbott,
representing a woman with HIV who was denied dental care because of the dentist’s written policy of refusing to treat anyone with AIDS. Klein took the case all the way to the U.S. Supreme Court, where he prevailed in an historic 1998 victory that established protections against discrimination for people with HIV and AIDS under the Americans with Disabilities Act.

During Klein’s argument in
Doe v. Clenchy,
Anderson appropriately interrupted him with questions, but none that gave any indication as to how he would eventually rule. Barely two hours later, the proceedings had concluded and the courtroom was adjourned. It was unclear when a decision would be rendered or announced, since it depended on several things, including how complicated the case was, and how busy the judge. Six months was about average, and that’s what Klein and Levi hoped for. This would be an important ruling, but both lawyers knew it would not be the last. No matter who won, there would be an appeal to the state supreme court, which would have the final say on the matter.

Levi didn’t know if it was an omen or not, but earlier that morning, she’d noticed a familiar face on the front page of the
Bangor Daily News:
Bob Lucy, the acting principal at Asa Adams who had forbidden Nicole from using the girls’ restroom after she was harassed by Paul Melanson’s grandson. Lucy was in the news because the Bangor paper had found out he’d allowed some students at Orono Middle School, where he was principal both before and after he temporarily took over the same job at Asa Adams, to change answers on a standardized exam after the allotted time was up. When the Orono school district found out, it eliminated his position. He had recently accepted a job as assistant superintendent for the Bangor School Department, but when Bangor got wind of the controversy, it promptly launched its own investigation. Ultimately, in March 2013, Lucy resigned from the district.

The Maineses and the GLAD lawyers didn’t have to wait six months. Two months after Judge Anderson listened to the arguments of both sides in
Doe v. Clenchy,
his decision was announced. The Orono school system, he ruled, had not violated Maine’s Human Rights Act when it prohibited Nicole from using the restroom that matched her gender identity.

“The court is not unsympathetic to [the girl’s] plight, or that of her parents,” the judge wrote in his twenty-six page opinion.

It is no doubt a difficult thing to grow up transgender in today’s society. This is a sad truth, which cannot be completely prevented by the law alone. The law casts a broad stroke where one more delicate and refined is needed….Our Maine Human Rights Act only holds a school accountable for deliberate indifference to known, severe and pervasive student-on-student harassment. It does no more.

Anderson concluded the school neither harassed Nicole by its action nor was deliberately indifferent to the harassment she experienced from Jacob. Anderson granted the school district summary judgment. It was a victory for the Orono board of education and Kelly Clenchy. Wayne and Kelly felt crushed, but they mostly worried that Nicole and Jonas might hear about the loss from a reporter before they heard it from them. Wayne told his boss he needed to leave work early, then drove two and a half hours to Portland. Speeding down the interstate, he wondered how he was going to break it to his kids—that after five years of the family’s work, sacrifice, and worry, a judge had said the school had done nothing wrong, that it was Nicole’s problem. He thought of all the people who had helped them in the past, especially Lisa Erhardt, the school counselor at Asa Adams, who had been Kelly’s confidante and adviser and with whom Wayne was occasionally still in touch.

When Nicole and Jonas were given the bad news, they were disappointed but then asked, “What’s the next step?” They didn’t want the fight to end there, and Kelly reassured them it would not. Klein and Levi and the other lawyers had all said they’d immediately appeal to the state supreme court. Win or lose there, though, that would be it. That was fine with the family. They’d been on this ride so long and there had been so many ups and downs. If it meant another few months to possibly turn things around, it would be well worth the wait.

I
N
A
PRIL
2012
,
W
AYNE
and Nicole visited a satellite campus of the University of Maine in the coastal town of Machias, the site of an annual LGBT youth and allies conference. The highlight every year was the Rainbow Ball, when scores of gay and transgender kids dressed up for a raucous night of dancing. Sometimes they even dressed as their favorite superheroes. The kids slept in campus dormitories, with chaperones in adjoining rooms. Wayne didn’t get a wink of sleep. Instead, he found himself continually amazed at the diversity around him. He’d met gay people in college but he’d never really gotten to know them. Right next door, talking and laughing all night long, were gay boys, trans girls, trans boys—some of them Wayne had no idea what their gender was, but none of it seemed to matter, least of all to them. That’s what struck Wayne. Everyone was different and no one cared how or why. Some, like Nicole, watched anime on Wayne’s laptop; others ate pizza.

For so long Wayne had tried to analyze kids, including his own child, looking for the right descriptions, the right terms, to explain it all, but here in Machias, in this dormitory suite, he finally gave up. It didn’t matter to these kids whether someone was called gay, transgender, genderqueer or whatever, so why should it matter to him? He remembered a year earlier all the people he’d met at a transgender conference in Albany where he was giving his first major keynote address. Wayne met so many attendees just sitting in the lobby working on his speech. One night he went out for dinner and drinks with two transgender couples—four women—and spent two hours talking with them. At the end of the conference one of the women he’d been out to dinner with approached him and said, “I have to tell you this, Wayne. When we first saw you, I said that man is the best put together trans man at the conference.”

It was quite the compliment, and Wayne was both amused and moved. He’d spent a lifetime developing his communication skills through safety training, but he hadn’t really taken those lessons to heart, certainly not with his wife or his kids. He’d learned more about connecting with people deeply and honestly at that Albany conference than he had in any of his thousands of hours of safety training. For some reason, he knew these kids in the dorm, and the whole LGBT community they represented, had his back. It’s all about who you can count on, he thought to himself. He had not been that person for Kelly in the beginning, but Kelly had been that person for Nicole. Thank God for that. Now, Wayne knew he needed to be that person, too.

I
N EARLY
A
UGUST
2013
,
Wayne found something Nicole had written on her Facebook page:

Just watched an episode of Family Guy where Brian had sex with a trans person and when he finds out he screams and pukes everywhere. And then I think: forever alone.

Three people “liked” her post. Other friends commented:

Transphobia in television is utterly appalling. I was just starting to enjoy Ace Ventura when I discovered the highly insensitive transphobic scene (much like the family guy episode), and I got really mad.

Eh…its a show that appeals to the mass of functional morons out there…your future holds bigger n better…where there is love, attracts love…I have no worries I’ll be invited to your wedding one day.

Wayne’s heart bled. He knew there was no such thing as total protection from insults and ignorance, no way to insulate a child from, or fend off, every odd look, insensitive comment, or slur. He needed to let Nicole know he understood, so he posted his own comment on her Facebook page:

To my beautiful daughter, I love you with all my heart. My life mission is to protect you from harm and to help you grow. I worry about you every day, but I have seldom worried that you will be alone. You have never been alone. You are admired by so many. You are beautiful, amazingly smart, strong beyond your years and funny. I know that someday someone will take you away from me. I say someday because I am not ready for you to grow up.

KEEPER OF THE HOUSE

I remember back to the warm summer afternoon.

In the massive forest that I called my backyard.

It seemed so huge, unthinkably huge

Perhaps because I was so small.

I remember the acres being painted with light and

Infinite shades of greens and yellows.

My father would stand among a pile of stumps and logs,

The crisp smell of sawdust still lingered.

His grey sweatshirt decorated with wood-chips and paint.

His hands were scraped at the knuckles, and the sun

Bore down on his neck, leaving a bruise of red heat.

—Jonas

K
elly and Wayne continued to be amazed at the pace of maturity in Jonas after a difficult period of emotional highs and lows. Yes, he’d spent nearly the entire previous year holed up in his bedroom, reading, listening to music, or playing his guitar, but he was slowly coming out of his teenage shell. During the summer after his freshman year of high school, he took four weeks of college-level classes in ocean studies, won a poetry contest, and was part of the school’s winning Model United Nations team. Jonas had become a deeply reflective person. He loved and respected his parents for all their hard work, but he wondered how it all added up. He knew he wanted his own life to mean something substantial, and he couldn’t yet see that meaning in having a wife or raising children or working at some job every day. Instead, he was in love with big ideas and exploration, and had a yearning to travel. His life to this point had been largely circumscribed by the travails of his sister, and he was just now beginning to feel the contours of his own individual being.

In May 2014, Jonas wrote a short story about the former gangster Legs Diamond, imagining him confronting his own mortality. In it, Diamond sits and talks with the character of Death, who can’t take his eyes off the Depression-era thug. But when Diamond asks what his life meant, Death is not at all obliging.

People, nowadays, always expect others to solve their problems and answer their questions. It’s juvenile….Who would know more about your life’s ultimate meaning than you? Think about it. Every choice you make, every thought that runs through your head, they are all yours. Every instant of your life is determined by you.

So much of life is unpredictable—Jonas, like Nicole, Kelly, and Wayne, knew that all too well—and everything is earned. Meaning was something to be sought, struggled with, fought for, and ultimately found. And it was precious.

When Wayne was asked to be a keynote speaker for a Civil Rights Day program at Memorial Middle School in South Portland, he asked Jonas if he wanted to come along as his “roadie.” Jonas looked sharp in a tie, and as he set up his father’s laptop for the PowerPoint presentation, he couldn’t help noticing a gaggle of girls loitering nearby. They were actually Googling his name on their smartphones. It was flattering. Wayne spoke for half an hour, then took questions from the students. One girl raised her hand.

“Can we ask your son some questions?” she asked.

“If he wants to, that’s fine with me,” Wayne answered.

Normally Jonas didn’t like taking part in these presentations. He was entirely supportive of Nicole, but like his mother, public speaking wasn’t his thing. Nonetheless, he politely obliged.

“What was it like growing up with a transgender sister?” the girl asked.

Jonas took a moment to reflect.

“Imagine,” he said, “what it’s like for kids, teachers, adults asking you about your sister being transgender and you’re trying to explain it all with a sixth-grade vocabulary.”

Wayne was struck by Jonas’s self-awareness, his ability to parse an experience so finely, to see it and understand it so acutely. It was uncanny. Jonas had a preternatural ability to understand not only his own mind, but the thoughts and feelings of others. He was exquisitely sensitive in that way, which is perhaps why it was inevitable he would rediscover acting. It had been one of his and Nicole’s chief pastimes as children. Nicole loved being on a stage, the center of attention. Jonas, though, shied away from school theatricals, especially after the sixth grade. That’s when he’d landed the lead in
Charlie and the Chocolate Factory,
but he’d messed up, fooling around onstage during a performance. Wayne had been so embarrassed by his son’s behavior that night he apologized to the play’s director. Jonas couldn’t explain why he’d been disruptive. Maybe he just wasn’t ready for the responsibility or public attention. Whatever it was, he swore off theater.

Now he was feeling different, more confident, and he auditioned and won roles in productions each year at Waynflete, both comedy and drama. He played Reverend Hale in Arthur Miller’s
The Crucible
and Vice Principal Douglas Panch in the musical
The
25
th Annual Putnam County Spelling Bee.
He was one of the two stars in Tom Stoppard’s
Rosencrantz and Guildenstern Are Dead
and played the part of Will Shakespeare in William Gibson’s
A Cry of Players.
He loved the language, he loved moving an audience, but above all he loved the storytelling, immersing himself in a role. It was, in some ways, the best kind of therapy for a kid whose biggest role in life so far had been being someone else’s brother. All the major events in Jonas’s life had been framed by Nicole’s experiences, but onstage, as part of an ensemble,
he
defined the experience. He was in control. “Theater works for me,” he liked to say.

O
N
J
UNE
12
,
2013
,
Jennifer Levi, representing the Maines family, argued the appeal of the Superior Court’s summary judgment in front of Maine’s Supreme Judicial Court, referred to as the Law Court in its appellate role. She’d driven up from western Massachusetts in her Nissan hybrid the day before, which was a good thing because it was cold, windy, and rainy the morning of the hearing—the same weather she and Ben Klein had encountered in Bangor nine months earlier. They hoped their luck would be better this time. It was Levi’s turn to make the argument before six justices of the Law Court—the seventh had recused himself for unknown reasons. Levi wasn’t used to arguing a lot of cases because her work is so specialized. As a transgender rights lawyer, she covered a wide range of issues, from healthcare access to employment discrimination to rejection of bank loan applications, but it wasn’t often that those cases made it to court. This was different. Only one other bathroom accommodation discrimination case involving a transgender person had ever reached a state supreme court, in Minnesota in 2001, and the plaintiff lost. If Levi and Klein prevailed, they would set a precedent.

When she opened her bright yellow legal folder to begin her argument, Levi looked over her typewritten, highlighted list of facts taped to the left side of the folder, and, taped to the right side, questions she anticipated the judges might ask. She’d spent more than a thousand hours on this case and had made countless trips to Maine to visit the family. She’d even researched the biographies of each of the judges, hoping to gain an insight or an edge. Levi wanted to make sure the judges understood that Nicole had been forced to use a separate restroom and that even the school’s own staff had deemed the boys’ restroom inappropriate for her. Most of all, it was important for the court to see Nicole as the girl she was.

Levi and a member of the Maine Human Rights Commission spoke first. Then the defendant’s attorneys. There were questions from the judges as well as rebuttals by both sides. After the hearing, Levi told the media, “We have a strong case here of a young girl trying to go to school and learn, and the school failing to protect her. I feel confident that we got a fair hearing from the court, and I look forward to their decision.” Outside the courthouse, in a driving rain and standing next to her parents and brother, Nicole spoke to the press as well:

I want all transgender kids to be able to go to school and not have to worry about being treated unfairly or bullied. I’ve been very lucky to have a family that’s stood by me and stuck up for me, and I’m really grateful for them.

On August 12, 2013, California’s governor Jerry Brown signed into law AB 1266, and in doing so, broke new ground as California became the first state to establish a law aligning bathroom use not with sexual anatomy but with gender identity.

A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.

Brown’s signature came after months of public controversy and attempts by various conservative and right-wing religious groups to stop the bill’s passage. Even afterward, one of them, Privacy for All, launched a petition drive to repeal the legislation, writing on its website that it was wrong to use

laws to frustrate and deny great natural and moral truths. One such truth is that men and women offer unique and complementary contributions to human flourishing. Society is better served when those contributions are encouraged, not when the uniqueness of being male and being female are stripped from societal norms and we’re guided into a genderless future.

One vocal opponent of California’s AB 1266, as well as other state and federal attempts to expand civil rights protections to transgender people, was Brandon McGinley, the field director of the western region for the Pennsylvania Family Institute. In October 2013, he argued in an online essay that relying on “disgust, discomfort, or another visceral reaction to carry the day in opposing such progressive legislative innovations” was a fool’s errand.

We could affirm that gender is distinct from sex, and even that its contours are complex, fluid, and partially socially-construed, without affirming the radical view that our biology is irrelevant to our gender….

We need not go into detail to observe that men and women have different experiences in restrooms, locker rooms, and other sex-segregated places because of the differences in their anatomy. Separating the sexes in these facilities allows for distinct physical accommodations proper to the needs of men and women, but more importantly it allows for camaraderie among those who share the whole life experience of manhood or womanhood—among those who are the same.

For Kelly, Wayne, Nicole, and Jonas, the theory simply made no sense. They argued that the female experience, the “life experience of manhood or womanhood,” was exactly what had been denied to Nicole by Orono Middle School. Using the girls’ restroom, combing her hair, and gossiping with friends: These seemed like small things, but they were all a part of being a teenage girl and
that’s
what was being denied to Nicole. She didn’t want a genderless society; she just wanted to be recognized for the gender she knew she was, the one that allowed her to have all the same experiences of being female that other teens girls enjoyed. No one could argue that equal rights for all religions would result in a religionless society. It was about the law, and the law should be blind to differences when it comes to handing out rights and privileges. The experience of who we are is a celebration of what makes us human, and one of those experiences is being male or female—or something in between.