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.


FILED: April 7, 2017




No. 16-1733



G. G., by his next friend and mother, Deirdre Grimm

Plaintiff - Appellee



Defendant – Appellant




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


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:


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 Shehab 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.”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.

It was fun while it lasted, wasn’t it? That one, brief shimmering moment in time when the government was mildly interested in finding out how many LGBTQ people live in this burning hellfire of a country. When we counted, literally.

That moment is over.

From The National LGBTQ Task Force:

In this morning’s version of the Administration’s report, while it conspicuously excluded lesbian, gay, bisexual and transgender (LGBTQ) people on the list of “planned subjects” for the nation’s decennial census and longer form survey, “sexual orientation” and “gender identity” were included as “proposed” subjects in the appendix—indicating that data collection on these categories may have been in the works in an earlier version.

Including sexual orientation and gender identity on the 2020 Decennial Census Program would have been a major game-changer, providing an official count through both a “short-form only” census and the American Community Survey, which collects more detailed long-form data on a monthly basis. This has an enormous impact on the well-being of our community, as indicated in this statement from Meghan Maury, the Criminal and Economic Justice Project Director of the National LGBTQ Task Force:

Today, the Trump Administration has taken yet another step to deny LGBTQ people freedom, justice, and equity, by choosing to exclude us from the 2020 Census and American Community Survey. LGBTQ people are not counted on the Census—no data is collected on sexual orientation or gender identity. Information from these surveys helps the government to enforce federal laws like the Violence Against Women Act and the Fair Housing Act and to determine how to allocate resources like housing supports and food stamps. If the government doesn’t know how many LGBTQ people live in a community, how can it do its job to ensure we’re getting fair and adequate access to the rights, protections and services we need? We call on President Trump and his Administration to begin collecting sexual orientation and gender identity data on the American Community Survey as soon as possible and urge Congress to conduct oversight hearings to reveal why the Administration made the last-minute decision not to collect data on LGBTQ people.”

Way back in 2016, United States Chief Statistician Katherine Wallman told Time Magazine she was “leading the federal government’s working group on how to best gather data about sexual orientation and gender identity.” In April 2016, a bipartisan group had called on the government to include sexual orientation and gender identity in the Census, but at that time there were no plans to do so.

Up to this point, the best numbers we’ve gotten on LGBTQ community size have been through the Census’s cumbersome method of approximating numbers of same-sex couples through answers to questions about gender and relationships to other household members, and subsequent careful analysis of that data by The Williams Institute. (Basically everything we know about LGBTQ population size comes from The Williams Institute.)

The Census has been working to more accurately count same-sex couples, and as of 2014 was “testing new marriage and relationship questions on its surveys in hopes of producing more accurate numbers in the next few years.” This was to combat the apparently widespread problem of people checking the wrong gender box when answering questions about household members and other collection issues. Here’s one revision they were playing with:

The bureau was hoping to implement its revised relationship question on the 2020 Census, which could still happen — but that will ultimately require approval from the Office of Management and Budget. The current head of the OMB is Mick Mulvaney, a founding member of the House Freedom Caucus, who is generally full of shit. He co-sponsored South Carolina legislation to define marriage as being between one man and one woman as well as the First Amendment Defense Act, which would undermine anti-discrimination protections for same-sex married couples. The Census Bureau, like many other Bureaus these days, isn’t sure how much funding they’ll be getting from Congress in the ensuing years to do things like trial test its methods or execute follow-up visits to non-responsive people. There are already concernsabout the accuracy of the 2020 counts in light of Trump’s crackdown on undocumented immigrants.

Data collected by social scientists reveal widely disparate potential answers to the “how many gay people exist” question, a saga of confusion and sadness we’ve been following closely for the last nine years. (Not having these numbers is especially vexing to journalists!) One recent survey of young people have revealed that a majority of 13-to-20 year olds do not identify as exclusively heterosexual, which is bananas and supports our sneaking suspicion that there are tons of gay people out there and therefore everybody should care more about us. Furthermore, data on same-sex couples clearly does absolutely nothing to help us get better data on how many transgender people exist. This would be really great to know because the transgender community faces astronomical rates of poverty, victimization, abuse, homelessness, suicidality and depression, and therefore is in especially desperate need of services and programs that often rely on federal government funding. From Time Magazine:

…the true scope of [outsized hardships faced by LGBT people] can only be fleshed out by large-scale data collection—and that such information will make it a lot easier to get the resources needed to fix problems like the extremely high rates of poverty experienced by transgender people and gaps in parental rights affecting gay couples with children, particularly if the numbers have the authority of being produced by the government itself.

This news comes shortly after last week’s big news that the Department of Health & Human Services is planning to eliminate questions about sexual orientation from its National Survey of Older Americans. (One of our Senior Editors, Heather Hogan, has been working on a story about this that we’ll be publishing next week.)

Although I cannot find independent verification of this, the pro-Trump propaganda machine The Washington Times (which I refuse to link to, but here’s a screenshot) claims a Census Bureau spokesman had determined there was “no federal need” for collecting data on sexual orientation and gender identity. In an alleged statement, said spokesman said:

“The Subjects Planned for the 2020 Census and American Community Survey report released today inadvertently listed sexual orientation and gender identity as a proposed topic in the appendix. This topic is not being proposed to Congress for the 2020 Census or American Community Survey.”

This will be good news for the readers of The Washington Times, who earlier today were very concerned about Uncle Sam “prodding” you for this information.

This will be bad news for… everybody here.

WASHINGTON (Reuters) - The U.S. Supreme Court avoided a ruling on transgender rights by sending a closely watched case involving bathroom access at a Virginia high school back to a lower court on Monday after President Donald Trump rolled back protections for transgender students.

Lawyers for a transgender student named Gavin Grimm, who was born female and identifies as male, had asked the justices to decide the case despite of the Trump administration's Feb. 22 action. The court previously had set arguments in the case for March 28.

The brief court order said that the case was sent back to the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, which last year ruled in favor of Grimm, "for further consideration in light of the guidance document" issued by the Trump administration.

Grimm sued the Gloucester County School Board to win the right to use the public school's boys' bathroom, saying the school's refusal violated federal anti-discrimination law and the U.S. Constitution's guarantee of equal protection under the law.

The 4th Circuit in April 2016 sided with Grimm based on the Obama administration's interpretation of the anti-discrimination law. It now gets a second chance to rule on the dispute, with its earlier decision wiped off the books.

The Trump administration rescinded landmark protections for transgender students ordered by former President Barack Obama last year that had permitted them to use bathrooms that matched their gender identity.

Obama's guidance said that transgender students were protected under a federal law barring sex discrimination in education. The Trump administration's move left the decision to the states.

The law involved in the case is Title IX of the Education Amendments of 1972, which applies to federally funded schools. The question of whether it covers transgender students remains unresolved and is likely to reach the high court at some time.

The case, which the justices in November had agreed to hear, would have been the Supreme Court's first case on discrimination against transgender people. It was among the most important cases the justices were due to hear during their current term, which ends in June.

The issue of allowing transgender people to use public bathrooms that correspond to their gender identity rather than their birth gender has become the latest flashpoint in the long U.S. battle over lesbian, gay, bisexual and transgender rights.

The matter heated up after North Carolina passed a Republican-backed law last year that required people to use bathrooms that corresponded to their gender at birth in government buildings and public schools. The North Carolina law also blocked local measures protecting lesbian, gay, bisexual and transgender people from discrimination.

The Obama administration in May 2016 issued its nationwide guidance telling public schools that transgender students should be allowed to use the bathroom of their choice, and indicated that states could lose education funding if they did not comply.

That action infuriated many conservatives and prompted a Republican-led legal effort to fight it. A total of 23 states sued to block the guidance. That lawsuit was dropped after Trump rescinded the guidance.

In the Virginia case, the Supreme Court in July 2016 voted 5-3 to temporarily block the appeals court decision from going into effect, a move that prevented Grimm from using the boys' bathroom when the new school year began in September while the case remained under appeal by the school district.

by Danielle Bergan

Okay, this might be a bit long but here goes. I am not surprised at 45 and his Republican administration's removal of basic human rights protections for our transgender youth. It is the reflection of the conservative, right wing that is now in power in Washington. Even more disturbing is Secretary of Education and an Attorney General who act in a gutless manner for civil rights matters such as these. However, everything we have gained over these past 10 years is not lost.

Look at how far we have come as a nation in recognizing LGBT rights. Gay marriage is now a fact of life. The Supreme Court, the highest legal authority in our land, ruled this is the law. And in the same way our Supreme Court did this, ruled on integration of our schools and a woman's right to chose in Roe vs. Wade, I hope and pray they will do the same next month when Gavin Grimm's case comes before them.

 Trans-kids already are faced with bullying in many school districts on a daily basis. It’s also a fact that 41% of those of us who are transgender will attempt suicide in our lifetimes. This is generally due to non-acceptance by society. Remarkably, trans-kids that grow up as themselves, accepted and loved by their families and are allowed to participate in schools as the people they are, have no higher suicide rates than any other child in our country. It’s hard enough being a kid at all so why make it harder for trans-kids?

The craziest thing to me is all this hoopla over what bathroom a trans-student should use. It is driven by fear, prejudice and ignorance, nothing more. In case you did not know, being transgender simply means your mind and body do not match. For me, I lived life in a male body for years always knowing inside my head that I was a female. When I or a trans-kid wants to use the bathroom associated with our gender all we want to do is be like all other men and women, go to the bathroom.

In most school districts when left up to the kids themselves, the vast majority have no problem with transgender classmates. Under proper direction and understanding school districts can and do in many cases give trans-kids the same rights as any other student.

I sincerely believe that education, love and understanding are the keys to moving into a future where problems such as this will not exist. In the same vein, all of us belong to the human race. We all deserve basic human rights regardless of race, creed, color, natural origin, sex, gender identity, expression, or physical disability.

Transgender children or adults are the same as everyone. They have feelings, desires, wants and the right to live in this country like anyone else. The trumped up fears of sexual assaults are propaganda intended to scare the average person who has no idea of who a transgender person is. This simply is a myth propagated by the conservative religious right of the Republican Party. It is nothing more than hate directed in the face of those who can’t defend themselves.

Yet, there are those of us who are trans-adults who have fought long and hard for years to be who we are. We are joined by many in the LGBTQ community, allies, parents of trans-children and the average person who distains prejudice and bigotry in any form and who now stand in support of transgender rights for children. We will fight for as long as it takes to ensure that these rights will be won and guaranteed by our nation itself.

So to those in power in Washington, especially 45, please know, we are not going away. We will not lie down and we will never give up until all transgender children and transgender adults are ensured the same guarantee of life, liberty and the pursuit of happiness that all American’s have the right of.

We will survive and we will thrive!


By Rebecca Mead February 23, 2017

When historians write their accounts of the Trump era—assuming the practice of historical scholarship survives it—a small but significant portion of those chronicles will be concerned with the bewildering phenomenon of grown Republican men policing the bathroom habits of vulnerable teen-agers. With the announcement today that Trump has rescinded a civil-rights rule put in place under President Obama, providing transgender students in public schools with the right to use the bathroom of their choice, the President and his Attorney General, Jeff Sessions, have scored a political victory. Voters who believe that a hazard is presented by, for example, a transgender eighth grader using the bathroom corresponding to her gender identity will be satisfied by the new policy, which states that local districts will now be at liberty to make their own policies regarding who gets to go to the bathroom where. Schools will, presumably, be able to insist that transgender students use the bathroom that is opposite to their gender identity, or—as is often proposed as a reasonable, middle-ground solution—a separate bathroom altogether, such as one intended for teachers.

Reports emerged yesterday suggesting that Betsy DeVos, Trump’s recently appointed and highly controversial Education Secretary, had misgivings about rescinding or revising the policy as it stood. A story in the Times reported that DeVos had expressed concern that rolling back the recently acquired rights of transgender students would open such students up to potential harm, and noted that she had been “quietly supportive of gay rights” for some time. According to the report, DeVos expressed her reservations to Sessions, who could not be persuaded, and sought out Trump’s support for his own position. The President reportedly told DeVos that she could get onboard or she could resign. DeVos chose to keep her job, and signed off on the new rules.

At the same time, the Times reported, she insisted that the letter rescinding the policy should incorporate wording that all students have the right “to learn and thrive in a safe and trusted environment,” and that the department’s Office of Civil Rights would remain committed to investigating claims of discrimination, harassment, and bullying. This account was greeted in some quarters with something approaching approbation: “Betsy DeVos tried to do something good, but of course Trump overruled her” was one take, in The New Republic.

But trying to do something good—if that is, indeed, what DeVos tried to do—deserves no praise when the end result is to be complicit in something bad. The Times story noted that DeVos had expressed concerns about high rates of suicide among transgender students. She is right to be worried: the suicide rate in the transgender population is significantly higher than that in the population at large; according to an oft-cited study published by the American Foundation for Suicide Prevention, forty per cent of transgender adults have attempted suicide.

At the same time, suicidal leanings are by no means an inevitable consequence of being transgender. A study published last year in the journal Pediatrics shows that transgender youth who have received the support of their families and communities through their transitions suffer no greater rates of depression than does the general population. In other words, if trans kids and teens are not made to feel isolated—if they are not singled out as different—they have every chance of doing just fine, or at least as well as any other teen-age kid.

One good way to make sure trans kids aren’t isolated or singled out is to insure that they have the freedom to use whichever bathroom they feel comfortable using. As anyone who has ever been a kid or a teen will remember, school bathrooms are not merely places in which to answer the call of nature. They are sites of social interaction, where gossip is gossiped and confidences exchanged. To remove a student from that community is to stigmatize him or her, as Nicole Maines, a transgender advocate whose family successfully sued the state of Maine for violation of her civil rights, has eloquently argued. When she was required to use the staff bathroom, Maines wrote in Time magazine, “I was isolated and effectively classified as ‘other.’ My school and community began to acknowledge me as being different and treated me like a second-class citizen.”

Being a teen is hard enough, but being a trans teen should be no harder than usual. The new ruling fails to take account of what common humanity should acknowledge: that within a school bathroom or outside it, a transgender student is much more likely to be the victim of bullying than to be its perpetrator. If DeVos really has concerns about the safety of transgender kids, her capitulation to Sessions and Trump is all the more reprehensible. Insisting that, in rescinding the rule, the Department of Education should profess a commitment to rooting out discrimination and bullying amounts to nothing but empty words, if—as is the case—the intended point of the new rules is to enable the imposition of a particularly cruel, petty, and humiliating structural discrimination.

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