On the surface, last week’s court case about Gavin Grimm looked like a loss for human rights. When the Gloucester County (VA) School Board banned transgender students from using the bathrooms that conformed with their gender identities, Gavin Grimm, then 15, addressed the board on November 11, 2014 to explain why he was not a threat to other students. The transgender teen explained that he had used the boys’ bathroom in public places throughout Gloucester County and had never had a confrontation. As Seth Millstein wrote:
“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.
In 2014, Grimm sued the Gloucester County (VA) School Board for banning transgender students from using the bathrooms that conformed with their gender identities. He argued that the policy violates Title IX prohibiting gender discrimination in public schools. The 4th Circuit Court of Appeals had ordered that Grimm could bring a claim against the school district because of an order issued by President Obama, and the Supreme Court was scheduled to hear the case on March 28, 2017. SCOTUS returned the case to the loser courts after Dictator Donald Trump (DDT) issued a directive permitting schools to discriminate against trans students.
Grimm (with journalist Katie Couric) asked the 4th Circuit Court to hear his case on an expedited basis with the hope that he could be treated equally for even one day before his graduation. On April 7, 2017, however, three judges from the 4th Circuit Court issued procedural orders refused Grimm’s request, and his case will be heard after he graduates to determine whether Title IX protects transgender students independently of any federal guidance.
Instead of the usual one-line order announcing procedural decisions, Senior Judge Andre Davis wrote the following:
I concur in the order granting the unopposed motion to vacate the district court’s preliminary injunction and add these observations.
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 4 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 [Henry Franklin] Floyd has authorized me to state that he joins in the views expressed herein.
The value of this ruling—and of Gavin Grimm’s bravery—is that it tells the story of why the nation needs justice for the marginalized people. Even losses can take the rights of people forward.
Another amazing story comes from Grace Dolan-Sandrino, a 16-year-old Afro-Latina trans teen, who wrote “I’m a Trans Teen—Stop Talking About My Genitalia Under the Guise of ‘Privacy.’”
Grimm and Dolan-Sandrino (right) are two people feared by many people if they simply use the bathroom of their gender identities. The male trans student was forced into girls’ facilities, and the female was expected to use the boys’ bathrooms. Or they could choose damage their health and avoid any bathrooms for the long days at school. As Dolan-Sandrino wrote:
“When I was in middle school I had to use a nurse’s bathroom two floors down from my class, across an open courtyard, and down a hall in a separate building. Because it was so far away, teachers began limiting the times I could use a bathroom in a day. Soon enough, I could only go once, maybe twice—while the rest of my peers could use bathrooms located just across the hall.”
Another court ruling last week was a clear win for LGBT people. Three same-gender couples in Nebraska, sued the state in 2013 because a 1995 directive prevented fostering children to any couples who were not “heterosexual.” A district court found for the couples in 2015, but Nebraska appealed to the state Supreme Court, arguing that the three same-gender couples did not have standing because they hadn’t been denied foster care licenses.
Last Friday, the same day that the 4th Circuit refused to expedite Grimm’s lawsuit, the Nebraska Supreme Court unanimously rejected the state’s appeal and affirmed the lower court decision invalidating the 1995 directive. Justice John Wright said that same-gender couples suffer constitutional harm from knowing that official state policy constitutes discrimination. He endorsed Supreme Court Justice Anthony Kennedy’s finding that “basic due process and equal protection principles” stand as a barricade against this discrimination. He further stated that direction declaring that “heterosexuals only” need apply to be foster “is legally indistinguishable from a sign reading ‘Whites Only’ on the hiring-office door.”
A valuable part of the ruling is that the existence of anti-LGBT policies inflict grievous constitutional harms, echoing the Supreme Court ruling in United States v. Windsor’s concern that anti-LGBT laws “degrade” and “demean” same-gender couples. Nebraska judges agree that the 14th Amendment shields the rights of sexual minorities throughout the nation.
A third groundbreaking ruling in favor of LGBT people came three days before these two rulings. The full 7th Circuit Court of Appeals ruled 8-3 that Title VII of the Civil Rights Act of 1964 protects LGBT people from workplace discrimination because discrimination on the basis of sexual orientation is sex discrimination. The appeals court, covering Indiana, Illinois, and Wisconsin, gives Kimberly Hively the right to sue Ivy Tech Community College (South Bend, IN). She alleges that she was denied full-time employment and promotions because she was seen kissing her girlfriend. The first appeals court to determine LGBT people have the right to sue on the basis of Title VII came to that conclusion after examining 20 years of Supreme Court rulings, including the ones on marriage equality. The Supreme Court may take this case because other appeals courts in Georgia and New York have differed in their rulings.
It is hoped that other civil rights cases will be affected by the 7th Circuit Court ruling. Other courts have ruled that Title IX, the basis for Grimm’s ruling, should use the same interpretation as Title VII. Another difference of opinion is whether Title VII protects transgender people.
The U.S. Supreme Court giveth, and it taketh away. We will wait to see what it’s decision will be in the upcoming cases about LGBT civil rights.