A judge’s opinion
4/13/2017, 9:20 p.m.
Judge Andre M. Davis of Baltimore, a senior judge with the 4th U.S. Circuit Court of Appeals, wrote the following powerful words on April 7, 2017, as he joined in dismissing an injunction barring the Gloucester County School Board in Virginia from halting a transgender youth from using the boy’s bathroom at the county high school.
The youth, Gavin Grimm, was born female, but identifies as male. He sued the Gloucester County School Board seeking to overturn the ban. The U.S. Supreme Court was set to hear the case, then declined to do so on March 6 after the Trump administration abandoned new federal policy rules requiring school boards to allow transgender youths to use bathrooms according to their gender identity and returned the case to the 4th Circuit. (Judge Davis only uses the teen’s initials per court policy.)
I concur in the order granting the unopposed motion to vacate the district court’s preliminary injunction and add these observations.
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.