While 2016 has ushered in a disappointing escalation of anti-trans rhetoric, there have been some steps forward as well. This month, in particular, has seen historic momentum in the fight for trans rights.

For starters, the federal government releasedguidelines for public schools on their obligations when it comes to protecting the rights of transgender students. What the guidelines boil down to: discriminating against transgender students is against the law. 

Later that same day, the government announced that transgender people cannot be denied medical care, including care related to gender transition, under the Affordable Care Act. 

And finally, the government announced it would challenge North Carolina's anti-transgender law in federal court. That's the law that would force transgender people to stop using the bathrooms they having been using - without incident - for years, and to start using a bathroom that does not correspond with who they are. These so-called "bathroom bills" are not about protecting children, and they aren't really even about bathrooms. As ACLU staff attorney Chase Strangio wrote recently, they are about "expelling trans people from public life." 

The Portland Press Herald and the Bangor Daily News have both weighed in against these anti-trans bills, and their editorials are worth a read:

From the Portland Press Herald:

And sexual predators did not use the laws as “cover” to gain access to bathrooms where there would be children or members of the opposite sex. In fact, “spying” on people in bathrooms is against the law whatever your sex or gender identity, and regardless of the laws covering bathroom access.

These problems only existed in the minds of people ignorant and uneasy when it comes to gender identity, and unwilling to learn more, and the politicians happy to exploit that fear and unfamiliarity.

These problems weren’t real when Nicole Maines of Orono fought her fight for equality. They weren’t real when states began living under laws that protected transgender people from discrimination.

And they won’t become real now that Obama issued his directive that public schools must permit transgender students to use bathrooms and locker rooms consistent with their chosen gender identity (clarifying the stance of his administration, not creating a new law as some of his detractors have claimed).

And from the Bangor Daily News:

In fact, transgender people, especially teenagers, are the ones more likely to need protection.

The suicide risk for transgender people is nearly 10 times that of the general population. More than 40 percent of transgender individuals have attempted suicide, according to the National Transgender Discrimination Survey. Nearly three-quarters of LGBT youth report being verbally harassed, and one-third report having been physically harassed because of their sexual orientation or gender identity, according to a 2013 survey by the Gay, Lesbian & Straight Education Network. More than a third of these students avoid gender-segregated spaces in schools, such as bathrooms and locker rooms.

These are real problems that demand real solutions.

We went into the second regular session of the 127th Legislature looking to build on the successes of last year, when we worked to ban the shackling of pregnant women in correctional custody and to reduce some first-time, low-level drug possession charges. We faced a governor that seems hell-bent on ramping up the failed law enforcement approach, while denying people access to the treatment and recovery services they need.

Today we can say we have made even more progress toward ending Maine’s overreliance on punishment and incarceration as a way to fix societal problems.

But our work is not done - last week we learned that Maine has the highest rate in New England of children with an incarcerated parent. Our punitive system continues to tear families apart, without making us safer. Something has got to give, and we believe our legislative efforts are part of the solution.

Below is a round-up of our priority bills and their outcomes:

LD 1554 "An Act To Resolve Inconsistencies in the Drug Laws"
Status: VICTORY! Became law on April 28 without the Governor’s signature

In 2015, the legislature passed LD 113, our bill to reduce some low-level, first-time drug possession offenses from felonies to misdemeanors. We have always argued that felony convictions actually make it harder for a person suffering from substance use disorder to recover, by putting in place barriers to education, employment and housing.

This win was a huge success for drug law reform and a step toward ending our reliance on law enforcement to fix the drug problem. However, the legislature also passed LD 1246, which amended the same section of Maine law dealing with drug possession penalties. This created a conflict in the law.

LD 1554 was the Attorney General’s proposal to resolve the conflict, by essentially repealing LD 113. We opposed the original version of LD 1554, because it would have re-felonized the charges, rolling back the progress we made last year. The Criminal Justice Committee gave the bill an initial supportive vote of 9-4. The minority report, supported by four members, preserved misdemeanor charges for first-time, low-level possession with subsequent felony charges.

We lobbied hard to flip the vote on the floor of the Senate and the House, with the AG working hard on the other side. Going into the fight, we expected to lose the Senate but win the House, which would have killed the bill and given us the chance to fight again next session. We did indeed lose the Senate, but by just one vote – a much closer margin than we expected. Moving on to the House, we lobbied nearly every representative individually. Our work paid off – we won the House by a wide margin (83-63). The bill then moved back to the Senate, where we hoped to pick up the votes needed to put the bill on the governor’s desk.

Meanwhile, the governor’s staff joined the AG in trying to pick off enough votes in the House to get the majority report passed. Fortunately, most House members were locked in, agreeing with us that low-level possession should be treated as a misdemeanor. The AG then proposed a compromise – that low-level (below a certain threshold) possession would always be a misdemeanor offense, not just the first offense. The threshold (200mg) was lower than we would have liked –but not an unreasonable level. And a “forever misdemeanor” would mean that many Mainers suffering from substance use disorders would never have to face a felony record, and all the consequences that come with it. We agreed to support the compromise, which then sailed through the Senate with a vote of 35-0 and the House with a vote of 132-17, and with the support of the ACLU, the Attorney General, and bipartisan legislators.

A governor’s veto was a distinct possibility, and we were working to secure enough votes to override him. However, the governor let the 10-day window to veto pass and the bill became law last week without his signature.

LD 1639 "An Act To Implement the Recommendations of the Intergovernmental Pretrial Justice Reform Task Force"
Status: signed into law by the Governor on April 7, 2016

In the first session of the 127th Legislature, we proposed three criminal justice reform bills: a drug law reform bill (LD 113 - see above), a bill to ban the shackling of pregnant women (passed into law last year), and a bill to stop the jailing of people for being too poor to pay their fines (LD 951, sponsored by Rep. Mark Dion, D-Portland). We also supported a bail reform bill to overhaul Maine’s antiquated bail system.

We put together a comprehensive plan to end the jailing of people for being too poor to pay, which amounts to modern-day debtors’ prison. In addition to proposing legislation, we produced a study detailing the number of people in jail for failure to pay that led to a feature story in the Press Herald on the issue. The Press Herald and the Bangor Daily News also wrote editorials decrying the practice.

In the midst of this public attention, Chief Justice Saufley convened a task force to explore the issue of bail and fines reform in Maine. Our bill, LD 951, was tabled over the summer in anticipation of the task force recommendations. Alison was appointed to the task force, along with members of the judiciary, the legislature, the AG’s office, prosecutors, defense attorneys, victims’ advocates, and other stakeholders. Alison attended meeting after meeting throughout the summer and fall.

In December, the task force compiled a comprehensive report, complete with recommendations for reforms to ensure that indigent Mainers do not languish in jail under the weight of hefty fines and bail. The task force recommendations included specific language to give judges discretion to waive mandatory fines when individuals face financial hardship, thus ensuring poor Mainers don’t get caught up in the system.

The Judiciary Committee unanimously voted to turn the task force recommendations into a bill, LD 1639 (sponsored by committee chair Sen. David Burns, R-Whiting). In a rare moment, the AG, Governor, and ACLU of Maine all testified in favor of the same bill – a first (and probably last) in my time at the ACLU. The committee voted unanimously to adopt the task force recommendations almost wholesale (a few provisions that would have generated a fiscal noted were moved into further study and will hopefully pass next session). The bill sailed through the House and Senate and was signed by the governor.

LD 1577 "An Act To Increase the Availability of Mental Health Services"
Status: passed by the Legislature, died on the appropriations table

Since problems at Riverview came to light a few years ago, the Department of Health and Human Services has repeatedly demanded that the Legislature grant Commissioner Mayhew the authority to transfer forensic mental health patients to prison and jail units. Each time, the ACLU of Maine has loudly opposed these efforts.

The 2016 session was no different. A Governor’s bill, LD 1577 (sponsored by Rep. Deborah Sanderson, R-Chelsea), again proposed to put patients convicted of no crime (individuals deemed not criminally responsible and incompetent to stand trial) in prison. The Health and Human Services Committee vote was down party lines, with six Republican members supporting the governor’s bill and seven Democrats voting for an amended version of the bill to clarify that the Commissioner has no authority to transfer patients to jail settings. The amended version became the majority report, which we supported. 

In close votes, the House and the Senate passed the majority report (to keep patients in hospital settings). That bill then went to the Appropriations Committee, where it remained until session adjourned - the bill "died on the table," meaning it will not become law. Because neither the original nor the amended version of the bill became law, the status quo remains the law of the land. DHHS still does not have the authority to transfer people in their custody, who have not been convicted of a crime, to prison.

LD 1554 became law today without the signature of the governor. The law makes possession of heroin and other drugs a misdemeanor rather than a felony. Both houses of the Legislature voted overwhelmingly in favor of the bill.

The final version of LD 1554 was amended to make first and subsequent charges for low-level possession – including less that 200 mg of heroin – a misdemeanor, unless the individual has a prior furnishing or trafficking conviction. The amendment had the support of bipartisan legislators, Attorney General Janet Mills, and advocates for drug law reform.

As our advocacy director, Oamshri Amarasingham, said in our press release:

Today, Maine has taken a huge step toward correcting our failed drug policies. Treatment and prevention are the best ways to help people with substance use disorders, not harsher penalties. We are thrilled that now fewer Mainers will face felony records, and all the collateral consequences that come with them, for low-level possession. Now we can focus on getting people the help they need.