Appeals Court Judge Lauds Transgender Student’s ‘Brave’ Fight for Justice

By Mark Walsh — April 07, 2017 3 min read
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A federal appeals court judge on Friday penned a tribute to Gavin Grimm, saying the transgender Virginia high school student had joined a long list of “brave individuals ... who refused to accept quietly the injustices that were perpetuated against them.”

Senior U.S. Circuit Judge Andre M. Davis wrote a concurrence to a brief order of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that ended a preliminary injunction that was meant to allow Grimm to use the boys’ restrooms at his school in accordance with his gender identity.

Grimm never got to use the restrooms corresponding to his gender identity pursuant to the injunction because late last summer, the U.S. Supreme Court blocked the injunction. The high court soon after accepted the appeal of the Gloucester County School Board to consider the merits of the case. In March, however, the high court returned the case to the 4th Circuit after President Donald Trump’s administration withdrew guidance backing transgender rights issued under President Barack Obama.

On April 7, a three-judge panel of the 4th Circuit court granted the request of the Gloucester County school board to formally dissolve the injunction the court had issued in support of Grimm. That injunction was based on the court’s deference to the Obama administration’s guidance on transgender restroom use in schools. The school board said in court papers that the injunction was likely “effectively vacated” by the Supreme Court’s action, but “out of an abundance of caution” it was asking the 4th Circuit to end the injunction.

The motion was not opposed by Grimm’s lawyers with the American Civil Liberties Union.

Judge Davis concurred in the withdrawal of the injunction, but he wanted to make clear what the action meant for Grimm, a high school senior who will graduate this spring and is still referred to in court papers by his initials.

“And so we come to this moment,” Davis wrote. “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.”

Davis said Grimm’s case “is about much more than bathrooms.”

“It’s about a boy asking his school to treat him just like any other boy,” the judge said. “It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins.”

Davis said the nation “has a long and ignominious history of discriminating against our most vulnerable and powerless.” He cited names from the fights against slavery, against Japanese internment, and for black civil rights as well as more recent litigants fighting for gay rights, such as “Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell.”

“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,” said Davis, who quotes Martin Luther King Jr. and the poet N.S. Nye in the concurrence. “Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed.”

Davis’s concurrence was signed by one other member of the panel, Judge Henry F. Floyd, but not by Judge Paul V. Niemayer.

Recent filings in Grimm’s case in the 4th Circuit (bolstered by Davis’s comments) make it appear unlikely that the court will rule before Grimm graduates on the larger issue presented by his lawsuit, whether Title IX of the Education Amendments of 1972 or the 14th Amendment’s equal protection clause protect the rights of transgender students.

His lawyers have argued that Grimm will still have standing for a live, viable case after graduation, based on a damages claim and other theories, but those arguments could be challenged by the school board.

Asked for a reaction to Davis’s concurrence, Joshua A. Block, Grimm’s lead lawyer with the ACLU, wrote a one-word response via email: “Wow!”

A lawyer representing the Gloucester County school board declined to comment on the concurrence.

A version of this news article first appeared in The School Law Blog.