Martin Luther King, Jr. wrote from a jail cell in Birmingham in 1963, “[t]here are two types of laws: there are just laws and there are unjust laws….How does one determine when a law is just or unjust?…Any law that uplifts human personality is just. Any law that degrades human personality is unjust….An unjust law is a code that a majority inflicts on a minority that is not binding on itself.”
Dr. King’s words ring as true today as they did in 1963 when read within the context of the LGBTQIA community, a topic that provokes as much emotion and discord today as the annals of history record regarding racism in the 1960s. Senior Circuit Judge Davis of our 4th Circuit Court of Appeals, joined by Judge Floyd, addresses this plight convincingly and poignantly in his concurring opinion filed April 7, 2017, in G.G., by his next friend and mother, Deirdre Grimm v. Gloucester County School Board. His opinion and the others addressing G.G.’s lawsuit also suggest how the 4th Circuit might rule when faced with a claim of this nature in the context of employment law.
The opinion pertains to a 15 year old student who identified with a gender different than his biological gender but was prohibited by school board policy from using the restroom of his gender identity. Judge Davis recounted that in G.G.’s address to the school board, he requested to explain why he was not a danger to other students if he were permitted to use the restroom congruent with his gender identity. G.G. explained he had done so with public restrooms and no one came to harm. Judge Davis noted, “[G.G.] explained that he is a person worthy of dignity and privacy. He explained why it is humiliating to be segregated from the general population. He knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination.”
Judge Davis writes, “[o]ur country has a long and ignominious history of discriminating against our most vulnerable and powerless….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. G.G.’s plight has shown us the inequities that arise when the government organizes by outdated constructs like biological sex and gender. Fortunately, the law eventually catches up to the lived facts of people…”
Throughout 2017, I spoke about recognizing the gender identity of employees at seminars throughout the state. I also include this aspect of gender harassment and discrimination in the annual training I provide for employers. Without fail, I am asked what the employer should do about the security risk to the other employees using the restroom. And aren’t these complaints similar to some of those about African Americans made during the 1960s race protests?
The concern that a transgender employee may attack the other employees if permitted to use the restroom of the opposite biological gender is as offensive, unjust, and unfounded as those same concerns expressed about our African-American brothers and sisters then.