Tuesday, July 28, 2015

Judge Dismisses Title IX Claim in Bathroom Case.

At a hearing in federal court yesterday, Judge Robert Doumar dismissed the Title IX claim filed by a transgender student against the public schools in Gloucester, Virginia. The student had alleged that the school district's policy of excluding him from the male restroom and facilities violated Title IX, arguing with the Department of Justice's support that sex discrimination has been broadly interpreted to encompass gender-related considerations as well, and thus ought to cover discrimination targeting a student because his gender does not match the sex he was assigned at birth.

From the sound of it, the judge did not give the Title IX argument much of a chance.  According to this article describing yesterday's hearing, the judge announced his decision to dismiss the Title IX claim in the middle of the ACLU attorney's argument on behalf of the student, stating "your Title IX case is gone by the way....I decided that before we started."  He made this announcement without even giving the attorney from the Department of Justice, who had intervened on the student's behalf, an opportunity to present his arguments.

The judge went on to make some other confounding statements, including repeatedly characterizing transgender as a mental disorder -- which is not only insensitive and inaccurate, it completely misses the point about sex discrimination. He also took the opportunity of the DOJ attorney's eventual presentation (which was, by that point, futile) to grind an ax about the agency's agenda in unrelated matters. “Where the U.S is going scares me....It really scares me.” the judge reportedly said, bringing up the agency's policy of not strictly enforcing marijuana as another example of something his opposes. "Maybe I am just old fashioned,” he admitted before reportedly turning his contempt to Congress -- too quick to pass new laws, in his opinion -- and finally closing the hearing with the statement, "Oh well, things are changing."

It certainly sounds to me like a bizarre day in court.  But will the judge's odd behavior effect the outcome of the case?  It is rare that judicial decisions are overturned because of the judge's bias or impartiality, since courts require evidence of some specific connection between the judge and one of the parties, witnesses, or subject matter of the case. It is unlikely that a judge's insensitivity, breach of protocol, irrelevant tangents, and admission of being "old fashioned" will meet that standard. But if the judge's irrelevant considerations and failure to engage with the arguments presented are reflected in the order dismissing the claim, as his hearing demeanor might suggest, then his decision is certainly vulnerable to appeal on the merits. An appellate court does not have to defer to a lower court's interpretation of the law, and is less likely to agree with a decision that is not well-reasoned.

UPDATE 9/29/15: the district court's opinion dismissing the case was recently published.  It is  G.G. ex rel. Grimm v. Gloucester County Sch. Bd., 2015 WL 5561090 (E.D. Va. Sept. 17, 2015).