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‘Gender Expression’ May Become a Protected Right in Maine Constitution

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The recent shifting of majorities in the Maine Legislature from the GOP to the Democrats has encouraged Democrat lawmakers to try to protect the rights of transgender people by enshrining “gender expression” in the state Constitution.

Gender expression is the way a person shows their gender identity by means of dress, appearance, and behavior.

Though Democrats won control of both houses in the 2022 election, their state legislative leadership is aware that the pendulum may swing the other way in the future.

Long-serving Rep. Lois Galgay Reckitt (D-South Portland) said she is worried about the “durability” of current and future civil rights statutes.

Epoch Times Photo
Maine State Rep. Lois Galgay Reckitt (D-South Portland). (Courtesy of Lois Galgay Reckitt)

To make their repeal more difficult, on March 30, Reckitt introduced a resolution—Legislative Document 1412—proposing to amend the Constitution of Maine to ostensibly establish equal rights under the law for all Maine residents.

Stung by last year’s overturning of Roe v. Wade by the conservative-leaning majority on the U.S. Supreme Court, Democrats are also using a variety of strategies to protect abortion access in Maine alongside their efforts to create, further, and preserve the rights of transgender individuals.

The language of the resolution is almost identical to that of the Maine civil rights laws already on the books, leading some people to question the necessity of the amendment.

Maine’s present civil rights law is among the most comprehensive in the country.

The current law’s stated purpose is to prevent various types of discrimination on account of an individual’s actual or perceived race, color, sex, sexual orientation or gender identity, physical or mental disability, religion, ancestry or national origin, age, or familial status.

Words Have Power

The proposed amendment adds the words “gender expression” to the list.

Reckitt told The Epoch Times that the two words were included to clarify and strengthen already existing anti-discrimination protections for trans people which may be subject to varying interpretations.

“Gender identity is an inward recognition of one’s true self. Sexual orientation is an inward attraction to another. Gender expression is the outward demonstration of one’s gender identity. This involves clothing, appearance and behavior,” she said.

One of the major areas affected would be what a person chooses to wear to work, according to Reckitt.

She pointed out that presently, all it would take to change the civil rights statutes is a majority vote of both houses of the Legislature and a signature from the governor.

Reckitt said amending the state constitution would make changing the law “much harder to do.”

In Maine, any constitutional amendment must be approved by two-thirds of the state House and Senate, and then submitted for a majority vote of the people before it could take effect.

Epoch Times Photo
Maine Gov. Janet Mills in 2019. (Rebecca Hammel/U.S. Senate/Public Domain)

Passage of a joint resolution to amend the state Constitution is not subject to a governor’s veto.

“My position is to let the people vote. If they believe the decision is wrong, they have the final say,” Reckitt said.

Reckitt says the resolution has the strong backing of Gov. Janet Mills, a Democrat, and Speaker of the House Rachel Talbot Ross (D-Portland).

A Trojan Horse

Among the opponents of the resolution and the proposed constitutional amendment is the Christian Civic League of Maine (CCLM).

“The rights of all Mainers are already protected in the U.S. Constitution and the Maine Constitution,” the group said in a recent online statement.

The CCLM warned that, though the amendment “sounds innocuous and even fair,” it contains some “real unintended consequences.”

Among the possible repercussions are constitutional protection for biological men to compete in women’s sports, use female restrooms and locker rooms, and be incarcerated in women’s prisons, according to the statement.

The group stated that after similar amendments were passed in other states, the courts interpreted the new law as guaranteeing women access to “unrestricted, on-demand abortion up to the birth of the baby.”

The rights of the unborn are completely ignored by the proposed amendment, the CCLM statement said.

Before the November 2022 elections, an analysis by the left-leaning online news organization Truth Out reported, “At least nine states provide a right to abortion in their state constitutions as interpreted by court rulings.

“None contain an explicit constitutional right to abortion but courts have implied the right by construing provisions that protect privacy, liberty, and equality.”

Those states are Alaska, California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Montana, and New Jersey, according to the study.

Freedom of Conscience in Jeopardy

In Michigan, a broad expansion of the civil rights of transgender individuals has prompted insurers providing coverage to churches to warn their customers to carefully review their by-laws and beef up their liability coverage in case the exercise of their religious beliefs in such things as hiring and the conduct of weddings are challenged in court by transgender activists.

The Maine amendment would similarly “threaten religious liberty and conscience protections,” according to the Christian Civic League.

Other opponents of the amendment have expressed concern, not just over possible future judicial interpretation, but they fear the new law would give the Democrat-dominated executive branch a blank tablet in determining how it would be administered.

LD 1412 is still pending in the Maine Legislature.

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