The Gloucester County School Board has asked the U.S. Court of Appeals for the 4th Circuit to put its judgment on hold while it prepares to ask the U.S. Supreme Court to hear the case. The board was sued by a transgender student over its bathroom policy.
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
G. G., by his next friend and mother, Deirdre Grimm,
GLOUCESTER COUNTY SCHOOL BOARD,
Defendant - Appellee.
APPELLEEaS MOTION FOR STAY OF MANDATE
PENDING FILING OF PETITION FOR WRIT OF CERTIORARI
DAVID P. CORRIGAN (VSB No. 26341)
JEREMY D. CAPPS (VSB No. 43909)
M. SCOTT FISHER, JR. (VSB No. 78485)
HARMAN, CLAYTOR, CORRIGAN & WELLMAN
P. O. Box 70280
Richmond, VA 23225
4951 Lake Brook Drive, Suite 100
Glen Allen, VA 23060
(804) 747-5200 (telephone)
(804) 747-6085 (facsimile)
Counsel for Defendant-Appellee Gloucester County School Board
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Pursuant to Rule 41(d)(2) of the Federal Rules of Appellate Procedure and
Fourth Circuit Rule 41, Appellant Gloucester County School Board (aSchool
Boarda) respectfully moves the Court to stay the issuance of the mandate pending
application to the United States Supreme Court for a writ of certiorari. The School
Board intends to file a petition for writ of certiorari with the United States Supreme
Court within ninety (90) days of this Courtas entry of judgment as permitted by
Rule 13 of the Rules of the Supreme Court. See Sup. Ct. R. 13(1).
This Court denied the School Boardas petition for rehearing en banc and
entered judgment on May 31, 2016. Accordingly, the School Boardas petition for a
writ of certiorari must be filed by August 29, 2016. The School Board requests a
stay that does not exceed that date, with a continuance of the stay until the
Supreme Courtas final disposition in accordance with Rule 41(d)(2)(B) of the
Federal Rules of Appellate Procedure. This motion should be granted, because the
petition for a writ of certiorari will apresent a substantial question,a athere is good
cause for a stay,a and the motion is anot frivolous or filed merely for delay.a Fed.
R. App. P. 41(d)(2)A); Fourth Circuit Rule 41.
Counsel for all parties have been notified of this motion pursuant to Fourth
Circuit Rule 27(a). Counsel for Appellant has advised that Appellant does not
consent to staying the mandate, and Appellant intends to file a response in
opposition to this motion.
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This case is one of national significance. It directly affects every school
district and college in this Circuit that receives federal funding and indirectly
affects every such district and college in the United States.
The School Boardas petition for certiorari will present substantial questions
concerning: (1) the application of Auer deference with the attendant issues of
federalism and separation of powers and (2) bodily privacy rights. The application
of Auer deference was improper and calls into question the continuing propriety of
the doctrine. The panel majority opinion gave Auer deference to a January 7, 2015
letter from the Acting Deputy Assistant Secretary of Policy for the Office of Civil
Rights (aOCRa) that replaced the term asexa with the term agender identitya in
Title IX and its implementing regulations. On May 13, 2016, after the School
Board petitioned for rehearing en banc, the Department of Education (aDOEa) and
the Department of Justice (aDOJa) released a aDear Colleaguea Letter on
Transgender Students, characterizing it as significant guidance. The letter replaces
the term "sex" under Title IX with the term agender identity,a advising that schools
risk loss of federal funding by not treating transgender students of all ages
consistently with their gender identity instead of their biological sex.
The DOE and DOJ guidance letter illustrates that this is a substantial
question of national importance. Both the OCR letter and the DOE and DOJ
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guidance letter were issued for litigation purposes, and both letters seek to do what
Congress has not done a replace the term asexa with agender identitya in order to
support an outcome unilaterally desired by the Executive Branch. This raises
substantial questions concerning both federalism and the separation of powers.
Additionally, the balancing of the individualas right to bodily privacy against
the needs of individuals who are transgender is an issue that has become the
subject of significant national debate in recent months,1 and it is certainly one that
presents a substantial question. Title IX and its regulations intended to preserve
bodily privacy by allowing separate facilities for the sexes. The Supreme Court,
this Court, and other Courts of Appeals have also long recognized bodily privacy
rights and the differences between the sexes. Yet, the panel majority opinion and
the guidance issued by OCR, DOE, and DOJ do not consider the bodily privacy
rights of students.
Finally, there is good cause to stay the mandate, because the School Board
and school districts across the country will be irreparably harmed if a stay is not
issued. The School Board will be distracted from the important work of educating
students. The School Board will also be exposed to further litigation, because
redefining sex to mean gender identity makes it difficult for the School Board to
This issue has dominated the news and become a cause cA(c)lA"bre. Texas and ten
other states have even filed a lawsuit challenging the legality of the DOE and DOJ
guidance. See State of Texas, et al. v. United States of America, et al. 7:16-cv00054, ECF Doc. 1 (N.D. Tex. May 25, 2016).
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protect the privacy rights of its students. The monetary risk to the School Board a
and to school boards throughout the country a is heightened by the DOE and DOJ
threats that federal funding will be withheld if their May 13, 2016 guidance is not
Appellant G.G. was born a girl and has female reproductive organs. G.G.
enrolled in high school as a girl. At the beginning of G.G.as sophomore year,
school officials were informed that G.G. was transgender and identified as a boy.
School officials immediately expressed support, and agreed to change G.G.as name
in the school records, refer to G.G. using his new name and male pronouns, and
continue with home-bound physical education.
After G.G. asked to use the boysa restroom in school, the School Board
considered the difficult issues associated with a transgender student using a
restroom that does not correspond with the studentas anatomical sex. Taking the
safety and privacy of all students into consideration, the School Board adopted a
restroom and locker room resolution that provided in pertinent part:
It shall be the practice of the GCPS to provide male and female
restroom and locker room facilities in its schools, and the use of said
facilities shall be limited to the corresponding biological genders, and
students with gender identity issues shall be provided an alternative
appropriate private facility.
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The School Board also issued a news release that stated in part, a[t]he
District also plans to designate single-stall, unisex restrooms, similar to whatas in
many other public spaces, to give all students the option for even greater privacy.a
Under the policy, the School Board provided three unisex, single-stall restrooms
for any student to use. G.G. cannot use the boysa restrooms, but is permitted to use
the girlsa restrooms and the single-stall restrooms.
G.G. filed a Complaint and Motion for Preliminary Injunction, alleging that
the School Boardas policy violates the Equal Protection Clause of the Fourteenth
Amendment and Title IX. The District Court granted the School Boardas Motion
to Dismiss the Title IX claim and denied the Motion for Preliminary Injunction.
The District Court has not ruled on the Equal Protection claim.
On appeal, a divided panel reversed the District Courtas dismissal of the
Title IX claim. Based solely on the January 7, 2015, unpublished OCR letter, the
majority opinion concluded that the District Court did not aaccord appropriate
deference to the relevant Department of Education regulations.a See April 19,
2016 Opinion at 5 (ECF Doc. 74). The divided panel also vacated the denial of the
preliminary injunction, remanding the case for further proceedings.
Niemeyer dissented, finding the majority opinion amisconstrues the clear language
of Title IX and its regulations.a Id. at 48. The School Board petitioned for
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rehearing en banc, and that petition was denied on May 31, 2016. See May 31,
2016 Order (ECF Doc. 90).
The School Board intends to file a petition with the Supreme Court for a writ
of certiorari. Staying the issuance of the mandate pending application for a writ of
certiorari is appropriate, because (1) the petition will apresent a substantial
questiona and (2) athere is good cause for a stay.a Fed. R. App. P. 41(d)(2)A).
This motion is anot frivolous or filed merely for delay,a given the national
importance of this case and its specific impact on the operations of the School
Board. Fourth Circuit Rule 41.
This Case Presents Substantial Questions of National Importance, and
the Mandate Should Be Stayed.
Judge Niemeyer correctly observed the amomentous naturea of this case in
his dissent from the denial of the petition for rehearing. See May 31, 2016 Order
at 4 (ECF Doc. 90).
This case presents substantial questions concerning the
meaning of Title IX and the application of Auer deference.
It also presents
substantial questions about the continuing legitimacy of the doctrine and
concomitant issues of federalism and separation of powers that affect more than
just how a school district governs itself and its students.
Moreover, this case
presents a substantial question concerning the right of bodily privacy. How these
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issues are resolved affects every school district in the Fourth Circuit, and
potentially the nation, that receives federal funding.
A stay is appropriate under this Courtas precedent, because this case presents
aa aclosea question or one that very well could be decided the other way.a U.S. v.
Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (per curiam) (defining asubstantial
questiona when construing a standard in 18 U.S.C. ASS 3143 that is similar to the
standard under Rule 41); see also Herzog v.United States, 75 S. Ct. 349, 351
(1955) (Douglas, J. in chambers) (aThe fact that one judge would be likely to see
merit in the contention is . . . enough to indicate its substantiality.a). The panelas
split decision and the Western District of Pennsylvaniaas ruling in Johnston v.
University of Pittsburgh of Com. System of Higher Educ., 2015 WL 1497753
(W.D. Pa. Mar. 31, 2015) both show that this case presents a close question.
The Application of Auer Deference In This Case Raises a
Substantial Question that Has Far-Reaching Consequences.
Whether Auer deference should be given to a letter issued by DOE for
litigation purposes in this case, or to the asignificant guidancea issued by DOE and
DOJ during the pendency of this appeal, has sweeping consequences for
potentially every school district receiving federal funding.
application of Auer deference in this case calls into question the scope of authority
of the federal government and the Executive Branch in particular. Indeed, the
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overly broad application of Auer deference raises substantial questions of
federalism and separation of powers.
The term asexa under Title IX and its regulations is unambiguous, and
DOEas and DOJas interpretation of that term does not warrant deference.
Christensen v. Harris Cnty., 120 S.Ct. 1655, 1657 (2000); Dickenson-Russell Coal
Co., LLC v. Secretary of Labor, 747 F.3d 251, 256-57 (4th Cir. 2014) (aWhen the
regulation in question is unambiguous . . . adopting the agencyas contrary
interpretation would permit the agency, under the guise of interpreting a regulation,
to create de facto a new regulation.a ).
Moreover, the DOE and DOJ
interpretations of asexa do not warrant deference, because their ainterpretation is
plainly erroneous [and] inconsistent with the regulation.a Auer v. Robbins, 519
U.S. 452, 461 (1997); Martin v. Occupational Safety & Health Review Comm'n,
499 U.S. 144, 151 (1991).
The term asexa has always been understood to mean biological sex. Yet,
more than 40 years after the enactment of Title IX, DOE and DOJ have unilaterally
changed its definition. As Judge Niemeyer recognized, a[a]ny new definition of
sex that excludes reference to physiological differences, as the majority now
attempts to introduce, is simply an unsupported reach to rationalize a desired
outcome.a See April 19, 2016 Opinion at 63 (ECF Doc. 74). The May 13, 2016
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guidance issued by DOE and DOJ implicitly acknowledges what a reach their new
definition of sex is.
The guidance mandates that students be permitted to use restrooms, locker
rooms, and dorm rooms consistent with their gender identity. In the case of
athletics, however, the guidance does not require schools to treat a studentas gender
identity as the studentas sex for purposes of Title IX compliance. Instead, the
guidance provides schools amay not . . . rely on overly broad generalizations or
stereotypesa about students. Outside of that, schools apparently may field sports
teams on the basis of biological sex.
The guidance is confounding. Sex either means gender identity for all
purposes or it does not. Indeed, the panel majority found athat asexa should be
construed uniformly throughout Title IX and its implementing regulations . . .a
See April 19, 2016 Opinion at 26 (ECF Doc. 74); see also Sullivan v. Stroop, 496
U.S. 478, 484 (1990); Kentuckians for Commonwealth Inc. v. Riverburgh, 317
F.3d 425, 440 (4th Cir. 2003) (a[B]ecause a regulation must be consistent with the
statute it implements, any interpretation of a regulation naturally must accord with
the statute as well.a).
The guidance does not support granting Auer deference in interpreting the
term asexa as gender identity. Gonzales v. Oregon, 546 U.S. 243, 257, 126 S. Ct.
904, 915 (2006) held Auer deference is only appropriate where an agency
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interprets an ambiguity that is aa creature of the Secretary's own regulations.a
Deference does not protect regulations that merely repeat or paraphrase a statute.
aAn agency does not acquire special authority to interpret its own words when,
instead of using its expertise and experience to formulate a regulation, it has
elected merely to paraphrase the statutory language.a Id. at 257. The efforts of
DOE and DOJ to change the meaning of the statutory term asexa under the guise of
interpreting the same term in the regulations acannot be considered an
interpretation of the regulation.a Id.
OCR initially redefined asexa for litigation purposes, and the panel majority
deferred to OCRas definition.
Then, in what Judge Niemeyer accurately
characterized as a acircular maneuver,a DOE and DOJ in their May 13, 2016
guidance arely on the panel majorityas opinion to mandate application of their
position across the country while the majorityas opinion relied solely on [DOEas]
earlier unprecedented position.a See May 31, 2016 Order at 3 (ECF Doc. 90).
This is precisely the type of case that calls for reconsideration of the propriety of
the Auer deference doctrine.
Just last year, three Justices expressed their willingness to reconsider Auer in
an appropriate case. See Perez v. Mortgage Bankers Assan v. Perez, 135 S. Ct.
1199, 1210-11 (Alito, J., concurring) (aI await a case in which the validity of
[Bowles v.] Seminole Rock [& Sand Co., 325 U.S. 410 (1945) (Aueras
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predecessor)] may be explored through full briefing and argument.a); id. at 1213
(Scalia, J., concurring) (urging that Auer be aabandon[ed]a); id. at 1225 (Thomas,
J., concurring) (asserting that athe entire line of precedent beginning with Seminole
Rock raises serious constitutional questions and should be reconsidered in an
appropriate casea); see also Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 133839 (2013) (Roberts, C. J., concurring) (recognizing asome interest in reconsidering
[Seminole Rock and Auer]a at the Supreme Court in aan appropriate case.a).
Just last month, Justice Thomas observed in a case involving DOEas
interpretation of a different regulation that a[a]ny reader of this Court's opinions
should think that the [Auer deference] doctrine is on its last gasp.a United Student
Aid Funds, Inc. v. Bible, 136 S. Ct. 1607, 1608 (2016) (Thomas, J., dissenting in
the denial of a petition for a writ of certiorari). Justice Thomas further observed
[B]y deferring to an agency's litigating position under the
guise of Seminole Rock, courts force regulated entities
like petitioner here to divine the agency's interpretations
in advance, lest they be held liable when the agency
announces its interpretations for the first time in
litigation. By enabling an agency to enact vague rules
and then to invoke Seminole Rock to do what it pleases in
later litigation, the agency (with the judicial branch as its
co-conspirator) frustrates the notice and predictability
purposes of rulemaking, and promotes arbitrary
Id. (internal quotations and citations omitted).
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That is exactly what has happened here, except DOE and DOJ took another
step past the precipice. They created an ambiguity where one never existed and
replaced the term asexa with agender identity.a The implications are endless if
Executive Branch agencies are permitted to rewrite statutes and regulations
whenever they are able to manufacture an ambiguity no matter how novel it may
be. Principles of federalism and separation of powers are at stake, and atime is of
the essence.a See May 31, 2016 Order at 5 (ECF Doc. 90).
The Scope of the Right to Bodily Privacy is a Substantial Question
Throughout the United States.
Replacing the term asexa in Title IX with the term agender identitya presents
a substantial question of national importance. Such a shift in focus effectively
obliterates the distinctions between the sexes and permits unfettered access to
facilities intended for use of the opposite sex. Not only is it contrary to the
historical norms of civilization, it is contrary to the intent of Title IX and wellestablished law recognizing the dignity and freedom of bodily privacy.
Title IX and its implementing regulations were designed and intended to
preserve personal privacy, not to force biological males and females to share
private facilities. Title IX specifically provides that anothing contained herein
shall be construed to prohibit any educational institution . . . from maintaining
separate living facilities for the different sexes.a 20 U.S.C. ASS 1686. See also, e.g.,
118 Cong. Rec. 5807 (1972) (aThese regulations would allow enforcing agencies
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to permit differential treatment by sex onlyavery unusual cases where such
treatment is absolutely necessary to the success of the programasuch as in classes
for pregnant girls or emotionally disturbed students, in sports facilities or other
instances where personal privacy must be preserved.) (emphasis added); 117
Cong. Rec. 39260 (1971). Congress clearly recognized the need for bodily privacy
for each biological sex. Further, DOEas own regulations implementing Title IX
permit educational institutions to provide aseparate toilet, locker room, and shower
facilities on the basis of sexa; separate housing aon the basis of sexa; separate
athletic teams afor members of each sexa; and to consider an employeeas sex for
employment in a sex-segregated locker room or toilet facility.
34 C.F.R. ASSASS
106.33, 106.32, 106.41, 106.61.
The Supreme Court also has recognized that there (1) are inherent
a[p]hysical differences between men and womena that are aenduringa and render
athe two sexes . . . not fungiblea and (2) that each sex must be afforded privacy
from the other sex. United States v. Virginia, 518 U.S. 515, 533, 550 n. 19
(1996).2 This Court likewise has held that individuals have a right to bodily
privacy. See Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981). In particular,
In a 1975 Washington Post editorial, then Columbia Law School Professor Ruth
Bader Ginsburg wrote that a[s]eparate places to disrobe, sleep, perform personal
bodily functions are permitted, in some situations required, by regard for
individual privacy.a Ginsburg, The Fear of the Equal Rights Amendment, WASH.
POST, Apr. 7, 1975, at A21. (emphasis added).
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this Court has acknowledged asocietyas undisputed approval of separate public rest
rooms for men and women based on privacy concerns.a Faulkner v. Jones, 10 F.3d
226, 232 (4th Cir. 1993).
This is not a revolutionary proposition, unlike the DOE guidance. Other
courts also have found that there is a basic need for bodily privacy. See, e.g. Doe
v. Luzerne Cty., 660 F.3d 169, 177 (3rd Cir. 2011) (individuals have aa
constitutionally protected privacy interest in his or her partially clothed body,a and
this areasonable expectation of privacya exists aparticularly while in the presence
of members of the opposite sexa); Brannum v. Overton Cty. Sch. Bd., 516 F.3d
489, 498 (6th Cir. 2008) (athe constitutional right to privacy . . . includes the right
to shield oneas body from exposure to viewing by the opposite sexa); Sepulveda v.
Ramirez, 967 F.2d 1413, 1415-16 (9th Cir. 1992) (a[t]he right to bodily privacy is
fundamental,a and acommon sense, decency, and [state] regulationsa require
recognizing it in a paroleeas right not to be observed by an officer of the opposite
sex while producing a urine sample).
Protecting bodily privacy is of particular concern when it comes to students.
Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (aStudents
of course have a significant privacy interest in their unclothed bodiesa). Indeed,
the School Board has a responsibility, particularly where children are still
developing, both emotionally and physically, to ensure studentsa privacy. See,
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e.g., Burns v. Gagnon, 283 Va. 657, 671, 727 S.E.2d 634, 643 (2012); Davis v.
Monroe County Board of Education, 526 U.S. 629, 646-47 (1999).
How the right to bodily privacy is balanced against the needs of transgender
individuals is a substantial question that demands attention at the highest level of
the judiciary. In particular, the interest of children in the right to bodily privacy is
of paramount importance. The practical effects of replacing asexa with agender
identitya under Title IX is a substantial question affecting the entire country that
begs a final answer only the Supreme Court can provide.
There is Good Cause to Stay the Mandate.
Good cause exists to stay the mandate pending a petition for a writ of
certiorari, because the School Board will suffer irreparable harm in absence of the
stay. Planned Parenthood of Se. Pennsylvania v. Casey, 510 U.S. 1309, 1310, 114
S. Ct. 909, 910 (1994).
It will become increasingly difficult for the School Board to focus on
educating students if the mandate is not stayed.
Adapting to the new
circumstances put forth by the panel majority and the May 13, 2016 DOE and DOJ
guidance requires profound changes in the operations of the School Board and
school districts across the nation. These changes will distract the School Board
from fulfilling its fundamental purpose of educating students.
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Additionally, the School Board is left exposed to endless litigation. In
addition to having to litigate this case at both the district court and Supreme Court
levels if the mandate is not stayed, the School Board will have exposure to lawsuits
from parents and students.
School administrators in Virginia have a responsibility ato supervise and
ensure that students [can] have an education in an atmosphere conducive to
learning, free of disruption, and threat to person.a See, e.g., Burns v. Gagnon, 283
Va. 657, 671, 727 S.E.2d 634, 643 (2012). In that regard, the School Board has a
responsibility to ensure the privacy of students while engaging in personal
bathroom functions, disrobing, dressing, and showering outside of the presence of
members of the opposite sex. This is particularly true in an environment where
children are still developing, both emotionally and physically. These issues are
perhaps magnified at the middle school level where ages range from 11 to 14 years
old. The prospect of a pubescent 14 year old biological male using the same
facilities as an 11 year old biological female can create an uncomfortable situation
for both students and the school system.
Permitting students to use facilities based on gender identity without regard
for the bodily privacy of others as directed by DOE and DOJ is at odds with the
School Boardas obligations to ensure the bodily privacy of its students, and the
prospects of conflict are high. At least one other school district has been sued for
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implementing policies pursuant to the DOE and DOJ guidance. Just last month,
students and parents in a school district in Illinois filed suit against the school
district, because the school district entered into an agreement with DOE allowing a
transgender student to use locker rooms consistent with that studentas gender
identity. See Students and Parents for Privacy v. DOE, DOJ, and School Directors
of Township High School District 211, County of Cook and State of Illinois,
1:116-cv-04945, ECF Doc. 1 (N.D. Ill. May 4, 2016).
Moreover, under the panel majorityas decision and the DOE and DOJ
guidance, the School Board must now permit students to use locker rooms,
restrooms, and other intimate facilities that correspond with their agender identitya
on any given day. No consideration is given to whether the School Board can
consider the genuineness of a studentas request, and the potential for abuse of the
situation by those who are not transgender is too great. The School Boardas
solution of providing three single stall unisex restrooms that anyone could use was
a practical, nondiscriminatory answer that met everyoneas interests and properly
balanced the needs of transgender students with other studentsa right to bodily
The DOE and DOJ guidance is really no guidance at all. The School
Boardas ability to exercise discretion in handling what is obviously a very difficult
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issue has been taken away. The School Board will suffer irreparable harm if the
mandate is not stayed.
Finally, DOE and DOJ have now made clear that the School Boardas federal
funding is in jeopardy. The May 13, 2016 guidance specifically provides:
As a condition of receiving Federal funds, a school
agrees that it will not exclude, separate, deny benefits to,
or otherwise treat differently on the basis of sex any
person in its educational programs or activities unless
expressly authorized to do so under Title IX or its
implementing regulations. The Departments treat a
studentas gender identity as the studentas sex for purposes
of Title IX and its implementing regulations. This means
that a school must not treat a transgender student
differently from the way it treats other students of the
same gender identity.
Threatened with the loss of federal funding, the irreparable harm that will be
suffered by the School Board and other school districts like it clearly has been
For the foregoing reasons, this Court should stay the mandate in this case
pending the filing of a petition for a writ of certiorari. Pursuant Rule 41(d)(2)(B),
the stay should be extended upon the filing of the petition, and it should remain in
place until the Supreme Courtas final disposition.
GLOUCESTER COUNTY SCHOOL BOARD
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David P. Corrigan (VSB No. 26341)
Jeremy D. Capps (VSB No. 43909)
M. Scott Fisher, Jr. (VSB No. 78485)
Attorney for Gloucester County School Board
Harman, Claytor, Corrigan & Wellman
P.O. Box 70280
Richmond, Virginia 23255
804-747-5200 - Phone
804-747-6085 a Fax
I hereby certify that on the 7th day of June, 2016, I caused this Motion for
Stay of Mandate Pending Filing of Petition for Writ of Certiorari to be filed
electronically with the Clerk of the Court using the CM/ECF System, which will
send notice of such filing to all counsel that are registered CM/ECF users.
/s/ David P. Corrigan
David P. Corrigan
VSB No. 26341
Jeremy D. Capps
VSB No. 43909
M. Scott Fisher, Jr.
VSB No. 78485
Attorney for Gloucester County School Board
Harman, Claytor, Corrigan & Wellman
P.O. Box 70280
Richmond, Virginia 23255
804-747-5200 - Phone
804-747-6085 a Fax