After the Supreme Court ditched the G.G. v. Gloucester School Board case earlier this year, the matter appeared destined to unceremoniously die as moot. Not that the issue of transgender rights has yet slipped into the national rearview mirror where America keeps its past injustices — passed by, but hopefully never truly absent as reminders — but moot because Gavin Grimm will soon graduate from the school system that fought him all the way to the Supreme Court and back.
Today the court granted an unopposed motion to vacate the preliminary injunction and effectively end the matter.
But before the case could fade away, Senior Judge Andre Davis provided a final signpost on Grimm’s case with an opinion concurring in the decision, joined by Judge Henry Franklin Floyd.
PUBLISHED
FILED: April 7, 2017
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 16-1733
(4:15-cv-00054-RGD-DEM)
___________________
G. G., by his next friend and mother, Deirdre Grimm
Plaintiff - Appellee
v.
GLOUCESTER COUNTY SCHOOL BOARD
Defendant – Appellant
___________________
O R D E R
___________________
Upon consideration of the unopposed motion to vacate preliminary injunction, the
court vacates the preliminary injunction entered by the district court on June 23, 2016.
Senior Judge Davis wrote a concurring opinion in which Judge Floyd joined.
Entered at the direction of Judge Floyd with the concurrence of Judge Niemeyer
and Senior Judge Davis.
For the Court
/s/ Patricia S. Connor, Clerk
2
DAVIS, Senior Circuit Judge, concurring:
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.1
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.
1 Footage of his compelling statement to the School Board is available at:
https://www.youtube.com/watch?v=My0GYq_Wydw&feature=youtu.be.
3
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 Shehab Nye, in her extraordinary poem,
5
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.”2
Judge Floyd has authorized me to state that he joins in the views expressed herein.
2 See N. S. Nye, Famous:
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.
