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4th Circuit Judges Hail Gavin Grimm as a Civil Rights Leader

Posted on: April 10th, 2017 by Art Leonard No Comments

A pair of federal appeals court judges have saluted Gavin Grimm, a transgender high school senior, as a civil rights leader in the struggle to establish equal rights for transgender people under the law.

On April 7, the Richmond-based 4th Circuit Court of Appeals granted a motion by the Gloucester County (Virginia) School District to vacate a preliminary injunction issued last summer by the U.S. District Court, which had ordered the school district to allow Grimm, a transgender boy, to use the boys’ restrooms at the high school during his senior year.  G.G. v. Gloucester County School Board, 2017 WL 1291219.

That Order was quickly stayed by the U.S. Supreme Court, which then agreed to hear the school board’s appeal of the Order last fall. However, after the Trump Administration withdrew the Obama Administration’s interpretation of Title IX of the Education Amendments of 1972, to which the 4th Circuit had deferred in ordering the district court to issue the Order, the Supreme Court cancelled the scheduled oral argument and returned the case to the 4th Circuit.  Although the Order is now vacated, presumably the 4th Circuit still retains jurisdiction to decide whether the district court was correct in its decision to dismiss Gavin Grimm’s sex discrimination claim under Title IX in the absence of an administrative interpretation to which to defer, since it was Grimm’s appeal of the dismissal that brought the case to the 4th Circuit in the first place.

Although the court granted the school district’s unopposed motion to vacate the Order, a member of the panel, Senior Circuit Judge Andre M. Davis, was moved to write a short opinion reflecting on the case. Circuit Judge Henry M. Floyd directed that Davis’s opinion be published together with the 4th Circuit’s order, and Judge Paul V. Niemeyer, who had dissented from the 4th Circuit’s decision, agreed to the publication.

Davis’s eloquent brief opinion deserves to be read in full. Throughout the opinion, Grimm is referred to by his initials, as the case was filed on his behalf by his mother and stalwart champion in his struggle for equal rights, Deirdre Grimm.

DAVIS, Senior Circuit Judge, concurring:

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.

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.

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 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 Floyd has authorized me to state that he joins in the views expressed herein.

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.

Two Federal Judges Order Public Schools to Let Transgender Students Use Gender-Appropriate Restrooms

Posted on: September 27th, 2016 by Art Leonard No Comments

Within days of each other, two federal district judges have issued preliminary injunctions requiring public schools to allow transgender students to use restrooms consistent with the students’ gender identity. U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, based in Cincinnati, issued his order on September 26 against the Highland Local School District on behalf of a “Jane Doe” 11-year-old elementary school student, in Board of Education v. U.S. Department of Education, 2016 U.S. Dist. LEXIS 131474, 2016 WL 5239829.   U.S. District Judge Pamela Pepper of the Milwaukee-based Eastern District of Wisconsin, issued her order on September 22 against the Kenosha Unified School District on behalf of Ashton Whitaker, a high school student, in Whitaker v. Kenosha Unified School District No. 1, 2016 U.S. Dist. LEXIS 129678, 2016 WL 5372349.  Jane Doe is a transgender girl, Ashton Whitaker a transgender boy.

Although both cases are important, producing essentially the same results under Title IX and the Equal Protection Clause of the 14th Amendment, Judge Marbley’s ruling is more significant because the judge sharply questioned the jurisdictional basis for a nationwide injunction issued on August 21 by U.S. District Judge Reed O’Connor of the Northern District of Texas, Wichita Falls, which ordered the Obama Administration to refrain from initiating investigations or enforcement of violations of Title IX of the Education Amendments of 1972 based on gender identity discrimination.  O’Connor was ruling in a case initiated by Texas in alliance with many other states challenging the validity of the Obama Administration’s “rule” that Title IX, which prohibits sex discrimination by educational institutions that receive federal funds, prohibits gender identity discrimination and requires schools to allow transgender students to use facilities consistent with their gender identity.

Neither the Highland nor Kenosha cases were affected by O’Connor’s order in any event, since these cases were already under way before O’Connor issued his order and they involved district court complaints filed by the individual plaintiffs, not by the Department of Education.

The Doe v. Highland case before Judge Marbley is in part a clone of the Texas case pending before O’Connor. When a dispute arose about the school’s refusal to allow a transgender girl to use the girls’ restrooms and the Department of Education became involved in response to a complaint by the girl’s parents, the school district, abetted by Alliance Defending Freedom (ADF), the “Christian” law firm that is also providing representation to other challengers of the Administration’s position, rushed into federal district court to sue the Department of Education and seek injunctive relief.

As the case progressed, Jane Doe’s parents moved on her behalf to intervene as third-party plaintiffs against the school district. ADF pulled in many of the states that are co-plaintiffs in the Texas case and a clone case brought in federal district court in Nebraska, and moved to make them amicus parties in this case.  At the same time, pro bono attorneys from Pillsbury Winthrop Shaw Pittman LLP, a large firm based in Washington, D.C., together with local counsel from Columbus, Ohio, organized an amicus brief by school administrators from about twenty states in support of Jane Doe.  After being allowed to intervene as a plaintiff, Doe moved for a preliminary injunction to require the Highland Schools to treat her as a girl and allow her to use appropriate restrooms.

Judge Marbley first confronted the federal government’s argument that the court did not have jurisdiction over the Highland school district’s attack on the Administration’s interpretation of Title IX. Unlike Judge O’Connor in Texas, Judge Marbley concluded that the government was correct.  If a school district wants to attack the government’s interpretation of Title IX, he found, it must do so in the context of appealing an adverse decision by the Department of Education ordering it to comply with the interpretation or risk losing federal funding.  Marbley pointed out that under the administrative process for enforcement of Title IX, no school would lose funding before a final ruling on the merits is rendered, a process that would involve administrative appeals within the Department followed by an appeal to the U.S. Court of Appeals with a potential for Supreme Court review of a final ruling by the court.  Thus, the school district had no due process argument that it stood to lose funding without being able to seek judicial relief if it were deprived of the ability to sue directly in the district court.  Marbley found that there was no authorization under the statute or the Administrative Procedure Act (APA) for a school district to file a lawsuit directly in federal district court challenging an interpretation of Title IX.

Part of ADF’s argument in its lawsuits challenging the Obama Administration’s guidance to the school districts is that by not embodying this interpretation in a formal regulation, the Administration had improperly evaded judicial review, since the APA authorizes challenges to new regulations to be filed promptly in federal courts of appeals after final publication of the regulation in the Federal Register. ADF argued that the Guidance was, in effect, a regulation masquerading as a mere “interpretation.”  Judge O’Connor bought the argument, but Judge Marbley did not.

Marbley was dismissive of Judge O’Connor’s determination that he had jurisdiction to hear the Texas case. “The Texas court’s analysis can charitably be described as cursory,” he wrote, “as there is undoubtedly a profound difference between a discrimination victim’s right to sue in federal district court under Title IX and a school district’s right to challenge an agency interpretation in federal district court.  This Court cannot assume that the first right implies the second.”  Marbley went on to discuss in detail Supreme Court rulings on the question whether there was a private right of action under various federal statutes that did not expressly authorize lawsuits in the district courts, and the circumstances under which such authorization can be found by implication, as the courts have done to allow students to file Title IX lawsuits.  Marbley rejected the Highland school district’s argument that once Jane Doe had intervened, she would provide a basis for the court to assert jurisdiction over the school district’s claim.  Actually, he pointed out, the school district could raise its arguments against the Obama Administration’s interpretation of Title IX in response to Jane Doe’s lawsuit, and need not maintain a lawsuit of its own.  Thus, he concluded, the school district’s complaint should be dismissed on jurisdictional grounds.

In both cases, the attorneys for the transgender students argued alternatively under Title IX and under the Equal Protection Clause. In both cases, they argued that because gender identity discrimination is a form of sex discrimination, the Equal Protection analysis should receive the same “heightened scrutiny” that courts apply to sex discrimination claims, which throws the burden on the government to show that it has an exceedingly important interest that is substantially advanced by the challenged policy.

Here the cases diverged slightly in the judges’ legal analysis. Both judges found that the transgender plaintiffs were likely to succeed on the merits of their claims under both Title IX and the Equal Protection clause, that they were suffering harm as a result of the challenged policies, and that any harm the school districts would suffer by issuance of preliminary injunctions was outweighed by the plaintiffs’ harm if injunctions were denied.  In addition, both judges found that the injunctions were in the public interest.  But Judge Marbley additionally found that heightened scrutiny applied, while Judge Pepper, more conservatively, reached her conclusion by applying the rational basis test.  In either case, however, the judges found that the school districts’ justifications for their exclusionary policies lacked sufficient merit to forestall preliminary relief against them.

Significantly, Judge Marbley’s conclusion that heightened scrutiny applied to this case drew support from the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.  He used Obergefell to question the continuing relevance of prior court of appeals analyses of equal protection “in light of Obergefell’s emphasis on the immutability of sexual orientation and the long history of anti-gay discrimination. Like the district courts that examined suspect classification based on sexual orientation,” he continued, “this Court will proceed to conduct its own analysis of the four-factor test to determine whether heightened scrutiny applies to a transgender plaintiff’s claim under the Equal Protection Clause.”  Marbley based his analysis of the four-factor test on a district court ruling last year in New York, Adkins v. City of New York, which found all factors to be satisfied to justify heightened scrutiny, including a finding that “transgender people have ‘immutable and distinguishing characteristics that define them as a distinct group” for purposes of analyzing their equal protection claims.

Significantly, both judges accorded great weight to the Obama Administration’s Guidance, and both judges also found persuasive the Richmond-based 4th Circuit Court of Appeals’ ruling in the Gavin Grimm case that district courts should defer to the Administration’s interpretation due to the ambiguity of existing regulations about how to deal with transgender students under Title IX.  In light of such ambiguity, the federal administrators would enjoy deference so long as they adopted an interpretation of the statute and regulations that is not inconsistent with the purpose of the statute.  The judges rejected the argument that because Congress in 1972 did not intend to ban gender identity discrimination, administrators and judges decades later could not adopt such an interpretation of “discrimination because of sex.”

Although the Supreme Court has stayed the injunction issued by the district court in the Gavin Grimm case while the Gloucester (Virginia) school district’s petition for review of the 4th Circuit’s ruling is pending before the Supreme Court, Judge Marbley pointed out that the stay does not affect the status of the 4th Circuit’s decision as a persuasive precedent.  He also pointed out the unusual step taken by the Justice Stephen Breyer of writing that he had agreed to provide the necessary fifth vote for a stay to “preserve the status quo” as a “courtesy” to the four conservative justices.  The Highland school district argued that the stay “telegraphed” that the Supreme Court was going to grant review of the 4th Circuit’s decision, but, wrote Marbley, “even if Highland has somehow been able to divine what the Supreme Court has ‘telegraphed’ by staying the mandate in that case, this Court unfortunately lacks such powers of divination.”  Furthermore, he wrote, “This Court follows statements of law from the Supreme Court, not whispers on the pond.”

Judge Marbley also accorded great weight to the amicus brief filed on behalf of school administrators from around the country. In this brief, they explained how they had implemented the policies required by the Education Department to accommodate transgender students.  They pointed out that allowing transgender students to use appropriate facilities had not created any real problems.  They argued that this was a necessary step for the mental and physical health of transgender students, and did not really impair the privacy of other students.  Furthermore, in the more than twenty school districts joining in this brief, the new policy had not in any case led to an incident of a sexual predator gaining access to a restroom under the pretext of the policy and harming any student.  Thus, while acknowledging that school districts can be legitimately concerned about the health and safety of students, the courts could conclude that any such risk was conjectural and not borne out by experience.

The judges also noted other district court decisions over the past year ordering schools to allow transgender students to use appropriate facilities, including a recent ruling in one of the North Carolina cases, requiring the University of North Carolina to ignore H.B.2, that state’s infamous “bathroom bill,” and allow the three individual transgender plaintiffs to use appropriate restrooms at the university while the case is pending before the court.

Judge Marbley’s in-depth analysis of the jurisdictional issues provides a roadmap for a challenge before the Houston-based 5th Circuit Court of Appeals to Judge O’Connor’s nationwide injunction.  The Texas lawsuit attempted to short-circuit the requirements of the Administrative Procedure Act by dragging an interpretive dispute into the federal district court when the relevant statute provides an administrative forum for hearing and deciding such issues before appealing them to the Courts of Appeals.

Judge Marbley was appointed to the district court by President Bill Clinton. Judge Pepper was appointed by President Barack Obama.