In years to come, Gavin
Grimm may be remembered just as Rosa Parks is today for a seemingly simple act
of self-assertion that helped bring the country closer to the Pledge of
Allegiance ideal of liberty and justice for all.
Parks’ refusal to yield her seat on a
Montgomery, Ala., bus in 1955 helped spark the boycott of the city’s racially
segregated bus system and in time repeal of the ordinance forcing black bus
riders to the back. Gavin, a teen-aged transgender boy in Gloucester
County in southeastern Virginia, wanted merely
to use the boys’ restroom at his school and went to court to establish his
right to use the restroom that corresponds to his gender identity instead of
his biological sex.
The Rosa Parks story is
part myth: she was not the quiet, unassuming seamstress as often depicted but
in fact the secretary of the local NAACP and an activist trained in civil
disobedience. Gavin, on the other hand, appears to be nothing more than a
somewhat shy, video game-playing teenager who wants to get about his school
work without a lot of fuss. Today, however, he has become a national poster boy
for transgender rights who says he hopes his legal fight “will help other kids
avoid discriminatory treatment at school.”
Gavin might have been spared
his legal troubles but for the overwrought reaction of townsfolk in rural Gloucester County. Gavin, who was born female, came
out to his mother as transgender in his freshman year and with his mother went
to the Gloucester
High School principal
with the information at the start of his sophomore year in fall 2014. By then,
he was taking hormone therapy, and he changed his name legally later that year.
The school administration
was “supportive,” according to the account in the appeals court decision
in Gavin’s favor last week [April 19]. School officials “took steps to ensure
that he would be treated as a boy by teachers and staff” and then, at Gavin’s
request, allowed him to use the boys’ restroom. Gavin used the boys’ restroom
for seven weeks “without incident,” according to the court, but the word that
got out “excited the interest of others in the community.”
The Gloucester School Board
would have none of it even with Gavin and his mother in the audience at two
meetings, in November and December. The meetings were sellouts: 27 people spoke
at the first, 37 at the second, most of them at both in favor of the proposed
policy segregating restrooms and locker facilities by birth sex instead of
gender identity. As the court recites, speakers called Gavin a “young lady,”
and one called him a “freak.”
The board approved the
policy by a 6-1 vote; the school responded by allowing Gavin to use a separate,
single-user restroom. But, as Gavin related at trial, “Being required to use
the separate restrooms sets him apart from his peers, and serves as a daily
reminder that the school views him as ‘different.’” Represented by American
Civil Liberties Union lawyer Joshua Block, Gavin sued the school in June 2015,
claiming that the policy violated the federal law known as Title IX that
prohibits sex discrimination in public schools.
The trial before senior
federal judge Robert Doumar, a Reagan appointee now in his mid-80s, did not go
well for Gavin. Doumar was unsympathetic on the facts and unconvinced on the
law. Doumar characterized gender dysphoria as a “mental disorder” and resisted
arguments from Block that it becomes a disorder only if untreated. With no
medical training, Doumar doubted Gavin’s testimony that he had developed
urinary infections from “holding it in” while at school.
As for the law, Doumar held
that “sex” under Title IX refers only to biological sex, not to gender
identity. He discounted the legal opinion from the Department of Education’s
Office of Civil Rights in January 2015 requiring schools to treat transgender
students “consistent with their gender identity.”
In a split decision, a
three-judge panel of the Fourth U.S. Circuit Court of Appeals ruled Doumar was
wrong on the law and sent the case back to him to reconsider Gavin’s request
for an injunction allowing him to use the boys’ restroom as before. Doumar had
reasoned that the harm to others outweighed any harm to Gavin. As Judge Henry
Floyd wrote for the majority, the school board offered no evidence that Gavin’s
use of the boys’ restroom was a safety issue.
By remarkable coincidence,
Floyd also wrote for a three-judge panel in 2014 in invalidating Virginia’s ban
on same-sex marriages and the dissenting judge, Paul Niemeyer, dissented again
in Gavin’s case. Like Doumar, Niemeyer simply denies transgenderism: boys are
boys, girls are girls, end. With that view, Niemeyer viewed Title IX’s use of
“sex” as “unambiguous” in referring to biological sex.
On that point, law nerds
will note that the case turns on what is called Auer
deference after a 1997 Supreme Court decision. The ruling requires courts
generally to defer to an agency’s interpretation of its own regulations. Back
before Doumar — the appeals court declined to reassign the case —
Gavin still faces a judicial minefield. But in an essay
for Time, Gavin says the case has helped start a needed
conversation. Some of his schoolmates opened up, he wrote, once they were
exposed to the conversation. “And that,” he concludes, “is extremely, extremely
important.”
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