Senior Judge Davis, joined by Judge Floyd said this in a published separate opinion:
“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 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.”
The full opinion is well worth a read. Here’s a link: 161733R1.P-4th Circuit GG
Judge Davis incorporates this poem,
Famous by N.S. Nye:
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.
Here’s an article from yesterday’s Washington Post explaining the context of the 4th Circuit’s procedural decision and why the published, signed separate opinion is unusual.
The case is G.G. v. Gloucester County School Board.
The Trump Administration’s attacks on vulnerable individuals such as Muslims, migrants, and now transgender students have given rise to an interesting new phenomenon in the U.S. Courts of Appeals: separate published opinions vigorously commenting on or dissenting from what normally would be routine, unsigned, unpublished, barely noticed, procedural orders.
Another good example was the recent spate of published opinions dissenting and concurring with the granting of an uncontested motion by the Government to dismiss the appeal from the TRO in State of Washington v. Trump (“Travel Ban 1.0”) which I discussed in an earlier blog: http://wp.me/p8eeJm-vM
In the 9th Circuit case, several judges used separate opinions to lash out at their colleagues and show their support for the Trump Administration’s “Travel Ban 1.0.” This drew a reaction from some of their colleagues who accused the dissenters of using the forum and device of the separate opinions to deliver a message to politicians, other courts, and the parties for use in future litigation that was not yet before the court. In other words, to influence matters that were not part of the the actual “case or controversy” before the court, which was being dismissed without objection by either party.
In any event, in just a short time in office, the Trump Administration has “gotten the attention” of normally aloof and “ivory towerish” Federal Appellate Judges who seem to be energized and eager to engage in the fray with the Administration, its detractors, and each other.