Poetry and judicial opinions do not often mix. Judging is ordinarily a prosaic task: weighing arguments, applying tests of legal doctrine, finding facts, stating conclusions, declaring winners and losers, announcing law. This is not the stuff of poetry.
But every once in a while, poetry is called for. It can capture what reasoned judgment cannot. On Friday, April 7, Judge Andre Davis of the US Court of Appeals for the Fourth Circuit resorted to a poem by the Palestinian-American writer Naomi Shihab Nye, in an extraordinary opinion praising a young man who fought for his rights—and lost. Judge Davis’s opinion attests to the courage of Gavin Grimm for standing up for his rights, even as the court denied his request for vindication of those rights.
In 2014, Gavin Grimm, a fifteen-year-old in Gloucester County, Virginia, was diagnosed with gender dysphoria, a condition caused by an incongruence between one’s gender identity and the sex one was assigned at birth. Assigned female at birth, Gavin realized, as he hit puberty, that he identified as a boy. The treatment for gender dysphoria includes hormone therapy. But the principal prescription for a transgender boy is to live as a boy. Gavin and his parents informed his high school of this fact at the beginning of his sophomore year, and that year, with the school administrators’ approval, he began using the boys’ restroom at school, just as all other boys did, and just as Gavin does everywhere else he goes.
None of the other students objected, but when some adults in the community learned that Gavin was using the boys’ room, they demanded that the school board step in. At a school board meeting, Gavin, still only fifteen, told the board that, “all I want is to be a normal child and use the restroom in peace and I have had no problems from students to do that—only from adults…. I did not ask to be this way, and it’s one of the most difficult things anyone can face.” He insisted, “I am just a human being. I am just a boy.”
The school board rejected his plea, and barred him from using the boys’ room, relegating him to a stigmatizing single-stall restroom that no one else used. Gavin sued and, represented by the ACLU (where I am the National Legal Director), won. The Fourth Circuit, relying on a guidance document issued by the Department of Education under President Obama, ruled that excluding Gavin from the boys’ restroom because he was transgender was sex discrimination in violation of Title IX of the Education Amendments Act of 1972, which covers all schools that receive federal assistance. The court ordered the school board to allow Gavin to resume using the boys’ restroom. But the school board appealed. The Supreme Court stayed the order pending the appeal, and Gavin continued to be barred from the boys’ bathroom. After taking office, the Trump administration revoked the Department of Education guidance document calling for equal treatment of transgender students, upon which the court of appeals had relied, and in light of the revocation of the guidance, on March 6, the Supreme Court vacated the decision and returned the case to the court of appeals.
On April 7, the court of appeals dismissed the preliminary injunction, as the Supreme Court’s ruling required. The case itself is not over, and Gavin will continue to seek relief. But he will soon graduate, without having won the right to use the same bathrooms that all other boys use. Yet his heroism in coming forward stands. The mere decision to come out to one’s parents as transgender requires tremendous bravery in a world that still too often dismisses individuals who are transgender as somehow alien. To come out to one’s principal, as Gavin did as a sophomore, demands still greater courage. To speak up in a public school board hearing, and then to file a federal lawsuit, calls for yet greater reserves. Gavin not only pursued his rights to the end, but did so with the utmost grace. Simply by doing so, he has educated a generation about the plight, and the dignity, of those who are transgender.
Judge Andre Davis was compelled by the Supreme Court decision to join the court’s decision lifting the injunction, because the injunction had in turn rested on the now-withdrawn Department of Education guidance document. But he wrote separately to call attention to Gavin’s courage. The brief but eloquent opinion deserves to be read in full. Judge Davis compared Gavin to Dred Scott, Fred Korematsu, Linda Brown, Jim Obergefell, and others who had “refused to accept quietly the injustices that were perpetuated against them.”
Gavin’s case, Judge Davis maintained, “is about much more than bathrooms… It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about … the simple recognition of their humanity.” By standing up for that principle, Judge Davis continued, Gavin “takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail.”
At the opinion’s close, Judge Davis turned to poetry to capture Gavin’s bravery. Borrowing from Nye’s poem, “Famous,” he explained that Gavin is “famous,” not in the Hollywood sense of celebrity, but in Nye’s sense, because “[he] never forgot what [he] could do.” Here’s the poem, which he quoted in full:
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.