A federal appeals court in Richmond has sided with a transgender high school student, saying that he can proceed with his lawsuit arguing that his school board’s decision to ban him from the boy’s bathroom is discriminatory.
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2056
G. G., by his next friend and mother, Deirdre Grimm,
Plaintiff - Appellant,
v.
GLOUCESTER COUNTY SCHOOL BOARD,
Defendant - Appellee.
-----------------------JUDY CHIASSON, Ph. D., School Administrator California;
DAVID VANNASDALL, School Administrator California; DIANA K.
BRUCE, School Administrator District of Columbia; DENISE
PALAZZO, School Administrator Florida; JEREMY MAJESKI,
School Administrator Illinois; THOMAS A ABERLI, School
Administrator
Kentucky;
ROBERT
BOURGEOIS,
School
Administrator
Massachusetts;
MARY
DORAN,
School
Administrator Minnesota; VALERIA SILVA, School Administrator
Minnesota; RUDY RUDOLPH, School Administrator Oregon; JOHN
O'REILLY, School Administrator New York; LISA LOVE, School
Administrator Washington; DYLAN PAULY, School Administrator
Wisconsin; SHERIE HOHS, School Administrator Wisconsin; THE
NATIONAL WOMEN'S LAW CENTER; LEGAL MOMENTUM; THE ASSOCIATION
OF TITLE IV ADMINISTRATORS; EQUAL RIGHTS ADVOCATES; GENDER
JUSTICE; THE WOMEN'S LAW PROJECT; LEGAL VOICE; LEGAL AID
SOCIETY - EMPLOYMENT LAW CENTER; SOUTHWEST WOMEN'S LAW
CENTER;
CALIFORNIA
WOMEN'S
LAW
CENTER;
THE
WORLD
PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH; PEDIATRIC
ENDOCRINE SOCIETY; CHILD AND ADOLESCENT GENDER CENTER CLINIC
AT UCSF BENIOFF CHILDREN'S HOSPITAL; CENTER FOR TRANSYOUTH
HEALTH AND DEVELOPMENT AT CHILDREN'S HOSPITAL LOS ANGELES;
GENDER & SEX DEVELOPMENT PROGRAM AT ANN & ROBERT H. LURIE
CHILDREN'S HOSPITAL OF CHICAGO; FAN FREE CLINIC; WHITMANWALKER CLINIC, INC., d/b/a Whitman-Walker Health; GLMA:
HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; TRANSGENDER
LAW & POLICY INSTITUTE; GENDER BENDERS; GAY, LESBIAN &
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STRAIGHT EDUCATION NETWORK; GAY-STRAIGHT ALLIANCE NETWORK;
INSIDEOUT; EVIE PRIESTMAN; ROSMY; TIME OUT YOUTH; WE ARE
FAMILY; UNITED STATES OF AMERICA; MICHELLE FORCIER, M.D.;
NORMAN SPACK, M.D.,
Amici Supporting Appellant,
STATE OF SOUTH CAROLINA; PAUL R. LEPAGE, In his official
capacity as Governor State of Maine; STATE OF ARIZONA; THE
FAMILY FOUNDATION OF VIRGINIA; STATE OF MISSISSIPPI; JOHN
WALSH; STATE OF WEST VIRGINIA; LORRAINE WALSH; PATRICK L.
MCCRORY, In his official capacity as Governor State of North
Carolina; MARK FRECHETTE; JUDITH REISMAN, Ph.D.; JON LYNSKY;
LIBERTY CENTER FOR CHILD PROTECTION; BRADLY FRIEDLIN; LISA
TERRY; LEE TERRY; DONALD CAULDER; WENDY CAULDER; KIM WARD;
ALICE MAY; JIM RUTAN; ISSAC RUTAN; DORETHA GUJU; DOCTOR
RODNEY AUTRY; PASTOR JAMES LARSEN; DAVID THORNTON; KATHY
THORNTON; JOSHUA CUBA; CLAUDIA CLIFTON; ILONA GAMBILL; TIM
BYRD; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND,
Amici Supporting Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:15-cv-00054-RGD-DEM)
Argued:
January 27, 2016
Decided:
April 19, 2016
Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Reversed in part, vacated in part, and
opinion.
Judge Floyd wrote the opinion,
Davis joined.
Senior Judge Davis wrote
opinion. Judge Niemeyer wrote a separate
part and dissenting in part.
remanded by published
in which Senior Judge
a separate concurring
opinion concurring in
ARGUED: Joshua A. Block, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, New York, New York, for Appellant.
David Patrick
Corrigan,
HARMAN,
CLAYTOR,
CORRIGAN
&
WELLMAN,
Richmond,
Virginia, for Appellee.
ON BRIEF: Rebecca K. Glenberg, Gail
2
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Deady, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION,
INC.,
Richmond,
Virginia;
Leslie
Cooper,
AMERICAN
CIVIL
LIBERTIES UNION FOUNDATION, New York, New York, for Appellant.
Jeremy D. Capps, M. Scott Fisher, Jr., HARMAN, CLAYTOR, CORRIGAN
& WELLMAN, Richmond, Virginia, for Appellee.
Cynthia Cook
Robertson, Washington, D.C., Narumi Ito, Amy L. Pierce, Los
Angeles, California, Alexander P. Hardiman, Shawn P. Thomas, New
York, New York, Richard M. Segal, Nathaniel R. Smith, PILLSBURY
WINTHROP SHAW PITTMAN LLP, San Diego, California; Tara L.
Borelli, Atlanta, Georgia, Kyle A. Palazzolo, LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois; Alison
Pennington, TRANSGENDER LAW CENTER, Oakland, California, for
Amici School Administrators Judy Chiasson, David Vannasdall,
Diana K. Bruce, Denise Palazzo, Jeremy Majeski, Thomas A.
Aberli, Robert Bourgeois, Mary Doran, Valeria Silva, Rudy
Rudolph, John OaReilly, Lisa Love, Dylan Pauly, and Sherie Hohs.
Suzanne B. Goldberg, Sexuality and Gender Law Clinic, COLUMBIA
LAW SCHOOL, New York, New York; Erin E. Buzuvis, WESTERN NEW
ENGLAND UNIVERSITY SCHOOL OF LAW, Springfield, Massachusetts,
for Amici The National Womenas Law Center, Legal Momentum, The
Association of Title IX Administrators, Equal Rights Advocates,
Gender Justice, The Womenas Law Project, Legal Voice, Legal Aid
Society-Employment Law Center, Southwest Womenas Law Center, and
California Womenas Law Center.
Jennifer Levi, GAY & LESBIAN
ADVOCATES
&
DEFENDERS,
Boston,
Massachusetts;
Thomas
M.
Hefferon, Washington, D.C., Mary K. Dulka, New York, New York,
Christine Dieter, Jaime A. Santos, GOODWIN PROCTER LLP, Boston,
Massachusetts; Shannon Minter, Asaf Orr, NATIONAL CENTER FOR
LESBIAN RIGHTS, San Francisco, California, for Amici The World
Professional Association for Transgender Health, Pediatric
Endocrine Society, Child and Adolescent Gender Center Clinic at
UCSF Benioff Childrenas Hospital, Center for Transyouth Health
and Development at Childrenas Hospital Los Angeles, Gender & Sex
Development Program at Ann & Robert H. Lurie Children's Hospital
of Chicago, Fan Free Clinic, Whitman-Walker Clinic, Inc., GLMA:
Health Professionals Advancing LGBT Equality, Transgender Law &
Policy Institute, Michelle Forcier, M.D. and Norman Spack, M.D.
David Dinielli, Rick Mula, SOUTHERN POVERTY LAW CENTER,
Montgomery, Alabama, for Amici Gender Benders, Gay, Lesbian &
Straight Education Network, Gay-Straight Alliance Network,
iNSIDEoUT, Evie Priestman, ROSMY, Time Out Youth, and We Are
Family.
James Cole, Jr., General Counsel, Francisco Lopez,
Vanessa Santos, Michelle Tucker, Attorneys, Office of the
General
Counsel,
UNITED
STATES
DEPARTMENT
OF
EDUCATION,
Washington, D.C.; Gregory B. Friel, Deputy Assistant Attorney
General, Diana K. Flynn, Sharon M. McGowan, Christine A. Monta,
Attorneys, Civil Rights Division, Appellate Section, UNITED
3
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STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
United States of America. Alan Wilson, Attorney General, Robert
D. Cook, Solicitor General, James Emory Smith, Jr., Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Amicus State of South
Carolina; Mark Brnovich, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona, for Amicus State
of Arizona; Jim Hood, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF MISSISSIPPI, Jackson, Mississippi, for Amicus State
of Mississippi; Patrick Morrisey, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Amicus State of West Virginia; Amicus Paul R.
LePage, Governor, State of Maine, Augusta, Maine; Robert C.
Stephens, Jr., Jonathan R. Harris, COUNSEL FOR THE GOVERNOR OF
NORTH CAROLINA, Raleigh, North Carolina, for Amicus Patrick L.
Mccrory, Governor of North Carolina.
Mary E. McAlister,
Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, Horatio
G. Mihet, LIBERTY COUNSEL, Orlando, Florida, for Amici Liberty
Center for Child Protection and Judith Reisman, PhD. Jeremy D.
Tedesco, Scottsdale, Arizona, Jordan Lorence, Washington, D.C.,
David A. Cortman, J. Matthew Sharp, Rory T. Gray, ALLIANCE
DEFENDING FREEDOM, Lawrenceville, Georgia, for Amici The Family
Foundation of Virginia, John Walsh, Lorraine Walsh, Mark
Frechette, Jon Lynsky, Bradly Friedlin, Lisa Terry, Lee Terry,
Donald Caulder, Wendy Caulder, Kim Ward, Alice May, Jim Rutan,
Issac Rutan, Doretha Guju, Rodney Autry, James Larsen, David
Thornton, Kathy Thornton, Joshua Cuba, Claudia Clifton, Ilona
Gambill, and Tim Byrd.
Lawrence J. Joseph, Washington, D.C.,
for Amicus Eagle Forum Education and Legal Defense Fund.
4
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FLOYD, Circuit Judge:
G.G., a transgender boy, seeks to use the boysa restrooms
at his high school.
After G.G. began to use the boysa restrooms
with the approval of the school administration, the local school
board
passed
a
policy
banning
G.G.
from
the
boysa
restroom.
G.G. alleges that the school board impermissibly discriminated
against him in violation of Title IX and the Equal Protection
Clause of the Constitution.
Title
IX
claim
injunction.
and
This
district
court
did
relevant
Department
The district court dismissed G.G.as
denied
appeal
not
of
his
request
followed.
accord
for
Because
appropriate
Education
a
we
preliminary
conclude
deference
regulations,
we
the
to
the
reverse
its
dismissal of G.G.as Title IX claim.
Because we conclude that
the
evidentiary
district
court
used
the
wrong
standard
in
assessing G.G.as motion for a preliminary injunction, we vacate
its
denial
standard.
and
remand
for
consideration
under
the
correct
We therefore reverse in part, vacate in part, and
remand the case for further proceedings consistent with this
opinion.
I.
At the heart of this appeal is whether Title IX requires
schools
to
provide
transgender
students
congruent with their gender identity.
5
access
to
restrooms
Title IX provides: a[n]o
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person
.
.
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.
shall,
on
the
Pg: 6 of 69
basis
of
sex,
be
excluded
from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal
financial
Department
of
assistance.a
20
Educationas
(the
U.S.C.
ASS
1681(a).
Department)
The
regulations
implementing Title IX permit the provision of aseparate toilet,
locker room, and shower facilities on the basis of sex, but such
facilities provided for students of one sex shall be comparable
to such facilities for students of the other sex.a
106.33.
In
an
opinion
letter
dated
January
34 C.F.R. ASS
7,
2015,
the
Departmentas Office for Civil Rights (OCR) interpreted how this
regulation
should
apply
to
transgender
individuals:
aWhen
a
school elects to separate or treat students differently on the
basis of sex . . . a school generally must treat transgender
students
Because
consistent
this
case
with
comes
their
to
us
gender
after
identity.a
dismissal
J.A.
pursuant
55.
to
Federal Rule of Civil Procedure 12(b)(6), the facts below are
generally as stated in G.G.as complaint.
A.
G.G.
is
a
transgender
Gloucester High School.
boy
now
in
his
junior
year
at
G.G.as birth-assigned sex, or so-called
abiological sex,a is female, but G.G.as gender identity is male.
G.G.
has
been
diagnosed
with
6
gender
dysphoria,
a
medical
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condition
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characterized
by
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clinically
significant
distress
caused by an incongruence between a personas gender identity and
the personas birth-assigned sex.
Since the end of his freshman
year, G.G. has undergone hormone therapy and has legally changed
his name to G., a traditionally male name.
aspects of his life as a boy.
G.G. lives all
G.G. has not, however, had sex
reassignment surgery. 1
Before beginning his sophomore year, G.G. and his mother
told school officials that G.G. was a transgender boy.
The
officials were supportive and took steps to ensure that he would
be treated as a boy by teachers and staff.
request,
school
restroom. 2
seven weeks.
officials
allowed
G.G.
to
Later, at G.G.as
use
the
boysa
G.G. used this restroom without incident for about
G.G.as use of the boysa restroom, however, excited
the interest of others in the community, some of whom contacted
1
The World Professional Association for Transgender Health
(WPATH) has established Standards of Care for individuals with
gender dysphoria.
J.A. 37.
These Standards of Care are
accepted as authoritative by organizations such as the American
Medical Association and the American Psychological Association.
Id. The WPATH Standards of Care do not permit sex reassignment
surgery for persons who are under the legal age of majority.
J.A. 38.
2
G.G. does not participate in the schoolas physical
education programs. He does not seek here, and never has sought,
use of the boysa locker room. Only restroom use is at issue in
this case.
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the Gloucester County School Board (the Board) seeking to bar
G.G. from continuing to use the boysa restroom.
Board Member Carla B. Hook (Hook) added an item to the
agenda
for
the
November
11,
2014
board
meeting
titled
aDiscussion of Use of Restrooms/Locker Room Facilities.a
15.
J.A.
Hook proposed the following resolution (hereinafter the
atransgender restroom policya or athe policya):
Whereas the GCPS [i.e., Gloucester County
Public
Schools]
recognizes
that
some
students question their gender identities,
and
Whereas the GCPS encourages such students to
seek support, advice, and guidance from
parents, professionals and other trusted
adults, and
Whereas the GCPS seeks to provide a safe
learning environment for all students and to
protect
the
privacy
of
all
students,
therefore
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.
J.A. 15-16; 58.
At the November 11, 2014 meeting twenty-seven people spoke
during
the
supported
Citizensa
Hookas
Comment
proposed
Period,
resolution.
a
majority
Many
of
the
of
whom
speakers
displayed hostility to G.G., including by referring pointedly to
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him as a ayoung lady.a
Pg: 9 of 69
J.A. 16.
Others claimed that permitting
G.G. to use the boysa restroom would violate the privacy of
other students and would lead to sexual assault in restrooms.
One commenter suggested that if the proposed policy were not
adopted,
non-transgender
boys
would
come
to
school
wearing
dresses in order to gain access to the girlsa restrooms.
and his parents spoke against the proposed policy.
G.G.
Ultimately,
the Board postponed a vote on the policy until its next meeting
on December 9, 2014.
At
the
December
9
meeting,
approximately
thirty-seven
people spoke during the Citizensa Comment Period.
Again, most
of those who spoke were in favor of the proposed resolution.
Some speakers threatened to vote the Board members out of office
if
the
Board
members
voted
against
the
proposed
policy.
Speakers again referred to G.G. as a agirla or ayoung lady.a
J.A. 18.
One speaker called G.G. a afreaka and compared him to
a person who thinks he is a adoga and wants to urinate on fire
hydrants.
Id.
Following this second comment period, the Board
voted 6-1 to adopt the proposed policy, thereby barring G.G.
from using the boysa restroom at school.
G.G. alleges that he cannot use the girlsa restroom because
women and girls in those facilities areact[] negatively because
they perceive[] G.G. to be a boy.a
Id.
Further, using the
girlsa restroom would acause severe psychological distressa to
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G.G. and would be incompatible with his treatment for gender
dysphoria.
announced
J.A. 19.
a
series
As a corollary to the policy, the Board
of
updates
to
the
schoolas
restrooms
to
improve general privacy for all students, including adding or
expanding partitions between urinals in male restrooms, adding
privacy strips to the doors of stalls in all restrooms, and
constructing
students.
single-stall
unisex
restrooms
available
to
all
G.G. alleges that he cannot use these new unisex
restrooms because they amake him feel even more stigmatized . .
. .
Being required to use the separate restrooms sets him apart
from his peers, and serves as a daily reminder that the school
views him as adifferent.aa
Id.
G.G. further alleges that,
because of this stigma and exclusion, his social transition is
undermined and he experiences asevere and persistent emotional
and social harms.a
school
and
has,
Id.
as
a
G.G. avoids using the restroom while at
result
of
this
avoidance,
developed
multiple urinary tract infections.
B.
G.G.
sued
the
Board
on
June
11,
2015.
G.G.
seeks
an
injunction allowing him to use the boysa restroom and brings
underlying
claims
that
the
Board
impermissibly
discriminated
against him in violation of Title IX of the Education Amendments
Act of 1972 and the Equal Protection Clause of the Constitution.
10
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On July 27, 2015, the district court held a hearing on G.G.as
motion for a preliminary injunction and on the Boardas motion to
dismiss
G.G.as
lawsuit.
At
the
hearing,
the
district
court
orally dismissed G.G.as Title IX claim and denied his request
for a preliminary injunction, but withheld ruling on the motion
to dismiss G.G.as equal protection claim.
The district court
followed its ruling from the bench with a written order dated
September 4, 2015 denying the injunction and a second written
order dated September 17, 2015 dismissing G.G.as Title IX claim
and expanding on its rationale for denying the injunction.
In
its
September
17,
2015
order,
the
district
court
reasoned that Title IX prohibits discrimination on the basis of
sex and not on the basis of other concepts such as gender,
gender
identity,
or
sexual
orientation.
The
district
court
observed that the regulations implementing Title IX specifically
allow schools to provide separate restrooms on the basis of sex.
The district court concluded that G.G.as sex was female and that
requiring
him
to
use
the
female
restroom
facilities
did
not
impermissibly discriminate against him on the basis of sex in
violation of Title IX.
With respect to G.G.as request for an
injunction, the district court found that G.G. had not made the
required showing that the balance of equities was in his favor.
The district court found that requiring G.G. to use the unisex
restrooms during the pendency of this lawsuit was not unduly
11
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burdensome
other
Filed: 04/19/2016
and
students
would
made
result
in
Pg: 12 of 69
less
uncomfortable
hardship
by
G.G.as
than
requiring
presence
in
the
boysa restroom to themselves use the unisex restrooms.
This appeal followed.
G.G. asks us to reverse the district
courtas dismissal of his Title IX claim, grant the injunction he
seeks,
and,
because
of
comments
made
by
the
district
judge
during the motion hearing, to assign the case to a different
district judge on remand.
to
affirm
dismiss
the
G.G.as
district
equal
The Board, on the other hand, asks us
courtas
protection
rulings
and
claimaon
court has yet to ruleaas without merit.
also
which
asks
the
us
to
district
The United States, as
it did below, has filed an amicus brief supporting G.G.as Title
IX claim in order to defend the governmentas interpretation of
Title IX as requiring schools to provide transgender students
access to restrooms congruent with their gender identity.
II.
We turn first to the district courtas dismissal of G.G.as
Title IX claim. 3
We review de novo the district courtas grant of
3
We decline the Boardas invitation to preemptively dismiss
G.G.as equal protection claim before it has been fully
considered by the district court. a[W]e are a court of review,
not of first view.a Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct.
1326, 1335 (2013) (citation and quotation marks omitted).
We
will not proceed to the merits of G.G.as equal protection claim
(Continued)
12
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a motion to dismiss.
2014).
aTo
Pg: 13 of 69
Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir.
survive
a
motion
to
dismiss,
a
complaint
must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.a
Iqbal,
556
U.S.
662,
678
(2009)
(citations
Ashcroft v.
and
quotations
omitted).
As noted earlier, Title IX provides: a[n]o person . . .
shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination
under
any
financial
education
program
assistance.a
20
or
U.S.C.
activity
ASS
receiving
1681(a).
To
Federal
allege
a
violation of Title IX, G.G. must allege (1) that he was excluded
from participation in an education program because of his sex;
(2)
that
the
educational
institution
was
receiving
federal
financial assistance at the time of his exclusion; and (3) that
the improper discrimination caused G.G. harm. 4
on appeal without
consideration.
the
benefit
of
the
district
See Preston v.
courtas
4
prior
The Board suggests that a restroom may not be educational
in nature and thus is not an educational program covered by
Title IX.
Appelleeas Br. 35 (quoting Johnston v. Univ. of
Pittsburgh, 97 F. Supp. 3d 657, 682 (W.D. Pa. 2015)).
The
Departmentas regulation pertaining to aEducation programs or
activitiesa provides:
Except as provided in this subpart, in
providing any aid, benefit, or service to a
(Continued)
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Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th
Cir. 1994) (citing Cannon v. Univ. of Chi., 441 U.S. 677, 680
(1979)).
We look to case law interpreting Title VII of the
Civil Rights Act of 1964 for guidance in evaluating a claim
brought under Title IX.
Jennings v. Univ. of N.C., 482 F.3d
686, 695 (4th Cir. 2007).
Not all distinctions on the basis of sex are impermissible
under Title IX.
For example, Title IX permits the provision of
student, a recipient shall not, on the basis
of sex:
(1)
Treat
one
person
differently
from
another in determining whether such person
satisfies any requirement or condition for
the provision of such aid, benefit, or
service;
(2) Provide different aid, benefits,
services
or
provide
aid,
benefits,
services in a different manner;
or
or
(3) Deny any person any such aid, benefit,
or service;
. . .
(7) Otherwise limit any person in the
enjoyment
of
any
right,
privilege,
advantage, or opportunity.
34 C.F.R. ASS 106.31(b).
We have little difficulty concluding
that access to a restroom at a school, under this regulation,
can be considered either an aaid, benefit, or servicea or a
aright, privilege, advantage, or opportunity,a
which, when
offered by a recipient institution, falls within the meaning of
aeducational programa as used in Title IX and defined by the
Departmentas implementing regulations.
14
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separate
contained
Filed: 04/19/2016
living
[in
educational
facilities
Title
IX]
institution
Pg: 15 of 69
on
shall
the
be
receiving
basis
of
construed
funds
under
sex:
to
anothing
prohibit
this
Act,
any
from
maintaining separate living facilities for the different sexes.a
20 U.S.C. ASS 1686.
The Departmentas regulations implementing
Title IX permit the provision of aseparate toilet, locker room,
and shower facilities on the basis of sex, but such facilities
provided for students of one sex shall be comparable to such
facilities provided for students of the other sex.a
34 C.F.R.
ASS 106.33.
how
The
Department
recently
delineated
regulation should be applied to transgender individuals.
this
In an
opinion letter dated January 7, 2015, the Departmentas Office
for Civil Rights (OCR) wrote: aWhen a school elects to separate
or treat students differently on the basis of sex . . . a school
generally must treat transgender students consistent with their
gender identity.a 5
J.A. 55.
5
The opinion letter cites to OCRas December 2014 aQuestions
and Answers on Title IX and Single-Sex Elementary and Secondary
Classes and Extracurricular Activities.a This document, denoted
a asignificant guidance documenta per Office of Management and
Budget regulations, states: aAll students, including transgender
students and students who do not conform to sex stereotypes, are
protected from sex-based discrimination under Title IX. Under
Title IX, a recipient generally must treat transgender students
consistent with their gender identity in all aspects of the
planning, implementation, enrollment, operation, and evaluation
of single-sex classes.a Office of Civil Rights, Dept. of Educ.,
Questions and Answers on Title IX and Single-Sex Elementary and
Secondary Classes and Extracurricular Activities 25 (2014)
(Continued)
15
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A.
G.G., and the United States as amicus curiae, ask us to
give
the
Departmentas
interpretation
of
its
own
regulation
controlling weight pursuant to Auer v. Robbins, 519 U.S. 452
(1997).
Auer requires that an agencyas interpretation of its
own ambiguous regulation be given controlling weight unless the
interpretation
is
plainly
erroneous
regulation or statute.
Id. at 461.
not
or
be
well-settled
deference.
or
inconsistent
with
the
Agency interpretations need
long-standing
to
be
entitled
to
They must, however, areflect the agencyas fair and
considered judgment on the matter in question.a
Id. at 462.
An
interpretation may not be the result of the agencyas fair and
considered judgment, and will not be accorded Auer deference,
when the interpretation conflicts with a prior interpretation,
when
it
appears
that
the
interpretation
is
no
more
than
a
available
at
http://www2.ed.gov/about/offices/list/ocr/docs
/faqs-title-ix-single-sex-201412.pdf.
The dissent suggests that we ignore the part of OCRas
opinion letter in which the agency aalso encourages schools to
offer the use of gender-neutral, individual-user facilities to
any student who does not want to use shared sex-segregated
facilities,a as the Board did here.
Post at 66.
However,
because G.G. does want to use shared sex-segregated facilities,
the agencyas suggestion regarding students who do not want to
use such shared sex-segregated facilities is immaterial to the
resolution of G.G.as claim.
Nothing in todayas opinion
restricts any schoolas ability to provide individual-user
facilities.
16
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convenient litigating position, or when the interpretation is a
post
hoc
rationalization.
Christopher
v.
Smithkline
Beecham
Corp., 132 S. Ct. 2156, 2166 (2012) (citations omitted).
The
district
court
declined
to
afford
deference
Departmentas interpretation of 34 C.F.R. ASS 106.33.
court
found
the
regulation
to
be
unambiguous
to
the
The district
because
a[i]t
clearly allows the School Board to limit bathroom access aon the
basis of sex,a including birth or biological sex.a
G.G. v.
Gloucester Cty. Sch. Bd., No. 4:15cv54, 2015 WL 5560190, at *8
(E.D.
Va.
Sept.
17,
2015).
alternatively,
that
Department
clearly
was
regulation.
the
The
district
interpretation
erroneous
and
court
also
advanced
inconsistent
found,
by
the
with
the
The district court reasoned that, because aon the
basis of sexa means, at most, on the basis of sex and gender
together, it cannot mean on the basis of gender alone.
Id.
The United States contends that the regulation clarifies
statutory ambiguity by making clear that schools may provide
separate restrooms for boys and girls awithout running afoul of
Title IX.a
Br. for the United States as Amicus Curiae 24-25
(hereinafter
considers
ASS
aU.S.
106.33
Br.a).
itself
However,
to
be
the
ambiguous
Department
as
to
also
transgender
students because athe regulation is silent on what the phrases
astudents of one sexa and astudents of the other sexa mean in
the context of transgender students.a
17
Id. at 25.
The United
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States
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contends
that
the
Pg: 18 of 69
interpretation
contained
in
OCRas
January 7, 2015 letter resolves the ambiguity in ASS 106.33 as
that regulation applies to transgender individuals.
B.
We
will
unambiguous
begins
with
contains
an
not
accord
regulation
a
an
Auer
determination
ambiguity.
agencyas
interpretation
deference.
of
whether
Section
106.33
Thus,
34
our
C.F.R.
permits
of
an
analysis
ASS
106.33
schools
to
provide aseparate toilet, locker room, and shower facilities on
the basis of sex, but such facilities provided for students of
one
sex
shall
be
comparable
students of the other sex.a
to
such
facilities
provided
for
34 C.F.R. ASS 106.33.
a[D]etermining whether a regulation or statute is ambiguous
presents
a
legal
question,
which
we
determine
de
novo.a
Humanoids Grp. v. Rogan, 375 F.3d 301, 306 (4th Cir. 2004).
We
determine ambiguity by analyzing the language under the threepart framework set forth in Robinson v. Shell Oil Co., 519 U.S.
337
(1997).
The
plainness
or
ambiguity
of
language
determined by reference to (1) the language itself,
is
(2) the
specific context in which that language is used, and (3) the
broader context of the statute or regulation as a whole.
341.
18
Id. at
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First,
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we
have
little
Pg: 19 of 69
difficulty
concluding
that
the
language itselfaaof one sexa and aof the other sexaarefers to
male and female students.
Second, in the specific context of
ASS 106.33, the plain meaning of the regulatory language is best
stated by the United States: athe mere act of providing separate
restroom facilities for males and females does not violate Title
IX . . . .a
U.S. Br. 22 n.8.
Third, the language aof one sexa
and aof the other sexa appears repeatedly in the broader context
of 34 C.F.R. ASS 106 Subpart D, titled aDiscrimination on the
Basis of Sex in Education Programs or Activities Prohibited.a 6
This repeated formulation indicates two sexes (aone sexa and
athe
other
sexa),
and
the
only
reasonable
reading
of
the
language used throughout the relevant regulatory section is that
it references male and female.
Read plainly then, ASS 106.33
permits schools to provide separate toilet, locker room, and
shower
facilities
for
its
male
6
and
female
students.
By
For example, ASS 106.32(b)(2) provides that a[h]ousing
provided . . .
to students of one sex, when compared to that
provided to students of the other sex, shall be as a whole:
proportionate in quantity . . . and [c]omparable in quality and
cost
to
the
studenta;
ASS
106.37(a)(3)
provides
that an
institution generally cannot a[a]pply any rule . . . concerning
eligibility [for financial assistance] which treats persons of
one sex differently from persons of the other sex with regard to
marital or parental statusa; and ASS 106.41(b) provides that
awhere [an institution] operates or sponsors a team in a
particular sport for members of one sex but operates or sponsors
no such team for members of the other sex . . . members of the
excluded sex must be allowed to try-out for the team offered . .
. .a
19
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implication,
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the
regulation
Pg: 20 of 69
also
permits
schools
to
exclude
males from the female facilities and vice-versa.
Our inquiry is not ended, however, by this straightforward
conclusion.
males
and
Although the regulation may refer unambiguously to
females,
it
is
silent
as
to
how
a
school
should
determine whether a transgender individual is a male or female
for
the
purpose
of
access
to
sex-segregated
restrooms.
We
conclude that the regulation is susceptible to more than one
plausible reading because it permits both the Boardas readinga
determining maleness or femaleness with reference exclusively to
genitaliaaand
the
Departmentas
interpretationadetermining
maleness or femaleness with reference to gender identity.
Cf.
Dickenson-Russell Coal Co. v. Secay of Labor, 747 F.3d 251, 258
(4th Cir. 2014) (refusing to afford Auer deference where the
language of the regulation at issue was anot susceptible to more
than
one
omitted)).
plausible
readinga
(citation
and
quotation
marks
It is not clear to us how the regulation would apply
in a number of situationsaeven under the Boardas own abiological
gendera
formulation.
transgender
For
individual
example,
who
had
which
restroom
undergone
born
individual
who
with
lost
X-X-Y
sex
external
chromosomes?
genitalia
in
a
sex-reassignment
surgery use? What about an intersex individual?
individual
would
What about an
What
an
about
accident?
an
The
Departmentas interpretation resolves ambiguity by providing that
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in the case of a transgender individual using a sex-segregated
facility,
the
individualas
generally
determined
by
sex
as
male
reference
to
or
the
female
is
studentas
to
be
gender
identity.
C.
Because we conclude that the regulation is ambiguous as
applied
to
transgender
individuals,
the
Departmentas
interpretation is entitled to Auer deference unless the Board
demonstrates
that
the
interpretation
is
plainly
inconsistent with the regulation or statute.
461.
erroneous
or
Auer, 519 U.S. at
aOur review of the agencyas interpretation in this context
is therefore highly deferential.a
Dickenson-Russell Coal, 747
F.3d at 257 (citation and quotation marks omitted).
aIt is well
established that an agencyas interpretation need not be the only
possible
prevail.a
(2013).
deference.
reading
of
a
regulationaor
even
the
best
oneato
Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337
An agencyas view need only be reasonable to warrant
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702
(1991) (a[I]t is axiomatic that the [agencyas] interpretation
need not be the best or most natural one by grammatical or other
standards.
Rather, the [agencyas] view need be only reasonable
to warrant deference.a).
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Title IX regulations were promulgated by the Department of
Health,
Education,
and
Welfare
in
unchanged by the Department in 1980.
(May 9, 1980).
1975
and
were
adopted
45 Fed. Reg. 30802, 30955
Two dictionaries from the drafting era inform
our analysis of how the term asexa was understood at that time.
The first defines asexa as athe character of being either male
or femalea or athe sum of those anatomical and physiological
differences
with
reference
distinguished . . . .a
to
which
the
male
and
female
are
American College Dictionary 1109 (1970).
The second defines asexa as:
the sum of the morphological, physiological,
and
behavioral
peculiarities
of
living
beings
that
subserves
biparental
reproduction with its concomitant genetic
segregation and recombination which underlie
most
evolutionary
change,
that
in
its
typical dichotomous occurrence is usu[ally]
genetically controlled and associated with
special
sex
chromosomes,
and
that
is
typically
manifested
as
maleness
and
femaleness . . . .
Websteras Third New International Dictionary 2081 (1971).
Although these definitions suggest that the word asexa was
understood at the time the regulation was adopted to connote
male and female and that maleness and femaleness were determined
primarily by reference to the factors the district court termed
abiological
sex,a
namely
reproductive
organs,
the
definitions
also suggest that a hard-and-fast binary division on the basis
of
reproductive
organsaalthough
22
useful
in
most
casesawas
not
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descriptive. 7
universally
The
Pg: 23 of 69
dictionaries,
therefore,
used
qualifiers such as reference to the asum ofa various factors,
atypical dichotomous occurrence,a and atypically manifested as
maleness
and
population
femaleness.a
composed
of
Section
individuals
106.33
of
assumes
what
has
a
student
traditionally
been understood as the usual adichotomous occurrencea of male
and female where the various indicators of sex all point in the
same
direction.
It
sheds
little
light
on
how
exactly
to
determine the acharacter of being either male or femalea where
those indicators diverge.
We conclude that the Departmentas
interpretation of how ASS 106.33 and its underlying assumptions
should apply to transgender individuals is not plainly erroneous
or inconsistent with the text of the regulation.
The regulation
is silent as to which restroom transgender individuals are to
use when a school elects to provide sex-segregated restrooms,
and the Departmentas interpretation, although perhaps not the
intuitive
one,
is
permitted
by
the
varying
physical,
psychological, and social aspectsaor, in the words of an older
7
Modern definitions of asexa also implicitly recognize the
limitations of a nonmalleable, binary conception of sex.
For
example, Blackas Law Dictionary defines asexa as a[t]he sum of
the peculiarities of structure and function that distinguish a
male from a female organism; gender.a
Blackas Law Dictionary
1583 (10th ed. 2014). The American Heritage Dictionary includes
in the definition of asexa a[o]neas identity as either female or
male.a American Heritage Dictionary 1605 (5th ed. 2011).
23
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dictionary,
athe
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morphological,
physiological,
and
behavioral
peculiaritiesaaincluded in the term asex.a
D.
Finally,
we
consider
whether
the
Departmentas
interpretation of ASS 106.33 is the result of the agencyas fair
and considered judgment.
be
accorded
Auer
Even a valid interpretation will not
deference
where
it
conflicts
with
a
prior
interpretation, where it appears that the interpretation is no
more
than
a
convenient
litigating
position,
interpretation is a post hoc rationalization.
or
where
the
Christopher, 132
S. Ct. at 2166 (citations omitted).
Although the Departmentas interpretation is novel because
there
was
no
interpretation
as
to
how
ASS
106.33
applied
to
transgender individuals before January 2015, anovelty alone is
no reason to refuse deferencea and does not render the current
interpretation
inconsistent
with
prior
agency
practice.
See
Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2263
(2011).
As the United States explains, the issue in this case
adid not arise until recently,a see id., because schools have
only
recently
begun
citing
ASS
106.33
as
justification
for
enacting new policies restricting transgender studentsa access
to restroom facilities.
to
those
anewfounda
The Department contends that a[i]t is
policies
24
that
[the
Departmentas]
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interpretation of the regulation responds.a
see no reason to doubt this explanation.
U.S. Br. 29.
We
See Talk Am., Inc.,
131 S. Ct. at 2264.
Nor is the interpretation merely a convenient litigating
position.
The
Department
position since 2014.
has
consistently
enforced
this
See J.A. 55 n.5 & n.6 (providing examples
of OCR enforcement actions to secure transgender students access
to restrooms congruent with their gender identities).
Finally,
this interpretation cannot properly be considered a post hoc
rationalization
because
it
is
in
line
with
the
existing
guidances and regulations of a number of federal agenciesaall of
which provide that transgender individuals should be permitted
access
to
the
restroom
that
corresponds
with
their
gender
identities. 8
U.S. Br. 17 n.5 & n.6 (citing publications by the
Occupational
Safety
and
Health
Administration,
the
Equal
Employment Opportunity Commission, the Department of Housing and
8
We disagree with the dissentas suggestion that the result
we reach today renders the enforcement of separate restroom
facilities impossible because it awould require schools to
assume
gender
identity
based
on
appearances,
social
expectations, or explicit declarations of identity.a
Post at
65.
Accepting the Boardas position would equally require the
school to assume abiological sexa based on aappearances, social
expectations, or explicit declarations of [biological sex].a
Certainly, no one is suggesting mandatory verification of the
acorrecta genitalia before admittance to a restroom.
The
Departmentas vision of sex-segregated restrooms which takes
account of gender identity presents no greater aimpossibility of
enforcementa problem than does the Boardas abiological gendera
vision of sex-segregated restrooms.
25
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Development,
and
the
Pg: 26 of 69
Office
of
Personnel
Management).
None of the Christopher grounds for withholding Auer deference
are present in this case.
E.
We conclude that the Departmentas interpretation of its own
regulation,
ASS
106.33,
as
it
relates
to
restroom
access
by
transgender individuals, is entitled to Auer deference and is to
be accorded controlling weight in this case. 9
We reverse the
district courtas contrary conclusion and its resultant dismissal
of G.G.as Title IX claim.
F.
In many respects, we are in agreement with the dissent.
We
agree that asexa should be construed uniformly throughout Title
IX
and
its
implementing
regulations.
We
agree
that
it
has
indeed been commonplace and widely accepted to separate public
9
The Board urges us to reach a contrary conclusion
regarding the validity of the Departmentas interpretation,
citing Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher
Educ., 97 F. Supp. 657 (W.D. Pa. 2015).
Although we recognize
that the Johnston court confronted a case similar in most
material facts to the one before us, that court did not consider
the Departmentas interpretation
of ASS 106.33.
Because the
Johnston
court
did
not
grapple
with
the
questions
of
administrative law implicated here, we find the Title IX
analysis in Johnston to be unpersuasive.
26
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restrooms, locker rooms, and shower facilities on the basis of
sex.
We
agree
that
aan
individual
has
a
legitimate
and
important interest in bodily privacy such that his or her nude
or partially nude body, genitalia, and other private partsa are
not involuntarily exposed. 10
Post at 56.
It is not apparent to
us, however, that the truth of these propositions undermines the
conclusion we reach regarding the level of deference due to the
Departmentas interpretation of its own regulations.
The Supreme Court commands the use of particular analytical
frameworks
when
agencies.
G.G. claims that he is entitled to use the boysa
restroom
courts
pursuant
to
review
the
the
actions
Departmentas
regulations implementing Title IX.
of
the
executive
interpretation
of
its
We have carefully followed
the Supreme Courtas guidance in Chevron, Auer, and Christopher
and have determined that the interpretation contained in the OCR
letter is to be accorded controlling weight.
10
In a case such as
We doubt that G.G.as use of the communal restroom of his
choice threatens the type of constitutional abuses present in
the cases cited by the dissent. For example, G.G.as useaor for
that matter any individualas appropriate useaof a restroom will
not involve the type of intrusion present in Brannum v. Overton
Cty. Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008) (involving the
videotaping of students dressing and undressing in school locker
rooms), Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604
(6th Cir. 2005) (involving the indiscriminate strip searching of
twenty male and five female students), or Supelveda v. Ramirez,
967 F.2d 1413, 1416 (9th Cir. 1992) (involving a male parole
officer forcibly entering a bathroom stall with a female parolee
to supervise the provision of a urine sample).
27
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this,
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where
regulation
or
Filed: 04/19/2016
there
agency
is
no
Pg: 28 of 69
constitutional
interpretation,
the
challenge
weighing
of
to
the
privacy
interests or safety concerns 11afundamentally questions of policya
is a task committed to the agency, not to the courts.
The Supreme Courtas admonition in Chevron points to the
balance courts must strike:
Judges are not experts in the field, and are
not part of either political branch of the
Government. Courts must, in some cases,
reconcile competing political interests, but
not on the basis of the judges' personal
policy preferences. In contrast, an agency
to which Congress has delegated policymaking
responsibilities
may,
within
the
limits of that delegation, properly rely
upon the incumbent administration's views of
wise policy to inform its judgments. While
agencies are not directly accountable to the
people, the Chief Executive is, and it is
entirely
appropriate
for
this
political
branch of the Government to make such policy
choicesaresolving the competing interests
11
The dissent accepts the Boardas invocation of amorphous
safety concerns as a reason for refusing deference to the
Departmentas interpretation. We note that the record is devoid
of any evidence tending to show that G.G.as use of the boysa
restroom creates a safety issue.
We also note that the Board
has been, perhaps deliberately, vague as to the nature of the
safety concerns it hasawhether it fears that it cannot ensure
G.G.as safety while in the restroom or whether it fears G.G.
himself is a threat to the safety of others in the restroom. We
are unconvinced of the existence of danger caused by asexual
responses prompted by studentsa exposure to the private body
parts of students of the other biological sex.a
Post at 58.
The same safety concern would seem to require segregated
restrooms for gay boys and girls who would, under the dissentas
formulation, present a safety risk because of the asexual
responses prompteda by their exposure to the private body parts
of other students of the same sex in sex-segregated restrooms.
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which Congress itself either inadvertently
did not resolve, or intentionally left to be
resolved by the agency charged with the
administration of the statute in light of
everyday realities.
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 865-66 (1984).
Not only may a subsequent administration
choose to implement a different policy, but Congress may also,
of course, revise Title IX explicitly to prohibit or authorize
the course charted here by the Department regarding the use of
restrooms by transgender students.
To the extent the dissent
critiques the result we reach today on policy grounds, we reply
that, our Auer analysis complete, we leave policy formulation to
the political branches.
III.
G.G. also asks us to reverse the district courtas denial of
the preliminary injunction he sought which would have allowed
him
to
use
lawsuit.
the
boysa
restroom
during
the
pendency
of
this
aTo win such a preliminary injunction, Plaintiffs must
demonstrate that (1) they are likely to succeed on the merits;
(2)
they
will
likely
suffer
irreparable
harm
absent
an
injunction; (3) the balance of hardships weighs in their favor;
and (4) the injunction is in the public interest.a
League of
Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th
29
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Cir. 2014) (citation omitted).
Pg: 30 of 69
We review a district courtas
denial of a preliminary injunction for abuse of discretion.
at 235.
Id.
aA district court has abused its discretion if its
decision is guided by erroneous legal principles or rests upon a
clearly erroneous factual finding.a
Morris v. Wachovia Sec.,
Inc., 448 F.3d 268, 277 (4th Cir. 2006) (citation and quotations
omitted).
aWe do not ask whether we would have come to the same
conclusion as the district court if we were examining the matter
de novo.a
Id. (citation omitted).
Instead, awe reverse for
abuse of discretion if we form a definite and firm conviction
that the court below committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors.a
Id. (citations and quotations omitted).
The
district
court
analyzed
G.G.as
request
only
with
reference to the third factorathe balance of hardshipsaand found
that the balance of hardships did not weigh in G.G.as favor.
G.G. submitted two declarations in support of his complaint, one
from
G.G.
himself
and
one
from
a
medical
expert,
Dr.
Randi
Ettner, to explain what harms G.G. will suffer as a result of
his
exclusion
from
the
boysa
restroom.
The
district
court
refused to consider this evidence because it was areplete with
inadmissible evidence including thoughts of others, hearsay, and
suppositions.a
G.G., 2015 WL 5560190, at *11.
30
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The
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district
court
Pg: 31 of 69
misstated
the
evidentiary
governing preliminary injunction hearings.
stated:
aThe
complaint
is
no
longer
The district court
the
admissible evidence is the deciding factor.
must conform to the rules of evidence.a
injunctions,
however,
are
governed
by
standard
deciding
Evidence therefore
Id. at *9.
less
factor,
Preliminary
strict
rules
of
evidence:
The purpose of a preliminary injunction is
merely to preserve the relative positions of
the parties until a trial on the merits can
be held.
Given this limited purpose, and
given the haste that is often necessary if
those positions are to be preserved, a
preliminary
injunction
is
customarily
granted on the basis of procedures that are
less formal and evidence that is less
complete than in a trial on the merits.
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also
Elrod v. Burns, 427 U.S. 347, 350 n.1 (1976)
the
awell-pleaded
allegations
of
(taking as true
respondentsa
complaint
and
uncontroverted affidavits filed in support of the motion for a
preliminary injunctiona); compare Fed. R. Civ. P. 56 (requiring
affidavits supporting summary judgment to be amade on personal
knowledge, [and to] set out facts that would be admissible in
evidence), with Fed R. Civ. P. 65 (providing no such requirement
in
the
preliminary
admissible
evidence
injunction
may
be
more
context).
persuasive
Thus,
than
although
inadmissible
evidence in the preliminary injunction context, it was error for
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the district court to summarily reject G.G.as proffered evidence
because it may have been inadmissible at a subsequent trial.
Additionally, the district court completely excluded some
of G.G.as proffered evidence on hearsay grounds.
our
sister
circuits
to
have
considered
the
The seven of
admissibility
of
hearsay in preliminary injunction proceedings have decided that
the
nature
of
preclusiona
and
evidence
have
as
hearsay
permitted
goes
district
to
courts
aweight,
to
arely
not
on
hearsay evidence for the limited purpose of determining whether
to award a preliminary injunction.a
Mullins v. City of New
York, 626 F.3d 47, 52 (2d Cir. 2010); see also Kos Pharm., Inc.
v. Andrx Corp., 369 F.3d 700, 718 (3d Cir. 2004); Ty, Inc. v.
GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir. 1997); Levi
Strauss & Co. v. Sunrise Intal Trading, Inc., 51 F.3d 982, 985
(11th
Cir.
district
which
1995)
court
would
may
not
(aAt
the
rely
be
on
preliminary
affidavits
admissible
injunction
and
evidence
stage,
a
hearsay
materials
for
permanent
a
injunction, if the evidence is appropriate given the character
and
objectives
of
the
injunctive
proceeding.a
(citation
and
internal quotations omitted)); Sierra Club, Lone Star Chapter v.
FDIC, 992 F.2d 545, 551 (5th Cir. 1993) (a[A]t the preliminary
injunction stage, the procedures in the district court are less
formal,
and
the
district
court
may
rely
on
otherwise
inadmissible evidence, including hearsay evidence.a); Asseo v.
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Pan Am. Grain Co., Inc., 805 F.2d 23, 26 (1st Cir. 1986); Flynt
Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.
1984).
We see no reason for a different rule to govern in this
Circuit.
informal
Because
ones
later trial
standards,
preliminary
designed
governed
district
to
by
injunction
prevent
the
courts
proceedings
irreparable
full
rigor
of
may
look
to,
harm
usual
are
before
a
evidentiary
and
indeed
in
appropriate circumstances rely on, hearsay or other inadmissible
evidence
when
deciding
whether
a
preliminary
injunction
is
warranted.
Because
evidence
the
against
district
a
court
stricter
evaluated
evidentiary
G.G.as
standard
proffered
than
is
warranted by the nature and purpose of preliminary injunction
proceedings to prevent irreparable harm before a full trial on
the merits, the district court was aguided by erroneous legal
principles.a
abused
We
therefore
its
discretion
preliminary
injunction
evidence.
We
vacate
when
conclude
it
without
the
that
denied
the
G.G.as
considering
district
courtas
district
request
G.G.as
denial
court
for
a
proffered
of
G.G.as
motion for a preliminary injunction and remand the case to the
district court for consideration of G.G.as evidence in light of
the evidentiary standards set forth herein.
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IV.
Finally,
G.G.
requests
that
we
different district judge on remand.
reassign
this
case
to
a
G.G. does not explicitly
claim that the district judge is biased.
Absent such a claim,
reassignment is only appropriate in aunusual circumstances where
both
for
the
judgeas
sake
and
the
appearance
of
justice
an
assignment to a different judge is salutary and in the public
interest,
especially
partiality.a
as
it
minimizes
even
a
suspicion
of
United States v. Guglielmi, 929 F.2d 1001, 1007
(4th Cir. 1991) (citation and internal quotation marks omitted).
In determining whether such circumstances exist, a court should
consider: (1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty in putting
out of his or her mind previously expressed views or findings
determined to be erroneous or based on evidence that must be
rejected, (2) whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment would entail
waste
and
duplication
out
of
proportion
preserving the appearance of fairness.
G.G.
argues
that
factors are satisfied.
both
the
to
any
gain
in
Id. (citation omitted).
first
and
second
Guglielmi
He contends that the district court has
pre-existing views which it would be unwilling to put aside in
the face of contrary evidence about medical science generally
and about agender and sexuality in particular.a
34
Appellantas Br.
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53.
Doc: 74
For
Filed: 04/19/2016
example,
the
court
Pg: 35 of 69
accepted
the
Boardas
amatinga
concern by noting:
There
are
only
two
instinctsatwo.
Everything
else
is
acquiredaeverything.
That is, the brain only has two instincts.
One is called self-preservation, and the
other is procreation.
And procreation is
the highest instinct in individuals who are
in the latter part of their teen-age years.
All of that is accepted by all medical
science, as far as I can determine in
reading information.
J.A. 85-86.
The district court also expressed skepticism that medical
science
supported
the
proposition
that
one
could
develop
a
urinary tract infection from withholding urine for too long.
J.A. 111-12.
The district court characterized gender dysphoria
as a amental disordera and resisted several attempts by counsel
for G.G. to clarify that it only becomes a disorder when left
untreated.
See J.A. 88-91; 101-02.
The district court also
seemed to reject G.G.as representation of what it meant to be
transgender, repeatedly noting that G.G. awantsa to be a boy and
not a girl, but that ahe is biologically a female.a
J.A. 103-
04; see also J.A. 104 (aItas his mind. Itas not physical that
causes that, itas what he believes.a).
memorandum
opinion,
however,
included
The district courtas
none
of
remarks or suppositions that marred the hearing.
35
the
extraneous
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Reassignment
litigation.
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Pg: 36 of 69
is
step
an
unusual
at
this
early
stage
of
Although the district court did express opinions
about medical facts and skepticism of G.G.as claims, the record
does not clearly indicate that the district judge would refuse
to
consider
and
credit
sound
contrary
evidence.
Further,
although the district court has a distinct way of proceeding in
court, the hearing record and the district courtas written order
in the case do not raise in our minds a question about the
fundamental fairness of the proceedings, however idiosyncratic.
The conduct of the district judge does not at this point satisfy
the Guglielmi standard.
We deny G.G.as request for reassignment
to a different district judge on remand.
V.
For the foregoing reasons, the judgment of the district
court is
REVERSED IN PART, VACATED IN PART, AND REMANDED.
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DAVIS, Senior Circuit Judge, concurring:
I
concur
in
Judge
Floydas
fine
opinion.
I
write
separately, however, to note that while I am happy to join in
the remand of this matter to the district court so that it may
consider G.G.as evidence under proper legal standards in the
first instance, this Court would be on sound ground in granting
the requested preliminary injunction on the undisputed facts in
the record.
I.
In
order
to
obtain
a
preliminary
injunction,
G.G.
must
demonstrate that (1) he is likely to succeed on the merits, (2)
he is likely to suffer irreparable harm in the absence of an
injunction, (3) the balance of hardships tips in his favor, and
(4) the requested injunction is in the public interest.
Pashby
v. Delia, 709 F.3d 307, 320 (4th Cir. 2013) (citing Winter v.
Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)).
The record
before us establishes that G.G. has done so.
A.
G.G.
alleges
that
by
singling
him
out
for
different
treatment because he is transgender, the Boardas restroom policy
discriminates against him aon the basis of sexa in violation of
Title
IX.
In
light
of
the
weight
of
circuit
authority
concluding that discrimination against transgender individuals
constitutes discrimination aon the basis of sexa in the context
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of analogous statutes and our holding here that the Departmentas
interpretation of 34 C.F.R. ASS 106.33 is to be given controlling
weight, G.G. has surely demonstrated a likelihood of success on
the merits of his Title IX claim.
See Price Waterhouse v.
Hopkins, 490 U.S. 228, 250a51 (1989); see also Glenn v. Brumby,
663 F.3d 1312, 1316a19 (11th Cir. 2011); Smith v. City of Salem,
378 F.3d 566, 573a75 (6th Cir. 2004); Rosa v. Park W. Bank &
Trust Co., 214 F.3d 213, 215a16 (1st Cir. 2000); Schwenk v.
Hartford, 204 F.3d 1187, 1201a02 (9th Cir. 2000).
B.
In support of his claim of irreparable harm, G.G. submitted
an affidavit to the district court describing the psychological
distress he experiences when he is forced to use the singlestall restrooms or the restroom in the nurseas office.
32a33.
His
developed
affidavit
painful
holding
his
school.
Id.
also
urinary
urine
in
indicates
tract
order
to
that
he
infectionsa
avoid
using
has
as
the
See J.A.
arepeatedly
a
result
of
restroom
at
An expert declaration by Dr. Randi Ettner, a psychologist
specializing
in
working
with
children
and
adolescents
with
gender dysphoria, provides further support for G.G.as claim of
irreparable harm.
In her affidavit, Dr. Ettner indicates that
treating a transgender boy as male in some situations but not in
others is ainconsistent with evidence-based medical practice and
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detrimental
Filed: 04/19/2016
to
the
health
and
Pg: 39 of 69
well-being
of
the
childa
and
explains why access to a restroom appropriate to oneas gender
identity is important for transgender youth.
J.A. 39.
With
respect to G.G. in particular, Dr. Ettner states that in her
professional opinion, the Boardas restroom policy ais currently
causing emotional distress to an extremely vulnerable youth and
placing G.G. at risk for accruing lifelong psychological harm.a
J.A. 41.
In particular, Dr. Ettner opines that
[a]s a result of the School Boardas restroom policy, .
. . G.G. is put in the humiliating position of having
to use a separate facility, thereby accentuating his
aotherness,a undermining his identity formation, and
impeding his medically necessary social transition
process.
The shame of being singled out and
stigmatized in his daily life every time he needs to
use the restroom is a devastating blow to G.G. and
places him at extreme risk for immediate and long-term
psychological harm.
J.A. 42.
The
Board
offers
nothing
to
contradict
any
of
the
assertions concerning irreparable harm in G.G.as or Dr. Ettneras
affidavits.
lacking
from
irreparable
Instead, its arguments focus on what is purportedly
G.G.as
harm,
presentation
such
as
in
support
of
that
[his
aevidence
his
claim
of
feelings
of
dysphoria, anxiety, and distress] would be lessened by using the
boy[sa]
restroom,a
medical
evidence,
evidence
and
from
an
his
opinion
treating
from
psychologist,
Dr.
Ettner
adifferentiating between the distress that G.G. may suffer by
39
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not
Doc: 74
using
Filed: 04/19/2016
the
boy[sa]
Pg: 40 of 69
bathroom
during
the
course
of
this
litigation and the distress that he has apparently been living
with since age 12.a
Br. Appellee 42a43.
As to the alleged
deficiency concerning Dr. Ettneras opinion, the Boardas argument
is belied by Dr. Ettneras affidavit itself, which, as quoted
above, provides her opinion about the psychological harm that
G.G.
is
experiencing
a[a]s
restroom policy.a
J.A. 42.
inadequacies,
absence
undermine
the
the
a
result
of
the
School
Boardas
With respect to the other purported
of
uncontroverted
such
evidence
statements
does
nothing
concerning
the
to
daily
psychological harm G.G. experiences as a result of the Boardas
policy
or
Dr.
Ettneras
unchallenged
opinion
concerning
significant long-term consequences of that harm.
the
Moreover, the
Board offers no argument to counter G.G.as averment that he has
repeatedly contracted a urinary tract infection as a result of
holding his urine to avoid using the restroom at school.
The
uncontroverted
facts
before
the
district
court
demonstrate that as a result of the Boardas restroom policy,
G.G. experiences daily psychological harm that puts him at risk
for
long-term
psychological
harm,
and
his
avoidance
of
the
restroom as a result of the Boardas policy puts him at risk for
developing a urinary tract infection as he has repeatedly in the
past.
G.G.
has
thus
demonstrated
that
he
irreparable harm in the absence of an injunction.
40
will
suffer
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C.
Turning to the balance of the hardships, G.G. has shown
that
he
will
injunction.
suffer
irreparable
harm
without
the
requested
On the other end of the scale, the Board contends
that other studentsa constitutional right to privacy will be
imperiled by G.G.as presence in the boysa restroom.
As
the
restroom
majority
does
not
opinion
points
implicate
the
out,
G.G.as
use
unconstitutional
involved in the cases cited by the dissent.
of
the
actions
Moreover, studentsa
unintentional exposure of their genitals to others using the
restroom has already been largely, if not entirely, remedied by
the alterations to the schoolas restrooms already undertaken by
the Board.
To the extent that a student simply objects to using
the restroom in the presence of a transgender student even where
there is no possibility that either studentas genitals will be
exposed, all students have access to the single-stall restrooms.
For other students, using the single-stall restrooms carries no
stigma whatsoever, whereas for G.G., using those same restrooms
is tantamount to humiliation and a continuing mark of difference
among his fellow students.
The minimal or non-existent hardship
to other students of using the single-stall restrooms if they
object to G.G.as presence in the communal restroom thus does not
tip the scale in the Boardas favor.
weighs heavily toward G.G.
41
The balance of hardships
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D.
Finally, consideration of the public interest in granting
or
denying
the
preliminary
injunction
favors
G.G.
Having
concluded that G.G. has demonstrated a likelihood of success on
the
merits
of
his
Title
IX
claim,
denying
the
requested
injunction would permit the Board to continue violating G.G.as
rights under Title IX for the pendency of this case.
Enforcing
G.G.as right to be free from discrimination on the basis of sex
in an educational institution is plainly in the public interest.
Cf. Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th
Cir.
2002)
(citation
omitted)
(observing
that
upholding
constitutional rights is in the public interest).
The
Board
contends
that
the
public
interest
lies
in
allowing this issue to be determined by the legislature, citing
pending legislation before Congress addressing the issue before
the Court.
But, as discussed above, the weight of authority
establishes that discrimination based on transgender status is
already
prohibited
by
the
language
of
federal
statutes, as interpreted by the Supreme Court.
civil
rights
The existence of
proposed legislation that, if passed, would address the question
before us does not justify forcing G.G. to suffer irreparable
harm when he has demonstrated that he is likely to succeed on
the merits of his claims under current federal law.
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II.
Based on the evidence presented to the district court, G.G.
has
satisfied
inquiry.
all
When
preliminary
four
the
prongs
record
injunctionaas
of
the
before
it
preliminary
us
amply
supports
does
injunction
entry
hereawe
of
have
a
not
hesitated to act to prevent irreparable injury to a litigant
before us.
See, e.g., League of Women Voters of N.C. v. North
Carolina, 769 F.3d 224, 248 (4th Cir. 2014) (expressly observing
that appellate courts have the power to vacate a denial of a
preliminary
injunction
and
direct
entry
of
an
injunction);
Eisenberg ex rel. Eisenberg v. Montgomery Cty. Pub. Schs., 197
F.3d 123, 134 (4th Cir. 1999) (directing entry of injunction
abecause the record clearly establishes the plaintiffas right to
an
injunction
and
[an
evidentiary]
hearing
would
not
have
altered the resulta).
Nevertheless, it is right and proper that we defer to the
district court in this instance.
It is to be hoped that the
district court will turn its attention to this matter with the
urgency
the
case
poses.
Under
the
circumstances
here,
the
appropriateness and necessity of such prompt action is plain.
By the time the district court issues its decision, G.G. will
have suffered the psychological harm the injunction sought to
prevent for an entire school year.
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With these additional observations, I concur fully in Judge
Floydas
thoughtful
and
thorough
opinion
for
the
panel.
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NIEMEYER, Circuit Judge, concurring in part and dissenting in
part:
I concur in Part IV of the courtas opinion.
With respect
to whether G.G. stated a claim under Title IX and whether the
district court abused its discretion in denying G.Gas motion for
a
preliminary
injunction,
I
would
affirm
the
ruling
of
the
district court dismissing G.G.as Title IX claim and denying his
motion for a preliminary injunction.
I therefore dissent from
the majorityas decision on those issues.
G.G.,
a
transgender
boy
who
is
16,
challenges
as
discriminatory, under the Equal Protection Clause and Title IX
of the Education Amendments of 1972, his high schoolas policy
for assigning students to restrooms and locker rooms based on
biological sex.
The schoolas policy provides:
girlsa
and
restrooms
students
who
are
locker
rooms
biologically
are
(1) that the
designated
female;
(2)
that
for
use
the
by
boysa
restrooms and locker rooms are designated for use by students
who are biologically male; and (3) that all students, regardless
of their sex, are authorized to use the schoolas three singlestall unisex restrooms, which the school created to accommodate
transgender
students.
Under
this
policy,
G.G.,
who
is
biologically female but who identifies as male, is authorized to
use
the
restrooms.
girlsa
restrooms
and
locker
rooms
and
the
unisex
He contends, however, that the policy discriminates
45
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against him because it denies him, as one who identifies as
male, the use of the boysa restrooms, and he seeks an injunction
compelling
the
high
school
to
allow
him
to
use
the
boysa
restrooms.
The
explaining
district
that
regulations,
court
the
which
dismissed
school
permit
G.G.as
complied
schools
with
to
Title
Title
provide
IX
claim,
IX
and
separate
its
living
facilities, restrooms, locker rooms, and shower facilities aon
the basis of sex,a so long as the facilities are acomparable.a
20 U.S.C. ASS 1686; 34 C.F.R. ASSASS 106.32(b), 106.33.
Strikingly, the majority now reverses the district courtas
ruling, without any supporting case law, and concludes that when
Title
IX
and
its
regulations
provide
for
separate
living
facilities, restrooms, locker rooms, and shower facilities on
the basis of sex, the statuteas and regulationsa use of the term
asexa
means
a
personas
gender
identity,
biological status as male or female.
the
majority
relies
entirely
on
a
not
the
personas
To accomplish its goal,
2015
letter
sent
by
the
Department of Educationas Office for Civil Rights to G.G., in
which the Office for Civil Rights stated, aWhen a school elects
to separate or treat students differently on the basis of sex
[when
providing
housing,
athletic
restrooms,
teams,
locker
and
rooms,
single-sex
shower
classes],
facilities,
a
school
generally must treat transgender students consistent with their
46
Appeal: 15-2056
gender
Doc: 74
Filed: 04/19/2016
identity.a
(Emphasis
Pg: 47 of 69
added).
Accepting
that
new
definition of the statutory term asex,a the majorityas opinion,
for the first time ever, holds that a public high school may not
provide
separate
restrooms
biological sex.
and
locker
rooms
on
the
basis
of
Rather, it must now allow a biological male
student who identifies as female to use the girlsa restrooms and
locker
rooms
and,
likewise,
must
allow
a
biological
female
student who identifies as male to use the boysa restrooms and
locker
rooms.
This
holding
completely
tramples
on
all
universally accepted protections of privacy and safety that are
based on the anatomical differences between the sexes.
And,
unwittingly, it also tramples on the very concerns expressed by
G.G., who said that he should not be forced to go to the girlsa
restrooms
because
of
the
asevere
psychological
distressa
it
would inflict on him and because female students had areacted
negativelya
to
his
presence
in
girlsa
restrooms.
Surely
biological males who identify as females would encounter similar
reactions in the girlsa restroom, just as students physically
exposed
likely
to
to
students
experience
of
the
opposite
psychological
biological
distress.
sex
As
would
a
be
result,
schools would no longer be able to protect physiological privacy
as between students of the opposite biological sex.
This unprecedented holding overrules custom, culture, and
the
very
demands
inherent
in
human
47
nature
for
privacy
and
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safety, which the separation of such facilities is designed to
protect.
More
language
of
particularly,
Title
IX
and
it
its
also
misconstrues
regulations.
And
the
clear
finally,
it
reaches an unworkable and illogical result.
The recent Office for Civil Rights letter, moreover, which
is not law but which is the only authority on which the majority
relies,
states
more
than
the
majority
acknowledges.
In
the
sentence following the sentence on which the majority relies,
the
letter
schools
states
are
that,
encouraged
to
ato
accommodate
offer
the
transgender
use
of
students,
gender-neutral,
individual-user facilities to any student who does not want to
use shared sex-segregated facilities [as permitted by Title IXas
regulations].a
This appears to approve the course that G.G.as
school followed when it created unisex restrooms in addition to
the boysa and girlsa restrooms it already had.
Title
ambiguous.
concerns,
IX
and
its
implementing
regulations
are
not
In recognition of physiological privacy and safety
they
allow
schools
to
provide
aseparate
living
facilities for the different sexes,a 20 U.S.C. ASS 1686, provided
that
the
C.F.R.
ASS
facilities
are
aproportionatea
106.32(b),
and
to
provide
and
acomparable,a
aseparate
toilet,
34
locker
room, and shower facilities on the basis of sex,a again provided
that
the
facilities
are
acomparable,a
34
C.F.R.
ASS 106.33.
Because the schoolas policy that G.G. challenges in this action
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comports with Title IX and its regulations, I would affirm the
district courtas dismissal of G.G.as Title IX claim.
I
The relevant facts are not in dispute.
G.G. is a 16 year-
old who attends Gloucester High School in Gloucester County,
Virginia.
He is biologically female, but adid not feel like a
girla from an early age.
Still, he enrolled at Gloucester High
School for his freshman year as a female.
During his freshman year, however, G.G. told his parents
that
he
considered
thereafter,
at
psychologist,
himself
his
who
to
request,
diagnosed
be
he
him
transgender,
began
with
and
therapy
gender
shortly
with
a
dysphoria,
a
condition of distress brought about by the incongruence of oneas
biological sex and gender identity.
In August 2014, before beginning his sophomore year, G.G.
and his mother met with the principal and guidance counselor at
Gloucester
High
treatment,
to
accommodated
School
to
socially
all
of
his
discuss
transition
requests.
his
at
need,
as
school.
Officials
part
of
his
The
school
changed
school
records to reflect G.G.as new male name; the guidance counselor
supported G.G.as sending an email to teachers explaining that he
was to be addressed using his new name and to be referred to
using male pronouns; G.G. was permitted to fulfill his physical
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education
Filed: 04/19/2016
requirement
through
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a
home-bound
program,
as
he
preferred not to use the schoolas locker rooms; and the school
allowed G.G. to use a restroom in the nurseas office abecause
[he]
was
unsure
transition.a
G.G.
environment.a
staff
at
how
other
was
students
grateful
for
would
the
react
schoolas
to
[his]
awelcoming
As he stated, ano teachers, administrators, or
Gloucester
High
School
expressed
any
resistance
to
calling [him] by [his] legal name or referring to [him] using
male pronouns.a
And he was apleased to discover that [his]
teachers and the vast majority of [his] peers respected the fact
that [he is] a boy.a
As
the
school
year
began,
however,
G.G.
found
it
astigmatizinga to continue using the nurseas restroom, and he
requested
to
use
the
boysa
accommodated this request.
Board
began
receiving
restrooms.
The
principal
also
But the very next day, the School
anumerous
complaints
from
students about [G.G.as] use of the boysa restrooms.a
Board thus faced a dilemma.
parents
and
The School
It recognized G.G.as feelings, as
he expressed them, that a[u]sing the girlsa restroom[s] [was]
not possiblea because of the asevere psychological distressa it
would inflict on him and because female students had previously
areacted negativelya to his presence in the girlsa restrooms.
It now also had to recognize that boys had similar feelings
caused
by
G.G.as
use
of
the
boysa
50
restrooms,
although
G.G.
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that
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he
continued
using
Pg: 51 of 69
the
boysa
restrooms
for
some
seven weeks without personally receiving complaints from fellow
students.
The Gloucester County School Board considered the problem
and, after two public meetings, adopted a compromise policy, as
follows:
Whereas
the
GCPS
recognizes
that
question their gender identities, and
some
Whereas the GCPS encourages such students
support,
advice,
and
guidance
from
professionals and other trusted adults, and
Whereas the GCPS seeks to provide
environment for all students and
privacy of all students, therefore
students
to seek
parents,
a safe learning
to protect the
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.
Gloucester
created
High
three
School
promptly
single-stall
unisex
implemented
restrooms
the
for
policy
use
by
and
all
students, regardless of their biological sex or gender identity.
In December 2014, G.G. sought an opinion letter about his
situation from the U.S. Department of Educationas Office for
Civil Rights, and on January 15, 2015, the Office responded,
stating, as relevant here:
The Departmentas Title IX regulations permit schools
to provide sex-segregated restrooms, locker rooms,
shower
facilities,
housing,
athletic
teams,
and
single-sex classes under certain circumstances.
When
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a school elects to separate or treat students
differently on the basis of sex in those situations, a
school generally must treat transgender students
consistent with their gender identity.
[The Office
for Civil Rights] also encourages schools to offer the
use of gender-neutral, individual-user facilities to
any student who does not want to use shared sexsegregated facilities.
G.G. commenced this action in June 2015, alleging that the
Gloucester County School Boardas policy was discriminatory, in
violation of the U.S. Constitutionas Equal Protection Clause and
Title IX of the Education Amendments of 1972, 20 U.S.C. ASS 1681
et seq.
He sought declaratory relief, injunctive relief, and
damages.
With his complaint, G.G. also filed a motion for a
preliminary
injunction
arequiring
the
School
Board
to
allow
[him] to use the boysa restrooms at school.a
The district court dismissed G.G.as Title IX claim because
Title IXas implementing regulations permit schools to provide
separate restrooms aon the basis of sex.a
The court also denied
G.G.as motion for a preliminary injunction.
As to the Equal
Protection claim, the court has not yet ruled on whether G.G.
failed to state a claim, but, at the hearing on the motion for a
preliminary
injunction,
it
indicated
that
it
awill
hear
evidencea and aget a date seta for trial to better assess the
claim.
From the district courtas order denying G.G.as motion for a
preliminary injunction, G.G. filed this appeal, in which he also
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challenges the district courtas Title IX ruling as inextricably
intertwined with the district courtas denial of the motion for a
preliminary injunction.
II
G.G.
female
recognizes
atypicallya
likewise,
that
that
persons
identify
persons
atypicallya
identify
biologically
female
but
are
born
psychologically
who
as
who
are
male.
identifies
himself as a transgender male.
born
as
female,
and
biologically
Because
as
biologically
G.G.
male,
he
male
was
born
characterizes
He contends that because he is
transgender, the School Board singled him out for adifferent and
unequal treatment,a adiscriminat[ing] against him based on sex
[by denying him use of the boysa restrooms], in violation of
Title
IX.a
He
argues,
adiscrimination
against
transgender
people is necessarily discrimination based on sex because it is
impossible
to
treat
people
differently
based
on
their
transgender status without taking their sex into account.a
He
concludes that the School Boardas policy addressing restrooms
and locker rooms thus illegally fails to include transgender
persons on the basis of their gender identity.
In particular,
he concludes that he is aprevent[ed] . . . from using the same
restrooms as other students and relegat[ed] . . . to separate,
single-stall facilities.a
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As noted, the School Boardas policy designates the use of
restrooms and locker rooms based on the studentas biological sex
-- biological females are assigned to the girlsa restrooms and
unisex restrooms; biological males are assigned to the boysa
restrooms and unisex restrooms.
G.G. is thus assigned to the
girlsa restrooms and the unisex restrooms, but is denied the use
of
the
boysa
restrooms.
He
asserts,
however,
that
because
neither he nor the girls would accept his use of the girlsa
restroom,
he
is
relegated
to
the
unisex
restrooms,
which
is
stigmatizing.
The School Board contends that it is treating all students
the same way, as it explains:
The School Boardas policy does not discriminate
against any class of students.
Instead, the policy
was developed to treat all students and situations the
same.
To respect the safety and privacy of all
students, the School Board has had a long-standing
practice of limiting the use of restroom and locker
room facilities to the corresponding biological sex of
the students.
The School Board also provides three
single-stall
bathrooms
for
any
student
to
use
regardless of his or her biological sex.
Under the
School Boardas restroom policy, G.G. is being treated
like every other student in the Gloucester Schools.
All students have two choices. Every student can use
a restroom associated with their anatomical sex,
whether they are boys or girls.
If students choose
not to use the restroom associated with their
anatomical sex, the students can use a private,
single-stall restroom. No student is permitted to use
the restroom of the opposite sex.
As a result, all
students, including female to male transgender and
male to female transgender students, are treated the
same.
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While G.G. has pending a claim under the Equal Protection
Clause (on which the district court has not yet ruled), only his
preliminary injunction challenge and Title IX claim are before
us at this time.
Title IX provides:
No person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under
any education program or activity receiving Federal
financial assistance . . . .
20
U.S.C.
ASS
1681(a)
(emphasis
added).
The
Act,
however,
provides, aNotwithstanding anything to the contrary contained in
this chapter, nothing contained herein shall be construed to
prohibit any educational institution receiving funds under this
Act,
from
maintaining
different sexes.a
C.F.R.
housing
ASS
the
living
facilities
for
the
Id. ASS 1686 (emphasis added); see also 34
106.32(b)
on
separate
(permitting
basis
of
sexa
schools
as
long
to
as
provide
the
aproportionatea and acomparablea (emphasis added)).
aseparate
housing
is
Similarly,
implementing Regulation 106.33 provides for particular separate
facilities, as follows:
A recipient may provide separate toilet, locker room,
and shower facilities on the basis of sex, but such
facilities provided for students of one sex shall be
comparable to such facilities provided for students of
the other sex.
34 C.F.R. ASS 106.33 (emphasis added).
Thus, although Title IX
and its regulations provide generally that a school receiving
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federal funds may not discriminate on the basis of sex, they
also
specify
providing,
on
that
the
a
school
basis
of
does
sex,
not
violate
separate
living
the
Act
by
facilities,
restrooms, locker rooms, and shower facilities.
While G.G. only challenges the definition and application
of the term asexa with respect to separate restrooms, acceptance
of his argument would necessarily change the definition of asexa
for
purposes
of
assigning
separate
rooms, and shower facilities as well.
living
facilities,
locker
All are based on asex,a a
term that must be construed uniformly throughout Title IX and
its implementing regulations.
See Sullivan v. Stroop, 496 U.S.
478, 484 (1990) (a[T]he normal rule of statutory construction
[is] that identical words used in different parts of the same
act are intended to have the same meaninga (internal quotation
marks and citations omitted)); In re Total Realty Mgmt., LLC,
706 F.3d 245, 251 (4th Cir. 2013) (aCanons of construction . . .
require that, to the extent possible, identical terms or phrases
used in different parts of the same statute be interpreted as
having
the
same
meaning. This
presumption
of
consistent
usage . . . ensure[s] that the statutory scheme is coherent and
consistenta (alterations in original) (internal quotation marks
and citations omitted)); see also 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
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implements, any interpretation of a regulation naturally must
accord
with
the
Constitutional
statute
as
Structure
wella
and
(quoting
Judicial
John
F.
Deference
Manning,
to
Agency
Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 627 n.78
(1996))).
Across
societies
commonplace
and
and
throughout
universally
history,
accepted
to
it
has
separate
been
public
restrooms, locker rooms, and shower facilities on the basis of
biological sex in order to address privacy and safety concerns
arising
from
females.
the
biological
differences
between
males
and
An individual has a legitimate and important interest
in bodily privacy such that his or her nude or partially nude
body,
genitalia,
and
other
private
parts
persons of the opposite biological sex.
consistently
recognized
that
the
need
are
not
Luzerne
Cnty.,
(recognizing
that
660
an
F.3d
169,
individual
for
176-77
has
to
Indeed, courts have
such
inherent in the nature and dignity of humankind.
v.
exposed
aa
privacy
is
See, e.g., Doe
(3d
Cir.
2011)
constitutionally
protected privacy interest in his or her partially clothed bodya
and
that
this
areasonable
expectation
of
privacya
exists
aparticularly while in the presence of members of the opposite
sexa); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 494 (6th
Cir. 2008) (explaining that athe constitutional right to privacy
. . . includes the right to shield oneas body from exposure to
57
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viewing
by
Filed: 04/19/2016
the
opposite
Pg: 58 of 69
sexa);
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);
Sepulveda
v.
Ramirez,
967
F.2d
1413,
1416
(9th
Cir.
1992)
(explaining that a[t]he right to bodily privacy is fundamentala
and
that
acommon
sense,
decency,
and
[state]
regulationsa
require recognizing it in a paroleeas right not to be observed
by
an
officer
sample);
Lee
of
v.
the
Downs,
opposite
641
sex
F.2d
while
1117,
producing
1119
(4th
a
urine
Cir.
1989)
(recognizing that, even though inmates in prison asurrender many
rights of privacy,a their aspecial sense of privacy in their
genitalsa
areasonably
should
not
necessarya
be
and
violated
through
explaining
that
exposure
the
unless
ainvoluntary
exposure of [genitals] in the presence of people of the other
sex may be especially demeaning and humiliatinga).
Moreover, we have explained that separating restrooms based
on
aacknowledged
differencesa
between
the
biological
serves to protect this important privacy interest.
sexes
See Faulkner
v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (noting asocietyas
undisputed approval of separate public rest rooms for men and
women based on privacy concernsa).
Indeed, the Supreme Court
recognized, when ordering an all-male Virginia college to admit
female students, that such a remedy awould undoubtedly require
alterations necessary to afford members of each sex privacy from
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the other sex.a
Pg: 59 of 69
United States v. Virginia, 518 U.S. 515, 550
n.19 (1996).
Such privacy was and remains necessary because of
the
a[p]hysical
inherent
differences
between
men
and
women,a
which, as the Supreme Court explained, are aenduringa and render
athe two sexes . . . not fungible,a id. at 533 (distinguishing
sex from race and national origin), not because of aoneas sense
of oneself as belonging to a particular gender,a as G.G. and the
government as amicus contend.
Thus, Title IXas allowance for the separation, based on
sex, of living facilities, restrooms, locker rooms, and shower
facilities rests on the universally accepted concern for bodily
privacy that is founded on the biological differences between
the
sexes.
concerns
This
that
privacy
could
arise
concern
from
is
also
sexual
linked
responses
to
safety
prompted
by
studentsa exposure to the private body parts of students of the
other biological sex.
reasons
for
its
Indeed, the School Board cited these very
adoption
of
the
policy,
explaining
that
it
separates restrooms and locker rooms to promote the privacy and
safety of minor children, pursuant to its aresponsibility to its
students
to
ensure
their
privacy
while
engaging
in
personal
bathroom functions, disrobing, dressing, and showering outside
of the presence of members of the opposite sex.
school
has
this
responsibility]
59
is
particularly
[That the
true
in
an
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environment
Filed: 04/19/2016
where
children
Pg: 60 of 69
are
still
developing,
both
emotionally and physically.a
The need to protect privacy and safety between the sexes
based on physical exposure would not be present in the same
quality and degree if the term asexa were to encompass only a
personas
gender
identity.
Indeed,
would function nonsensically.
separation
on
this
basis
A biological male identifying as
female could hardly live in a girlsa dorm or shower in a girlsa
shower
without
invading
physiological
privacy
needs,
and
the
same would hold true for a biological female identifying as male
in a boysa dorm or shower.
is
not
challenging
the
G.G.as answer, of course, is that he
separation,
on
the
basis
of
sex,
of
living facilities, locker rooms, and shower facilities, but only
of restrooms, where the risks to privacy and safety are far
reduced.
sways
the
This effort to limit the scope of the issue apparently
majority,
as
it
cabins
its
entire
arestroom access by transgender individuals.a
discussion
Ante at 26.
to
But
this effort to restrict the effect of G.G.as argument hardly
matters when the term asexa would have to be applied uniformly
throughout
the
statute
and
regulations,
indeed, as agreed to by the majority.
The
realities
underpinning
as
noted
above
and,
See ante at 26.
Title
IXas
recognition
of
separate living facilities, restrooms, locker rooms, and shower
facilities are reflected in the plain language of the statute
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and regulations, which is not ambiguous.
The text of Title IX
and its regulations allowing for separation of each facility aon
the
basis
of
sexa
employs
the
term
understood at the time of enactment.
asexa
as
was
generally
See Thomas Jefferson Univ.
v. Shalala, 512 U.S. 504, 512 (1994) (explaining that courts
should
not
defer
regulation
if
regulationas
an
plain
to
an
agencyas
aalternative
language
interpretation
reading
or
by
its
own
compelled
by
the
indications
of
the
is
other
of
Secretaryas intent at the time of the regulationas promulgationa
(emphasis
added)
(internal
quotation
marks
and
citation
omitted)); see also Auer v. Robbins, 519 U.S. 452, 461 (1997)
(discussing dictionary definitions of the regulationas acritical
phrasea to help determine whether the agencyas interpretation
was
aplainly
erroneous
or
inconsistent
with
the
(internal quotation marks and citation omitted)).
regulationa
Title IX was
enacted in 1972 and the regulations were promulgated in 1975 and
readopted in 1980, and during that time period, virtually every
dictionary
definition
distinctions
between
of
asexa
males
referred
and
to
females,
respect to their reproductive functions.
the
physiological
particularly
with
See, e.g., The Random
House College Dictionary 1206 (rev. ed. 1980) (aeither the male
or female division of a species, esp. as differentiated with
reference
to
the
reproductive
functionsa);
Websteras
New
Collegiate Dictionary 1054 (1979) (athe sum of the structural,
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functional, and behavioral characteristics of living beings that
subserve
reproduction
distinguish
males
by
and
two
interacting
femalesa);
American
parents
Heritage
and
that
Dictionary
1187 (1976) (aThe property or quality by which organisms are
classified
according
to
their
reproductive
functionsa);
Websteras Third New International Dictionary 2081 (1971) (athe
sum
of
the
morphological,
peculiarities
of
reproduction
with
living
its
physiological,
beings
that
concomitant
and
behavioral
subserves
biparental
genetic
segregation
and
recombination which underlie most evolutionary change . . .a);
The American College Dictionary 1109 (1970) (athe sum of the
anatomical and physiological differences with reference to which
the male and the female are distinguished . . . a).
Indeed,
although the contemporaneous meaning controls our analysis, it
is notable that, even today, the term asexa continues to be
defined based on the physiological distinctions between males
and females.
1331
(5th
ed.
See, e.g., Websteras New World College Dictionary
2014)
(aeither
of
the
two
divisions,
male
or
female, into which persons, animals, or plants are divided, with
reference
Heritage
to
their
Dictionary
reproductive
1605
(5th
ed.
functionsa);
2011)
The
(aEither
of
American
the
two
divisions, designated female and male, by which most organisms
are classified on the basis of their reproductive organs and
functionsa); Merriam-Websteras Collegiate Dictionary 1140 (11th
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ed. 2011) (aeither of the two major forms of individuals that
occur in many species and that are distinguished respectively as
female or male esp. on the basis of their reproductive organs
and
structuresa).
reference
attempts
to
to
Any
new
physiological
introduce,
definition
differences,
of
is
simply
sex
an
as
that
the
excludes
majority
unsupported
reach
now
to
rationalize a desired outcome.
Thus, when the School Board assigned restrooms and locker
rooms on the basis of biological sex, it was clearly complying
precisely
with
the
unambiguous
language
of
Title
IX
and
its
no
case
to
regulations.
Despite
support
the
the
fact
definition
that
of
the
asexa
majority
as
offers
advanced
by
G.G.
and
supported by the government as amicus, the majority nonetheless
accepts that the meaning of the term asexa in Title IX and its
regulations refers to a personas agender identitya simply to
accommodate G.G.as wish to use the boysa restrooms.
But, it is
not immediately apparent whether G.G., the government, and the
majority contend that the term asexa as used in Title IX and its
regulations
refers
(1)
to
both
biological
sex
and
gender
identity; (2) to either biological sex or gender identity; or
(3) to only agender identity.a
In his brief, G.G. seems to take
the position that the term asexa at least includes a reference
to gender identity.
This is the position taken in his complaint
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when he alleges, aUnder Title IX, discrimination aon the basis
of
sexa
encompasses
both
discrimination
based
on
biological
differences between men and women and discrimination based on
gender nonconformity.a
The government seems to be taking the
same position, contending that the term asexa aencompasses both
sex -- that is, the biological differences between men and women
--
and
gender
[identity].a
(Emphasis
in
original).
The
majority, however, seems to suggest that the term asexa refers
only to gender identity, as it relies solely on the statement in
the Office for Civil Rightsa letter of January 7, 2015, which
said,
aWhen
a
school
elects
to
separate
or
treat
students
differently on the basis of sex [for the purpose of providing
restrooms,
locker
rooms,
and
other
facilities],
a
school
generally must treat transgender students consistent with their
gender identity.a
(Emphasis added).
But, regardless of where
G.G., the government, and the majority purport to stand on this
question, the clear effect of their new definition of sex not
only tramples the relevant statutory and regulatory language and
disregards the privacy concerns animating that text, it is also
illogical and unworkable.
If the term asexa as used in the statute and regulations
refers to both biological sex and gender identity, then, while
the School Boardas policy is in compliance with respect to most
students,
whose
biological
sex
64
aligns
with
their
gender
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Pg: 65 of 69
identity, for students whose biological sex and gender identity
do not align, no restroom or locker room separation could ever
be
accomplished
transgender
consistent
studentas
use
with
of
a
the
boysa
regulation
or
girlsa
because
a
restroom
or
locker room could not satisfy the conjunctive criteria.
Given
that G.G. and the government do not challenge schoolsa ability
to
separate
students,
restrooms
surely
they
and
locker
cannot
be
rooms
for
advocating
male
an
that places schools in an impossible position.
and
female
interpretation
Moreover, such
an interpretation would deny G.G. the right to use either the
boysa
or
girlsa
restrooms,
a
position
that
G.G.
does
not
advocate.
If the position of G.G., the government, and the majority
is that the term asexa means either biological sex or gender
identity,
then
the
School
Boardas
policy
is
in
compliance
because it segregates the facilities on the basis of biological
sex, a satisfactory component of the disjunctive.
Therefore, when asserting that G.G. must be allowed to use
the
boysa
restrooms
and
locker
rooms
as
consistent
with
his
gender identity, G.G., the government, and the majority must be
arguing that asexa as used in Title IX and its regulations means
only gender identity.
But this construction would, in the end,
mean that a school could never meaningfully provide separate
restrooms and locker rooms on the basis of sex.
65
Biological
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males
and
Filed: 04/19/2016
females
whose
Pg: 66 of 69
gender
identity
aligned
would
be
required to use the same restrooms and locker rooms as persons
of the opposite biological sex whose gender identity did not
align.
With such mixed use of separate facilities, no purpose
would be gained by designating a separate use aon the basis of
sex,a and privacy concerns would be left unaddressed.
Moreover, enforcement of any separation would be virtually
impossible.
Basing restroom access on gender identity would
require schools to assume gender identity based on appearances,
social expectations, or explicit declarations of identity, which
the
government
concedes
would
render
Title
IX
and
its
regulations nonsensical:
Certainly a school that has created separate restrooms
for boys and girls could not decide that only students
who dress, speak, and act sufficiently masculine count
as boys entitled to use the boysa restroom, or that
only students who wear dresses, have long hair, and
act sufficiently feminine may use the girlsa restroom.
Yet, by interpreting Title IX and the regulations as arequiring
schools
to
identity,a
treat
and
by
students
disallowing
consistent
schools
with
from
their
treating
gender
students
based on their biological sex, the governmentas position would
have precisely the effect the government finds to be at odds
with common sense.
Finally, in arguing that he should not be assigned to the
girlsa restrooms, G.G. states that ait makes no sense to place a
66
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transgender boy in the girlsa restroom in the name of protecting
student privacya because agirls objected to his presence in the
girlsa restrooms because they perceived him as male.a
But the
same argument applies to his use of the boysa restrooms, where
boys felt uncomfortable because they perceived him as female.
In any scenario based on gender identity, moreover, there would
be no accommodation for the recognized need for physiological
privacy.
In
short,
it
is
impossible
to
determine
how
G.G.,
the
government, and the majority would apply the provisions of Title
IX
and
the
implementing
regulations
that
allow
for
the
separation of living facilities, restrooms, locker rooms, and
shower facilities aon the basis of sexa if asexa means gender
identity.
The Office for Civil Rights letter, on which the majority
exclusively relies, hardly provides an answer.
it
states
that
schools
agenerally
must
In one sentence
treat
transgender
students consistent with their gender identity,a whatever that
means,
and
in
the
next
provide
agender-neutral,
student
who
facilities.a
does
not
sentence,
it
encourages
individual-user
want
to
use
schools
facilities
shared
to
to
any
sex-segregated
While the first sentence might be impossible to
enforce without destroying all privacy-serving separation, the
second
sentence
encourages
schools,
67
such
as
Gloucester
High
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School,
to
Filed: 04/19/2016
provide
unisex
Pg: 68 of 69
single-stall
restrooms
for
any
students who are uncomfortable with sex-separated facilities, as
the school in fact provided.
As it stands, Title IX and its implementing regulations
authorize
schools
facilities,
to
separate,
restrooms,
locker
on
the
rooms,
basis
and
of
shower
sex,
living
facilities,
which must allow for separation on the basis of biological sex.
Gloucester High School thus clearly complied with the statute
and
regulations.
But,
as
it
did
so,
it
was
nonetheless
sensitive to G.G.as gender transition, accommodating virtually
every wish that he had.
Indeed, he initially requested and was
granted the use of the nurseas restroom.
And, after both girls
and boys objected to his using the girlsa and boysa restrooms,
the school provided individual unisex restrooms, as encouraged
by the letter from the Office for Civil Rights.
Thus, while
Gloucester High School made a good-faith effort to accommodate
G.G. and help him in his transition, balancing its concern for
him with its responsibilities to all students, it still acted
legally in maintaining a policy that provided all students with
physiological privacy and safety in restrooms and locker rooms.
Because the Gloucester County School Board did not violate
Title
IX
and
Regulation
106.33
in
adopting
the
policy
for
separate restrooms and locker rooms, I would affirm the district
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courtas decision dismissing G.G.as Title IX claim and therefore
dissent.
I also dissent from the majorityas decision to vacate the
district
courtas
injunction.
a[a]
As
denial
the
preliminary
of
Supreme
injunction
G.G.as
Court
is
motion
has
an
for
a
preliminary
consistently
extraordinary
explained,
remedya
that
amay only be awarded upon a clear showing that the plaintiff is
entitled
to
such
relief,a
and
aa[i]n
exercising
their
sound
discretion, courts of equity should pay particular regard for
the public consequences in employing the extraordinary remedy.aa
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22-24 (2008)
(quoting
Weinberger
(1982)).
fairly
v.
Romero-Barcelo,
456
U.S.
305,
312
Given the facts that the district court fully and
summarized
in
its
opinion,
including
the
hardships
expressed both by G.G. and by other students, I cannot conclude
that we can aform a definite and firm conviction that the court
below committed a clear error of judgment,a Morris v. Wachovia
Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006) (quotation marks
and
citation
expressing
as
omitted),
binding
particularly
law
an
when
evidentiary
we
are
standard
only
now
that
the
majority asserts the district court violated.
As
noted,
however,
I
concur
opinion.
69
in
Part
IV
of
the
courtas