The Latest Big Win in Gavin Grimm’s Case Shows Why Judicial Diversity Matters

The president is stacking the courts with right-leaning extremists who will languish on the bench for decades, doing their best to strip marginalized people of their civil rights. This should alarm you.

[Photo: Gavin Grimm]
This is a big win for Gavin Grimm. It’s also a big win for those who believe that diversity on the bench is a necessity. Ben Gabbe/Getty Images for GLAAD

On Tuesday, a federal district court judge in Virginia breathed new life into transgender activist Gavin Grimm’s lawsuit against the Gloucester County School Board challenging the board’s discriminatory bathroom policy. That federal judge is a Black woman appointed by Barack Obama.

This matters because the judge who initially dismissed Grimm’s lawsuit was a white man appointed by Ronald Reagan.

“Why does it matter?” you may be asking. “Aren’t you just playing the race card?”

No. Studies have shown that when it comes to civil rights issues, judges who are women, people of color, or both tend to rule more liberally than white male judges.

Such was the case with Grimm.

The American Civil Liberties Union (ACLU) filed a lawsuit on behalf of Grimm in 2015, when the school board banned him from using the restroom that aligned with his gender identity. He alleged that the school board’s policy violated his civil and constitutional rights under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the U.S. Constitution. The district court judge at the time—Judge Robert Doumar (the white Reagan appointee)—didn’t agree with him and dismissed the lawsuit.

Grimm’s case wound its way through the Fourth Circuit Court of Appeals and up to the U.S. Supreme Court, with the Obama-era Department of Justice backing his position throughout the proceedings. The Court agreed to hear Grimm’s case, but then two things happened: President Donald Trump took office in January 2017, and Grimm’s case was reassigned to Judge Arenda Wright Allen six months later.

After Trump rescinded the Obama-era guidelines regarding Title IX and transgender student rights—essentially taking the position that Title IX does not confer any rights upon trans students—the Supreme Court sent Grimm’s case back to the Fourth Circuit for consideration in light of the new developments. (It’s important to note that regardless of the Trump administration’s bigoted policies, Title IX does provide protection to trans students, as my colleague Jessica Mason Pieklo has noted.)

Rather than wait for the Fourth Circuit to issue a ruling, the ACLU amended Grimm’s original complaint, which sought an injunction blocking the school’s policy of banning him from the boys’ bathroom during his time in high school. But since Grimm had graduated from high school while his case was being kicked around the federal court system, the school board demanded that the case be dismissed, arguing that Grimm’s graduation rendered his claims moot. The amended complaint, which the ACLU filed in district court, seeks nominal damages and a permanent end to the school board’s anti-trans policy. And this time, the school board wasn’t successful in getting the case dismissed: Judge Wright Allen sided with Grimm.

It’s not clear why the case got reassigned. But after making short shrift of concerns that Judge Wright Allen should have bound herself by Judge Doumar’s previous dismissal—new law and factual circumstances warranted re-examining Grimm’s claim, she argued—Wright Allen reasoned that the school district’s policy was a form of sex stereotyping.

In reaching her decision, Wright Allen cited the landmark U.S. Supreme Court case Price Waterhouse v. Hopkins. In Price Waterhouse, the Court recognized that discriminating against an employee for failing to conform to stereotypical gender norms can be justification for legal action under Title VII of the Civil Rights Act of 1964, which bans discrimination “because of sex” in the workplace. Title VII and Title IX cases are often analyzed using the same set of legal principles.

As in Price Waterhouse, Wright Allen noted, Grimm was subjected to sex stereotyping when he couldn’t use the boys’ bathroom because of his failure to conform to arbitrary societal norms about gender.

This is a big win for Gavin Grimm. It’s also a big win for those who believe that diversity on the bench is a necessity.

But even more importantly, it is indicative of what I have been saying for years: The rights of marginalized people are being won and lost in the courts. Trump, however, is stacking the courts with right-leaning extremists who will languish on the bench for decades, doing their best to strip marginalized people of their civil rights. This should alarm you.

The fact of the matter is, Judge Robert Doumar is an elderly white gentleman—and a conservative one at that. And call me crazy, but that demographic doesn’t jump out to me as one likely to concern itself with the civil rights of transgender students. Judge Wright Allen, on the other hand—as a woman who likely understands the importance of civil rights simply by virtue of the fact that she’s Black—seemed to understand that transgender people are marginalized and deserve protection. Certainly, being a Black woman or a member of any other historically marginalized group does not automatically translate into empathy for vulnerable people. But, again, studies have shown that judges who are women, whether of color or not, approach civil rights issues more liberally than white men.

Notably, the only other case to recognize that Title IX provides bathroom equality for trans students is a case out of Wisconsin, Whitaker v. Kenosha Unified School District; that Seventh Circuit majority opinion was also penned by a Black woman—Judge Ann Claire Williams, who is a Bill Clinton appointee.

In fact, in terms of sheer numbers, judicial appointments under recent Democratic presidents have been far and away more diverse than under Republican presidents. Most of Obama’s appointees were women and/or people of color. Clinton’s record falls short of Obama’s, but it’s better than Reagan’s or either of the Bushes’, as detailed in this article by Jonathan K. Stubbs published in Berkeley La Raza Law Journal.

Which brings me to my final point: There has been a lot of teeth gnashing about the future of the Democratic Party, with various factions jockeying for position and control. This infighting has led to relatively hostile conversations about establishment Democrats vs. centrists vs. neoliberals vs. socialists vs. progressives. These conversations are important to have, and they are crucial to pushing back on the draconian policies of the Trump administration. But I would implore people to try to put aside these differences and focus on one of the most important, and lasting, issues facing us all: the makeup of the Supreme Court and the federal judiciary.

A lot of damage has already been done. Trump has already packed the courts with right-wing extremists, and it’s only getting worse. And think about this: The first judge, Robert Doumar, who dismissed Grimm’s case was a Reagan appointee. He’s been on the bench for 30 years. That’s how long some of the new appointees will be on the bench. Potentially, that means decades of adverse rulings when it comes to civil rights.

The bottom line is that elections matter because courts matter. If Democrats take back the Senate in November, they could potentially stave off the rapid-fire confirmation of conservative extremist judges. And it is important for all those voters who were apathetic and refused to vote, or those who preferred casting a protest ballot, to focus on the damage that they might be doing to future generations by ignoring the courts. One vote can mean the difference in the government recognizing trans people as human—or not.

But for now, this is a victory for Gavin Grimm. Though the school board will almost certainly appeal the case to the Fourth Circuit again, he’s one step closer to forcing the Gloucester County School Board to treat its transgender students with dignity and helping to set precedent that will hopefully force schools around the country to recognize that transgender students are protected by Title IX, whether Trump likes it or not.