Lawyers for Gavin Grimm, a transgender high school junior in Virginia, asked a federal appeals court on Wednesday to reassign his case to a different lower court when it goes trial. Grimm's attorneys argued that U.S. District Court Judge Robert Doumar, who originally heard the case, has exhibited egregious behavior and holds preexisting views about transgender people and medical science that may compromise his judgement.
At a July 27 hearing, as BuzzFeed News reported, Doumar repeatedly called gender dysphoria — the medical term for being transgender — a “mental disorder” and ignored expert testimony on the condition. Gender dysphoria is not considered a mental disorder by leading medical authorities or the Diagnostic and Statistical Manual of Mental Disorders V.
An 84-year-old Reagan appointee, Doumar also spent several minutes expounding from the bench on non sequitur grudges against government policies on “sanctuary cities,” enemy combatants, and pot — and fears about the country changing.
Judge Doumar’s “repeated and gratuitous labeling of [Grimm] with a ‘mental disorder,’ does not reflect the sensitivity or care the public should expect from courts addressing these issues,” says the brief, which was filed with the Fourth Circuit Court of Appeals by Grimm's lawyers. “It undermines public confidence in the fairness of the proceedings if courts appear unwilling to ensure that statements from the bench do not carelessly stigmatize transgender people.”
“In short, the record reflects that [Judge Doumar] has strong opinions about medical issues and may be inordinately suspicious of the modern medical consensus regarding sex and gender if that consensus conflicts with [his] preexisting views."
Grimm's case concerns a Gloucester County School Board policy that requires students to use facilities that correspond with their “biological gender,” or gender-neutral single-person restrooms.
Represented by lawyers at the ACLU, Grimm, 16, has argued the policy is stigmatizing and that segregating him from other boys in school facilities is a violation of Title IX of the Education Act of 1972 — which bans discrimination based on sex. The federal government has weighed in repeatedly in recent years to say Title IX bans transgender discrimination as a form of sex discrimination. Grimm had sought an injunction to use the boys’ restroom at school while the case proceeds to trial.
Judge Doumar rejected that request for an injunction and threw out the Title IX argument in summer.
In the brief filed Wednesday, Grimm asks the appeals court to impose that injunction, requests a review of the Title IX argument, and calls for the case be transferred to a different judge when remanded for trial on the overarching legal questions.
Citing Doumar's comments in the courtroom about "mating" and his skepticism of certain biological functions, the brief argues that Doumar has shown “preexisting views about medical science in general — and medical science regarding gender and sexuality in particular — that the court may have substantial difficulty putting aside.”
"In short," Grimm's lawyers state, "the record reflects that [Judge Doumar] has strong opinions about medical issues and may be inordinately suspicious of the modern medical consensus regarding sex and gender if that consensus conflicts with its preexisting views."
“The court’s medical opinions even extended to unfounded skepticism that a person could develop a urinary tract infection from delaying using the restroom,” the brief says, citing an OSHA guide to identifying urinary tract infections caused by limited restroom access.
The brief argues reassigning the case will "preserve the appearance of justice," while avoiding waste because the case is still in its early stages.
The very first stage began in December, when the Gloucester County School Board passed a resolution that restricts single-sex facilities to students with a matching “biological gender.” The policy — apparently aimed specifically at Grimm, the only openly transgender student in the rural Virginia district — also provided three gender-neutral restrooms for students who don’t want to use their assigned single-sex restrooms.
The school board has argued it is not violating Title IX because it applies its policy equally to students based on their birth sex — meaning that Grimm could use the girls restroom.
At the July 27 hearing, a lawyer for the Dept. of Justice was present to address that Title IX question, but Judge Doumar detoured into a soliloquy on unrelated subjects.
“I'm happy to answer questions that you have on Title IX, if you have any questions,” Justice Dept. lawyer Victoria Lill said amid Doumar's tangents.
But Doumar said he did not, instead grappling aloud with fears about the future.
“Where the United States is going scares me. It really scares me,” he said.
In asking the appeals court to assign the case to a new judge, Grimm’s lawyers write, “The court’s diatribe against DOJ for policies that have no relevance to this case raises additional concerns about public confidence in the fairness of the proceedings.”
