“The arc of the moral universe is long, but it bends toward justice.”
— Martin Luther King, Jr.
Dr. King’s quotation seems like it describes broad social movements, urging patience while justice catches up to history. But sometimes, that notion applies to an individual lawsuit, as a single person fights for relief, and waits for justice to catch up to his lived experience.
For example, consider Gavin Grimm’s story. When Gavin was born, hospital staff identified him as female. Early on in life, Gavin knew that he had a male gender identity. Still, he lived as if he were female until age 14, when he informed his parents of his male gender identity. He began counseling and treatment for gender dysphoria. As part his transition, he legally changed his first name to Gavin. In 2014, when his sophomore year began (at a small-town high school in Virginia), Gavin and his parents met with school personnel to explain that he would be attending school as a boy. During the fall semester of his sophomore year, the students and staff let Gavin to use the boys’ restroom in privacy, like other boys. However, some adults in the community heard about Gavin and became upset. They asked the school board to bar Gavin from the boys’ restroom, and in December of 2014 the board adopted a policy that required students to use the public restrooms corresponding to their “biological genders” and provided a separate restroom for students with “gender identity issues.”
That bathroom policy left Gavin feeling isolated, and he began avoiding using any school bathrooms. Often, that meant that he was physically uncomfortable in class, and he was less able to attend school social events, like football games. Gavin eventually developed a painful urinary tract infection. Nonetheless, the board held firm on the new bathroom policy.
Gavin sued in July of 2015, arguing that the school policy violated Title IX and the Equal Protection clause. The trial court dismissed his Title IX claim. The Fourth Circuit Court of Appeals reversed, holding that the courts should defer to the official guidance published by the Department of Education, which had declared that Title IX protects transgender students from discrimination in bathrooms at school. While the case was awaiting review in the Supreme Court, the 2016 Presidential election occurred, and the new Administration repealed the DoE’s official guidance on Title IX. With that guidance gone, the Supreme Court vacated the Fourth Circuit decision, and remanded the case.
By the time the case got back to the District Court, a few developments had occurred. First, in several other cases, courts had ruled that Title IX prohibits discrimination based on gender identity. Second, the facts surrounding Gavin’s claim had progressed: he had a driver’s license that identified him as male, he had an amended birth certificate issued that identified him as male, and he had begun chest reconstruction surgery. Third, the case was reassigned to a new District Court Judge, and Gavin filed an Amended Complaint.
On May 22, 2018, Judge Arenda L. Wright Allen denied the defendants’ Motion to Dismiss, finding that Gavin’s Amended Complaint had pled a viable claim under Title IX and under the equal protection clause (the opinion is here). Her opinion gives a thoughtful discussion of Gavin’s experience. She also gives an unflinching re-analysis of the legal issues involved, green-lighting Gavin’s claims to go forward.
Judge Allen’s latest opinion offers some encouraging signs. First, Gavin has not given up, despite facing many setbacks. Second, the students and school personnel had been perfectly able to make school life work for Gavin, at least until some uninvolved adults in the community stepped in. Third, the law seems to be developing favorably, with several courts ruling that Title IX requires schools to treat transgender students in a non-discriminatory fashion. And fourth, Judge Allen is sending the parties to a Settlement Conference; maybe they can find a sensible resolution for this dispute.
While Gavin’s lawsuit has not had a direct path, the long arc of it bends toward justice. Stay tuned. Gavin Grimm’s story is not finished yet.
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