Becoming Nicole

by Amy Ellis Nutt

  Kelly called Wayne at work. It was about five thirty in the afternoon and Wayne drove straight home. Kelly and Nicole were upset. Wayne simmered, not sure what to do, and Jonas was still trying to process everything that had happened. The next day, after dropping the kids off at school, Kelly tried several times to call Lisa Erhardt, who didn’t respond to her messages. Eventually Kelly learned that Erhardt had been instructed by acting principal Bob Lucy not to talk to either her or Wayne about the incident. She couldn’t believe it. Lucy had ordered his school counselor not to talk to a student’s parents? Lucy had a reputation for being stern; he was a law-and-order man, and he wanted as few complications as possible. This would be handled in-house, the way a team handled a problem player. That’s the way a former football coach and ex-athlete thought. He was strict and he was direct and you did what he told you to do, no questions asked.

  Kelly knew Erhardt was on her side but being muzzled. For what purpose? She called the school administrator, Kelly Clenchy, and insisted on meeting with staff to discuss the incident. Kelly and Wayne wanted Jacob moved into a different fifth-grade classroom. They also wanted Nicole back using the girls’ bathroom, from which she’d been temporarily barred.

  “We can’t do that,” Clenchy said. “Anyway, it’s best to keep your friends close and your enemies closer.”

  Kelly was appalled. This wasn’t politics. This was the fifth grade! So it was Nicole’s job to keep an eye on the kid who appeared to stalk her in the hallways? Over the next few days Nicole could indeed tell that Jacob was watching her. He stared at her during recess and followed her whenever she was in the hallway. Once, when he was serving detention in the hallway, he’d been allowed to place his chair next to the girls’ bathroom where he looked like some kind of grade school bouncer.

  Since leaving his mother’s home in western Maine a few years earlier, Jacob had developed few friendships. Both his grandparents worked. In fact, his grandmother worked two jobs, so he was often alone in the house, content to either watch TV or fool around on the computer. Otherwise, it was a fairly lonely life. Jacob’s grandfather was obviously a strong influence. He’d told his grandson that when he came of age he could make his own decisions about right and wrong, but until then he’d tell him what to do and how to act. Jacob had gotten into periodic fights with other students, but there had never been any real problems between him and Nicole.

  Then, in early October, Jacob did it again. He followed Nicole into the girls’ bathroom. That afternoon, when she got off the bus, she collapsed, crying, in her mother’s arms. It was Kelly’s birthday.

  After hearing the details of Jacob’s latest intimidation, Kelly dialed special services director Sharon Brady. Brady agreed that Jacob had violated his agreement with the school that he not follow Nicole into the girls’ bathroom. Even so, she said, the school couldn’t guarantee Nicole’s safety in the student bathroom. She would have to use the staff restroom. That was crazy, Kelly said. It was also unfair. Hours later, she sat down and wrote a letter to school administrator Clenchy. She was mostly upset that no senior staff person from the school had called her to discuss what had happened and, more important, to talk over what precautions the school would be taking to prevent it from happening again:

  We are requesting a meeting immediately to develop a plan to ensure the safety of our daughter, her twin brother, and other children in the school that utilize the 5th grade restroom facilities.

  The next day, at about eight in the evening, Kelly and Wayne called the Orono police department to make an official complaint. The chief and another officer followed up on October 5, contacting Lisa Erhardt and then visting Wayne at work. When they arrived, Wayne said, “I don’t give a shit about your politics. This is my baby.”

  The chief looked him in the eye.

  “I got this, Wayne. I promise, we’ll go out there and see what’s going on.”

  A short time later, two officers from the Orono Police Department visited Paul Melanson at his home and told him his grandson had caused considerable trouble at school. If the officers’ presence was meant to be intimidating, it sorely missed its mark. Melanson told them he wanted his grandson to have the same rights as “that boy,” meaning Nicole. If a male-gendered student was allowed to use the girls’ bathroom, then his grandson should be allowed the same privilege. It was the principle that mattered, he said. The officers asked Melanson not to use his grandson as a pawn, but Melanson believed the school was pandering to the parents of a “disturbed” student.

  “You stop what you’re doing and I will stop what I’m doing,” Melanson said.

  The policemen asked him if it would settle the issue for him if they could get assurances from the school that the transgender student would no longer use the girls’ restroom.

  “I’ll stop my game right here,” he said, if they could assure him of that.

  He had nothing against Nicole or the school, he said. He was just trying to point out, through his grandson, that people can’t go around and make up their own rules as to who gets to use what restroom. And by the way, he added, as the officers walked out the door, “Don’t come back again, because if you do you’ll have to talk to my lawyer. I know my rights.”

  CHAPTER 21

  The Christian Civic League of Maine

  During lunch at school one day, Jacob sat down right next to Jonas in the cafeteria, practically daring him to say something. Jonas didn’t, but within twenty-four hours Kelly and Wayne had shot off more emails: to the staff at the elementary school, to Sheila Pierce of the Maine legislature, and to attorney Bruce Bell at the Gay and Lesbian Advocates and Defenders organization, known as GLAD.

  As you know, when our children are at school, we are entrusting their education and safety to the hands of your staff and senior management team.

  Kelly and Wayne wanted them all to know that Asa C. Adams Elementary School had, to this point, provided a wonderful and safe learning environment. They believed they could work through this with the school and help school officials determine how best to protect Nicole while not interfering with her rights. They also wanted everyone to know that Nicole was suffering, that she was experiencing feelings of real depression, and because of her “freak-ness,” a word she recently used to describe herself, she was now questioning her self-worth. Most of all, Kelly and Wayne believed, there now needed to be specific plans for Nicole’s safety.

  On Friday, October 12, 2007, Orono’s Special Services Office, which had provided the 504 plan, issued its “planned next steps,” none of which had been conveyed to Kelly and Wayne. First on the list: “The unisex bathroom in the classroom wing will be assigned for Nicole’s use.” Lisa Erhardt would take responsibility for making sure staff monitored Nicole and Jacob when they were on the playground before school and during recess at lunchtime. Sharon Brady was to meet with staff to ensure that Jacob’s bathroom use was appropriate and that there would be no “unplanned encounters” between him and Nicole. Officer Andy Whitehouse said he would visit Asa Adams school whenever possible just to establish a presence, and acting principal Bob Lucy would consult with the fifth-grade team about using a bathroom sign-in/sign-out procedure with all students. Later, when asked by a lawyer whether he could recall ever resolving a bullying situation in part by telling the target of the bullying that he or she could not be present in a specific part of the school, Bob Lucy answered, “No.”

  This plan was not at all what Kelly and Wayne were hoping for or expecting. When Kelly called Lucy about the new 504 she was particularly mystified by one item.

  “How are you going to prevent ‘unplanned encounters,’ ” she asked him, “when Jacob and Nicole are in the same class?”

  Lucy had no good answer. Although the school acknowledged that what Jacob had done was clearly wrong, Lucy seemed to regard the incident as less about bullying than poor decision making, or simply bad behavior. There was no commitment to addressing with Jacob, or the fifth graders in general, why that behavior was in
tolerable.

  The school seemed to be closing ranks around itself; instead of protecting Nicole it was protecting itself from Melanson’s threat of a lawsuit, which he later repeated in an article in the Bangor Daily News under a front-page headline that read “Grandfather Plans Rights Suit over Boy Using Girls’ Bathroom.” Neither Nicole nor the Maines family were identified by name in the story, but they now felt targeted by people beyond the boundaries of the school, including the Christian Civic League of Maine.

  More than one hundred years old, the league, an educational and research nonprofit, promoted itself as trying to bring a biblical perspective to public policy, especially where it concerned traditional family values. One of those values, according to the organization, was that gender was inviolate; it was assigned at birth by God, evidenced in a baby’s sexual anatomy, and was part of the “God-ordained pattern of human creation.” From 1994 to 2009, Michael Heath was the executive director of the Christian Civic League, and his avowed mission, he said many times, was to defeat “the gay agenda.” Any politicians who supported rights for homosexuals, he wrote, were “publicly and boldly devoted to training [children] through their ‘public’ schools in the ways of fornication and transgendering. Jesus went further than Paul in speaking out for children. He said that children of the devil who violate the innocence of our little ones should be cast into the sea with a millstone hung about their neck.”

  Originally from Maryland, Heath had spent the last two years of high school in Augusta, Maine, where he graduated in 1979. He then attended a series of Christian colleges, including Central Bible College in Missouri as well as Elim Bible Institute and Roberts Wesleyan College, both in upstate New York. Heath was a close friend of Peter LaBarbera, who at the time was the head of the Illinois Family Institute and later Americans for Truth About Homosexuality. Both are included in a list of eighteen anti-gay organizations the Southern Poverty Law Center has designated “hate” groups. Like LaBarbera, Heath has called gay people “the enemy” and “pure evil” and anyone who advocates for gay rights “a child of the devil.” When Heath caught wind of the story about the bathroom controversy at Asa Adams, he pounced, writing a guest editorial in the Bangor Daily News:

  Profound matters that concern all Maine people rest at the root of this controversy. For example, does God and nature determine gender, or do individuals decide that?…Should little girls be going to the bathroom next to little boys in elementary school? Is there any difference at all between girls and boys? Should adults be allowed to decide the gender of biological males who are in their care? We thank God for one courageous grandfather.

  Wayne and Kelly were relieved that the majority of comments on the website were supportive of the family. Two dozen of the town’s residents even wrote an open letter to the editor:

  We are dismayed that members of an Orono family, including their child, have been subjected to public criticism by the Christian Civic League and another Orono resident for a matter going to the core of personal rights that are the bedrock of our society and our decency. The issues may be difficult, but no family—and certainly no child—deserves to be publicly harassed about them. We wish to express our support for the family at the center of this painful public controversy. We want you to know your neighbors are with you.

  Kelly and Wayne did their best to protect Nicole from the controversy and discussed the Christian Civic League’s apparent vendetta only when she was not in the same room. Her humiliation, though, was hardly unique. Several weeks later, on October 25, 2007, and 120 miles southwest of Orono, Brianna Freeman was having lunch with friends, as she did two or three times a week, in a Denny’s Restaurant in Auburn, Maine. And just as she had dozens of times before, she got up from her table after her meal to use the women’s restroom, only this time she was stopped by a restaurant manager and told that because her sex at birth was male, she could only use the men’s restroom. The forty-five-year-old former software developer was in the process of transitioning from male to female. She had long red hair, wore makeup and feminine clothes, and was taking female hormones. Although she hadn’t yet had sex reassignment surgery, she was in every other way obviously female. Six months later, she sued Realty Resources Hospitality, the owner of the Denny’s franchise in Auburn, for unlawful public accommodation discrimination in violation of Maine state law. “I live and breathe as a female every day,” she told a local public radio station at the time of the lawsuit. “I dress it, I portray it. I exhibit it….I see a counselor about three times a month. And I see a doctor regularly and get hormone treatments every day.” Using the men’s room would not only be inappropriate, she claimed in the lawsuit, it would be unsafe. “I would feel too vulnerable and very much at physical risk of being attacked by any of the male patrons….There are some men around here that think this is wrong and people like this don’t deserve to live. I’m not willing to take that chance.”

  By December, the antagonism in Orono had only increased. Heath of the Christian Civic League was writing editorials on the organization’s website excoriating the Maineses (though not by name) and claiming the school, the media, doctors, even the residents of Orono, were looking the other way:

  Ten year old boys should not even be thinking about whether they are a boy or a girl. This entire issue is totally absurd. If the medical profession can’t figure this out then the medical profession needs it’s head examined…I promise you this, the League is a friend to common sense….Like John the Baptist everyday we come to work and speak truth to power. Some choose to repent and change course while others (King Herod) take another path.

  Heath closed his editorial asking for financial contributions to the Christian Civic League and its evangelical work for the people of Maine:

  Click on the paypal button above. Don’t wait.

  Kelly and Wayne were afraid, for good reason, that Heath and his allies had only just begun to fight.

  CHAPTER 22

  Defending Nicole

  Kelly and Wayne were consumed with ensuring Nicole’s rights, but it was Jonas who was there every day at school—not in the same classroom, but close enough to know and see and hear the sorts of things being said about, and to, Nicole.

  During recess one day, Jonas and several other boys were heatedly engaged in the playground game of four square. Drawn onto the pavement, each square is occupied by one player, and each player must bounce the ball to the others, in turn, while also trying to get them to misplay it. In one version of the game players are not allowed to move beyond the lines of their own box. Several boys waited to get into the game with Jonas when a new competitor took up his position in the lowest square. It was Jacob. Jonas looked away, a slow anger building inside him. He didn’t like Jacob, and he didn’t like what Jacob was doing to his sister, and, frankly, to him.

  Ever since Wyatt had publicly transitioned to Nicole, Wayne had been careful to explain to Jonas that he needed to protect his sister at all times. That was his job, his father said, and as long as he was at school, on the bus, or somewhere out in public with her, it was his duty to keep her safe. When he’d been younger, Jonas had never thought of his sister as someone needing protection. First of all, she was more aggressive than he was, and second, why would someone threaten her for how she felt about herself? Lacking credible answers to his questions, Jonas had to be on the alert, and when people were too afraid to ask Nicole questions about her gender identity, they came to Jonas, the quiet, more approachable twin brother. It was a heavy burden for a youngster—making sure his sister was always safe—and it had sometimes made Jonas a bit paranoid, unsure whom to trust. He’d never forgive himself if something happened to Nicole. And when something did—not physically, but psychologically—he hadn’t been there. Perhaps that’s why he now felt incensed whenever he saw Jacob, and why, when Jacob joined the four square game, Jonas felt sure it wasn’t going to end well. It didn’t take long before the two boys clashed. After one volley, Jonas accused Jacob of stepping on the line of
his box, a violation.

  “You’re out,” he said, then added: “You think you and your grandpa can push my sister and me around. Well, you can’t.”

  “We’re right, and you’re wrong,” Jacob answered. “We don’t have to have fags in our school.”

  Jacob turned to walk away, but before he’d taken a few steps Jonas had bounded across the four square board and jumped on Jacob’s back. That’s when he realized he wasn’t sure what to do next. He’d never been in a schoolyard fight before, had never thrown a real punch in anger, and now he was on Jacob’s back as Jacob, several inches taller, turned, and in one swift movement flung Jonas to the ground. Both boys were collared by a nearby teacher and taken to the principal’s office. The punishment—the loss of recess for the next two weeks—was as severe as Jonas had ever been handed at school. Kelly and Wayne didn’t hear about the incident for a couple of days, and when they did, they sat Jonas down, telling him they understood his frustration, but he just couldn’t get into physical fights. Jonas nodded in agreement. He knew his parents were right, and he knew the moment he jumped on Jacob that he shouldn’t have, but he also knew, deep inside, given a second chance, he’d probably do it again.

  —

  ON THE EVENING OF Tuesday, December 18, 2007, a middle-aged gentleman stood at the microphone in front of the Orono school board. It was the end of a long meeting, the time when parents, students, and concerned citizens get to make statements or ask questions.