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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

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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

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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.

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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

Pg: 7 of 69

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.

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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.

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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,

Doc: 74

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

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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

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53.

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For

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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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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

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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

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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

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gender

Doc: 74

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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

49

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education

Filed: 04/19/2016

requirement

through

Pg: 50 of 69

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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stated

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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

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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

62

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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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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

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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

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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