Famous

By Stuart Gaffney and John Lewis

What does it mean to be famous? Such a question seems apt for a college philosophy or ethics class or something that Cher, Madonna, or Lady Gaga might ponder in a quiet moment. However, the query also lies at the heart of an extraordinary concurring opinion to a pro forma, one sentence order in transgender teen Gavin Grimm’s lawsuit to be able to use the bathroom that matches his gender.

In the opinion, Senior Judge Andre Davis of the 4^th Circuit Court of Appeals first praises Grimm’s eloquence, intelligence, and perseverance in pursing justice. In describing Gavin’s courageous testimony before his School Board, Judge Davis notes how Gavin “explained that he is a person worthy of dignity and privacy. He explained why it is humiliating to be segregated from the general population.” Gavin “knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination.”

But Judge Davis didn’t stop there. He went on to lay out a broader vision of transgender equality and dignity. He wrote that the school board’s treatment of Grimm reveals “the inequities that arise when the government organizes society by outdated constructs like biological sex and gender.” Grimm’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.”

Then the 68-year-old senior judge from his seat of enormous power on the federal court of appeals reached out personally to Gavin, the struggling transgender high school senior. He wrote: “by challenging unjust policies rooted in invidious discrimination, [Gavin Grimm] 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.” He likened Grimm to such famous names in the law as Korematsu, Brown, Loving, Windsor, and Obergefell—those “who refused to accept quietly the injustices that were perpetuated against them.”

But Judge Davis recognized that the name Gavin Grimm would likely not become a household name like the others. From Judge Davis’s perspective, though, Gavin was already and would continue to be “famous” for a much more important reason. Quoting Palestinian-American poet Naomi Shehab Nye’s poem Famous, Judge Davis stated: “Despite [Gavin’s] youth and the formidable power of those arrayed against him at every stage of these proceedings, ‘[Gavin] never forgot what [he] could do.’”

Nye’s poem Famous reads in part: “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 … . I want to be famous to shuffling men who smile while crossing streets … 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.”

Judge Davis is an African American man who grew up in East Baltimore (famous among other things, unfortunately, for its high homicide rate). According to Wikipedia, he was the son of a food services worker and schoolteacher, whose stepfather was a steel worker. Davis attended the prestigious Phillips Academy Andover, University of Pennsylvania, and University of Maryland School of Law. He worked his way up to become a judge of the federal appellate courts, just one tier below the U.S. Supreme Court in the federal judicial system.

Few readers of this column will have heard of Judge Davis before now. We hadn’t before the Gavin Grimm case. When one searches for the name Andre Davis on Google, two different pro football players come up as the top results. However, Judge Andre Davis is, and will always be, famous in our eyes because, in his efforts to fulfill his judicial responsibility to provide justice for Gavin Grimm and other transgender people, Judge Davis himself “never forgot what [he] could do.” He offers all of us the invitation to do the same.

John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the nationwide grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.