Federal Judges

Federal Judge Scared Of Change, Dismisses Transgender Student's Claim

One judge seems woefully out of line with the national zeitgeist.

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Transgender issues are said to be having a moment: I Am Cait premiered to excellent reviews and ratings this past Sunday, Transparent got itself a Golden Globe, Laverne Cox was named one of Time Magazine’s 100 Most Influential People , Johnson & Johnson has Jazz Jennings hawking pimple cures , Janet Mock is guest hosting on MSNBC, and the tremendous violence done against trans individuals is finally getting some national attention . But it seems like U.S. District Court Judge Robert Doumar never got the memo.

Not that I am suggesting that courts can or should take a cue from E! network when making decisions, but it’s still noteworthy when a judge seems woefully out of line with the national zeitgeist.

Take for example the case of Gavin Grimm, a transgender student suing his school under both Title IX of the Civil Rights Act of 1964 and constitutional equal protection grounds for the right to use the boys’ bathroom. He even has the support of the Department of Justice and the Department of Education. But Judge Doumar, he’s a honey badger; none of that mattered to him on Monday, when mid-argument he announced he was having none of the Title IX argument. From BuzzFeed’s report of the hearing:

But Doumar announced midway through Monday’s hearing that he was throwing out that argument. “Your case in Title IX is gone, by the way,” he told ACLU staff attorney Joshua Block, who argued on Grimm’s behalf. “I have chosen to dismiss Title IX. I decided that before we started.”

And commentators were surprised, not just by the ruling, but by the manner in which Judge Doumar made his decision known:

The announcement was unexpected not only because it diverges from the recent legal trend on the question of whether sex discrimination bans include anti-transgender discrimination, but also because a lawyer for the U.S. Department of Justice who had come to argue in Grimm’s favor on the Title IX question had not yet been given a chance to speak.

You see, this is why we have an appeals process.

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For Doumar, CRA’s ban on “sex” discrimination is not inclusive of gender discrimination or transgender discrimination:

“I have no problem with transgender. I have a lot of problems with sex,” said Doumar. “I am convinced he is a biological female who wants to be a male.”

Grimm’s lawyers countered that the Supreme Court used gender and sex interchangeably.

And though readers might be tempted to take solace in the survival of Grimm’s equal protection claim, Doumar’s words leave little room for hope:

[Regarding the equal protection claim] Doumar warned Grimm’s lawyers, “[Y]ou have an uphill battle.”

While all of this is an obvious setback for the struggle for transgender rights, Doumar’s musings on the world — mid-argument — are really what sets this hearing apart:

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On Monday, Doumar repeatedly interrupted lawyers and waxed on tangents about his frustrations with how the United States is changing. “Where the U.S is going scares me,” he said. “It really scares me.”

Ha, you know it’s funny, what scares me is that a man with such an obvious distaste for progress has lifelong tenure on the federal judiciary. But I digress.

Speaking of digressions, Doumar is a fan of those. In the middle of the hearing, which, it bears repeating, was about a transgender student’s right to use gender appropriate facilities, Doumar went off on the DOJ’s marijuana enforcement. Because if you are going to play the role of grumpy old man, you might as well get everything that grinds your gears off your chest:

When the federal government’s lawyer was asked to answer questions toward the end of the hearing, Doumar patronized the Department of Justice for enforcing marijuana prohibition in some states while allowing other states to tax and regulate pot, filing a brief in another unspecific case without pursuing a penalty, and other perceived shortcomings.

“I am sorry for the Department of Justice,” he said. “Sanctuary cities. Where are we going?”

We’re going to the future, Judge.

Lest you think this is some conservative/liberal ideological split, as opposed to a bizarre rant from an elderly (Doumar is 85 years young) man, Doumar admits his old-timey ways and criticized Congress — you know, the perpetually deadlocked legislative body that is more willing to shut down the government and risk a decline in the U.S.’s credit rating than actually do their job — for moving too quickly.

“I get perplexed, very perplexed,” he continued. “I believe in the Constitution. … I am worried about where we are going. Maybe I am just old fashioned.” Doumar then went on to cite the works of philosophers Rousseau and Voltaire, saying Congress was too quick to pass new laws.

In his closing words of the hearing on Grimm’s restroom use, Doumar’s said, “Oh well, things are changing.”

I kinda love that by the end of the hearing Doumar has worked himself from angry about change to sanguine, or at least resigned. But I guess an “oh well” outlook isn’t throwing in the towel when you have the weight of the federal judiciary behind your words.

Judge Throws Out Key Argument In Transgender Student Restroom Case [BuzzFeed]

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