Block arrived at this moment from Yale Law School, via a clerkship for a judge on the Second Circuit, and then a few years at Jenner & Block (no relation). That’s the law firm that brought Lawrence v. Texas, the landmark case that overturned anti-sodomy laws, to the Supreme Court in 2003. At Yale, Block planned to be a lawyer who happened to be gay, not a gay lawyer, but while at Jenner & Block, he says, “I was always following the LGBT cases.” He did pro bono appellate work with LGBT organizations—helping with amicus briefs, for instance—and in 2010, after religiously monitoring ACLU postings, he saw an opening at the nonprofit’s LGBT & HIV Project. “I knew, unintentionally, absolutely everything in that area,” he says.
Block had been at the ACLU for four years when the organization took Grimm’s case. Since then, he has developed strong bonds with Grimm and his family. They’ve danced in celebration at the GLAAD Awards in New York City; sat in rooms for hours on end, waiting for an order from the Supreme Court; and spoken on panels together at Yale and William & Mary.
But Block had never visited the Grimms in Gloucester. I accompanied him on his first trip to their home—a blue, two-story Colonial in a coastal county 60 miles east of Richmond, at the end of a deceptively tricky driveway in a quiet neighborhood off a country road, on a Thursday in mid-May, to watch the mundane and the surreal mix like a mighty oak growing in a corporate atrium.
Imagine being a student at Gloucester High School. Imagine being told that every other student has access to half of the many bathrooms on the premises—which, as required by state code, cannot be more than 500 feet distant from any point in the school—but that you can use only one, by the nurse’s office. Imagine hanging out with friends at a home football game on a Friday evening when the school building is locked, and realizing that neither of the bathrooms at the field is available to you.
That was the lived experience for Grimm, who graduated from Gloucester High this spring. Starting in kindergarten, he says, his peers shunned and teased him for having male friends and for being “weird and gross.” When he was 12, neighborhood kids locked him outside the home in which they were playing and told him to go away. Grimm became increasingly sad and withdrawn.
At the end of eighth grade, he told some friends that he was trans; at the conclusion of ninth grade, he told his family. His mother, Deirdre, a nurse who works two jobs, says, “I didn’t even know what ‘transgender’ was when he told me. But that being said, I’m a mom, and that comes first and foremost, before anything. Him being transgender doesn’t change a thing. He’s the same great kid he’s always been, has a heart as big as all outdoors—there’s no difference.”
Others decided there was a difference, though. At the start of Grimm’s sophomore year, Gloucester High’s principal agreed to support his transition by asking teachers to refer to him using male pronouns; a few weeks later, at Grimm’s request, the principal allowed him to use any boys’ bathroom at school instead of the single-stall, makeshift-unisex bathroom by the nurse. Grimm did this without incident for seven weeks, until someone realized and parents complained to the school board. (After three years, the principal recently left for another job, and he declined to comment for this story.)
After several closed sessions in October and November 2014, the school board took a straw poll. A majority of its members favored allowing Grimm to continue using the boys’ bathroom, because they felt the decision was best left to the educators on the ground. One member of the board, Carla Hook, unhappy with that outcome, drafted a policy that limited access to boys’ and girls’ restrooms to students “of the corresponding biological genders” and provided “an alternative appropriate private
facility” for students with “gender identity issues.”
The board held two public meetings a month apart; no one told the Grimms beforehand that their son’s access to the school bathrooms would be on the agenda, but they found out in time to attend each meeting. On both evenings, a large majority of the audience stood up and opposed treating Grimm as the boy he is. Most of them could not look him in the eye, nor could they figure out how to refer to him; instead, they gestured vaguely off to their left from the podium. One called him a freak.
Perhaps more unsettling was a woman who turned to his mother and said, “Deirdre, I don’t know if you remember me; we worked together at a hospital many years ago. You’re a wonderful person, and I commend you for your bravery.” Then, she turned back to the school board and said, “It pains me to have to say ‘but,’ but…,” and proceeded to describe her opposition.
Even their neighbor spoke against Grimm. “When [his wife’s] mother died of breast cancer, she came over to my house and we sobbed in each other’s arms,” Deirdre recalls. “I couldn’t believe he—just, the gall of people.”
Ultimately, the school board voted to approve Hook’s policy, 6-1. The lone voice of dissent belonged to a lawyer named Kim Hensley, who told me, “Gloucester County itself is a very small, rural county. It’s not a very diverse community, and so it’s
inclusive, but that inclusivity hasn’t been challenged much. It’s easy to be inclusive because, for the most part, people are very similar. It was surprising to me how mean it got and how quickly it got really bad.”
A non-voting student representative, Campbell Farina, now at the University of Virginia, spoke up at the first meeting, saying, “I haven’t heard a lot of common sense tonight.” Though at the time she declined to share her personal opinion on the matter, she asked the board, “How would you all feel if this was a question of race? It’s the same thing.”
“I was actually called into the office a few days later,” Farina wrote to me, “and told I should not have spoken at the meeting at all.”
Block became the lead attorney on Gavin Grimm’s case in July 2015, when it reached the district court, and here is the case he made there: Grimm should have access to the boys’ bathroom because of (a) language in Title IX that provides for “separate toilet, locker room, and shower facilities on the basis of sex” and (b) a 2015 letter of guidance from the U.S. Department of Education’s Office for Civil Rights that says, “A school generally must treat transgender students consistent with their gender identity.”
Block’s argument was not well-received by the judge. A Reagan appointee, Robert Doumar had trouble believing that withholding urine could lead to urinary tract infections, as it had for Grimm when he’d avoided using the bathroom at school. The judge dismissed the Title IX claim before Block had even brought it up—and also complained that reading the case material had kept him occupied on “a beautiful Sunday that I could have played golf.”
But in August 2016, the Fourth Circuit Court of Appeals handed down a 2-1 decision affirming Grimm’s right to use the boys’ bathroom, with Judge Henry Floyd concluding that, while the language in Title IX “is susceptible to more than one plausible reading,” the guidance letter “resolves ambiguity.” Before Grimm’s senior year could begin, however, the Supreme Court granted an “emergency stay,” allowing the school board policy to remain in place. Then, three months later, Donald Trump was elected president.
The Office of Civil Rights within the Departments of Justice and Education, directed by Attorney General Jeff Sessions, rescinded the Obama-era guidance letter; Sessions issued a statement that said the prior guidance “did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX.” The Supreme Court canceled the oral argument it had scheduled for March 2017, sending the case back to the Fourth Circuit to be reheard in September.
So, it was time for a house call.
Gloucester was in the midst of a heat wave in mid-May, with temperatures above 90 degrees. I drove through the picturesque downtown village, past the Confederate war memorial in its central roundabout. The town feels quaint in parts and country in others. Grimm’s twin brother got “crabbed” recently, which means his friends caught a bunch of live crabs in the York River and put them in his truck. “There’s different types of Southern,” Grimm explains. “So we have ‘watermen Southern’ and we also have ‘farm Southern,’ which are very unique categories.” Drunken trips on riding mowers are something of a local pastime.
Gloucester High, a school of 1,700 students, is only partially accredited, because of its low pass rate on standardized math tests. It was Spirit Week there when Block and I arrived in town—Wednesday’s theme had been Hat Day (“Donate $1 to the Police Unity Tour to wear your hat all day long!”). Grimm greeted us at his front door in a gray “Seniors ’17” hoodie. The air conditioning made the home, crowded with mementos and keepsakes, feel like an icebox. We sat around the dining room table with cold bottled water and began to talk about the end of the school year. “It looks like a lot of kids who don’t want to be there, and teachers who know it,” said Grimm.
At first, I saw little in common between the lawyer and his client. Block was dressed casually but carefully in a baseball hat, button-down shirt, shorts and sneakers, in contrast to Grimm’s throw-on-whatever’s-in-reach look. Grimm’s manner is quick and gregarious, where Block is cautious and studied. Whereas Grimm speaks enthusiastically about mowing lawns, Block, who lives in New York City, has vowed never to live in a home that has even a garden.
But they are clearly sure of each other. As we set out to have lunch at the local Chick-fil-A, Block engaged Grimm intellectually, and not only about gender identity: the conversation touched on poverty, broadband access, immigration, regional linguistics and economic development.
Over chicken sandwiches, Grimm told two stories from his recent prom. First, he described pretending to be his friend’s boyfriend so another kid would stop pestering her. He told the nuisance, “She’s a person, not property. You don’t call dibs on human beings—and she’s mygirlfriend, anyway.” Second, he mentioned that the prom was held at Great Wolf Lodge, a waterpark in Williamsburg, and he briefly wondered if, because it was a school function, the rules of Gloucester Schools would apply there. But then Grimm thought better of it, said, “I don’t give a shit. It’s my prom,” and used the men’s room without issue.
BLOCK is aware, in litigating Grimm’s case, of the possible side effects his arguments may have on other cases. “Not everyone who might identify as trans or gender-nonconforming is a boy who’s transgender like Gavin, who’s very firmly identified on the binary,” Block says. That is to say, Block’s central argument is that Grimm should have access to the boys’ restroom through Title IX because Grimm identifies as male, but for trans people who are “gender-fluid”—somewhere between the two ends of the spectrum—that same argument would not neatly apply.
Earlier in his career at the ACLU, Block litigated marriage equality cases, among them Baker and Linsley v. Wildflower Inn, in which innkeepers in Vermont refused to host a couple’s wedding reception after finding out they were gay. Today, though, percent of Block’s work is on transgender cases, up from 20 percent when he started at the organization. This shift in focus came in 2015, when the Supreme Court legalized same-sex marriage and opponents refocused their energies on trans people.
Block is aware of an additional complexity: “I’m the ally advocating for a community that’s part of a community that I’m part of, though I’m not in that particular subset. It’s been such a personal case for me, but the most important thing in this type of work is to not be the cis-person who’s telling the narrative.”
He has found a mentor and an example in Paul Smith ’76, who hired Block a decade ago at the New York office of Jenner & Block. Smith has argued 19 cases before the Supreme Court, including Lawrence v. Texas. More recently, he worked with Lambda Legal and the ACLU on a challenge to HB2, North Carolina’s controversial “bathroom bill.”
“Josh is first and foremost a brilliant lawyer,” Smith told me in an email interview. “He has great writing skills. He also works incredibly hard.” Smith spent a few weeks working with the ACLU on the Supreme Court merits brief filed in the Grimm case, and says, “Josh was always able to hear the disparate voices and turn around another draft in record time.” If Grimm’s case ever gets back to the Supreme Court, Smith believes, Block would be the natural choice to present it.
The mission of the ACLU’s LGBT & HIV Project—for which Block is senior staff attorney—is not only to persuade judges but also to change the way people think. Whether that strategy has worked in the Grimm case is very much up for debate. “Gloucester County is deeply conservative and rooted in tradition,” says Campbell Farina, the former student representative to the county school board. “If anything, I noticed that the more coverage Gavin’s case got, the more solidified people’s opinions became. Bringing such a high-profile liberal organization into small-town Virginia was never going to go over well to begin with. I absolutely understand why the ACLU’s involvement was necessary, and I personally support it, but I do think that their intentions of changing mindsets may have backfired (although at no real fault of their own).”
This sentiment is one reason Block waited so long to visit Gloucester. “I try to make as little of a scene as possible,” he says. That pressure lessens outside of Virginia. He’s accompanied Gavin and Deirdre Grimm to galas and events in New York, and on one of those trips, he invited the Grimms to his own home, a fifth-floor walk-up in a renovated brownstone in Carroll Gardens, Brooklyn. There, the Grimms met Block’s husband, Adam, and their young son, Leo. Grimm told me that when he arrived there for breakfast, Block served ricotta-and-lemon pancakes. “Fear struck my core,” Grimm says: he’d never had anything he considered so fancy. “We eat things out of boxes and cans here in Gloucester. But it was one of the best things I have ever eaten in my entire life.”
Back at Chick-fil-A in the spring, Grimm asked if Leo, now 4, knew yet what it means to be transgender. Block explained that Leo knows trans people, but only as the gender they express. Block and Grimm found connection in the fact that progressive children’s literature often introduces the idea of gay parents or trans people from the perspective of someone else. Grimm said, “It makes it a point to say, ‘This is confusing for people. This is weird for people.’ I can’t imagine how frustrating that would be as a parent.”
Working on Grimm’s case has helped Block see the value of not putting his own expectations on his child. “I think that was definitely a big source of pain for me, personally: growing up and needing to—on a much smaller scale—reconcile the image that your parents have of what your life is going to be with being gay, and feeling the mismatch.” He said he is trying not to make a similar mistake with his son. “People need to be who they are. I’m sure that’s a struggle a lot of parents go through.”
Block was not publicly out while at Amherst, and says he didn’t think he knew anyone who was trans. “Amherst had just added ‘T’ to ‘LGB Alliance,’” he says, “and I remember having this stupid thought that, Well, why are they doing that if there aren’t any ‘T’s here?”
Angie Tissi-Gassoway, now an associate dean at Amherst, says that when she arrived at the College five years ago to head the Queer Resource Center, the out trans population of students was nearly nonexistent. This past year, she had more than 25 students who identified within the trans/nonbinary community come to a dialogue about the College’s policies and practices.
While Amherst has long had coed bathrooms in dorms, the College is now working to ensure that every building on campus has at least one gender-inclusive restroom, to accommodate the spectrum of gender identities. Amherst also provides students with trans-inclusive health care policies, which means “students can access hormone-replacement therapy at low or no cost and can have various gender-affirming surgeries,” says Tissi-Gassoway. The College makes it simple for students to change their names and pronouns in class rosters, and Amherst will issue new diplomas with one’s chosen name for alumni who have transitioned after graduation.
While Block was unaware of any transgender students during his time at Amherst, it’s likely there were some. A 2016 study by UCLA estimates the adult transgender population in the United States at 1.4 million. While only a very small percentage of the world’s population has been diagnosed with gender dysphoria (in which a person’s assigned gender “is contrary to the one they identify with,” causing “clinically significant distress,” says the American Psychiatric Association), that condition is surely underreported.
To receive such a diagnosis, symptoms typically need to have been documented for at least six months—a fact that punctures one argument often heard in Gloucester (and beyond) about inviting danger into bathrooms: Boys do not wake up and decide to be girls for a day. And while there is a common temptation to try and see the remnants of a past identity in someone who is trans, it is simply not apparent in Grimm. There is no girl detectable in him.
Another common argument Block has heard is that bathroom use is “all about physical biology, not cultural gender.” He counters it by pointing out that bathroom signs typically don’t use the biological terms “Male” and “Female.” They say “Women’s” and “Men’s.” Grimm adds, “Or there’s a dress and pants.” In other words: it’s entirely cultural. How you present yourself is typically how you’re perceived by others.
In ninth grade, before he came out, Grimm changed for gym class in the girls’ locker room. “It was so uncomfortable to me,” he says. “I was like, ‘I shouldn’t be in here.’ It was awful. I saw a lot of feet that year, but I never made eye contact.” Grimm’s house displays no photos of him living as a girl. Instead, surrounding the television in front of which Grimm’s father, David, parked himself for much of the day, trying to chase away a migraine, are various awards and recognitions that Grimm has won for his activism during the past three years.
After lunch, we returned to Grimm’s home, where Deirdre, back from work, was waiting with hugs for all. “I think Gloucester’s come a lot further than people realize,” she said. “I mean, I really expected it to be a whole lot worse than it has been.” She added that the ACLU has helped her family expand their sense of community well beyond geography, and as a result, she herself has changed. “I’ve transitioned in a whole plethora of ways, just in being part of a community that believes in equal rights for everybody.”
We lounged in their living room, alternating between water and coffee, as mother and son discussed the case with their lawyer. Andre Davis, one of two judges in the majority from their prior Fourth Circuit panel, had recently announced he was stepping down to become the city solicitor for Baltimore. Deirdre was more outwardly upset about this than Gavin, who describes himself as less emotional than his mother. Block outlined the partisan breakdown of the remaining 14 judges; they won’t know who is on their panel until the day of the argument, scheduled for the
second full week of September.
As he awaits the Fourth Circuit panel, Block is working on other transgender health care cases, and responding to relevant Trump administration executive orders. He adopts the long view, that “litigation is the means, not the end.” And what is that end? It’s a “society where people truly are equal, on paper and in reality,” he says. Deirdre Grimm is optimistic. “Even if progress takes 15 years,” she tells me, referring to her son, “he’ll still be young!”
In the meantime, Gavin Grimm leans on his lawyer’s more immediate support. “I used to joke that whenever I had bad news, I never had to worry about getting it, because [Josh] would always sound so much more upset to tell me,” Grimm says. “You know, bad news is bad news, but it was like I didn’t even feel it, because I heard how hard it was for him to tell me.”
In June, Josh Block watched Gavin Grimm walk across the stage to receive his high school diploma. Grimm decorated his mortarboard with the symbol for a men’s room. He will stay in the area to attend community college, in hopes of attending a four-year institution after that, to study genetics. That he is transgender will eventually, he hopes, be something about him that people shrug about, like his friends did when he originally came out to them. Perhaps someone will one day write a children’s book about Grimm—one that focuses not on where he relieves himself, but instead on the person Block knows him to be: “smart, thoughtful, funny, nerdy, kind and brave.”
Josh Fischel ’00 teaches sixth grade humanities in Cambridge, Mass. His work has appeared in The New York Times, The Believer and Bean Soup.