On Monday, U.S. District Court Judge Robert Doumar held a hearing to resolve a few questions in the legal battle over Gavin Grimm’s right to use the restroom. Grimm, a trans high school student, identifies as male in every way, including on his driver’s license. But the school board in Gloucester County, Virginia, passed a rule barring him, and any other trans students, from using the correct restroom at school. (At the hearing, speakers called Grimm a “freak” and compared him to a dog that urinates on fire hydrants.) Now Grimm is suing, arguing that the rule qualifies as illegal discrimination on the basis of sex.
This case should be straightforward. The Supreme Court has held that a ban on sex discrimination also bars sex stereotyping. In other words, the government can’t mistreat you just because it thinks you’re identifying with the incorrect sex or expressing the wrong gender. Based on that ruling, a growing number of federal courts have held that “sex discrimination” encompasses discrimination on the basis of gender identity and trans status. The Department of Justice, the Department of Education, and the Equal Employment Opportunity Commission all agreed, holding that federal bans on sex discrimination obviously include trans discrimination.
The Gloucester County School Board singles out trans students and subjects them to differential, stigmatizing treatment on the basis of their gender identity. That is sex discrimination. Title IX of the U.S. Education Amendments of 1972 forbids schools that receive federal funds from being “subjected to discrimination … on the basis of sex.” With this clear statutory command—and the case law to back it up—Doumar should have issued an injunction preventing the school board from kicking Grimm out of the right restroom.
Instead, Doumar kicked Grimm’s sex discrimination claim out of court. “Your case in Title IX is gone, by the way,” Doumar told Grimm’s ACLU attorney Joshua Block, according to Dominic Holden’s disturbing report of the hearing in BuzzFeed. “I have chosen to dismiss Title IX. I decided that before we started.”
Doumar delivered this news before an attorney from the Justice Department—who had come to argue that Title IX protected Grimm—had even spoken. It only got worse from there. Doumar claimed he had “no problem with transgender” but had “a lot of problems with sex.” He explained that he was “convinced” that Grimm “is a biological female who wants to be male.” And throughout the hearing, Doumar asserted that being trans is “a mental disorder.” (Block pushed back, noting that the Diagnostic and Statistical Manual of Mental Disorders states being being transgender is only a problem when trans people can’t properly express their gender identity—to which Doumar retorted, “Where did you get your medical degree?”)
The 84-year-old Reagan appointee also propounded upon his other concerns of the moment, most of which were utterly irrelevant to the case at hand. When the Justice Department’s attorney rose to answer questions, Doumar criticized the government for inconsistently enforcing marijuana prohibition. “I am sorry for the Department of Justice,” he said. “Sanctuary cities. Where are we going?” He quoted Rousseau and Voltaire, complained that Congress passes new laws too quickly, and said he gets “perplexed, very perplexed.”
“I am worried about where we are going,” Doumar declared. “Maybe I am just old-fashioned. … Where the U.S is going scares me. It really scares me.”
As Holden reports, the judge—who once said HIV-positive people “should be shot” if they have unprotected sex—closed the hearing by saying, “Oh well, things are changing.” Then he exited the courtroom.
Although Doumar rejected Grimm’s Title IX claim, he indicated that he would allow the student to pursue his equal protection claim—which is, frankly, a weaker argument. The ACLU will likely appeal Doumar’s decision to the relatively liberal 4th U.S. Circuit Court of Appeals. There, Grimm has a better chance of finding judges who follow the law rather than their own fears and puzzlements. As for Doumar, the jurist has served a long career in an honorable profession. It is time for him to retire.