The issue of transgender rights has been the recent focus of much media attention, and Senior Circuit Judge Andre Davis has added an elegant and eloquent contribution to the conversation through his concurring opinion to the U.S. Court of Appeals for the Fourth Circuit’s order vacating the preliminary injunction it had previously issued in the case of G.G. v. Gloucester County School Board.
A transgender high school student, G.G. (Gavin Grimm), sued the Gloucester County School Board and asked for a preliminary injunction to allow him to use the bathroom consistent with his transgender status. The federal district court denied the request for preliminary injunction, but on appeal, the Fourth Circuit disagreed and ordered that the injunction be issued. In so ruling, the Fourth Circuit relied on a 2016 guidance letter issued by the Department of Justice and the Department of Education that stated that it was their interpretation of Title IX (the federal law prohibiting sex discrimination in education) that schools must allow transgender students to use the gender-specific bathroom with which they identify. The Fourth Circuit’s mandate, however, did not take effect pending the School Board’s appeal to the U.S. Supreme Court.
As we previously blogged, however, the 2016 guidance letter, which had been issued under the Obama administration, was subsequently rescinded by the Trump Administration. And, as we also previously discussed, on the eve of oral argument, the Supreme Court ultimately decided not to hear the case and sent it back to the Fourth Circuit for further proceedings. An unopposed motion to vacate the preliminary injunction was then filed and was granted by the Fourth Circuit on April 7, 2017. It is in this context that Judge Davis issued his powerful concurring opinion, joined by Judge Floyd. This short opinion is well worth reading in its entirety, but I highlight portions of it here.
Placing G.G. in the pantheon of those brave and lonely voices who led the fight against various forms of discrimination, Judge Davis stated:
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.
He movingly continues:
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.
Judge Davis goes on to call G.G. a “modern-day human rights leader” and notes that he “is and will be famous” but not in the “hollowed-out Hollywood sense of the term.” Rather, Judge Davis quotes the luminous and powerful poem “Famous” by Palestinian-American poet Naomi Shehab Nye:
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.
*Dred Scott unsuccessfully sued for his freedom from slavery. Fred Korematsu unsuccessfully challenged the internment of Japanese-Americans during WWII. Linda Brown successfully fought school segregation. Mildred and Richard Loving successfully challenged miscegenation laws prohibiting interracial marriage. Edie Windsor successfully challenged the federal Defense of Marriage Act’s interpretation of marriage as between individuals of opposite sexes only. Jim Obergefell won the right of same-sex couples to marry.