CHAPTER 37
Someone Else’s Brother
Just when Nicole seemed to be finding her footing, Jonas appeared to be losing his. If he was not entirely failing, he was certainly floundering. He’d already dropped jazz band, so he picked up lacrosse, but mostly as a bench warmer. He was a strong science student, but he also enjoyed writing poetry and song lyrics. He couldn’t exactly put his finger on why he felt angry and depressed, he just knew he felt less and less in control of his emotions. Kelly took him to see a therapist, and over the summer he improved. But with the start of sophomore year, depression and anxiety seemed to paralyze him.
It was hard being Jonas, hard being Nicole’s brother—the other child, the other twin, the one without the unusual story. The Boston Globe had made Nicole a minor celebrity, and the article was now framed and hanging in Wayne’s office at work. In fact, Nicole had received more than a dozen letters from public officials, including Olympia Snowe, U.S. senator from Maine, all congratulating her on her effort to educate the public and advance transgender rights. Sometimes, when the kids came home from school, there was a camera crew or a reporter waiting outside the house wanting to talk to Nicole. It wasn’t that Jonas was jealous of his sister. He was proud of her. It’s just that an awful lot of the time he felt like a bit player in the theater of his own life. He didn’t have his own story—his own narrative. His life revolved around Nicole’s.
Wayne and Kelly started to receive invitations to give talks. Kelly, as usual, had no interest in public speaking, but Wayne embraced the role, perhaps in part to make up for all the time he’d spent ashamed, embarrassed, and confused about having a transgender daughter. When Jonas occasionally attended one of his father’s talks, he’d watch Wayne get emotional when he spoke about Nicole; as a result, Jonas felt sort of invisible. There was nothing special about his life. No singular talent or achievement. My biggest role, he sometimes said to himself, is being someone else’s brother. When things were at their worst, when his thoughts got the better of him, they tended to be a lot more negative, like, If I was gone, everything would still go on without me, as if I’d never existed.
Sometimes Jonas found solace in music, like the Icelandic band called Of Monsters and Men and its song “Little Talks.” It was the story of a girl losing her mind and a boy who’s known her all his life and who tries to take care of her:
Your mind is playing tricks on you, my dear….
Though the truth may vary…
Other times, Jonas tried to channel his despair into his own poetry:
There’s an evening haze settling over town,
That nest in the old maple tree…
None of them are special when looked at from across the plain,
That will never be repeated….
It wasn’t easy for Jonas to talk to either of his parents, but he was more like his mother than his father. Neither he nor Kelly were as verbal as Wayne and Nicole, and both were more on the introverted side. Like Jonas, Kelly didn’t need or want to be in the limelight. And like Kelly, Jonas was steadfast and loyal to a fault. He had his sister’s back, and he wanted—needed—to be a part of her life. He just didn’t want to always be known as the twin brother of a transgender sister.
Sometimes, of course, it was more than okay being Nicole’s brother. In June 2012, Wayne and the twins joined dozens of other activists at the White House to help the Obama administration celebrate LGBT Pride Month. Only Wayne and Nicole had been invited, and when Wayne called to see if he could arrange for two extra tickets, only one was available. There was no way Kelly was going to let Jonas miss out on the experience, so though the whole family went to Washington, D.C., Kelly stayed behind in the hotel the afternoon of the White House event. They’d already toured the city and Kelly had been part of the family’s visit to Capitol Hill where they met with officials at the Department of Education and the Department of Justice to talk about transgender issues.
For the twins, the White House event was exhilarating, standing with their father, shoulder to shoulder with other path breakers in the East Room, listening to President Obama:
After decades of inaction and indifference, you have every reason and right to push, loudly and forcefully, for equality….So we still have a long way to go, but we will get there. We’ll get there because of all of you. We’ll get there because of all of the ordinary Americans who every day show extraordinary courage. We’ll get there because of every man and woman and activist and ally who is moving us forward by the force of their moral arguments, but more importantly, by the force of their example.
All of them were overwhelmed by the event, by seeing and hearing the president in the flesh, and by being invited into one of America’s most sacred places. Wayne wished Kelly could have been there, too, but he knew how proud she was—how proud they both were—of their children. Nicole, in particular, was awed by the circumstances. Here she was, barely a teenager, being treated like a celebrity, and really all because she was transgender. She’d lobbied hard for the defeat of the restrictive public accommodation bill, but no harder than many others had. The invitation to the White House would always be part of her personal story, but it was also part of the country’s story. She felt as if she were standing in for all transgender kids seeking, and speaking out about, their rights.
When it was time to leave the White House grounds Nicole lingered to take one more photograph. Jonas said, “Dad, should I go get her?” It was always his instinct to shepherd his sister. Wayne and Kelly had asked a lot of their only son, and sometimes they forgot the sacrifices he’d had to make being Nicole’s brother. Wayne hugged him and told him how proud he was of him for looking out for Nicole all these years, for worrying about her, and for stepping up whenever and wherever he was needed.
CHAPTER 38
One Step Back
On 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 transgend
er 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.
—
IN APRIL 2012, WAYNE 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 pe
rson for Nicole. Thank God for that. Now, Wayne knew he needed to be that person, too.
—
IN EARLY AUGUST 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.
Becoming Nicole Page 21