Gavin Grimm, at a 2016 American Civil Liberties Union/ New York Civil Liberties Union event in New York. | DONNA ACETO
BY ARTHUR S. LEONARD | Even as the Fourth Circuit Court of Appeals granted the Gloucester County (Virginia) School District’s motion to vacate a district court’s 2016 preliminary injunction ordering it to allow Gavin Grimm to use the boys’ restrooms at his high school, two judges on the circuit panel saluted the 17-year-old transgender boy as a civil rights leader.
The injunction had been issued at the direction of the Fourth Circuit, which ruled that the district court should defer to the Obama administration’s view that Title IX of the Education Amendments of 1972 required schools to allow transgender students access to bathroom facilities consistent with their gender identity.
When the new Trump administration disavowed the Obama interpretation, the Supreme Court, which had stayed the injunction while it considered taking up an appeal, declined to do so since the issue before it was the question of deference to an administrative policy no longer in force.
Even as Trump reversal dictates end of injunction on his school, trans teenager held up as hero
And with the Obama policy abandoned, the district court injunction no longer had any administrative interpretation to rely on, so vacating the injunction — a move that was unopposed — came as no surprise.
The Fourth Circuit, however, presumably retains jurisdiction on the underlying question of whether the district court’s original action in dismissing Grimm’s sex discrimination claim under Title IX was correct.
Even as the circuit panel granted the school district’s motion, a member of the panel, Senior Circuit Judge Andre M. Davis, was moved to write a short opinion reflecting on the case. Circuit Judge Henry M. Floyd directed that Davis’ opinion be published together with the Fourth Circuit’s order, and Judge Paul V. Niemeyer, who had dissented from the Fourth Circuit’s decision last year requiring deference to the Obama interpretation of Title IX, agreed to the publication.
Davis’ eloquent brief opinion deserves to be read in full. Throughout Grimm is referred to by his initials since the case was filed on his behalf by his mother and stalwart champion in his struggle for equal rights, Deirdre Grimm.:
G.G., then a fifteen-year-old transgender boy, addressed the Gloucester County School Board on November 11, 2014, to explain why he was not a danger to other students. He explained that he had used the boys’ bathroom in public places throughout Gloucester County and had never had a confrontation. He explained that he is a person worthy of dignity and privacy. He explained why it is humiliating to be segregated from the general population. He knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination. And so he hoped that his heartfelt explanation would help the powerful adults in his community come to understand what his adolescent peers already did. G.G. clearly and eloquently attested that he was not a predator, but a boy, despite the fact that he did not conform to some people’s idea about who is a boy.
Regrettably, a majority of the School Board was unpersuaded. And so we come to this moment. High school graduation looms and, by this court’s order vacating the preliminary injunction, G.G.’s banishment from the boys’ restroom becomes an enduring feature of his high school experience. Would that courtesies extended to others had been extended to G.G.
Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals — Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few — who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.
G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.
G.G.’s plight has shown us the inequities that arise when the government organizes society by outdated constructs like biological sex and gender. Fortunately, the law eventually catches up to the lived facts of people; indeed, the record shows that the Commonwealth of Virginia has now recorded a birth certificate for G.G. that designates his sex as male.
G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted — but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.
G.G. is and will be famous, and justifiably so. But he is not “famous” in the hollowed-out Hollywood sense of the term. He is famous for the reasons celebrated by the renowned Palestinian-American poet Naomi Shihab Nye, in her extraordinary poem “Famous.” Despite his youth and the formidable power of those arrayed against him at every stage of these proceedings, “[he] never forgot what [he] could do.”
Judge Floyd has authorized me to state that he joins in the views expressed herein.
S. Nye, “Famous”:
The river is famous to the fish.
The loud voice is famous to silence, which knew it would inherit the earth before anybody said so.
The cat sleeping on the fence is famous to the birds watching him from the birdhouse.
The tear is famous, briefly, to the cheek.
The idea you carry close to your bosom is famous to your bosom.
The boot is famous to the earth, more famous than the dress shoe, which is famous only to floors.
The bent photograph is famous to the one who carries it and not at all famous to the one who is pictured.
I want to be famous to shuffling men who smile while crossing streets, sticky children in grocery lines, famous as the one who smiled back.
I want to be famous in the way a pulley is famous, or a buttonhole, not because it did anything spectacular, but because it never forgot what it could do.
Gavin Grimm with Joaquin Carcano, a transgender man who works at the University of North Carolina’s Institute for Global Health and Infectious Diseases and was one of the plaintiffs who filed suit against that state’s notorious HB2, at the ACLU/ NYCLU event. | DONNA ACETO
