Big Win For Decency As SCOTUS Declines To Green Light Anti-Trans Bigots' War On Kids
Yesterday the Supreme Court declined to hear an appeal in the case of Gavin Grimm, a trans man in Virginia who sued his school district in 2015 for the right to use the appropriate bathroom at high school. Justices Samuel Alito and Clarence Thomas would have voted to grant certiorari, because of course they would. But seven other justices looked at the Fourth Circuit opinion saying that excluding trans kids from school activities is illegal discrimination "on the basis of sex," and decided not to weigh in.
That is huge. Not only for Grimm, who sacrificed his entire adolescence fighting these bigots, but for all the kids the GOP is currently targeting in the newest front in its never ending culture war: trans girls supposedly ruining sports.
"After the Supreme Court's recent decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020)," the Fourth Circuit wrote, "we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him 'on the basis of sex.'" Remember Bostock is the decision Justice Gorsuch wrote last year holding that discrimination on the basis of sexual orientation or gender identity violates Title VII's ban on sex discrimination in employment.
Here's how the Grimm court interpreted that case:
As the Supreme Court noted, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." Bostock, 140 S. Ct. at 1741. That is because the discriminator is necessarily referring to the individual's sex to determine incongruence between sex and gender, making sex a but-for cause for the discriminator's actions. See id. at 1741–42. As explained above in the equal protection discussion, the Board could not exclude Grimm from the boys bathrooms without referencing his "biological gender" under the policy, which it has defined as the sex marker on his birth certificate. Even if the Board's primary motivation in implementing or applying the policy was to exclude Grimm because he is transgender, his sex remains a but-for cause for the Board's actions. Therefore, the Board's policy excluded Grimm from the boys restrooms "on the basis of sex."
The GOP is clinging to a tiny filament of hope that what Bostock made illegal in the context of work will somehow be magically legal at schools under Title IX. Or in the alternative that making a vicious spectacle of kicking trans kids over the next three years will help them to take back the House and maintain their hold over a bunch of state houses. Because these people are fucking ghouls.
And it still might work. With Justice Amy Coney Barrett on the bench, there are probably at least four votes to allow schools to keep trans kids off the track team. But if Gorsuch and Roberts hold, this might just be okay. At the very least, states like West Virginia, in the Fourth Circuit, are going to run right into a brick wall when they try to enforce their anti-trans school bills in the short term — with SCOTUS refusing to weigh in, the appellate court precedent is binding. And if it's illegal to exclude trans kids from the restroom, it's certainly illegal to exclude them from the softball field.
So, hooray, it is NICETIMES! Eleven years ago Dan Savage and his husband Terry Miller promised LGBTQ+ kids that it gets better, and they were right.
We owe a huge amount to Gavin Grimm who stood in the line of fire and took the hits. This is an inspiring video, and it should never happen again.
15-year-old Gavin spoke to his school board and told them "I'm just a human. I'm just a boy." It took 7 years, but… https://t.co/vA2cKxzIms— Josh Block (@Josh Block)1624888198.0
This is a child who had to stand alone in the storm, and if we as liberals are good for anything it should be standing up for kids.
"What an ugly horrible world we live in that that happened to a child. What a nightmare it is that this child has now become the mouthpiece of a movement countering hatred against his very personhood, the validity of his happiness and joy and who he is," Grimm told BuzzFeed reporter Zoe Tillman.
Well, yeah. But now it's time to know better, do better, because the GOP has made no bones about it — they are coming for these children. So it's time for decent people to lace up their shit-kicking boots and make sure no other kid has to go through this alone.
Show up for trans kids! Even when it's bad politics, even if you personally have a hard time figuring out the pronouns, even if you don't totally "get it." If our lovable, geriatric president can do it, then you can get yourself to the local school board meeting and shame the shit out of these horrible bigots.
Because you don't have to "get it," you just have to get out there and do the right thing.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.