Becoming Nicole: The Transformation of an American Family (17 page)

BOOK: Becoming Nicole: The Transformation of an American Family
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CHAPTER 28
Separate and Unequal

O
n June 
5
,
2009
, the Maine Human Rights Commission, where Kelly had filed a complaint against the Orono school system, issued the results of its investigative report as to whether there was a basis for the suit to move forward:

There are reasonable grounds to believe respondents, School Union 87, Superintendent Clenchy and Orono School Department, unlawfully discriminated against Complainant in education and access to a place of public accommodation because of her sexual orientation when she was denied access to the common bathrooms that are consistent with her gender identity.

It was just an initial ruling, but it had gone in favor of Nicole. The commission recommended “conciliation,” which was what the family had been hoping for all along. Kelly and Wayne just wanted the school to listen to them, to take their suggestions to heart, and to find a way for Nicole to be integrated back into the fabric of the school.

While they waited to hear from the Orono school administrator, the family was shaken with bad news. Wayne’s father was seriously injured helping a neighbor burn an old stuffed chair in a fire pit. His clothes had caught fire and now he was in the intensive care unit in critical condition. Considering his age and the state of his health, the doctors said, it was unlikely he’d pull through.

Wayne and Kelly decided not to tell the twins how bad it was. Graduation from sixth grade was just a few weeks away, and maybe Grandpa would somehow recover. All they told them was that he’d been hurt in an accident and their father had gone to visit him in the hospital. The day after graduation, however, Kelly told the kids what had really happened. And a short time later Grandpa Bill died.

Dozens of family members gathered for the funeral in upstate New York. At the wake, Wayne was pleased to catch up with cousins and uncles he hadn’t seen in years. But he also couldn’t help noticing a few of the younger people—friends of nephews and nieces, mostly—whispering to one another and pointing at Nicole. For her part, Nicole didn’t seem to see any of it. Instead, she revisited memories of the large family get-togethers at her grandparents’ lake house, memories filled with the fragrance of fir trees and summer flowers. They were such good memories and they had nothing to do with being transgender, nothing to do with Jacob or Paul Melanson or the Maine Christian Civic League. It was comforting to her to see how many people had come to pay their respects to her grandfather.

What she didn’t like was that all her relatives and all of Grandpa Bill’s friends were dressed in black. Nicole thought it was a mistake—a waste of a chance to colorfully celebrate someone’s life. For her, everything was physical, palpable, and sensuous. That was how she experienced the world, and she realized now that what she was going to miss most about her grandfather was simply having him, physically, in her life. She’d never be able to hug him again, never feel the tenderness of his kiss or the tickle of his whiskers on her cheek. But most of all he would never get to see her in the body she was meant to have, and that broke her heart.


K
ELLY AND
W
AYNE HOPED
they’d see some positive movement from the Orono school system after the unanimous decision of the Human Rights Commission, but they didn’t. It was that silence, and the apparent unwillingness of the school to act on Nicole’s behalf, which convinced the Maineses to file a civil lawsuit in Penobscot County Superior Court “asserting claims for unlawful discrimination in education (Count I) and a place for public accommodation (Count II) on the basis of sexual orientation.” The lawsuit also made a claim for intentional infliction of emotional distress and “failure of the school to remedy a hostile education environment resulting from peer harassment during Nicole’s fifth and sixth grade years.”

At the heart of the suit was a simple question: Was forcing someone such as Nicole to use a separate, staff-only restroom constitutional? In other words, was it “separate” but “equal”? More than a century ago, the U.S. Supreme Court had made a mess of its ruling in the first “separate but equal” case. In 1892, in New Orleans, a mixed-race shoemaker named Homer Plessy deliberately took a seat in a railroad car reserved for whites only. Four years later, when the Supreme Court released its opinion in
Plessy v. Ferguson,
all but one justice agreed that racially segregated public facilities did not violate the constitution because “social rights” were not guaranteed to all races. Justice John Harlan, the lone dissenter, wrote about the decision:

The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done.

For more than half a century, Jim Crow segregation laws helped make “separate but equal” the law of the land until it was struck down in 1954 in
Brown v. Board of Education of Topeka.
Then, with the passing of the Civil Rights Act of 1964, no one could be turned away from a public facility because of race, religion, or sex.

In the past ten years, laws against discrimination based on sexual orientation and gender identity have been gaining a foothold. In 2015, twenty-two states and the District of Columbia prohibited workplace discrimination against gay people. At least eighteen of those states and the District of Columbia also prohibited workplace discrimination against transgender people. Similarly, fair housing laws protected gay people in twenty-one states and the District of Columbia, and sixteen of those states, as well as the District, protected transgender people. In Maine, both employment and housing laws made it illegal to discriminate against someone based on either sexual orientation or gender identity.

It was clear that whatever the courts decided in the Maineses’ lawsuit would set a precedent that other litigants in other states would likely look to for years to come. No one had been identified by name in the press or in the court documents, where Wayne and Kelly were cited as “John and Jane Doe” and Nicole as “Susan Doe.” Many people in Orono, of course, knew who they were and what they were fighting. Beyond their own small New England community they were hardly public figures, but they all felt it was only a matter of time before the larger world knew them by name.

In June, Kelly had another face-to-face meeting with acting principal Bob Lucy, who was also the principal of Orono Middle School. She needed to know exactly what the arrangements were going to be for Nicole going into the seventh grade. Was the school going to continue the “eyes-on” policy, and would Nicole be forced to continue to use the staff bathroom? Neither was supposed to have been a permanent response to Jacob’s harassment, but that’s what seemed to have happened. The situation was so stressful, so toxic, Kelly believed something had to change, or the family couldn’t continue to live in Orono. Certainly, the kids couldn’t continue to go to school there and, frankly, without moving, there weren’t many other options.

Lucy’s response was unequivocal: Nothing was going to change, he said; the rules would remain the same.

“Well, I guess that means we’re going to have to move,” Kelly responded.

She looked Lucy straight in the eyes when she said it. He had nothing more to say, but for the first time since she’d met the man, a smile crossed his face. Here was the acting principal of an elementary school and the principal of a middle school, and he seemed pleased a family felt forced to uproot their lives because of an intolerable situation at his school—a situation he had all the power in the world to change but for whatever reason had decided not to.

Kelly talked to Wayne that night. She’d also heard from someone at the school that Jacob had asked a teacher where the staff bathroom was in the seventh grade. It looked like Jacob’s behavior—which had felt at times like stalking to Nicole—was definitely going to continue. Wayne and Kelly knew it might come to this, and they’d made tentative plans that if they had to move they’d go to Portland, 140 miles south of Orono. Wayne and Kelly had met Barbara, the mother of a transgender son, when she owned a business in nearby Bangor. Barbara and her family had since moved to Portland, where her son, about the same age as Nicole and Jonas, was enrolled at Helen King Middle School. It was a diverse school in a diverse city. The administration and teachers at King, Barbara said, were very supportive, and frankly that was all Kelly and Wayne needed to know.

Neither Nicole nor Jonas was particularly happy with the news. They’d been protected from much of the back-and-forth between their parents and the school and had no idea how contentious the situation had become. Now it was clear to them, too, that no compromises on the rules would be made. Nicole couldn’t take another year of looking over her shoulder for Jacob, of being trailed by a teacher through the school halls and being banished to the staff bathroom.

There was also no telling when the lawsuit would be decided. The kids might be in high school by that time. The family had hoped graduating from Asa Adams and moving on to middle school would be enough of a change, but since the elementary, middle, and high schools were all located next to one another, it didn’t help as much as they’d thought it might. Kelly and Wayne realized the only way to protect their kids was for them to start fresh. Wayne’s job was again the sticking point. He was making a good salary, and finding an equivalent position anywhere else in the state—even with Portland’s generally better wages—seemed nearly impossible.

They decided to sell the house and find a smaller one in Portland, perhaps even rent a place first, since it was clear Wayne would have to stay in Orono for work. Kelly and the kids would move to Portland, and Wayne would commute on weekends and holidays to be with them. They’d always thought they were on an upward trajectory in their lives, with success and promotions at work fueling an increasingly better lifestyle, but Jacob and his grandfather Paul Melanson had bizarrely changed all that. Suddenly, Wayne and Kelly were downsizing and their lives were in reverse.

To make it all worse, they knew that even with a new school and a more accepting administration, no one could know for sure what the students and their parents might say or do if they found out there was a transgender girl in their middle school. None of the Maineses had the energy or the emotional strength to go through what they’d endured at Asa Adams again, and so it was settled. Wayne would stay in Orono, Kelly and the kids would move to Portland, and Nicole and Jonas would have to go to school “stealth.” No one, except the school principal and teachers at Portland’s King Middle School, would be told Nicole was transgender.

Leaving Orono meant leaving the woodlands that backed up to their property where Jonas and Nicole played manhunt for hours. Kelly would lose the basement Wayne had converted into an art studio, and Nicole the lavender-colored bedroom with its glow-in-the-dark stars stuck to the ceiling. She’d even miss the stripe that ran around the top of the walls in her bedroom because it was painted in a color that had the wonderful name of “pucker-up green.”

But the toughest part was that Nicole and Jonas would have to leave their small circle of overlapping friends. Those friends all understood the hardships of the past couple of years and they understood why the family had decided to move. What the twins had not yet come to terms with was that whoever their new friends in Portland were going to be, those new friends could know nothing about the past two years in Orono—nothing about Nicole being transgender, the harassment, the unyielding school policy at Asa Adams, the fights, and the lawsuit. The most painful two years of their lives, in other words, would have to be buried.

CHAPTER 29
Going Stealth

T
he Maineses were about to essentially shred the world they’d lived in for the past decade and trade it for an unknown one. Time was not on their side. They had to put their house on the market, then find a home for Kelly and the kids in Portland. They had to register Jonas and Nicole at King Middle School, meet with the principal and teachers, pack up everything they owned and put some of it in storage—and they had two months to do it. The easiest part was registering the kids and meeting with more than two dozen of the staff and teachers at King. No one, except this group of adults at King Middle School, could know about Nicole. If anyone found out she was transgender the family would have to come up with a new game plan, perhaps even move again, and that seemed unimaginable. Could Kelly and Wayne trust the school to keep Nicole’s secret? Yes, the administrators said. But there was one other worry: Kelly wasn’t 100 percent sure Nicole could keep the secret.


T
HE TEMPERATURE HOVERED AROUND
ninety degrees the day of the move, and the heat baked the blacktop on the roads out of Orono. Wayne was getting over a bout with pneumonia, and when he finally slid behind the wheel of the rented U-Haul he was already exhausted. There was little joy and a lot of frayed nerves and the whole family couldn’t help but feel as if they were somehow sneaking out of town. On the highway, the truck whined louder the faster Wayne drove.

“Dad, it sounds like it’s going to blow up,” Jonas said.

Wayne tried not to push the truck. It had clearly seen better days, and the last thing he needed was for the engine to break down. Nearly three hours later he finally pulled into the driveway of the Portland duplex they’d rented, and the moment the truck came to a stop, the engine’s manifold loudly disconnected from the exhaust system. On top of everything else, Wayne now had a useless U-Haul he had to get back to Orono.

The University of Southern Maine is located in Portland and its law school was just two blocks from the duplex. Generations of students living in off-campus housing gave the neighborhood a worn, dilapidated feel. There was more traffic on the street in front of the house, including police cars and ambulances at all hours, than either Kelly or Wayne had ever experienced, and it took them quite a while to learn how to sleep through the noise, especially with Wayne visiting only on weekends.

The entrance to the house had two doors, separated by a few feet, with the inner door secured by two locks. That was something Wayne had never seen before. Then again, he and Kelly had never felt the need to lock their house in Orono. Immediately inside was the living room, with just enough space for a couch and an armchair, wedged around a large cast-iron radiator. Layers of paint from one tenant after another coated the walls, and cracks in the plaster spidered across the ceiling. Three windows opened up one side of the living room to a bit of light, but the house sat so close to the one next door, occupied by six female college students, that Kelly and the kids could watch them ironing their clothes in the morning. The back door of the house was only thirty feet from the girls’ porch, which was the scene of many raucous parties. Once, when Wayne was cooking dinner, a drunken young man stumbled through the back door and began talking to Wayne as if they were both at the party.

“You better turn around and walk away before you get shot,” Wayne told him.

The young man quickly sobered up and scampered out.


W
HEN THEY FINALLY FINISHED
unloading that first day in Portland, Wayne took a moment to lean against the bumper of the truck. From the other side of the street he watched Jonas and Nicole lug their toys into the tired old apartment. The bright blue wallpaper was peeling, the attic bedroom had no heat, and the only emergency exit was a small window with no outside staircase. After more than a decade of marriage, he and Kelly weren’t moving up in the world, they were moving down. They’d bought the house in Orono when real estate prices were sky-high and it was going to take a long time to sell. They were paying a mortgage on a house only Wayne was living in and rent on a new one where Wayne would only ever be a visitor.

Wayne found himself vacillating between panic and depression. They were breaking up the family. How was he going to leave them here and drive home alone to Orono? He didn’t want to let the kids see him crying. They really didn’t know how serious it all was, and now Kelly was going to have to shoulder everything alone. In truth, she was used to it. She’d pretty much steered the family through one crisis after another on her own. In a way, she thought, living apart might be good for both of them. Now she could focus all her attention on Nicole and Jonas without worrying about her husband’s obstinacy.

Wayne shook off the mood. His self-pity wouldn’t do anyone any good. Kelly was already trying to make the best of things. While his wife scrubbed the apartment from attic to basement, he went out and bought a small hot-oil heater, a thermometer to keep track of the temperature in Nicole’s attic bedroom, and a fire escape ladder for her little window. He also tried to glue the wallpaper back into place—a losing battle.

Closing up the truck that first night in Portland, Wayne could hear the faint sounds of a sports announcer floating over the treetops from the high school football field a few blocks away. Taking the kids to University of Maine games was something he’d enjoyed when they all lived in Orono. So a few weeks after the move, on one of his weekend visits, he suggested to Jonas and Nicole they all walk over to the high school to watch the football game. At halftime Jonas said he was going to the snack bar for a hot dog. Nicole wanted to watch the cheerleaders closer to the field. During a break in the cheerleaders’ routine, Nicole hiked back up into the stands and sat down next to her father. Jonas was still nowhere in sight.

Nicole looked up at her dad.

“Sometimes I hate being transgender,” she said. “Transgender kids commit suicide or they’re killed.”

Wayne was caught by surprise. It had been a hard year, with all the harassment in school and the lawsuit, then this move to a new city. But this seemed different.

“Why do you say that?”

“It was in a movie I saw. They said most transgender kids commit suicide or are killed.”

Nicole had seen a documentary called
Two Spirits: Sexuality, Gender, and the Murder of Fred Martinez,
about a transgender Native American teenager. It had been shown at a meeting of the Proud Rainbow Youth of Southern Maine, or PRYSM. Kelly had pressed hard to find a place in Portland where Nicole could be herself, and PRYSM was the only group that seemed like it might be a good fit. The PRYSM meetings were held at Portland’s Community Counseling Center, in a neighborhood just north of shabby, and were mostly attended by older LGBT individuals.

As PRYSM members filtered into a room at the center to watch the film, the smell of stale cigarettes lingered in the air. When the room darkened and the movie started, interviews with experts on hate crimes were interspersed with pictures and videos of Fred and his mother, scenes from the reservation, including the place where Fred was killed, and a close-up of the bloody twenty-five-pound rock that was used to bash in his skull.

Nicole sunk lower in her chair. On screen an activist described other hate crimes against transgender people: a man who was repeatedly run over by the same car, another person who was set on fire. Nicole felt sick to her stomach. Fred Martinez, the murder victim, hadn’t been a troubled teen; he was described by someone who knew him as having “a high degree of self-acceptance about who he was,” just like Nicole. Fred’s eighteen-year-old killer, who was eventually convicted of the crime, had bragged to his friends before his arrest that he’d “bug-smashed a fag.”

Nicole didn’t tell her parents or Jonas about the movie when she got home. She didn’t want to talk about it, and not too long afterward she stopped going to PRYSM meetings, primarily because she had failed to meet any other transgender teens.

“Many of the trans kids mentioned in that movie didn’t have parents who loved and accepted them and were supportive of their children,” he told Nicole. “They didn’t let them be who they needed to be.”

Wayne wasn’t sure if this was the right thing to say, because being who you are was, in many ways, more dangerous. It had proved fatal for Fred, and it was that danger that chiefly worried Kelly and Wayne.

“That doesn’t mean there aren’t mean, dangerous people out there who can hurt you,” he said. “You have to be very careful about who you let into your circle of trust. You have to watch where you go and who you are with at all times. Never go anywhere alone.”


O
N
N
OVEMBER 
25
,
2009
,
just three months after the family moved to Portland, the Maineses’ lawyers filed a civil lawsuit. Although the Maine Human Rights Commission had essentially ruled in their favor, its recommendations were not mandatory. Nothing had changed in Orono. So the legal advice given to Wayne and Kelly was to sue in civil court, claiming the policy of the school had intentionally and negligently inflicted emotional distress on Nicole and the family, and that the lack of change on the school’s part had created a continuing hostile educational environment. At the conclusion of the letter informing Kelly Clenchy, Asa C. Adams Elementary, and the Orono school district of the civil claims, the Maineses’ attorney wrote:

As of July 31, 2009 Mr. Clenchy has failed to take affirmative action to ensure that N.M. (Nicole Maines) was able to attend school in an educational environment free from prejudice, stigmatization and intolerance. As a direct and proximate results, N.M and her twin brother were forced to leave…the Orono School System.

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