A 17-year-old transgender youth in Virginia will go to his high school graduation in June without knowing whether he will win his high-profile lawsuit seeking legal equality at school. In the meantime, however, he has won glowing praise from two federal judges for his personal crusade.
“Despite his youth and the formidable power of those arrayed against him at every stage of these proceedings,” those judges said in an unusual opinion released on Friday, he “never forgot what he could do” in the company of historic figures who, like him, were rebuffed in making “their claims to human dignity.”
Senior Judge Andre M. Davis wrote the five-page tribute, joined by Judge Henry F. Floyd, as they joined one of their colleagues on the U.S. Court of Appeals for the Fourth Circuit in a technical order formally wiping out the temporary legal victory that the youth – Gavin Grimm of Gloucester Courthouse, VA – had won in a lower court.
That order was blocked last summer by the Supreme Court, and the order’s legal significance ended when the Justices in March sent the case back to the Fourth Circuit Court for a new review to take into account a policy change by the Trump Administration on the scope of the 1972 civil rights law on which Gavin’s victory had relied. Technically, that order had remained on the books, and all that was done on Friday was simply to vacate it.
The Circuit Court issued two other orders. One denied a plea by the high school senior, through his lawyers, to put the case on a rapid schedule that could produce a ruling before his graduation on June 10. The other order told lawyers on both sides to propose a new schedule that might stretch out the case at least until the Fall. r
Neither of those orders drew any direct comment from any of the judges, but did appear to add impetus for the comments by Judges Davis and Floyd about Gavin’s “struggle for justice.” That opinion, aside from praising Gavin’s “journey,” also lamented the slow progress that sometimes happens to attempts to advance human rights through the courts.
Gavin’s lawyers, on the day after the Supreme Court sent the case back to the appeals court, asked that court to schedule the filing of briefs so that a hearing could occur between May 9 and 11, allowing about a month to rule before the graduation date.
The Gloucester County School Board, which had a policy that denied Gavin access to the boys’ bathroom at schoo because he was born a girl, opposed that proposal, saying it was too short to allow the full exploration of the meaning of the law at issue – Title IX – and too short to allow the Trump Administration to settle on its interpretation of that law. The school board wanted a schedule that would lead to a hearing in mid-September.
The two sides were told on Friday to file, presumably jointly, a briefing schedule. That is due by April 17. That seems to guarantee that the case would not be ruled upon while Gavin is still in high school. The future of the case is somewhat uncertain because the youth, in addition to his Title IX claim, made a constitutional claim that the school had discriminated against him. So far, no court has ruled on that claim.
It is possible that, after the Fourth Circuit Court issues a new ruling, the case could return to the Supreme Court. There were clear indications, when the Justices blocked the order in Gavin’s favor last August, that the eight members might split 4-to-4 had they made a full-scale ruling on the case. That raises the prospect that the new ninth Justice, Neil M. Gorsuch, might hold the deciding vote on the issue at stake.
(This post also appears on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)