Case 4:15-cv-00054-RGD-TEM Document 8 Filed 06/11/15 Page 1 of 16 PageID# 107

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Newport News Division

G.G., by his next friend and mother, DEIRDRE GRIMM,
Plaintiffs,
v.
GLOUCESTER COUNTY SCHOOL BOARD,
Defendant.

) ) ) ) ) Civil No. ___4_:1_5_c_v_5_4_________ ) ) ) ) ) )

COMPLAINT

INTRODUCTION

1. G.G. is a 16-year-old boy who recently completed his sophomore year at

Gloucester High School. He is a boy who is transgender, which means that he was designated

female at birth but he has a male gender identity. He has been diagnosed by medical

professionals as having Gender Dysphoria, which is a serious medical condition characterized by

clinically significant distress caused by an incongruence between a person’s gender identity and

the person’s assigned sex at birth.

2. Since the end of his freshman year, G.G. has undergone treatment for Gender

Dysphoria, in accordance with the widely recognized standards of care for that condition. A

critical element of that treatment is a “social transition” in which G.G. lives in accordance with

his gender identity as a boy in all aspects of his life. As part of that process, G.G. has legally

changed his name to “G.G.” (a traditionally male name).

3. Shortly before his sophomore year, G.G. and his mother informed school officials

that G.G. is a transgender boy. School officials immediately expressed support for G.G. and

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took steps to ensure that he would be treated as a boy by teachers and staff. Later in the school year, at G.G.’s request, and consistent with recognized standards of care for transgender students, school officials allowed him to use the boys’ restroom. He did so without incident for approximately seven weeks.
4. On December 9, 2014, the Gloucester County School Board, responding to pressure from some parents – and other Gloucester County residents without school-age children – enacted a policy that overruled the decision of school administrators and categorically barred transgender students from using restrooms that correspond with their gender identity. The policy declared that access to the boys’ and girls’ restrooms would be limited to students of “the corresponding biological genders,” and also declared that students who are unable to use such restrooms because of “gender identity issues” would be relegated to “an alternative appropriate private facility.”
5. As a result of the School Board’s transgender restroom policy, G.G. is currently the only student in his school who must use separate private restrooms. The distinction stigmatizes G.G. and marks him as different from the other students; it isolates G.G. from his peers; and it exposes him to serious psychological harm. To avoid the stigma of having to use separate restrooms, G.G. has tried to avoid using any restroom during the school day.
6. The School Board’s transgender restroom policy discriminates against G.G. on the basis of gender and sex in violation of the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972.G.G. seeks redress from this Court.
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JURISDICTION AND VENUE 7. This action arises under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., the Constitution of the United States, and 42 U.S.C. § 1983.This Court has jurisdiction pursuant to Article III of the United States Constitution and 28 U.S.C. § 1331.Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 8. Venue lies with this Court pursuant to 28 U.S.C. §§ 1391(b)(1)-(2), because the defendant resides in this District and a substantial part of the events or omissions giving rise to the claim occurred in this District.
PARTIES 9. Plaintiff G.G. is sixteen years old and is a student at Gloucester High School (“GHS”), a public high school in Gloucester County. 10. Deirdre Grimm is G.G.’s mother and sues as his next friend. 11. The Gloucester County School Board (the “School Board”) is an elected body responsible for the operation of the Gloucester County Public Schools (“GCPS”), including the promulgation of policies. At all times relevant, the School Board has acted and continues to act under color of state law.
FACTUAL ALLEGATIONS 12. G.G. was born in Gloucester County on May 4, 1999, and has lived in Gloucester County his entire life. G.G. is a typical teenager who is articulate and intelligent, reads broadly, loves his dog and cats, and enjoys hanging out with his friends. 13. Photographs of G.G. taken over the past year are attached as Exhibit A. 14. G.G. is also a transgender boy. That is, his assigned sex at birth was female, but that designation does not conform to his male gender identity. G.G. has been diagnosed with
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Gender Dysphoria, the medical diagnosis for individuals whose gender identity – their innate sense of being male or female – differs from the sex they were assigned at birth, which causes distress.
15. Gender Dysphoria is a serious medical condition that if left untreated can lead to clinical distress, debilitating depression, and even suicidal thoughts and acts.
16. At a very young age, G.G. was aware that he did not feel like a girl. 17. G.G. has always felt uncomfortable wearing “girl” clothes, and by the age of six, he adamantly refused to do so. He soon insisted upon buying all of his clothes in the boys’ department. 18. At approximately age twelve, G.G. acknowledged his male gender identity to himself. He gradually began disclosing this fact to close friends. Since the reactions of his friends were generally positive and supportive, he disclosed his gender identity to more friends. 19. In approximately ninth grade, most of G.G.’s friends were aware of his gender identity, and G.G. presented himself as a boy when he socialized with them away from home and school. 20. During his freshman year, G.G. experienced severe depression and anxiety related to his untreated Gender Dysphoria and the stress of concealing his gender identity from his family. For this reason, he did not attend school during the spring semester of his freshman year. Instead, he took classes through a home-bound program that follows the public high school curriculum. 21. In April 2014, G.G. told his parents that he is transgender. At his request, he began to see a psychologist who had experience with working with transgender patients. The psychologist diagnosed him with Gender Dysphoria.
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22. Mental health and medical professionals worldwide recognize and follow the evidence-based standards of care for the treatment of Gender Dysphoria developed by the World Professional Association for Transgender Health (WPATH).After diagnosing G.G. with Gender Dysphoria, his psychologist developed a course of treatment consistent with those standards. The goal of treatment is to alleviate distress by helping a person live congruently with the person’s gender identity.
23. A critical component of the WPATH Standards of Care is a social transition to living full-time consistently with the individual’s gender identity. Accordingly, G.G.’s psychologist recommended that he immediately begin living in accordance with his gender identity as a boy in all respects. That included using a male name and pronouns and using boys’ restrooms. G.G.’s psychologist also provided him a “Treatment Documentation Letter” confirming that he was receiving treatment for Gender Dysphoria and that, as part of that treatment, he should be treated as a boy in all respects, including with respect to his use of the restroom.
24. For transgender adolescents, it is critical that the social transition involve full transition at school, including with respect to restrooms. Excluding a transgender boy from the restroom that corresponds to the student’s gender identity, or forcing the student to use a separate facility from other boys, communicates to the entire school community that he should not be recognized as a boy and undermines the social transition process.
25. Based on his psychologist’s recommendation, in July 2014, G.G. petitioned the Circuit Court of Gloucester County to change his legal name to G.G., and the court granted the petition. G.G. now uses that name for all purposes, and at his request, his friends and family
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refer to him using male pronouns. G.G. also uses the boys’ restrooms when out in public, e.g., at restaurants, libraries, shopping centers.
26. Also consistent with the WPATH standards of care, G.G.’s psychologist recommended that he see an endocrinologist to begin hormone treatment. G.G. has been receiving hormone treatment since December 2014.Among other therapeutic benefits, the hormone treatment has deepened G.G.’s voice, increased his growth of facial hair, and given him a more masculine appearance.
27. In August 2014, G.G. and his mother informed officials at Gloucester High School that G.G. is transgender and that he changed his name. The high school changed G.G.’s name in his official school records.
28. Before the beginning of the 2014-15 school year, G.G. and his mother met with Gloucester High School Principal T. Nathan Collins and guidance counselor Tiffany Durr to discuss G.G.’s treatment for Gender Dysphoria and the need for him to socially transition at school as part of his medical treatment. Mr. Collins and Ms. Durr both expressed support for G.G. and a willingness to ensure a welcoming environment for him at school. Ms. Durr and G.G. agreed that G.G. would send an email to teachers explaining that he was to be addressed using the name G.G. and to be referred to using male pronouns. To the best of G.G.’s knowledge, no teachers, administrators, or staff at Gloucester High School expressed any resistance to these instructions.
29. G.G. requested, and was permitted, to continue with the home-bound program only for his physical education requirement, while returning to school for the rest of his classes. For this reason, he has not and does not intend to use a locker room at school.
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30. G.G. initially agreed to use a separate restroom in the nurse’s office because he was unsure how other students would react to his transition.
31. When the 2014-15 school year began, G.G. was pleased to discover that his teachers and the vast majority of his peers respected the fact that he is a boy and treated him accordingly. G.G. quickly determined that it was not necessary for his safety to continue to use the nurse’s bathroom, and he found it stigmatizing to have to use a separate restroom. The nurse’s bathroom was also very inconvenient to G.G.’s classrooms, making it difficult to use the restroom between classes. For these reasons, G.G. asked Mr. Collins to be allowed to use the boys’ bathrooms.
32. On or about October 20, 2014, Mr. Collins agreed that G.G. could use the boys’ restrooms. For approximately the next seven weeks, G.G. used the boys’ restrooms without incident.
33. Nevertheless, some adults in the community were angered when they came to learn that a transgender student had been allowed to use the restroom corresponding to the student’s gender identity. Upon information and belief, those adults contacted members of the School Board to demand that the transgender student be barred from continuing to use the restroom at issue.
34. Shortly before the School Board’s meeting on November 11, 2014, Board member Carla B. Hook added an item to the agenda titled “Discussion of Use of Restrooms/Locker Room Facilities.” In advance of the meeting, Ms. Hook prepared to submit the following proposed resolution (hereinafter referred to as the “transgender restroom policy”):
Whereas the GCPS 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
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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. 35. Through emails and online message boards, news circulated among certain Gloucester County residents that they should attend the School Board meeting on November 11, 2014, and speak in favor of Ms. Hook’s proposed restroom policy. 36. Neither G.G. nor his parents were informed by the School Board or any other school officials that the School Board would be considering a policy that would bar G.G. from using the boys’ restroom. G.G. and his parents learned about the proposal for the first time on November 10 – the day before the School Board meeting was scheduled to take place – when they saw one of the messages posted by supporters of Ms. Hook’s proposed restroom policy. 37. Twenty-seven people spoke during the Citizens’ Comment Period of the School Board meeting, the majority of whom opposed the school’s decision to allow G.G. to use the boys’ restrooms. The commenters displayed many misperceptions about transgender people and imagined dire consequences from allowing G.G. to use the boys’ restrooms. Some speakers referred to G.G. as a “young lady.”Some speakers claimed that transgender students’ use of restrooms that match their gender identity would violate the privacy of other students and would lead to sexual assault in bathrooms. Another suggested that boys who are not transgender would come to school wearing a dress and demand to use the girls’ restroom for nefarious purposes. 38. G.G. and his parents also attended the meeting to speak against the policy. In doing so, G.G. was forced to identify himself to the entire community, including local press covering the meeting, as the transgender student whose restroom use was at issue. “All I want to
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do is be a normal child and use the restroom in peace,” G.G. said. “I did not ask to be this way, and it’s one of the most difficult things anyone can face,” he continued. “This could be your child . . . . I’m just a human. I’m just a boy.”
39. Later in the meeting, Board member Carla B. Hook moved to adopt her proposed transgender restroom policy. By a vote of 4-3, the School Board voted to defer a vote on the policy until its meeting on December 9, 2014.
40. Between November 11, 2014, and December 9, 2014, the School Board was informed by many legal sources that the proposed restroom policy conflicted with guidance of the Department of Education’s Office of Civil Rights (OCR) regarding Title IX and that adopting the policy would place the district’s Title IX funding at risk. According to OCR guidance, transgender students are protected under Title IX from discrimination based on gender identity or gender nonconformity, and schools must respect students’ gender identity for purposes of any sex-segregated programming. See U.S. Department of Education Office for Civil Rights, Questions & Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014); U.S. Department of Education Office for Civil Rights, Questions & Answers on Title IX and Sexual Violence (Apr. 29, 2014).
41. On December 3, 2014, the School Board issued a news release stating that regardless of the outcome of the upcoming meeting, the School Board intended to take measures to increase privacy in student bathrooms. According to the release:
One positive outcome of all the discussion is that the District is planning to increase the privacy options for all students using school restrooms . . . Plans include adding or expanding partitions between urinals in male restrooms, and adding privacy strips to the doors of stalls in all restrooms. The District also plans to designate single-stall, unisex restrooms, similar to what’s in many other public spaces, to give all students the option for even greater privacy.
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42. At the School Board’s December 9, 2014 meeting, approximately 37 people spoke during the Citizens’ Comment Period. The majority of speakers opposed G.G.’s use of the boys’ restrooms. Several speakers threatened to vote the School Board members out of office if they did not adopt the transgender restroom policy. Speakers again suggested that permitting G.G. to use the boys’ bathroom would violate the privacy of other students, notwithstanding the School Board’s announcement that bathrooms would be modified to allow more privacy. Some speakers said that allowing G.G. to use the boys’ bathroom would make the bathrooms “coed.” Speakers again referred to G.G. as a “girl” or “young lady.” One speaker called him a “freak” and compared him to a person who thinks he is a “dog” and wants to urinate on fire hydrants.
43. Following the Citizens’ Comment Period, the School Board voted 6-1 to pass the transgender restroom policy.
44. The experience of having the entire community discuss his physical anatomy and debate where he should use the restroom and has been profoundly disturbing for G.G.. He feels that he has been stripped of his privacy and turned into a public spectacle.
45. The day after the School Board adopted the transgender restroom policy, Mr. Collins informed G.G. that he would no longer be allowed to use the boys’ restrooms and that there would be disciplinary consequences if he tried to do so.
46. Using the girls’ restroom is not possible for G.G. Even before he began treatment for Gender Dysphoria, girls and women who encountered G.G. in female restrooms reacted negatively because they perceived G.G. to be a boy. For example, when G.G. was in eighth and ninth grade, girls would tell him “this is the girls’ room” and ask tell him to leave. G.G.’s appearance now is even more masculine. In addition to those practical obstacles, using the girls’
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restroom would cause severe psychological distress to G.G. and would be incompatible with his medically necessary treatment for Gender Dysphoria.
47. Since adopting the restroom policy, three unisex, single-stall restrooms have been installed at Gloucester High School. The school also raised the doors and walls around the bathroom stalls so that students cannot see into an adjoining stall. Additionally, the high school installed partitions between urinals in the boys’ bathrooms. As a result, a person making normal use of the restroom cannot see the genitals of any other person.
48. G.G. refuses to use the separate single-stall restrooms they make him feel even more stigmatized and isolated than when he used the restroom in the nurse’s office. 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 “different.” Other students do not appear to use the single-stall unisex restrooms. The entire school community knows that they were installed as restrooms for G.G., and any other transgender students, so they would not be in the same restroom as their peers.
49. Instead of using the separate restrooms, G.G. tries to avoid using the restrooms entirely while at school, and, if that is not possible, he uses the nurse’s restroom. As a result of trying to avoid using the restroom, G.G. has repeatedly developed painful urinary tract infections. He limits his beverage intake to try to reduce the discomfort and distraction caused by “holding it” as he tries to focus in class.
50. Because the powerful stigma attached to the requirement that he use separate restrooms, and because the exclusion from the boys’ restrooms undermines his social transition process, the transgender restroom policy inflicts severe and persistent emotional and social harms on G.G. Research indicates that transgender students are at greater risk than their peers of
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experiencing severe and long-term negative effects from being stigmatized by and isolated from their peers. The transgender restroom policy compounds that harm and imposes additional stigma on an already vulnerable group of students.
51. Randi Ettner Ph.D – a psychologist and nationally recognized expert in the treatment of Gender Dysphoria in children and adolescents – recently conducted an independent clinical assessment of G.G. and concluded that “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.”
52. By contrast, allowing G.G. to use the boys’ restroom would not harm any other student at Gloucester High School in any way. There is no indication that any student was harmed during the seven weeks that G.G. used the boys’ restrooms. The privacy modifications made to the restrooms address the already far-fetched concern that G.G. might see the genitals of another boy while using the restroom. Any boy who still feels uncomfortable with using the restroom at the same time as G.G. may avail himself of the recently installed single stall bathrooms. But the School Board may not place the burden solely on transgender students to use separate restroom facilities to address the alleged discomfort of others.
CLAIMS FOR RELIEF COUNT I
Fourteenth Amendment to the United States Constitution 53. Under the Equal Protection Clause of the Fourteenth Amendment, discrimination based on gender is presumptively unconstitutional and subject to heightened scrutiny. The Fourteenth Amendment’s protections from discrimination based on gender encompass both discrimination based on the biological differences between men and women and discrimination based on gender nonconformity.
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54. The School Board is the final policymaker for Gloucester County Public Schools. 55. By requiring G.G. – a transgender boy – to use separate restrooms because of his “gender identity issues,” the School Board, under color of state law, has treated and continues to treat G.G. differently from similarly situated students based on his gender. 56. By excluding G.G. – a transgender boy – from the boys’ restrooms because the School Board does not deem him to be “biologically” male, the School Board, under color of state law, has treated and continues to treat G.G. differently from similarly situated students based on his gender. 57. The School Board’s discrimination against G.G. based on his gender is not substantially related to any important government interest. 58. The School Board’s discrimination against G.G. based on his gender is not rationally related to any legitimate government interest. 59. The School Board’s discrimination against G.G. based on his gender denies him the equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution. 60. The School Board is liable for its violation of G.G.’s Fourteenth Amendment rights under 42 U.S.C. § 1983.
COUNT II Title IX of the Education Amendments of 1972
20 U.S.C. § 1681 et seq. 61. Title IX provides that “[n]o 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. § 1681(a).
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62. Under Title IX, discrimination “on the basis of sex” encompasses both discrimination based on biological differences between men and women and discrimination based on gender nonconformity.
63. Gloucester County Public Schools and Gloucester High School are education programs receiving Federal financial assistance.
64. By requiring G.G. – a transgender boy – to use separate restrooms because of his “gender identity issues,” the School Board has and continues to exclude G.G. from participation in, deny him the benefits of, and subject him to discrimination in educational programs and activities at Gloucester County Public Schools and Gloucester High School “on the basis of sex,” which violates G.G.’s rights under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.
65. By excluding G.G. – a transgender boy – from the boys’ restrooms because the School Board does not deem him to be “biologically” male, the School Board has and continues to exclude G.G. from participation in, deny him the benefits of, and subject him to discrimination in educational programs and activities at Gloucester County Public Schools and Gloucester High School “on the basis of sex,” which violates G.G.’s rights under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.
REQUEST FOR RELIEF For the foregoing reasons, the plaintiffs respectfully request that the Court grant the following relief: A. A declaration that the School Board’s transgender restroom policy violates G.G.’s rights under the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.;
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to use the boys’ restrooms at school; C. Damages in an amount determined by the Court; D. Plaintiffs’ reasonable costs and attorneys’ fees pursuant to 42 U.S.C. § 1988; and E. Such other relief as the Court deems just and proper.
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Dated: June 11, 2015 Respectfully submitted,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC.

/s/

.

Rebecca K. Glenberg (VSB No. 44099)

Gail Deady (VSB No. 82035)

701 E. Franklin Street, Suite 1412

Richmond, Virginia 23219

Phone: (804) 644-8080

Fax: (804) 649-2733

rglenberg@acluva.org

gdeady@acluva.org

*Pro hac vice motion to follow

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
Joshua A. Block* Leslie Cooper* 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jblock@aclu.org lcooper@aclu.org

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 Case 4:15-cv-00054-RGD-DEM Document 57 Filed 09/17/15 Page 1 of 26 PageID# 684

i
IN THE UNITED STATES DISTRICT COU *T
FOR THE EASTERN DISTRICT OF VIRGIN'!
NEWPORT NEWS DIVISION

FILED
SEP 1 7 20'5

G.G., by his next friend and mother,
DEIRDRE GRIMM,

CLLRK, US DISTRICT COURT NORFOLK. VA

Plaintiffs,
v.

CIVIL NO. 4:15cv54

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

MEMORANDUM OPINION
This matter is before the Court on Plaintiff G.G.'s challenge to a recent resolution (the "Resolution") passed by the Gloucester County School Board (the "School Board*') on December 9. 2014. This Resolution addresses the rcstroom and locker room policy for all students in Gloucester County Public Schools. Specifically. G.G. brings claims under both the Equal Protection Clause of the Fourteenth Amendment (the "Equal Protection Clause**) and Title IX of the F.ducation Amendments of 1972 ("Title IX"). seeking to contest the School Board's restroom policy under the Resolution.
On June 11, 2015, G.G. filed a Motion for Preliminary Injunction, ECF No. 11. and on July 7. 2015. the School Board filed a Motion to Dismiss. ECF No. 31. On July 27. 2015. the parties appeared before the Court and argued their respective positions as to both motions. ECF No. 47. At that hearing, the Court took both motions under advisement, from the bench, the Court GRANTED the Motion to Dismiss as to Count II, G.G.'s claim under Title IX. On September 4. 2015. the Court DENIED the Motion for Preliminary Injunction. ECF No. 53. This opinion memorializes the reasons for these orders.
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I.

FACTUAL AND PROCEDURAL HISTORY

The following summary is taken from the factual allegations contained in Plaintiffs

Complaint, which, for purposes of ruling on the Motion to Dismiss as to Count II, the Court

accepts as true. Nemet Chevrolet, Ltd. v. Consumeraffairs.com. Inc.. 591 F.3d 250. 253

(4th Cir. 2009).

This case arises from a student's challenge to a recent restroom policy passed by the

School Board. Plaintiff G.G. was born in Gloucester County on

, 1999 and designated

female.1 Compl. ffil 12, 14. However, at a very young age, G.G. did not feel like a girl. Id. t 16.

Before age six, Plaintiff "refused to wear girl clothes." Id. Tl 17. Starting at approximately age

twelve, "G.G acknowledged his male gender identity to himself."2 Id. ^ 18. In 2013-14, during

G.G.'s freshman year of high school, most of his friends were aware that he identified as male.

Id. ffll 18-19. Furthermore, away from home and school, G.G. presented himself as a male.

141119-
During G.G.'s freshman year of high school, which began in September 2013, he experienced severe depression and anxiety related to the stress of concealing his gender identity from his family. Id. 1 20. This is the reason he alleges that he did not attend school during the spring semester of his freshman year, from January 2014 to June 2014, and instead took classes through a home-bound program. Id. In April 2014, G.G. first informed his parents that he is

1For the sake of brevity occasionally in this opinion the term "birth sex" may be used to describe the sex
assigned to individuals at their birth. "Natal female" will be used to describe the gender assigned to G.G. at birth.
2 The American Psychiatric Association ("APA") defines "gender identity" as "an individual's
identification as male, female, or, occasionally, some category other than male or female." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013) ("DSM"). The DSM is "a classification of mental disorders with associated criteria designed to facilitate more reliable diagnoses of these disorders." jd. at xli. Although the DSM was included in G.G.'s briefs, it was not alleged in the Complaint and will consequently not be considered for the purpose of the Motion to Dismiss. However, the Court finds it instructive for
definitional purposes.

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transgender, that is, he believed that he was a man.3 Id. H21. Sometime after informing his
parents that he is transgender in April 2014, G.G., at his own request, began to see a
psychologist, who subsequently diagnosed him with Gender Dysphoria.4 Jd. ^ 21. As part of
G.G.'s treatment, his psychologist recommended that G.G. begin living in accordance with his male gender identity in all respects. Id. U23. The psychologist provided G.G. with a "Treatment Documentation Letter" that confirmed that "he was receiving treatment for Gender Dysphoria and that, as part of that treatment, he should be treated as a boy in all respects, including with respect to his use of the restroom." Id. The psychologist also recommended that G.G. "see an endocrinologist and begin hormone treatment." Id. ^ 26.
Subsequently, G.G. sought to implement his psychologist's recommendation, jd. U25. In July 2014, G.G. petitioned the Circuit Court of Gloucester County to change his legal name to his present masculine name and, the court granted his petition. Id. At his own request, G.G.'s new name is used for all purposes, and his friends and family refer to him using male pronouns. Id. Additionally, when out in public, G.G. uses the boys' restroom. ]d.
G.G. also sought to implement his lifestyle transition at school. In August 2014, G.G. and his mother notified officials at Gloucester High School that G.G. is transgender and that he had changed his name. Id. ^ 27. Consequently, officials changed school records to reflect G.G.'s new masculine name. Id Furthermore, before the beginning of the 2014-15 school year, G.G. and his mother met with the school principal and guidance counselor to discuss his social transition. Id 1)28. The school representatives allowed G.G. to email teachers and inform them that he preferred to be addressed using his new name and male pronouns. Id. Being unsure how students
3 The APA defines "transgender" as "the broad spectrum of individuals who transiently or persistently
identify with a gender different from their natal gender." Id 4 The APA defines "gender dysphoria" as "the distress that may accompany the incongruence between
one's experienced and expressed gender and one's assigned gender." Id.

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would react to his transition, G.G. initially agreed to use a separate bathroom in the nurse's office. Id T| 30. G.G. was also permitted to continue his physical education requirement through his home school program. Id ^ 29. Consequently, G.G. "has not and does not intend to use a
locker room at school." Id
However, after 2014-15 school year began, G.G. found it stigmatizing to use a separate
restroom. Id f 31. G.G. requested to use the male restroom. Id On or around October 20, 2014, the school principal agreed to G.G.'s request. Id. ^ 32. For the next seven weeks, G.G. used the
boys' restroom. Id. Some members of the community disapproved of G.G.'s use of the men's bathroom
when they learned of it. Id. ^ 33. Some of these individuals contacted members of the School Board and asked that G.G. be prohibited from using the men's restroom. Id. Shortly before the School Board's meeting on November 11, 2014, one of its members added an item to the agenda,
titled "Discussion of Use of Restrooms/Locker Room Facilities," along with a proposed
resolution. Id ^j 34. This proposed resolution stated as follows:
Whereas the [Gloucester County Public Schools] recognizes that some students question their gender identities, and
Whereas the [Gloucester County Public Schools] encourages such students to seek support, advice, and guidance from parents, professionals and other trusted adults, and
Whereas the [Gloucester County Public Schools] 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 [Gloucester County Public Schools] to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.

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Id. H34. At the meeting, a majority of the twenty-seven people who spoke were in favor of the proposal. Id. H 37. Some proponents argued that transgender students' use of the restrooms would violate the privacy of other students and might "lead to sexual assault in the bathrooms." Id. It was suggested that a non-transgender boy could come to the school in a dress and demand to use the girls' restroom. Id G.G. addressed the group and spoke against the proposed
resolution and thus identified himself to the entire community. Id. U 38. At the end of the meeting, the School Board voted 4-3 to defer a vote on the policy until its meeting on December 9, 2014. Id 1139.
On December 3, 2014, the School Board issued a news release stating that regardless of the outcome, it intended to take measures to increase privacy for all students using school restrooms, including "expanding partitions between urinals in male restrooms"; "adding privacy strips to the doors of stalls in all restrooms"; and "designat[ing] single-stall, unisex restrooms, similar to what's in many other public spaces." Id U41. On December 9, 2014, the School Board held a meeting to vote on the proposed resolution. Id Before the vote was conducted, a Citizens' Comments Period was held to allow a discussion on the proposed resolution. Id. Again, a majority of the speakers supported the resolution. Id. U42. Speakers again raised concerns about the privacy of other students. Id. After thirty-seven people spoke during the Citizens' Comment Period, the School Board voted 6-1 to pass the Resolution. Id. 11 43.
On December 10, 2015, the day after the School Board passed the Resolution, the school principal informed G.G. that he could no longer use the boys' restroom and would be disciplined if he did. 141)45.
Since the adoption of the restroom policy, certain physical improvements have been made to the school restrooms at Gloucester High School. The school has installed three unisex

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single-stall restrooms. Id H 47. The school has also raised the doors and walls around the bathroom stalls so that students cannot see into an adjoining stall. ]d Additionally, partitions
were installed between the urinals in the boys' restrooms. Id. Sometime after the actions of the School Board, G.G. began receiving hormone treatment
in December 2014. Id. U26 These treatments have deepened his voice, increased the growth of his facial hair, and given him a more masculine appearance. Id
It is alleged that "[u]sing the girls' restroom is not possible for G.G." Id H 46. G.G. alleges that prior to his treatment for Gender Dysphoria, girls and women who encountered G.G. in female restrooms would react negatively because of his masculine appearance; that in eighth and ninth grade, the period from September 2012 to June 2014, girls at school would ask him to leave the female restroom; and that use of the girls' restroom would also cause G.G. "severe psychological stress" and would be "incompatible with his medically necessary treatment for Gender Dysphoria." ]d
G.G. further alleges that he refuses to use the separate single-stall restrooms installed by the school because the use of them would stigmatize and isolate him; that the use of these restrooms would serve as a reminder that the school views him as "different"; and that the school community knows that the restrooms were installed for him. Id
From these alleged facts, on June 11, 2015, G.G. brought the present challenge to the School Board's restroom policy under the Equal Protection Clause and Title IX. ECF No. 8. On that same day, G.G. filed the instant Motion for Preliminary Injunction, requesting that the Court issue an injunction allowing G.G. to use the boys' bathroom at Gloucester High School until this case is decided at trial. ECF No. 11. On June 29, 2015, the United States ("the Government"), through the Department of Justice, filed a Statement of Interest, asserting that the School Board's

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bathroom policy violated Title IX. ECF No. 28. The School Board filed an Opposition to the Motion for Preliminary Injunction on July 7, 2015, ECF No. 30, along with a Motion to Dismiss, ECF No. 31. On July 27, 2015, the parties appeared before the Court and argued their respective positions as to both motions. ECF No. 47. At that hearing, the Court took both motions under advisement. From the bench, the Court granted the Motion to Dismiss as to Count II, G.G.'s claim under Title IX. On September 4, 2015, the Court denied the Motion for Preliminary Injunction. ECF No. 53. This opinion memorializes the reasons for these orders.

II.

MOTION TO DISMISS

A.

Standard of Review

The function of a motion to dismiss under Rule 12(b)(6) is to test "the sufficiency of a

complaint." Occupy Columbia v. Halev. 738 F.3d 107, 116 (4th Cir. 2013). "[Pmportantly, it

does not resolve contests surrounding the facts, the merits of a claim, or the applicability of

defenses." Republican Party of N.C. v. Martin. 980 F.2d 943, 952 (4th Cir. 1992). "To survive

such a motion, the complaint must allege facts sufficient 'to raise a right to relief above the

speculative level' and 'state a claim to relief that is plausible on its face.'" Halev. 738 F.3d at

116. When reviewing the legal sufficiency of a complaint, the Court must accept "all well-

pleaded allegations in the plaintiffs complaint as true" and draw "all reasonable factual

inferences from those facts in the plaintiffs favor." Edwards v. City of Goldsboro. 178 F.3d 231,

244 (4th Cir. 1999). Legal conclusions, on the other hand, are not entitled to the assumption of

truth if they are not supported by factual allegations. Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009).

However, a motion to dismiss should be granted only in "very limited circumstances." Rogers v.

Jefferson-Pilot Life Ins. Co.. 883 F.2d 324, 325 (4th Cir. 1989).

B.

Count II-Title IX

G.G. also alleges that the School Board's bathroom policy violates Title IX. Under Title

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IX, "[n]o 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 . . . ." 20 U.S.C. § 1681(a). "Under Title IX, a prima facie case is established by a plaintiff showing
(1) that [he or] she was excluded from participation in (or denied the benefits of, or subjected to discrimination in) an educational program; (2) that the program receives federal assistance; and (3) that the exclusion was on the basis of sex." Manolov v. Borough of Manhattan Comm. Coll., 952 F. Supp. 2d 522, 532 (S.D.N.Y. 2013) (quoting Murray v. N.Y. Univ. Coll. of Dentistry. No.
93 Civ. 8771, 1994 WL 533411, at *5 (S.D.N.Y. Sept. 29, 1994)); Bougher v. Univ. of Pittsburgh. 713 F. Supp. 139, 143-44 (W.D. Pa. 1989), affd, 882 F.2d 74 (3d Cir. 1989)).
The School Board Resolution expressly differentiates between students who have a gender identity congruent with their birth sex and those who do not. Compl. H34. G.G. alleges that this exclusion from the boys' bathroom based on his gender identity constitutes sex discrimination under Title IX. Compl. Ifi] 64, 65.
1. Arguments
The parties contest whether discrimination based on gender identity is barred under Title IX. To support their respective contentions, both parties cite to cases interpreting Title VII, upon which courts have routinely relied in determining the breadth of Title IX. See Jennings v. Univ. ofN.C. 482 F.3d 686, 695 (4th Cir. 2007) ("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.").
The School Board argues that sex discrimination does not include discrimination based on gender identity. For support, the School Board cites Johnston v. University of Pittsburgh of Commonwealth System of Higher Education. — F. Supp. 3d — , 2015 WL 1497753 (W.D. Pa. Mar. 31, 2015). In Johnston, the Western District of Pennsylvania found that a policy separating the bathrooms by birth sex at the University of Pittsburgh did not violate Title IX because sex
8

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discrimination does not include discrimination against transgender individuals. 2015 WL 1497753, at *12-19. The School Board asserts that Johnston establishes that Title IX does not incorporate discrimination based on gender or transgender status.
In response, G.G. maintains that sex discrimination includes discrimination based on gender. G.G. cites to a number of Title VII cases in which courts have found sex discrimination to include gender discrimination. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011); Smith v. Citv of Salem. 378 F.3d 566, 574-75 (6th Cir. 2004); Finkle v. Howard Cntv.. Md.. 12 F. Supp. 3d 780, 788 (D. Md. 2014); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc.. 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008); see also Schwenk v. Hartford. 204 F.3d 1187, 1201 (9th Cir. 2000) ('"[S]ex' under Title VII encompasses both sex—that is, the biological
differences between men and women—and gender."). In addition, G.G. contends that the cases Johnston cited to support its proposition, Ulane
v. E. Airlines. Inc.. 742 F.2d 1081 (7th Cir. 1984), and, Sommers v. Budget Mktg.. Inc.. 667 F.2d
748 (8th Cir. 1982), cert denied. 471 U.S. 1017 (1985),5 are no longer good law. In both Ulane
and Sommers, the courts refused to extend sex discrimination to include discrimination against transgender individuals or those with nonconforming gender types. However, G.G. asserts that Price Waterhouse v. Hopkins. 490 U.S. 228 (1989), overruled these cases. In Price Waterhouse. the Supreme Court considered a Title VII claim based on allegations that an employee at Price Waterhouse was denied partnership because she was considered "macho" and "overcompensated for being a woman." 490 U.S. at 235. She had been advised to "walk more femininely, talk more
5The more recent case Johnston cites is a Tenth Circuit case, in which the court avoided deciding the issue.
Etsittv v. Utah Transit Auth.. 502 F.3d 1215, 1224 (10th Cir. 2007) ("This court need not decide whether discrimination based on an employee's failure to conform to sex stereotypes always constitutes discrimination 'because of sex' and we need not decide whether such a claim may extend Title Vll protection to transsexuals who act and appear as a member of the opposite sex.").

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femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Id.

The Court found that such comments were indicative of gender stereotyping, which Title VII

prohibited as sex discrimination. The Court explained that

we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for '[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'
Id at 251 (quoting L.A. Pent, of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).

Accordingly, the Court found that "an employer who acts on the basis of a belief that a woman

cannot be aggressive, or that she must not be" has acted on the basis of sex. Id. at 251.

Other courts have found that Price Waterhouse overruled the cases cited in Johnston.

"[S]ince the decision in Price Waterhouse, federal courts have recognized with near-total

uniformity that 'the approach in . . . Sommers, and Ulane ... has been eviscerated' by Price

Waterhouse's holding." Glenn. 663 F.3d at 1318 n.5 (quoting City of Salem, 378 F.3d at 573));

see also Schwenk, 204 F.3d at 1201 ("The initial judicial approach taken in cases such as

Hollowav has been overruled by the logic and language of Price Waterhouse."); Lopez, 542 F.

Supp. 2d at 660. Based on Price Waterhouse and its progeny, G.G. claims that discrimination

against transgender individuals or other nonconforming gender types is now prohibited as a form

of sex discrimination. Accordingly, G.G. asserts that the Resolution's differentiation between

students who have a gender identity congruent with their birth sex, and those who do not,

amounts to sex discrimination under Title IX.

2.

Analysis

Although the primary contention between the parties is whether gender discrimination

fits within the definition of sex discrimination under Title IX, G.G.'s claim does not rest on this

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distinction. Rather, the Court concludes that G.G.'s Title IX claim is precluded by Department of Education regulations. As noted above, Title IX provides that "[n]o 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. § 1681. However, this prohibition on sex-based decision making is not without exceptions. Among the exceptions listed in Title IX is a provision stating that "nothing contained herein shall be construed to prohibit any educational institution receiving
funds under this Act, from maintaining separate living facilities for the different sexes." 20 U.S.C. § 1686. Although the statute does not expressly state that educational institutions may maintain separate bathrooms for the different sexes, Department of Education regulations stipulate:
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. § 106.33. This regulation (hereinafter, "Section 106.33") expressly allows schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable. When Congress delegates authority to any agency to "elucidate a specific provision of the statute by regulation, any ensuing regulation is binding on the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute." United States v. Mead Corp.. 533 U.S. 218, 227 (2001). The Department of Education's regulation is not "arbitrary,
capricious, or manifestly contrary to the statute."6 Rather, Section 106.33 seems to effectuate
Title IX's provision allowing separate living facilities based on sex. Therefore, Section 106.33
6 It is significant that neither party raised, nor even hinted at raising, a challenge to the validity of Section
106.33 under Title IX.
7The term "living facilities" in 20 U.S.C. § 1686 is ambiguous, and legislative history of Title IX does not
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is given controlling weight.
In light of Section 106.33, G.G. fails to state a valid claim under Title IX. G.G. alleges that the School Board violated Title IX by preventing him from using the boys' restrooms despite the fact that his gender identity is male. Compl. 1ffl 64, 65. According to G.G., the School
Board's determination was based on the belief that Plaintiff is biologically female, not
biologically male.8 ]d H65. However, Section 106.33 specifically allows schools to maintain separate bathrooms based on sex as long as the bathrooms for each sex are comparable.
Therefore, the School Board did not run afoul of Title IX by limiting G.G. to the bathrooms
assigned to his birth sex.
In fact, the only way to square G.G.'s allegations with Section 106.33 is to interpret the use of the term "sex" in Section 106.33 to mean only"gender identity." Under this interpretation, Section 106.33 would permit the use of separate bathrooms on the basis of gender identity and not on the basis of birth or biological sex. However, under any fair reading, "sex" in Section 106.33 clearly includes biological sex. Because the School Board's policy of providing separate bathrooms on the basis of biological sex is permissible under the regulation, the Court need not
decide whether "sex" in the Section 106.33 also includes "gender identity." Instead, the Court need only decide whether the School Board's bathroom policy satisfies
Section 106.33. Section 106.33 states that sex-segregated bathrooms are permissible unless such
provide clear guidance as to its meaning. This term could be narrowly interpreted to mean living quarters, such as dormitories, or it could be broadly interpreted to include other facilities, such as bathrooms. See Implementing Title
IX: The New Regulations. 124 U. Pa. L. Rev. 806, 811 (1976). Because the Department of Education's inclusion of bathrooms within "living facilities" is reasonable, the Court defers to its interpretation. See Chevron. U.S.A.. Inc. v. Nat. Res. Def. Council. Inc.. 467 U.S. 837, 842^14 (1984).
8The Court is sensitive to the fact the G.G. disapproves of the School Board's term "biological gender." See Compl. f 66 (placing biological in dismissive quotation marks). G.G. may also take issue with the Court's phrase biological sex. The Court is guided in its usage by the APA "Definition of Terms: Sex, Gender, Gender Identity, Sexual Orientation" from 2011, which the School Board submitted with its Brief in Opposition to Motion for Preliminary Injunction. Ex. 3, ECF No. 30. The APA defines "sex" as "a person's biological status," and
identifies "a number of indicators of biological sex." UL 12

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facilities are not comparable. G.G. fails to allege that the bathrooms to which he is allowed access by the School Board—the girls' restrooms and the single-stall restrooms—are incomparable to those provided for individuals who are biologically male. In fact, none of the allegations in the Complaint even mention or imply that the facilities in the bathrooms are not comparable. Consequently, G.G. fails to state a claim under Title IX.
Nonetheless, despite Section 106.33, the Government urges the Court to defer to the Department of Education's interpretation of Title IX, which maintains that a policy that segregates bathrooms based on biological sex and without regard for students' gender identities violates Title IX. In support of its position, the Government attaches a letter (the "Letter"), dated January 7, 2015, issued by the Department of Education, through the Office for Civil Rights, apparently clarifying its stance on the treatment of transgender students with regard to sexsegregated restrooms. Statement of Interest 9, ECF No. 28; id Ex. B, at 2, ECF No. 28-2. In the Letter, the Acting Deputy Assistant Secretary for Policy for the Department of Education's Office of Civil Rights, writes:
The Department's 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 a school elects to separate or treat students differently on the basis of sex in those situations, a school must treat transgender students consistent with their gender identity. Id. at 9-10, Ex. B, at 2. The Letter cites a Department of Education significant guidance document (the "Guidance Document") published in 2014 in support of this interpretation. According to the Guidance Document: Under Title IX, a recipient must generally treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.
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See Department of Education, Office for Civil Rights, Questions and Answers on Title IX and
Single-Sex Elementary and Secondary Classes and Extracurricular Activities 25 (Dec. 1, 2014).
Despite the fact that Section 106.33 has been in effect since 1975,9 the Department ofEducation
does not cite any documents published before 2014 to support the interpretation it now adopts. The Department of Education's interpretation does not stand up to scrutiny. Unlike
regulations, interpretations in opinion letters, policy statements, agency manuals, and enforcement guidelines "do not warrant Chevron-style deference" with regard to statutes.
Christensen v. Harris Cntv.. 529 U.S. 576, 587 (2000). Therefore, the interpretations in the Letter and the Guidance Document cannot supplant Section 106.33. Nonetheless, these documents can inform the meaning of Section 106.33. An agency's interpretation of its own regulation, even one contained in an opinion letter or a guidance document, is given controlling weight if (1) the regulation is ambiguous and (2) the interpretation is not plainly erroneous or inconsistent with the regulation. ]d at 588 ("Auer deference is warranted only when the language of the regulation is ambiguous."); Auer v. Robbins. 519 U.S. 452, 461 (1997) ("[The agency's] interpretation of [its own regulation] is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation.").
Upon review, the Department of Education's interpretation should not be given controlling weight. To begin with, Section 106.33 is not ambiguous. It clearly allows the School Board to limit bathroom access "on the basis of sex," including birth or biological sex. Furthermore, the Department of Education's interpretation of Section 106.33 is plainly erroneous and inconsistent with the regulation. Even under the most liberal reading, "on the basis of sex" in Section 106.33 means both "on the basis of gender" and "on the basis of biological sex." It does
9Title IX regulations were promulgated by the Department of Health, Education, and Welfare in 1975 and
adopted by the Department of Education upon its establishment in 1980. 45 Fed. Reg. 30802, 30955 (May, 9 1980) (codified at 34 C.F.R. §§ 106.l-.71).
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not mean "only on the basis of gender." Indeed, the Government itself states that "under Price Waterhouse, 'sex'... encompasses both sex—that is, the biological differences between men and women—and gender." Statement of Interest 6-7, ECF No. 28. Thus, at most, Section 106.33 allows the separation of bathroom facilities on the basis of gender. It does not, however, require that sex-segregated bathrooms be separated on the basis of gender, rather than on the basis of birth or biological sex. Gender discrimination did not suddenly supplant sex discrimination as a
result of Price Waterhouse; it supplemented it.
To defer to the Department of Education's newfound interpretation would be nothing less than to allow the Department of Education to "create defacto a new regulation" through the use of a mere letter and guidance document. See Christensen, 529 U.S. at 588. If the Department of Education wishes to amend its regulations, it is of course entitled to do so. However, it must go through notice and comment rulemaking, as required by the Administrative Procedure Act. See 5 U.S.C. § 553. It will not be permitted to disinterpret its own regulations for the purposes of litigation. As the Court noted throughout the hearing, it is concerned about the implications of such rulings. Mot. to Dismiss & Prelim. Inj. Hr'g at Tr. 65:23-66:19; 73:6-74:7. Allowing the Department of Education's Letter to control here would set a precedent that agencies could avoid the process of formal rulemaking by announcing regulations through simple question and answer publications. Such a precedent would be dangerous and could open the door to allow further attempts to circumvent the rule of law—further degrading our well-designed system of checks
and balances.
In light of Section 106.33, the Court cannot find that the School Board's bathroom policy
violates Title IX. III. MOTION FOR PRELIMINARY INJUNCTION
The Motion for Preliminary Injunction is entirely different. The complaint is no longer
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the deciding factor, admissible evidence is the deciding factor. Evidence therefore must conform

to the rules of evidence. G.G. has sought a preliminary injunction. This Motion requests that the

Court issue an injunction allowing G.G. to resume using the boys' restrooms at Gloucester High
School until there is a final judgment on the merits.10 ECF No. 11. In support ofhis motion for a
preliminary injunction, G.G. has submitted two declarations: one from G.G. and another from an expert in the field of Gender Dysphoria. Decl. of G.G, ECF No. 9 ("G.G. Decl."); The Expert

Declaration of Randi Ettner, Ph.D, ECF No. 10 ("Ettner Decl."). The School Board contests the
injunction and attaches single a declaration to its Opposition to the Motion for Preliminary

Injunction from Troy Andersen, a member of the School Board and the 2014-15 Gloucester

Point District Representative for the Gloucester County School Board. Decl. of Troy Andersen,

ECF No. 30-1 ("Andersen Decl."). On July 27, 2015, the parties appeared before the Court to

argue this Motion, and both parties were given the opportunity to introduce evidence supporting

their respective positions. ECF No. 47. At the hearing, neither G.G. nor the School Board

introduced additional evidence for support. Id

As the Court has granted the School Board's motion to dismiss as to Count II, G.G.'s

claim under Title IX, it need not discuss reasons for denying the Motion for Preliminary

Injunction on this Count. While the Court has not yet ruled on whether G.G. has stated a claim

under the Equal Protection Clause, the Court finds that, even if he has stated a claim, G.G. has

not submitted enough evidence to establish that the balance of hardships weigh in his favor.

Accordingly, the issuance of a preliminary injunction is not warranted.

A.

Standard of Review

"The grant of preliminary injunctions [is] ... an extraordinary remedy involving the

10 G.G. claims that he does not intend to use the locker room at school. Mem. in Supp. of Mot. for Prelim. Inj., 8 n.2, ECF No. 18 ("Prelim. Inj."). However, the requested injunction allowing him to use the male restrooms would apply to the male restroom in the locker room.
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exercise of a very far-reaching power, which is to be applied 'only in the limited circumstances' which clearly demand it." Direx Israel. Ltd. v. Breakthrough Med. Corp.. 952 F.2d 802, 811 (4th Cir. 1992) (quoting Instant Air Freight Co. v. C.F. Air Freight. Inc.. 882 F.2d 797, 800 (3d Cir. 1989)). A plaintiff must overcome the "uphill battle" of satisfying each of the four factors necessary to obtain a preliminary injunction. Real Truth About Obama. Inc. v. FEC, 575 F.3d 342, 347 (4th Cir. 2009) (stating that the four factors must be "satisfied as articulated"), vacated on other grounds, 559 U.S. 1089 (2010). To obtain a preliminary injunction, "[p]laintiffs 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." League of Women Voters ofN.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (citing Winter v. Natural Res. Def. Council. 555 U.S. 7, 20 (2008)). The failure to make a clear showing of any one of these four factors requires the Court
to deny the preliminary injunction." Real Truth About Obama, Inc., 575 F.3d at 346.
A plaintiff seeking a preliminary injunction does not benefit from the presumption that the facts contained in the complaint are true. A plaintiff must introduce evidence in support of a Motion for Preliminary Injunction. While oral testimony is not strictly necessary, this Court has never granted a Preliminary Injunction without first hearing oral testimony. Declarations are frequently drafted by lawyers, and the evidence presented within them is not subject to the rigors of cross examination. A plaintiff relying solely on such weak evidence is unlikely to make the clear showing required for the issuance of a preliminary injunction. Additionally, this Court will
11 The parties dispute whether the injunction sought is mandatory or prohibitory in nature. "Whereas
mandatory injunctions alter the status quo, prohibitory injunctions 'aim to maintain the status quo and prevent irreparable harm while a lawsuit remains pending.'" League of Women Voters of N.C.. 769 F.3d at 236 (quoting Pashbv v. Delia. 709 F.3d 307, 319 (4th Cir. 2013)). There is a heightened standard for mandatory injunctions. Tavlor v. Freeman. 34 F.3d 266, 270 n.2 (4th Cir. 1994) ("Mandatory preliminary injunctive relief in any circumstance is disfavored, and warranted only in the most extraordinary circumstances."). Because the Court finds that G.G. fails to show that a preliminary injunction is warranted even if the injunction sought is prohibitory, the
Court does not decide the issue. 17

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not consider evidence that would be inadmissible at trial, such as hearsay, that is contained

within affidavits.

B.

ARGUMENTS OF THE PARTIES AND FACTS IN EVIDENCE

G.G. characterizes the question of competing hardships as "not a close question." Mem.

in Supp. of Mot. for Prelim. Inj., 40, ECF No. 18 ("Prelim. Inj."). He argues that this Court must

weigh "the severe, documented, and scientifically supported harms" that the restroom policy

continues to inflict upon G.G, who has been diagnosed with Gender Dysphoria, against the

"School Board's unfounded speculation about harms that might occur to others at some future

date." Id. The School Board by contrast implores this Court to consider the safety and privacy

interests of all its students. Br. in Opp'n to Mot. for Prelim. Inj., 18, ECF No. 30. It emphasizes

that while litigation is ongoing, G.G. may use the "girls' restroom, the three single-stall

restrooms, or the restroom in the nurse's office." Id.

1. Facts and Arguments Concerning the Hardship to G.G. G.G. relies on two declarations to establish the hardships he would suffer should this

Court deny his Motion for Preliminary Injunction. ECF Nos. 9, 10. G.G.'s Declaration largely repeats the material in his complaint. Compare ECF Nos. 8 and 9. The Court recounts only those assertions that concern the effect that G.G.'s Gender Dysphoria has had on his schooling. G.G.

alleges other harms he has suffered, such as being humiliated and forced to speak at the School

Board hearing, G.G. Decl. ^ 23, but these harms are not relevant to the issuance of an injunction

allowing G.G. to use the male restroom during this litigation. Here the declaration of G.G. is a

recital of the allegations in the complaint and is replete with inadmissible evidence including thoughts of others, hearsay, and suppositions. The Court recounts these allegations before

analyzing their credibility. G.G. claims that during his freshman year, which began in September 2013, he
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"experienced severe depression and anxiety related to his untreated Gender Dysphoria." Id ^ 9. The depression and anxiety were so severe that G.G. did not attend school during the spring semester which began in January 2014. Id. There is nothing to corroborate that his "untreated Gender Dysphoria" was the reason for his absence. In April of 2014, weeks before his fifteenth birthday, G.G. first informed his parents that he is transgender. Id ^ 10. After his parents learned of his gender identity, G.G. began "therapy with a psychologist who had experience with working with transgender patients." Jd He claims that this psychologist diagnosed him with Gender Dysphoria and recommended that he begin to live as a boy in all respects, including in
his use of the restroom. Id ^ 11. There is no report or declaration from this psychologist. In August 2014, G.G. and his mother informed officials at Gloucester High School of his gender identity. ]d ^ 15 At the start of the school year, G.G. agreed to use a separate restroom in the nurse's office. Id. U 19. G.G. then determined that it "was not necessary to continue to use the nurse's restroom." Id. He claims that he "found it stigmatizing to use a separate restroom." Id.
On December 9, 2014, the School Board adopted the restroom policy. Id U22. With the new transgender restroom policy, G.G. feels like he has been "stripped of [his] privacy and dignity." Id %23. He is unwilling to use the girls' restroom because, he claims, girls and women object to his presence there. Id ^ 25. Additionally, use of the girls' restroom would be incompatible with his treatment for Gender Dysphoria. Id He claims that the new unisex restrooms are not located near his classes and that only one of these restrooms is located near where the single-sex restrooms are located. Id U 26. He refuses to use these restrooms because "they make him feel even more stigmatized and isolated than when [he] use[d] the restroom in the nurse's office." Id ^ 27. He claims that everyone knows that the restrooms were installed for him. Id. Because G.G. refuses to use any of the restrooms permitted for his use, he has held his
19

Case 4:15-cv-00054-RGD-DEM Document 57 Filed 09/17/15 Page 20 of 26 PageID# 703
urine and developed urinary tract infections. Id. ^ 28.
The Expert Declaration of Randi Ettner, Ph.D, adds little to these factual claims. Ettner is not the psychologist who analyzed G.G. after he first told his parents he was transgender; rather, he was retained by G.G.'s counsel in preparation for this litigation. See Ettner Decl. ffl| 1,7, 9. Ettner met G.G. once before preparing his report. Id 1 7. The bulk of his declaration describes the diagnosis and treatment of Gender Dysphoria. It defines Gender Dysphoria as the feeling of incongruence between one's gender identity and the sex assigned one at birth. Id fflj 11-12. It notes that Gender Dysphoria is "codified in the Diagnostic and Statistical [MJanual of Mental Disorders (DSM-V) (American Psychiatric Association) and the International Classifications of
Diseases-10 (World Health Organization)." Id ^ 12. It describes the studies that have looked at transgender youth who could not use restrooms corresponding to their gender identity. l± ffll 1827. However, beyond confirming that G.G. has a "severe degree of Gender Dysphoria," id ^| 29, there are no facts particular to G.G. in the report. See id. 1fl[ 28-30.
The School Board, supported by the declaration of Troy Andersen, emphasizes that any student may use the three unisex restrooms that were installed and open for use by December 16,2014. Andersen Decl. H 7; Br. in Opp'n to Mot. for Prelim. Inj., 18, ECF No. 30. Any student may also use the restroom in the nurse's office. Andersen Decl. U7. Moreover, the School Board contends that G.G. may use the female restrooms and locker rooms, Br. in Opp'n to Mot. for Prelim. Inj., 18, ECF No. 30, and G.G. has made no showing that he is not permitted
to use them.
2. Facts and Arguments Concerning Student Privacy The School Board contends that granting the preliminary injunction and allowing G.G. to use the male restroom would endanger the safety and privacy of other students. Br. in Opp'n to Mot. for Prelim. Inj., 18, ECF No. 30. G.G. argues in response, without any independent factual
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Case 4:15-cv-00054-RGD-DEM Document 57 Filed 09/17/15 Page 21 of 26 PageID# 704

support, that his presence in the male restroom would not infringe upon the privacy rights of his fellow students. He claims that the student body itself is comfortable with his presence in the restroom because during the seven weeks in which he used the male restroom, he "never encountered any problems from other students." G.G. Decl. 1J 20. The Andersen Declaration

describes a different reaction to G.G.'s use of the male restroom. Andersen Decl. H4. According to Andersen, the School Board "began receiving numerous complaints from parents and students" the day after G.G. was granted permission to use the boys' bathroom. ]d
G.G. also contends that the improvements that the School Board made to the restrooms alleviated any concerns that parents or students may have had about "nudity involving students of different sexes." Prelim. Inj. at 33. His complaint describes these improvements, which include raising the doors and walls around the bathroom stalls so that students cannot see into an adjoining stall, and adding three unisex, single-stall restrooms. Compl. ffi[ 47, 52. The School Board disputes the extent to which the improvements have increased privacy and claims that the

restrooms, "and specifically the urinals," are "not completely private," although it also does not submit any evidence in support of this contention. Br. in Opp'n to Mot. for Prelim. Inj., 18 n.17,

ECF No. 30.
Finally, G.G. argues that any student uncomfortable with his presence in the male restrooms may use the new unisex restrooms. Prelim. Inj. at 35, 39.

C.

Analysis

G.G.'s Motion for Preliminary Injunction asks this Court to allow him, a natal female, to

use the male restroom at Gloucester High School. Mot. for Prelim. Inj., ECF No. 11. Restrooms and locker rooms are designed differently because of the biological differences between the sexes. See Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) ("differences between the genders

demand a facility for each gender that is different"). Male restrooms, for instance, contain
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urinals, while female restrooms do not. Men tend to prefer urinals because of the convenience. Furthermore, society demands that male and female restrooms be separate because of privacy concerns. Id; see also Virginia v. United States. 518 U.S. 515, 550 n.16 (1996) ("[admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex
privacy from the other sex in living arrangements"). The Court must consider G.G.'s claims of stigma and distress against the privacy interests of the other students protected by separate
restrooms.
In protecting the privacy of the other students, the School Board is protecting a constitutional right. The Fourth Circuit has recognized that prisoners have a constitutional right to bodily privacy. Lee v. Downs. 641 F.2d 1117, 1119 (4th Cir. 1981). Although the Fourth Circuit has never held that the right to bodily privacy applies to all individuals, it would be perverse to suppose that prisoners, who forfeit so many privacy rights, nevertheless gained a constitutional right to bodily privacy. In recognizing the right of prisoners to bodily privacy the court spoke in universal terms: "Most people ... have a special sense of privacy in their own genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating." Id
Several circuits have recognized the right to bodily privacy outside the context of prisoner litigation. Doe v. Luzerne County, 660 F.3d 169,177 (3d Cir. 2011) (holding that bodily exposure may meet "the lofty constitutional standard" and constitute a violation of one's reasonable expectation of privacy); Brannum v. Overton County School Bd., 516 F.3d 489, 494 (6th Cir. 2008) (holding that a student's "constitutionally protected right to privacy encompasses the right not to be videotaped while dressing and undressing in school athletic locker rooms"); Poe v. Leonard. 282 F.3d 123, 138-39 (2d Cir. 2002) ("there is a right to privacy in one's
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unclothed or partially unclothed body"); York v. Story. 324 F.2d 450, 455 (9th Cir. 1963) ("We cannot conceive of a more basic subject of privacy than the naked body."). In these circuits, violations of the right to bodily privacy are most acute when one's body is exposed to a member of the opposite sex. See Doe, 660 F.3d at 177 (considering whether "Doe's body parts were exposed to members of the opposite sex" in deciding whether her reasonable expectation of privacy was violated); Brannum, 516 F.3d at 494 ("the constitutional right to privacy... includes the right to shield one's body from exposure to viewing by the opposite sex"); York, 324 F.2d at 455 (highlighting that the exposed plaintiff was female and the viewing defendant male); Poe, 282 F.3d at 138 (citing with approval the Ninth Circuit's emphasis on the different genders of defendant and plaintiff in York).
Not only is bodily privacy a constitutional right, the need for privacy is even more pronounced in the state educational system. The students are almost all minors, and public school education is a protective environment. Furthermore, the School Board is tasked with providing safe and appropriate facilities for these students. Linnon v. Commonwealth, 752 S.E.2d 822, 826 (Va. 2014) (finding that "school administrators have a responsibility 'to supervise and ensure that students could have an education in an atmosphere conducive to learning, free of disruption, and threat to person.'" (quoting Burns v. Gaenon. 727 S.E.2d 634, 643 (Va. 2012)).
G.G.'s unsupported claims, which are mostly inadmissible hearsay, fail to show that his presence in the male restroom would not infringe upon the privacy of other students. G.G.'s claim that he "never encountered any problems from other students," G.G. Decl. U20, is directly contradicted by the Andersen Declaration. Andersen Decl. U 4. Moreover, even if the Court accepted G.G.'s self-serving assertion, it would still not find that there was no discomfort among the students. It would not be surprising if students, rather than confronting G.G. himself,
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Case 4:15-cv-00054-RGD-DEM Document 57 Filed 09/17/15 Page 24 of 26 PageID# 707
expressed their discomfort to their parents who then went to the School Board.
G.G. further contends that the improvements that the School Board made to the restrooms
minimize any privacy concerns. Prelim. Inj. at 33. However, G.G. does not introduce any evidence that would help the Court understand the extent of the improvements. He fails to recognize that no amount of improvements to the urinals can make them completely private because people sometimes turn while closing their pants. He does not submit any evidence that
would show that other students would be comfortable with his presence in the male restroom because of the improvements. Finally, he fails to recognize that the School Board's interests go
beyond preventing most exposures of genitalia. The mere presence of a member of the opposite sex in the restroom may embarrass many students and be felt a violation of their privacy. Accordingly, the privacy concerns of the School Board do not diminish in proportion to the size
of the stall doors.
G.G.'s argument that other students may use the unisex restrooms if they are uncomfortable with his presence in the male restroom unintentionally reveals the hardship that the injunction he seeks would impose on other students. It does not occur to G.G. that other students may experience feelings of exclusion when they can no longer use the restrooms they were accustomed to using because they feel that G.G.'s presence in the male restroom violates their privacy. He would have any number of students use the unisex restrooms rather than use
them himself while this Court resolves his novel constitutional challenge. G.G.'s dismissal of the School Board's privacy concerns only makes sense if assumes
that there are fewer or no privacy concerns when a student shares a restroom with another student of different birth sex but the same gender identity. If there were no privacy concerns in this situation, there would be no hardship if G.G. used the male restroom while this litigation
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proceeds. Of course, this litigation is proof that not everyone—certainly not the Gloucester County School Board—shares in this belief. The Court gives great weight to the concerns of the School Board—which represents the students and parents in the community—on the question of the privacy concerns of students, especially at this early stage of litigation and in the complete
absence of credible evidence to the contrary.
Against the School Board's strong interest in protecting student privacy, the Court must consider G.G.'s largely unsubstantiated claims of hardship. G.G. acknowledges that he may use
the unisex restrooms or the nurse's restroom. His declaration fails to articulate the specific harms that would occur to him if he uses those restrooms while this litigation proceeds; it simply says that using these restrooms would cause him distress and make him feel stigmatized. It is telling to the Court that his declaration mirrors his complaint, a sign that it was drafted by his lawyers and not by him. G.G. attempts to support his claims of distress by describing the diagnosis of the
first psychologist who saw him, but these allegations are hearsay and will not be considered. Similarly, G.G. makes several claims about the thoughts and feelings of other students for
which he has not submitted any admissible evidence or corroboration. He has nothing to substantiate his claims that other students view the unisex restrooms as designed solely for him. Nor has he submitted a layout of the school that would confirm his claim that the unisex
restrooms are inconvenient for him to use.
The declaration of Dr. Ettner is almost completely devoid of facts specific to G.G. Dr. Ettner is not the psychologist who allegedly first diagnosed G.G. with Gender Dysphoria. Rather, he has been retained for this litigation. Having met G.G. only once, he has little to say about the harm that would occur to G.G. specifically if G.G. is not allowed to use the male restrooms during this litigation.
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G.G. has been given an option of using a restroom in addition to the female restroom that corresponds to his biological sex. He has not described his hardship in concrete terms and has supported his claims with nothing more than his own declaration and that of a psychologist who met him only once, for the purpose of litigation and not for treatment. The School Board seeks to protect an interest in bodily privacy that the Fourth Circuit has recognized as a constitutional right while G.G. seeks to overturn a long tradition of segregating bathrooms based on biological
differences between the sexes. Because G.G. has failed to show that the balance of hardships weighs in his favor, an injunction is not warranted while the Court considers this claim.
Having found that G.G. has not shown that the balance of the hardships are in his favor, the Court docs not need to consider the other showings required for a preliminary injunction. However, the Court notes that just as G.G. has failed to provide adequate proof of the hardship that would occur if the injunction is not granted, he has also failed to make a clear showing of irreparable injury.
IV. CONCLUSION
for the foregoing reasons, the Court GRANTED the Motion to Dismiss as to Count II, Plaintiffs claim under Title IX. and DENIED the Plaintiffs Motion for a Preliminary Injunction. The Clerk is DIRECTED to forward a copy of this Opinion to all Counsel of Record.
IT IS SO ORDERED.
hi ^x

Newport Ncws^VA
September I 7, 2015

UNITED STATES DISTRICT JUDGE

26

 
 Case 4:15-cv-00054-RGD-DEM Document 62 Filed 04/19/16 Page 1 of 69 PageID# 759
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 &

Case 4:15-cv-00054-RGD-DEM Document 62 Filed 04/19/16 Page 2 of 69 PageID# 760

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 remanded by published opinion. Judge Floyd wrote the opinion, in which Senior Judge Davis joined. Senior Judge Davis wrote a separate concurring opinion. Judge Niemeyer wrote a separate opinion concurring in part and dissenting in part.

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 O’Reilly, 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 Women’s Law Center, Legal Momentum, The Association of Title IX Administrators, Equal Rights Advocates, Gender Justice, The Women’s Law Project, Legal Voice, Legal Aid Society-Employment Law Center, Southwest Women’s Law Center, and California Women’s 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 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, Whitman-Walker Clinic, Inc., GLMA: Health Professionals Advancing LGBT Equality, Transgender Law & Policy Institute, Michelle Forcier, M.D. and Norman Spack, M.D. David Dinielli, Rick Mula, SOUTHERN POVERTY LAW CENTER, Montgomery, Alabama, for Amici Gender Benders, Gay, Lesbian & Straight Education Network, Gay-Straight Alliance Network, iNSIDEoUT, Evie Priestman, ROSMY, Time Out Youth, and We Are Family. James Cole, Jr., General Counsel, Francisco Lopez, Vanessa Santos, Michelle Tucker, Attorneys, Office of the General Counsel, UNITED STATES DEPARTMENT OF EDUCATION, Washington, D.C.; Gregory B. Friel, Deputy Assistant Attorney General, Diana K. Flynn, Sharon M. McGowan, Christine A. Monta, Attorneys, Civil Rights Division, Appellate Section, UNITED
3

Case 4:15-cv-00054-RGD-DEM Document 62 Filed 04/19/16 Page 4 of 69 PageID# 762
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 boys’ restrooms
at his high school. After G.G. began to use the boys’ restrooms with the approval of the school administration, the local school board passed a policy banning G.G. from the boys’ 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. The district court dismissed G.G.’s Title IX claim and denied his request for a preliminary injunction. This appeal followed. Because we conclude the district court did not accord appropriate deference to the relevant Department of Education regulations, we reverse its dismissal of G.G.’s Title IX claim. Because we conclude that the district court used the wrong evidentiary standard in assessing G.G.’s motion for a preliminary injunction, we vacate its denial and remand for consideration under the correct standard. 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 access to restrooms congruent with their gender identity. Title IX provides: “[n]o
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person . . . 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. § 1681(a). The Department of Education’s (the Department) regulations implementing Title IX permit the provision of “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 for students of the other sex.” 34 C.F.R. § 106.33. In an opinion letter dated January 7, 2015, the Department’s Office for Civil Rights (OCR) interpreted how this regulation should apply to transgender individuals: “When 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.” J.A. 55. Because this case comes to us after dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), the facts below are generally as stated in G.G.’s complaint.
A. G.G. is a transgender boy now in his junior year at Gloucester High School. G.G.’s birth-assigned sex, or so-called “biological sex,” is female, but G.G.’s gender identity is male. G.G. has been diagnosed with gender dysphoria, a medical
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condition characterized by clinically significant distress caused by an incongruence between a person’s gender identity and the person’s 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. G.G. lives all aspects of his life as a boy. 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. Later, at G.G.’s request, school officials allowed G.G. to use the boys’ restroom.2 G.G. used this restroom without incident for about seven weeks. G.G.’s use of the boys’ 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 school’s physical education programs. He does not seek here, and never has sought, use of the boys’ 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 boys’ restroom.

Board Member Carla B. Hook (Hook) added an item to the

agenda for the November 11, 2014 board meeting titled

“Discussion of Use of Restrooms/Locker Room Facilities.” J.A.

15. Hook proposed the following resolution (hereinafter the

“transgender restroom policy” or “the policy”):

Whereas the GCPS Public Schools] students question and

[i.e., Gloucester County recognizes that some
their gender identities,

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 Citizens’ Comment Period, a majority of whom

supported Hook’s proposed resolution. Many of the speakers

displayed hostility to G.G., including by referring pointedly to

8

Case 4:15-cv-00054-RGD-DEM Document 62 Filed 04/19/16 Page 9 of 69 PageID# 767
him as a “young lady.” J.A. 16. Others claimed that permitting G.G. to use the boys’ 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 girls’ restrooms. G.G. and his parents spoke against the proposed policy. 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 Citizens’ 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 “girl” or “young lady.” J.A. 18. One speaker called G.G. a “freak” and compared him to a person who thinks he is a “dog” 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 boys’ restroom at school.
G.G. alleges that he cannot use the girls’ restroom because women and girls in those facilities “react[] negatively because they perceive[] G.G. to be a boy.” Id. Further, using the girls’ restroom would “cause severe psychological distress” to
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G.G. and would be incompatible with his treatment for gender dysphoria. J.A. 19. As a corollary to the policy, the Board announced a series of updates to the school’s 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 single-stall unisex restrooms available to all students. G.G. alleges that he cannot use these new unisex restrooms because they “make 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 ‘different.’” Id. G.G. further alleges that, because of this stigma and exclusion, his social transition is undermined and he experiences “severe and persistent emotional and social harms.” Id. G.G. avoids using the restroom while at school and has, as a 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 boys’ 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.’s motion for a preliminary injunction and on the Board’s motion to dismiss G.G.’s lawsuit. At the hearing, the district court orally dismissed G.G.’s Title IX claim and denied his request for a preliminary injunction, but withheld ruling on the motion to dismiss G.G.’s 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.’s 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.’s 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.’s 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
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burdensome and would result in less hardship than requiring other students made uncomfortable by G.G.’s presence in the boys’ restroom to themselves use the unisex restrooms.
This appeal followed. G.G. asks us to reverse the district court’s 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. The Board, on the other hand, asks us to affirm the district court’s rulings and also asks us to dismiss G.G.’s equal protection claim—on which the district court has yet to rule—as without merit. The United States, as it did below, has filed an amicus brief supporting G.G.’s Title IX claim in order to defend the government’s 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 court’s dismissal of G.G.’s Title IX claim.3 We review de novo the district court’s grant of
3 We decline the Board’s invitation to preemptively dismiss G.G.’s equal protection claim before it has been fully considered by the district court. “[W]e are a court of review, not of first view.” 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.’s equal protection claim (Continued)
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a motion to dismiss. Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir. 2014). “To 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotations omitted).
As noted earlier, Title IX provides: “[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 education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). To 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 See Preston v.
on appeal without the benefit of the district court’s prior consideration.
4 The Board suggests that a restroom may not be educational in nature and thus is not an educational program covered by Title IX. Appellee’s Br. 35 (quoting Johnston v. Univ. of Pittsburgh, 97 F. Supp. 3d 657, 682 (W.D. Pa. 2015)). The Department’s regulation pertaining to “Education programs or activities” 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, or services or provide aid, benefits, or services in a different manner;
(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. § 106.31(b). We have little difficulty concluding that access to a restroom at a school, under this regulation, can be considered either an “aid, benefit, or service” or a “right, privilege, advantage, or opportunity,” which, when offered by a recipient institution, falls within the meaning of “educational program” as used in Title IX and defined by the Department’s implementing regulations.
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separate living facilities on the basis of sex: “nothing

contained [in Title IX] shall be construed to prohibit any

educational institution receiving funds under this Act, from

maintaining separate living facilities for the different sexes.”

20 U.S.C. § 1686. The Department’s regulations implementing

Title IX permit the provision of “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.

§ 106.33.

The Department recently delineated how this

regulation should be applied to transgender individuals. In an

opinion letter dated January 7, 2015, the Department’s Office

for Civil Rights (OCR) wrote: “When 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.”5 J.A. 55.

5 The opinion letter cites to OCR’s December 2014 “Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities.” This document, denoted a “significant guidance document” per Office of Management and Budget regulations, states: “All 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.” 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)
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A. G.G., and the United States as amicus curiae, ask us to give the Department’s interpretation of its own regulation controlling weight pursuant to Auer v. Robbins, 519 U.S. 452 (1997). Auer requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute. Id. at 461. Agency interpretations need not be well-settled or long-standing to be entitled to deference. They must, however, “reflect the agency’s fair and considered judgment on the matter in question.” Id. at 462. An interpretation may not be the result of the agency’s 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 OCR’s

opinion letter in which the agency “also 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,” as the Board did here. Post at 66. However,

because G.G. does want to use shared sex-segregated facilities,

the agency’s suggestion regarding students who do not want to

use such shared sex-segregated facilities is immaterial to the

resolution of G.G.’s claim.

Nothing in today’s opinion

restricts any school’s ability to provide individual-user

facilities.

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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 to the

Department’s interpretation of 34 C.F.R. § 106.33. The district

court found the regulation to be unambiguous because “[i]t

clearly allows the School Board to limit bathroom access ‘on the

basis of sex,’ including birth or biological sex.” G.G. v.

Gloucester Cty. Sch. Bd., No. 4:15cv54, 2015 WL 5560190, at *8

(E.D. Va. Sept. 17, 2015). The district court also found,

alternatively, that the interpretation advanced by the

Department was clearly erroneous and inconsistent with the

regulation. The district court reasoned that, because “on the

basis of sex” 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 “without running afoul of

Title IX.” Br. for the United States as Amicus Curiae 24-25

(hereinafter “U.S. Br.”).

However, the Department also

considers § 106.33 itself to be ambiguous as to transgender

students because “the regulation is silent on what the phrases

‘students of one sex’ and ‘students of the other sex’ mean in

the context of transgender students.” Id. at 25. The United

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States contends that the interpretation contained in OCR’s January 7, 2015 letter resolves the ambiguity in § 106.33 as that regulation applies to transgender individuals.

B.

We will not accord an agency’s interpretation of an

unambiguous regulation Auer deference. Thus, our analysis

begins with a determination of whether 34 C.F.R. § 106.33

contains an ambiguity. Section 106.33 permits schools to

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. § 106.33.

“[D]etermining whether a regulation or statute is ambiguous

presents a legal question, which we determine de novo.”

Humanoids Grp. v. Rogan, 375 F.3d 301, 306 (4th Cir. 2004). We

determine ambiguity by analyzing the language under the three-

part framework set forth in Robinson v. Shell Oil Co., 519 U.S.

337 (1997).

The plainness or ambiguity of language is

determined by reference to (1) the language itself, (2) the

specific context in which that language is used, and (3) the

broader context of the statute or regulation as a whole. Id. at

341.

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First, we have little difficulty concluding that the
language itself—“of one sex” and “of the other sex”—refers to
male and female students. Second, in the specific context of
§ 106.33, the plain meaning of the regulatory language is best
stated by the United States: “the mere act of providing separate
restroom facilities for males and females does not violate Title
IX . . . .” U.S. Br. 22 n.8. Third, the language “of one sex”
and “of the other sex” appears repeatedly in the broader context
of 34 C.F.R. § 106 Subpart D, titled “Discrimination on the Basis of Sex in Education Programs or Activities Prohibited.”6
This repeated formulation indicates two sexes (“one sex” and
“the other sex”), and the only reasonable reading of the
language used throughout the relevant regulatory section is that
it references male and female. Read plainly then, § 106.33
permits schools to provide separate toilet, locker room, and
shower facilities for its male and female students. By
6 For example, § 106.32(b)(2) provides that “[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 student”; § 106.37(a)(3) provides that an institution generally cannot “[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 status”; and § 106.41(b) provides that “where [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 . . . .”
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implication, the regulation also permits schools to exclude males from the female facilities and vice-versa.
Our inquiry is not ended, however, by this straightforward conclusion. Although the regulation may refer unambiguously to males and 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 Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity. Cf. Dickenson-Russell Coal Co. v. Sec’y of Labor, 747 F.3d 251, 258 (4th Cir. 2014) (refusing to afford Auer deference where the language of the regulation at issue was “not susceptible to more than one plausible reading” (citation and quotation marks omitted)). It is not clear to us how the regulation would apply in a number of situations—even under the Board’s own “biological gender” formulation. For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that
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in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.
C. Because we conclude that the regulation is ambiguous as applied to transgender individuals, the Department’s interpretation is entitled to Auer deference unless the Board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute. Auer, 519 U.S. at 461. “Our review of the agency’s interpretation in this context is therefore highly deferential.” Dickenson-Russell Coal, 747 F.3d at 257 (citation and quotation marks omitted). “It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail.” Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013). An agency’s view need only be reasonable to warrant deference. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991) (“[I]t is axiomatic that the [agency’s] interpretation need not be the best or most natural one by grammatical or other standards. Rather, the [agency’s] view need be only reasonable to warrant deference.”).
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Title IX regulations were promulgated by the Department of

Health, Education, and Welfare in 1975 and were adopted

unchanged by the Department in 1980. 45 Fed. Reg. 30802, 30955

(May 9, 1980). Two dictionaries from the drafting era inform

our analysis of how the term “sex” was understood at that time.

The first defines “sex” as “the character of being either male

or female” or “the sum of those anatomical and physiological

differences with reference to which the male and female are

distinguished . . . .” American College Dictionary 1109 (1970).

The second defines “sex” 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 . . . .

Webster’s Third New International Dictionary 2081 (1971).

Although these definitions suggest that the word “sex” 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

“biological sex,” namely reproductive organs, the definitions

also suggest that a hard-and-fast binary division on the basis

of reproductive organs—although useful in most cases—was not

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universally descriptive.7 The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” 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 “character of being either male or female” where those indicators diverge. We conclude that the Department’s interpretation of how § 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 Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older
7 Modern definitions of “sex” also implicitly recognize the limitations of a nonmalleable, binary conception of sex. For example, Black’s Law Dictionary defines “sex” as “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; gender.” Black’s Law Dictionary 1583 (10th ed. 2014). The American Heritage Dictionary includes in the definition of “sex” “[o]ne’s identity as either female or male.” American Heritage Dictionary 1605 (5th ed. 2011).
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dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”
D. Finally, we consider whether the Department’s interpretation of § 106.33 is the result of the agency’s fair and considered judgment. Even a valid interpretation will not be accorded Auer deference where it conflicts with a prior interpretation, where it appears that the interpretation is no more than a convenient litigating position, or where the interpretation is a post hoc rationalization. Christopher, 132 S. Ct. at 2166 (citations omitted). Although the Department’s interpretation is novel because there was no interpretation as to how § 106.33 applied to transgender individuals before January 2015, “novelty alone is no reason to refuse deference” 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 “did not arise until recently,” see id., because schools have only recently begun citing § 106.33 as justification for enacting new policies restricting transgender students’ access to restroom facilities. The Department contends that “[i]t is to those ‘newfound’ policies that [the Department’s]
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interpretation of the regulation responds.” U.S. Br. 29. We

see no reason to doubt this explanation. See Talk Am., Inc.,

131 S. Ct. at 2264.

Nor is the interpretation merely a convenient litigating

position.

The Department has consistently enforced this

position since 2014. 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 agencies—all 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 dissent’s suggestion that the result we reach today renders the enforcement of separate restroom facilities impossible because it “would require schools to assume gender identity based on appearances, social expectations, or explicit declarations of identity.” Post at 65. Accepting the Board’s position would equally require the school to assume “biological sex” based on “appearances, social expectations, or explicit declarations of [biological sex].” Certainly, no one is suggesting mandatory verification of the “correct” genitalia before admittance to a restroom. The Department’s vision of sex-segregated restrooms which takes account of gender identity presents no greater “impossibility of enforcement” problem than does the Board’s “biological gender” vision of sex-segregated restrooms.

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Urban Development, and the Office of Personnel Management). None of the Christopher grounds for withholding Auer deference are present in this case.
E. We conclude that the Department’s interpretation of its own regulation, § 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 court’s contrary conclusion and its resultant dismissal of G.G.’s Title IX claim.
F. In many respects, we are in agreement with the dissent. We agree that “sex” 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 Department’s 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 Department’s interpretation of § 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.
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restrooms, locker rooms, and shower facilities on the basis of sex. We agree that “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” 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 Department’s interpretation of its own regulations.
The Supreme Court commands the use of particular analytical frameworks when courts review the actions of the executive agencies. G.G. claims that he is entitled to use the boys’ restroom pursuant to the Department’s interpretation of its regulations implementing Title IX. We have carefully followed the Supreme Court’s guidance in Chevron, Auer, and Christopher and have determined that the interpretation contained in the OCR letter is to be accorded controlling weight. In a case such as
10 We doubt that G.G.’s 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.’s use—or for that matter any individual’s appropriate use—of 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).
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this, where there is no constitutional challenge to the
regulation or agency interpretation, the weighing of privacy
interests or safety concerns11—fundamentally questions of policy—
is a task committed to the agency, not to the courts.
The Supreme Court’s 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 choices—resolving the competing interests
11 The dissent accepts the Board’s invocation of amorphous safety concerns as a reason for refusing deference to the Department’s interpretation. We note that the record is devoid of any evidence tending to show that G.G.’s use of the boys’ 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 has—whether it fears that it cannot ensure G.G.’s 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 “sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex.” Post at 58. The same safety concern would seem to require segregated restrooms for gay boys and girls who would, under the dissent’s formulation, present a safety risk because of the “sexual responses prompted” 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 court’s denial of the preliminary injunction he sought which would have allowed him to use the boys’ restroom during the pendency of this lawsuit. “To 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.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th
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Cir. 2014) (citation omitted). We review a district court’s denial of a preliminary injunction for abuse of discretion. Id. at 235. “A district court has abused its discretion if its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006) (citation and quotations omitted). “We do not ask whether we would have come to the same conclusion as the district court if we were examining the matter de novo.” Id. (citation omitted). Instead, “we 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.” Id. (citations and quotations omitted).
The district court analyzed G.G.’s request only with reference to the third factor—the balance of hardships—and found that the balance of hardships did not weigh in G.G.’s 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 boys’ restroom. The district court refused to consider this evidence because it was “replete with inadmissible evidence including thoughts of others, hearsay, and suppositions.” G.G., 2015 WL 5560190, at *11.
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The district court misstated the evidentiary standard

governing preliminary injunction hearings. The district court

stated: “The complaint is no longer the deciding factor,

admissible evidence is the deciding factor. Evidence therefore

must conform to the rules of evidence.” Id. at *9. Preliminary

injunctions, however, are governed by less 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) (taking as true

the “well-pleaded allegations of respondents’ complaint and

uncontroverted affidavits filed in support of the motion for a

preliminary injunction”); compare Fed. R. Civ. P. 56 (requiring

affidavits supporting summary judgment to be “made 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 injunction context).

Thus, although

admissible evidence may be more persuasive than inadmissible

evidence in the preliminary injunction context, it was error for

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the district court to summarily reject G.G.’s proffered evidence because it may have been inadmissible at a subsequent trial.
Additionally, the district court completely excluded some of G.G.’s proffered evidence on hearsay grounds. The seven of our sister circuits to have considered the admissibility of hearsay in preliminary injunction proceedings have decided that the nature of evidence as hearsay goes to “weight, not preclusion” and have permitted district courts to “rely on hearsay evidence for the limited purpose of determining whether to award a preliminary injunction.” 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 Int’l Trading, Inc., 51 F.3d 982, 985 (11th Cir. 1995) (“At the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is appropriate given the character and objectives of the injunctive proceeding.” (citation and internal quotations omitted)); Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir. 1993) (“[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.”); 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.

Because preliminary injunction proceedings are

informal ones designed to prevent irreparable harm before a

later trial governed by the full rigor of usual evidentiary

standards, district courts may look to, and indeed in

appropriate circumstances rely on, hearsay or other inadmissible

evidence when deciding whether a preliminary injunction is

warranted.

Because the district court evaluated G.G.’s proffered

evidence against a stricter evidentiary standard 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 “guided by erroneous legal

principles.” We therefore conclude that the district court

abused its discretion when it denied G.G.’s request for a

preliminary injunction without considering G.G.’s proffered

evidence. We vacate the district court’s denial of G.G.’s

motion for a preliminary injunction and remand the case to the

district court for consideration of G.G.’s evidence in light of

the evidentiary standards set forth herein.

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IV. Finally, G.G. requests that we reassign this case to a different district judge on remand. G.G. does not explicitly claim that the district judge is biased. Absent such a claim, reassignment is only appropriate in “unusual circumstances where both for the judge’s sake and the appearance of justice an assignment to a different judge is salutary and in the public interest, especially as it minimizes even a suspicion of partiality.” 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 to any gain in preserving the appearance of fairness. Id. (citation omitted). G.G. argues that both the first and second Guglielmi factors are satisfied. 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 “gender and sexuality in particular.” Appellant’s Br.
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53. For example, the court accepted the Board’s “mating” concern by noting:
There are only two instincts—two. Everything else is acquired—everything. 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 “mental disorder” 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.’s representation of what it meant to be transgender, repeatedly noting that G.G. “wants” to be a boy and not a girl, but that “he is biologically a female.” J.A. 10304; see also J.A. 104 (“It’s his mind. It’s not physical that causes that, it’s what he believes.”). The district court’s memorandum opinion, however, included none of the extraneous remarks or suppositions that marred the hearing.
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Reassignment is an unusual step at this early stage of litigation. Although the district court did express opinions about medical facts and skepticism of G.G.’s 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 court’s 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.’s 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 Floyd’s 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.’s 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 Board’s restroom policy

discriminates against him “on the basis of sex” in violation of

Title IX. In light of the weight of circuit authority

concluding that discrimination against transgender individuals

constitutes discrimination “on the basis of sex” in the context

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of analogous statutes and our holding here that the Department’s interpretation of 34 C.F.R. § 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, 250–51 (1989); see also Glenn v. Brumby, 663 F.3d 1312, 1316–19 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566, 573–75 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (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 nurse’s office. See J.A. 32–33. His affidavit also indicates that he has “repeatedly developed painful urinary tract infections” as a result of holding his urine in order to avoid using the restroom at school. Id. 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.’s 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 “inconsistent with evidence-based medical practice and
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detrimental to the health and well-being of the child” and

explains why access to a restroom appropriate to one’s 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 Board’s restroom policy “is currently

causing emotional distress to an extremely vulnerable youth and

placing G.G. at risk for accruing lifelong psychological harm.”

J.A. 41. In particular, Dr. Ettner opines that

[a]s a result of the School Board’s restroom policy, .

. . G.G. is put in the humiliating position of having

to use a separate facility, thereby accentuating his

‘otherness,’ 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.’s or Dr. Ettner’s

affidavits. Instead, its arguments focus on what is purportedly

lacking from G.G.’s presentation in support of his claim of

irreparable harm, such as “evidence that [his feelings of

dysphoria, anxiety, and distress] would be lessened by using the

boy[s’] restroom,” evidence from his treating psychologist,

medical evidence, and an opinion from Dr. Ettner

“differentiating between the distress that G.G. may suffer by

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not using the boy[s’] bathroom during the course of this

litigation and the distress that he has apparently been living

with since age 12.” Br. Appellee 42–43. As to the alleged

deficiency concerning Dr. Ettner’s opinion, the Board’s argument

is belied by Dr. Ettner’s affidavit itself, which, as quoted

above, provides her opinion about the psychological harm that

G.G. is experiencing “[a]s a result of the School Board’s

restroom policy.” J.A. 42. With respect to the other purported

inadequacies, the absence of such evidence does nothing to

undermine the uncontroverted statements concerning the daily

psychological harm G.G. experiences as a result of the Board’s

policy or Dr. Ettner’s unchallenged opinion concerning the

significant long-term consequences of that harm. Moreover, the

Board offers no argument to counter G.G.’s 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 Board’s 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 Board’s 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 will suffer

irreparable harm in the absence of an injunction.

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C. Turning to the balance of the hardships, G.G. has shown that he will suffer irreparable harm without the requested injunction. On the other end of the scale, the Board contends that other students’ constitutional right to privacy will be imperiled by G.G.’s presence in the boys’ restroom. As the majority opinion points out, G.G.’s use of the restroom does not implicate the unconstitutional actions involved in the cases cited by the dissent. Moreover, students’ unintentional exposure of their genitals to others using the restroom has already been largely, if not entirely, remedied by the alterations to the school’s 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 student’s 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.’s presence in the communal restroom thus does not tip the scale in the Board’s favor. The balance of hardships weighs heavily toward G.G.
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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.’s rights under Title IX for the pendency of this case. Enforcing G.G.’s 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 civil rights statutes, as interpreted by the Supreme Court. 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 all four prongs of the preliminary injunction inquiry. When the record before us supports entry of a preliminary injunction—as it amply does here—we have 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 “because the record clearly establishes the plaintiff’s right to an injunction and [an evidentiary] hearing would not have altered the result”). 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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Floyd’s 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 court’s opinion. With respect

to whether G.G. stated a claim under Title IX and whether the

district court abused its discretion in denying G.G’s motion for

a preliminary injunction, I would affirm the ruling of the

district court dismissing G.G.’s Title IX claim and denying his

motion for a preliminary injunction. I therefore dissent from

the majority’s 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 school’s policy

for assigning students to restrooms and locker rooms based on

biological sex. The school’s policy provides: (1) that the

girls’ restrooms and locker rooms are designated for use by

students who are biologically female; (2) that the boys’

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 school’s three single-

stall 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 girls’ restrooms and locker rooms and the unisex

restrooms. 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 boys’ restrooms, and he seeks an injunction compelling the high school to allow him to use the boys’ restrooms.
The district court dismissed G.G.’s Title IX claim, explaining that the school complied with Title IX and its regulations, which permit schools to provide separate living facilities, restrooms, locker rooms, and shower facilities “on the basis of sex,” so long as the facilities are “comparable.” 20 U.S.C. § 1686; 34 C.F.R. §§ 106.32(b), 106.33.
Strikingly, the majority now reverses the district court’s 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 statute’s and regulations’ use of the term “sex” means a person’s gender identity, not the person’s biological status as male or female. To accomplish its goal, the majority relies entirely on a 2015 letter sent by the Department of Education’s Office for Civil Rights to G.G., in which the Office for Civil Rights stated, “When a school elects to separate or treat students differently on the basis of sex [when providing restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes], a school generally must treat transgender students consistent with their
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gender identity.” (Emphasis added). Accepting that new

definition of the statutory term “sex,” the majority’s opinion,

for the first time ever, holds that a public high school may not

provide separate restrooms and locker rooms on the basis of

biological sex. Rather, it must now allow a biological male

student who identifies as female to use the girls’ restrooms and

locker rooms and, likewise, must allow a biological female

student who identifies as male to use the boys’ 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 girls’

restrooms because of the “severe psychological distress” it

would inflict on him and because female students had “reacted

negatively” to his presence in girls’ restrooms. Surely

biological males who identify as females would encounter similar

reactions in the girls’ restroom, just as students physically

exposed to students of the opposite biological sex would be

likely to experience psychological distress. As a 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 nature for privacy and

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safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And 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 states that, to accommodate transgender students, schools are encouraged “to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities [as permitted by Title IX’s regulations].” This appears to approve the course that G.G.’s school followed when it created unisex restrooms in addition to the boys’ and girls’ restrooms it already had.
Title IX and its implementing regulations are not ambiguous. In recognition of physiological privacy and safety concerns, they allow schools to provide “separate living facilities for the different sexes,” 20 U.S.C. § 1686, provided that the facilities are “proportionate” and “comparable,” 34 C.F.R. § 106.32(b), and to provide “separate toilet, locker room, and shower facilities on the basis of sex,” again provided that the facilities are “comparable,” 34 C.F.R. § 106.33. Because the school’s policy that G.G. challenges in this action
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comports with Title IX and its regulations, I would affirm the district court’s dismissal of G.G.’s Title IX claim.
I The relevant facts are not in dispute. G.G. is a 16 yearold who attends Gloucester High School in Gloucester County, Virginia. He is biologically female, but “did not feel like a girl” 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 himself to be transgender, and shortly thereafter, at his request, he began therapy with a psychologist, who diagnosed him with gender dysphoria, a condition of distress brought about by the incongruence of one’s 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 School to discuss his need, as part of his treatment, to socially transition at school. The school accommodated all of his requests. Officials changed school records to reflect G.G.’s new male name; the guidance counselor supported G.G.’s sending an email to teachers explaining that he was to be addressed using his new name and to be referred to using male pronouns; G.G. was permitted to fulfill his physical
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education requirement through a home-bound program, as he preferred not to use the school’s locker rooms; and the school allowed G.G. to use a restroom in the nurse’s office “because [he] was unsure how other students would react to [his] transition.” G.G. was grateful for the school’s “welcoming environment.” As he stated, “no teachers, administrators, or staff at Gloucester High School expressed any resistance to calling [him] by [his] legal name or referring to [him] using male pronouns.” And he was “pleased to discover that [his] teachers and the vast majority of [his] peers respected the fact that [he is] a boy.”
As the school year began, however, G.G. found it “stigmatizing” to continue using the nurse’s restroom, and he requested to use the boys’ restrooms. The principal also accommodated this request. But the very next day, the School Board began receiving “numerous complaints from parents and students about [G.G.’s] use of the boys’ restrooms.” The School Board thus faced a dilemma. It recognized G.G.’s feelings, as he expressed them, that “[u]sing the girls’ restroom[s] [was] not possible” because of the “severe psychological distress” it would inflict on him and because female students had previously “reacted negatively” to his presence in the girls’ restrooms. It now also had to recognize that boys had similar feelings caused by G.G.’s use of the boys’ restrooms, although G.G.
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stated that he continued using the boys’ 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 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. Gloucester High School promptly implemented the policy and
created three single-stall unisex restrooms for use by 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 Education’s Office for
Civil Rights, and on January 15, 2015, the Office responded,
stating, as relevant here:
The Department’s 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 Board’s policy was discriminatory, in violation of the U.S. Constitution’s Equal Protection Clause and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. He sought declaratory relief, injunctive relief, and damages. With his complaint, G.G. also filed a motion for a preliminary injunction “requiring the School Board to allow [him] to use the boys’ restrooms at school.” The district court dismissed G.G.’s Title IX claim because Title IX’s implementing regulations permit schools to provide separate restrooms “on the basis of sex.” The court also denied G.G.’s 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 “will hear evidence” and “get a date set” for trial to better assess the claim. From the district court’s order denying G.G.’s motion for a preliminary injunction, G.G. filed this appeal, in which he also
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challenges the district court’s Title IX ruling as inextricably intertwined with the district court’s denial of the motion for a preliminary injunction.

II

G.G. recognizes that persons who are born biologically

female “typically” identify psychologically as female, and

likewise, that persons who are born biologically male

“typically” identify as male.

Because G.G. was born

biologically female but identifies as male, he characterizes

himself as a transgender male. He contends that because he is

transgender, the School Board singled him out for “different and

unequal treatment,” “discriminat[ing] against him based on sex

[by denying him use of the boys’ restrooms], in violation of

Title IX.” He argues, “discrimination 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.” He

concludes that the School Board’s 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 “prevent[ed] . . . from using the same

restrooms as other students and relegat[ed] . . . to separate,

single-stall facilities.”

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As noted, the School Board’s policy designates the use of
restrooms and locker rooms based on the student’s biological sex
-- biological females are assigned to the girls’ restrooms and
unisex restrooms; biological males are assigned to the boys’
restrooms and unisex restrooms. G.G. is thus assigned to the
girls’ restrooms and the unisex restrooms, but is denied the use
of the boys’ restrooms. He asserts, however, that because
neither he nor the girls would accept his use of the girls’
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 Board’s 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 Board’s 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. § 1681(a) (emphasis added). The Act, however, provides, “Notwithstanding 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 separate living facilities for the different sexes.” Id. § 1686 (emphasis added); see also 34 C.F.R. § 106.32(b) (permitting schools to provide “separate housing on the basis of sex” as long as the housing is “proportionate” and “comparable” (emphasis added)). 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. § 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 that a school does not violate the Act by providing, on the basis of sex, separate living facilities, restrooms, locker rooms, and shower facilities.
While G.G. only challenges the definition and application of the term “sex” with respect to separate restrooms, acceptance of his argument would necessarily change the definition of “sex” for purposes of assigning separate living facilities, locker rooms, and shower facilities as well. All are based on “sex,” a term that must be construed uniformly throughout Title IX and its implementing regulations. See Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (“[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 meaning” (internal quotation marks and citations omitted)); In re Total Realty Mgmt., LLC, 706 F.3d 245, 251 (4th Cir. 2013) (“Canons 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 consistent” (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) (“[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 statute as well” (quoting John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 627 n.78 (1996))).
Across societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females. 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 are not exposed to persons of the opposite biological sex. Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind. See, e.g., Doe v. Luzerne Cnty., 660 F.3d 169, 176-77 (3d Cir. 2011) (recognizing that an individual has “a constitutionally protected privacy interest in his or her partially clothed body” and that this “reasonable expectation of privacy” exists “particularly while in the presence of members of the opposite sex”); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008) (explaining that “the constitutional right to privacy . . . includes the right to shield one’s body from exposure to
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viewing by the opposite sex”); Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (“Students of course have a significant privacy interest in their unclothed bodies”); Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992) (explaining that “[t]he right to bodily privacy is fundamental” and that “common sense, decency, and [state] regulations” require recognizing it in a parolee’s right not to be observed by an officer of the opposite sex while producing a urine sample); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1989) (recognizing that, even though inmates in prison “surrender many rights of privacy,” their “special sense of privacy in their genitals” should not be violated through exposure unless “reasonably necessary” and explaining that the “involuntary exposure of [genitals] in the presence of people of the other sex may be especially demeaning and humiliating”).
Moreover, we have explained that separating restrooms based on “acknowledged differences” between the biological sexes serves to protect this important privacy interest. See Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (noting “society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns”). Indeed, the Supreme Court recognized, when ordering an all-male Virginia college to admit female students, that such a remedy “would undoubtedly require alterations necessary to afford members of each sex privacy from
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the other sex.” United States v. Virginia, 518 U.S. 515, 550 n.19 (1996). Such privacy was and remains necessary because of the inherent “[p]hysical differences between men and women,” which, as the Supreme Court explained, are “enduring” and render “the two sexes . . . not fungible,” id. at 533 (distinguishing sex from race and national origin), not because of “one’s sense of oneself as belonging to a particular gender,” as G.G. and the government as amicus contend.
Thus, Title IX’s 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. This privacy concern is also linked to safety concerns that could arise from sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex. Indeed, the School Board cited these very reasons for its adoption of the policy, explaining that it separates restrooms and locker rooms to promote the privacy and safety of minor children, pursuant to its “responsibility 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. [That the school has this responsibility] is particularly true in an
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environment where children are still developing, both emotionally and physically.”
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 “sex” were to encompass only a person’s gender identity. Indeed, separation on this basis would function nonsensically. A biological male identifying as female could hardly live in a girls’ dorm or shower in a girls’ shower without invading physiological privacy needs, and the same would hold true for a biological female identifying as male in a boys’ dorm or shower. G.G.’s answer, of course, is that he is not challenging the 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. This effort to limit the scope of the issue apparently sways the majority, as it cabins its entire discussion to “restroom access by transgender individuals.” Ante at 26. But this effort to restrict the effect of G.G.’s argument hardly matters when the term “sex” would have to be applied uniformly throughout the statute and regulations, as noted above and, indeed, as agreed to by the majority. See ante at 26.
The realities underpinning Title IX’s 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 “on the basis of sex” employs the term “sex” as was generally understood at the time of enactment. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (explaining that courts should not defer to an agency’s interpretation of its own regulation if an “alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation” (emphasis added) (internal quotation marks and citation omitted)); see also Auer v. Robbins, 519 U.S. 452, 461 (1997) (discussing dictionary definitions of the regulation’s “critical phrase” to help determine whether the agency’s interpretation was “plainly erroneous or inconsistent with the regulation” (internal quotation marks and citation omitted)). 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 of “sex” referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions. See, e.g., The Random House College Dictionary 1206 (rev. ed. 1980) (“either the male or female division of a species, esp. as differentiated with reference to the reproductive functions”); Webster’s New Collegiate Dictionary 1054 (1979) (“the sum of the structural,
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functional, and behavioral characteristics of living beings that subserve reproduction by two interacting parents and that distinguish males and females”); American Heritage Dictionary 1187 (1976) (“The property or quality by which organisms are classified according to their reproductive functions”); Webster’s Third New International Dictionary 2081 (1971) (“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 . . .”); The American College Dictionary 1109 (1970) (“the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished . . . ”). Indeed, although the contemporaneous meaning controls our analysis, it is notable that, even today, the term “sex” continues to be defined based on the physiological distinctions between males and females. See, e.g., Webster’s New World College Dictionary 1331 (5th ed. 2014) (“either of the two divisions, male or female, into which persons, animals, or plants are divided, with reference to their reproductive functions”); The American Heritage Dictionary 1605 (5th ed. 2011) (“Either of the two divisions, designated female and male, by which most organisms are classified on the basis of their reproductive organs and functions”); Merriam-Webster’s Collegiate Dictionary 1140 (11th
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ed. 2011) (“either 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 structures”). Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.
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 regulations.
Despite the fact that the majority offers no case to support the definition of “sex” as advanced by G.G. and supported by the government as amicus, the majority nonetheless accepts that the meaning of the term “sex” in Title IX and its regulations refers to a person’s “gender identity” simply to accommodate G.G.’s wish to use the boys’ restrooms. But, it is not immediately apparent whether G.G., the government, and the majority contend that the term “sex” 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 “gender identity.” In his brief, G.G. seems to take the position that the term “sex” at least includes a reference to gender identity. This is the position taken in his complaint
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when he alleges, “Under Title IX, discrimination ‘on the basis of sex’ encompasses both discrimination based on biological differences between men and women and discrimination based on gender nonconformity.” The government seems to be taking the same position, contending that the term “sex” “encompasses both sex -- that is, the biological differences between men and women -- and gender [identity].” (Emphasis in original). The majority, however, seems to suggest that the term “sex” refers only to gender identity, as it relies solely on the statement in the Office for Civil Rights’ letter of January 7, 2015, which said, “When 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.” (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 “sex” as used in the statute and regulations refers to both biological sex and gender identity, then, while the School Board’s policy is in compliance with respect to most students, whose biological sex 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 consistent with the regulation because a transgender student’s use of a boys’ or girls’ restroom or locker room could not satisfy the conjunctive criteria. Given that G.G. and the government do not challenge schools’ ability to separate restrooms and locker rooms for male and female students, surely they cannot be advocating an interpretation that places schools in an impossible position. Moreover, such an interpretation would deny G.G. the right to use either the boys’ or girls’ restrooms, a position that G.G. does not advocate.
If the position of G.G., the government, and the majority is that the term “sex” means either biological sex or gender identity, then the School Board’s 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 boys’ restrooms and locker rooms as consistent with his gender identity, G.G., the government, and the majority must be arguing that “sex” 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. Biological
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males and females whose 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 “on the basis of sex,” 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 boys’ restroom, or that only students who wear dresses, have long hair, and act sufficiently feminine may use the girls’ restroom. Yet, by interpreting Title IX and the regulations as “requiring schools to treat students consistent with their gender identity,” and by disallowing schools from treating students based on their biological sex, the government’s 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 girls’ restrooms, G.G. states that “it makes no sense to place a
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transgender boy in the girls’ restroom in the name of protecting student privacy” because “girls objected to his presence in the girls’ restrooms because they perceived him as male.” But the same argument applies to his use of the boys’ 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 “on the basis of sex” if “sex” means gender identity.
The Office for Civil Rights letter, on which the majority exclusively relies, hardly provides an answer. In one sentence it states that schools “generally must treat transgender students consistent with their gender identity,” whatever that means, and in the next sentence, it encourages schools to provide “gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.” While the first sentence might be impossible to enforce without destroying all privacy-serving separation, the second sentence encourages schools, such as Gloucester High
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School, to provide unisex 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 to separate, on the basis of sex, living facilities, restrooms, locker rooms, and shower 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.’s gender transition, accommodating virtually every wish that he had. Indeed, he initially requested and was granted the use of the nurse’s restroom. And, after both girls and boys objected to his using the girls’ and boys’ 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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court’s decision dismissing G.G.’s Title IX claim and therefore dissent.
I also dissent from the majority’s decision to vacate the district court’s denial of G.G.’s motion for a preliminary injunction. As the Supreme Court has consistently explained, “[a] preliminary injunction is an extraordinary remedy” that “may only be awarded upon a clear showing that the plaintiff is entitled to such relief,” and “‘[i]n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy.’” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22-24 (2008) (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). Given the facts that the district court fully and fairly summarized in its opinion, including the hardships expressed both by G.G. and by other students, I cannot conclude that we can “form a definite and firm conviction that the court below committed a clear error of judgment,” Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006) (quotation marks and citation omitted), particularly when we are only now expressing as binding law an evidentiary standard that the majority asserts the district court violated.
As noted, however, I concur in Part IV of the court’s opinion.
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 Case 4:15-cv-00054-RGD-DEM Document 69 Filed 06/23/16 Page 1 of 2 PageID# 847

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION

Fll ED
JUN 2 3 2016

G.G., by his next friend and mother,
DEIRDRE GRIMM,

CLERK, USD13TR CT COURT
NORFOLK, VA

Plaintiff
v.

CIVIL NO. 4:15cv54

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

ORDER
This matter is before the Court on Plaintiff G.G.'s Motion for Preliminary Injunction. ECF No. 11. On September 4, 2015, this Court denied the Motion. ECF No. 53. On appeal, the Court of Appeals vacated this denial and remanded the case for reevaluation of the Motion under a different evidentiary standard. Op. of USCA, ECF No. 62 at 33. The Court of Appeals also reversed this Court's dismissal of G.G.'s claim under Title IX. Id. at 26. In a concurrence. Judge
Davis explained why the Preliminary Injunction should issue in light of the Court of Appeals' analysis of Title IX. Id. at 37-44. Il appears to the Court from the unrebutted declarations submitted by the parties that the plaintiff is entitled to use the boys' restroom. Therefore, for the
reasons set forth in the aforesaid concurrence and based on the declarations submitted by the parties, the Court finds that the plaintiff is entitled to a preliminary injunction.
As noted in the Opinion of the Court of Appeals, this case is only about G.G.'s access to
the boys' restrooms; G.G. has not requested access to the boys' locker rooms. Id. at 7 n. 2 (UG.G.
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does not participate in the school's physical education programs. He does not seek here, and never has sought, use of the boys' locker room. Only restroom use is at issue in this case."). Accordingly, this injunction is limited to restroom access and does not cover access to any other
facilities.
Based on the evidence submitted through declarations previously proffered for the purpose of the hearing on the Preliminary Injunction, this Court, pursuant to Title IX, hereby ORDERS that Gloucester County School Board permit the plaintiff, G.G., to use the boys' restroom at Gloucester High School until further order of this Court.
The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.
IT IS SO ORDERED.

Newport News, VA
June ?*>.2016

UNITED STATES DISTRICT JUDGE

 
 Cite as: 579 U. S. ____ (2016)

1

BREYER, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________
No. 16A52
_________________
GLOUCESTER COUNTY SCHOOL BOARD v. G. G.,
 BY HIS NEXT FRIEND AND MOTHER,
 DEIRDRE GRIMM

ON APPLICATION TO RECALL AND STAY
[August 3, 2016]
The application to recall and stay the mandate of the United States Court of Appeals for the Fourth Circuit in case No. 15–2056, presented to THE CHIEF JUSTICE and by him referred to the Court, is granted and the preliminary injunction entered by the United States District Court for the Eastern District of Virginia on June 23, 2016, is hereby stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the judgment of this Court.
JUSTICE BREYER, concurring.
In light of the facts that four Justices have voted to grant the application referred to the Court by THE CHIEF JUSTICE, that we are currently in recess, and that granting a stay will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court considers the forthcoming petition for certiorari, I vote to grant the application as a courtesy. See Medellín v. Texas, 554 U. S. 759, 765 (2008) (BREYER, J., dissenting).
JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN would deny the application.

 
 (ORDER LIST: 580 U.S.)

MONDAY, MARCH 6, 2017

16-273

CERTIORARI –- SUMMARY DISPOSITION GLOUCESTER COUNTY SCH. BD. V. G. G.
The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.

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 Case 4:15-cv-00054-RGD-DEM Document 78 Filed 07/12/16 Page 1 of 6 PageID# 904

UNPUBLISHED

FILED: July 12, 2016

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ___________________ No. 16-1733 (4:15-cv-00054-RGD-DEM) ___________________
G. G., by his next friend and mother, Deirdre Grimm, Plaintiff - Appellee,
v. GLOUCESTER COUNTY SCHOOL BOARD,
Defendant - Appellant.
___________________ O R D E R
___________________ Upon consideration of submissions relative to the motion of appellant for stay pending appeal, the court denies the motion. Entered at the direction of Judge Floyd. Senior Judge Davis wrote an opinion concurring in the denial of a stay pending the filing of, and action on, a petition for certiorari. Judge Niemeyer wrote an opinion dissenting from the denial of a stay pending appeal.
For the Court /s/ Patricia S. Connor, Clerk

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DAVIS, Senior Circuit Judge, concurring in the denial of a stay pending the filing of, and action on, a petition for certiorari:
I vote to deny the motion for stay. In Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989), plaintiff Ann Hopkins received comments from partners describing her as “macho,” suggesting that she “overcompensated for being a woman,” and “advis[ing] her to take a course at charm school” during her bid for partnership. Price Waterhouse, 490 U.S. 228, 235 (1989) (citations omitted). Hopkins was told that to improve her chances of attaining partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. (citation omitted). Rejecting Price Waterhouse’s insinuation that acting in reliance on sex stereotyping was not prohibited by Title VII, the Supreme Court unequivocally stated otherwise: [W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 251 (second alteration in original) (quoting Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, n.13 (1978)). The Supreme Court has expressly recognized that claims based on an individual’s failure to conform to societal expectations based on that person’s gender constitute discrimination “because of sex”
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under Title VII. Id. at 250–51 (plurality); Price Waterhouse, 490 U.S. at 272-73 (O’Connor, J., concurring); Price Waterhouse, 490 U.S. at 260-61 (White, J., concurring).
The First, Sixth, Ninth, and Eleventh Circuits have all recognized that discrimination against a transgender individual based on that person’s transgender status is discrimination because of sex under federal civil rights statutes and the Equal Protection Clause of the Constitution. See Glenn v. Brumby, 663 F.3d 1312, 1316–19 (11th Cir. 2011) (holding that terminating an employee because she is transgender violates the prohibition on sex-based discrimination under the Equal Protection Clause following the reasoning of Price Waterhouse); Smith v. City of Salem, Ohio, 378 F.3d 566, 573–75 (6th Cir. 2004) (holding that transgender employee had stated a claim under Title VII based on the reasoning of Price Waterhouse); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000) (holding that a transgender individual could state a claim for sex discrimination under the Equal Credit Opportunity Act based on Price Waterhouse); Schwenk v. Hartford, 204 F.3d 1187, 1201–03 (9th Cir. 2000) (holding that a transgender individual could state a claim under the Gender Motivated Violence Act under the reasoning of Price Waterhouse).
On this long-settled jurisprudential foundation, our friend’s assertion that the majority opinion issued when this case was
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previously before us is “unprecedented” misses the mark. In any event, as regards the standards for a stay, the dissent contains its own rebuttal. Contrary to the dissent’s assertion that “the School Board has constructed three unisex bathrooms to accommodate any person who feels uncomfortable using facilities separated on the basis of sex,” the three unisex bathrooms are in fact available to “any student” at the school. Mot. for Stay at 5.
In short, there is no reason to disturb the district court’s exercise of discretion in denying the motion to stay its preliminary injunction.
NIEMEYER, Circuit Judge, dissenting from the denial of a stay pending appeal:
I would grant Gloucester County School Board’s motion for a stay pending appeal. See Long v. Robinson, 432 F.2d 977 (4th Cir. 1970); cf. Winter v. National Resources Defense Council, Inc., 555 U.S. 7 (2008). Facially, the district court conducted no analysis required by Winter for the entry of a preliminary injunction, relying only on our earlier decision in this case. And under the balancing analysis prescribed by Long, I conclude that a stay is appropriate, based on the following:
1. The earlier groundbreaking decision of this court is, as I have noted previously, unprecedented. Indeed, it appears to violate the clear, unambiguous language of Title IX, which explicitly authorizes the provision of various separate facilities
4

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“on the basis of sex.” Moreover, the court’s decision applying deference under Auer v. Robins, 519 U.S. 452 (1997), is questionable, and, even if deference were appropriate, it relies solely on a letter from the U.S. Department of Education, imposing an entirely new interpretation of “sex” in Title IX without the support of any law. In view of this, it is difficult to understand how the decision is sustainable.
2. By enforcing the injunction now, male students at Gloucester High School will be denied the separate facilities provided by the School Board on the basis of sex, as authorized by Congress, and thus will be denied bodily privacy when using the facilities, to the dismay of the students and their parents. These consequences are likely to cause disruption both in the school and among the parents.
3. While I recognize the sensitivities of G.G.’s gender transition, I nonetheless conclude that he is unlikely to suffer substantial injury from a stay of the district court’s injunction, particularly because the School Board has constructed three unisex bathrooms to accommodate any person who feels uncomfortable using facilities separated on the basis of sex.
4. The public interest in a final and orderly resolution of G.G.’s claims before enforcement of this court’s decision is served by a stay pending appeal. The changes that this injunction would require -- and that the Department of Justice and Department of
5

Case 4:15-cv-00054-RGD-DEM Document 78 Filed 07/12/16 Page 6 of 6 PageID# 909 Education now seek to impose nationwide on the basis of our earlier decision -- mark a dramatic departure from the responsibilities local school boards have heretofore understood and the authorizations that Congress has long provided. These school boards and the communities they serve would benefit from the thoughtful and final disposition of G.G.’s claims, and from ultimate guidance from the Supreme Court or Congress, before having to undertake these sweeping reforms. In short, I conclude that the Gloucester County School Board has adequately made its case for a stay pending appeal, and I would grant its motion for such a stay.
6

 
 Case 4:15-cv-00054-RGD-DEM Document 93 Filed 04/07/17 Page 1 of 5 PageID# 949

PUBLISHED

FILED: April 7, 2017

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

___________________

No. 16-1733 (4:15-cv-00054-RGD-DEM)
___________________

G. G., by his next friend and mother, Deirdre Grimm

Plaintiff - Appellee

v.

GLOUCESTER COUNTY SCHOOL BOARD

Defendant – Appellant

___________________

O R D E R ___________________

Upon consideration of the unopposed motion to vacate preliminary injunction, the

court vacates the preliminary injunction entered by the district court on June 23, 2016.

Senior Judge Davis wrote a concurring opinion in which Judge Floyd joined.

Entered at the direction of Judge Floyd with the concurrence of Judge Niemeyer

and Senior Judge Davis.

For the Court

/s/ Patricia S. Connor, Clerk

Case 4:15-cv-00054-RGD-DEM Document 93 Filed 04/07/17 Page 2 of 5 PageID# 950
DAVIS, Senior Circuit Judge, concurring: I concur in the order granting the unopposed motion to vacate the district court’s
preliminary injunction and add these observations. G.G., then a fifteen-year-old transgender boy, addressed the Gloucester County
School Board on November 11, 2014, to explain why he was not a danger to other students. He explained that he had used the boys’ bathroom in public places throughout Gloucester County and had never had a confrontation. He explained that he is a person worthy of dignity and privacy. He explained why it is humiliating to be segregated from the general population. He knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination. And so he hoped that his heartfelt explanation would help the powerful adults in his community come to understand what his adolescent peers already did. G.G. clearly and eloquently attested that he was not a predator, but a boy, despite the fact that he did not conform to some people’s idea about who is a boy.1
Regrettably, a majority of the School Board was unpersuaded. And so we come to this moment. High school graduation looms and, by this court’s order vacating the preliminary injunction, G.G.’s banishment from the boys’ restroom becomes an enduring feature of his high school experience. Would that courtesies extended to others had been extended to G.G.
1 Footage of his compelling statement to the School Board is available at: https://www.youtube.com/watch?v=My0GYq_Wydw&feature=youtu.be.
2

Case 4:15-cv-00054-RGD-DEM Document 93 Filed 04/07/17 Page 3 of 5 PageID# 951 Our country has a long and ignominious history of discriminating against our most
vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.
G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.
G.G.’s plight has shown us the inequities that arise when the government organizes society by outdated constructs like biological sex and gender. Fortunately, the law eventually catches up to the lived facts of people; indeed, the record shows that the
3

Case 4:15-cv-00054-RGD-DEM Document 93 Filed 04/07/17 Page 4 of 5 PageID# 952 Commonwealth of Virginia has now recorded a birth certificate for G.G. that designates his sex as male. G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted — but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives. G.G. is and will be famous, and justifiably so. But he is not “famous” in the hollowed-out Hollywood sense of the term. He is famous for the reasons celebrated by the renowned Palestinian-American poet Naomi Shehab Nye, in her extraordinary poem,
4

Case 4:15-cv-00054-RGD-DEM Document 93 Filed 04/07/17 Page 5 of 5 PageID# 953
Famous. Despite his youth and the formidable power of those arrayed against him at every stage of these proceedings, “[he] never forgot what [he] could do.”2
Judge Floyd has authorized me to state that he joins in the views expressed herein.
2 See N. S. Nye, Famous: The river is famous to the fish. The loud voice is famous to silence, which knew it would inherit the earth before anybody said so. The cat sleeping on the fence is famous to the birds watching him from the birdhouse. The tear is famous, briefly, to the cheek. The idea you carry close to your bosom is famous to your bosom. The boot is famous to the earth, more famous than the dress shoe, which is famous only to floors. The bent photograph is famous to the one who carries it and not at all famous to the one who is pictured. I want to be famous to shuffling men who smile while crossing streets, sticky children in grocery lines, famous as the one who smiled back. I want to be famous in the way a pulley is famous, or a buttonhole, not because it did anything spectacular, but because it never forgot what it could do.
5

 
 No. 15-2056
In the United States Court of Appeals for the Fourth Circuit

GAVIN GRIMM, Plaintiff – Appellant,

v.

GLOUCESTER COUNTY SCHOOL BOARD,
Defendant – Appellee. __________________
On Appeal from the United States District Court For the Eastern District of Virginia No. 4:15-cv-00054-RGD-DEM __________________

SUPPLEMENTAL REPLY BRIEF OF GLOUCESTER COUNTY SCHOOL BOARD
__________________

David P. Corrigan Jeremy D. Capps M. Scott Fisher, Jr. HARMAN, CLAYTOR, CORRIGAN & WELLMAN Post Office Box 70280 Richmond, VA 23255 (804) 747-5200 dcorrigan@hccw.com

S. Kyle Duncan Gene C. Schaerr Stephen S. Schwartz SCHAERR|DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 (202) 714-9492 kduncan@schaerr-duncan.com
Counsel for Gloucester County School Board

TABLE OF CONTENTS
TABLE OF AUTHORITIES......................................................................ii INTRODUCTION ...................................................................................... 1 ARGUMENT ............................................................................................. 2
I. Grimm’s Supplemental Brief Confirms That This Appeal Will Become Moot When Grimm Graduates. .......................................... 2
II. The Board’s Restroom And Locker Room Policy Is Plainly Permitted by Title IX And Section 106.33. ...................................... 6 A. As Grimm concedes, the prior panel already found that Section 106.33 permits the Board’s policy. ............................. 7 B. Grimm is incorrect that Title IX requires treating “transgender boys and girls” exactly like other boys and girls for purposes of restroom and locker room access. ........ 11 C. Grimm ignores the myriad administrative problems inherent in reading “sex” to encompass “gender identity” or “transgender status.” ........................................................ 18 D. Grimm ignores the privacy concerns caused by reading “sex” in Title IX as encompassing “gender identity” or “transgender status.” ............................................................ 23 E. The Board’s policy does not engage in “transgender status” discrimination or in “sex stereotyping.” ................... 24
III. Grimm Is Not Entitled To A Preliminary Injunction....................27 CONCLUSION ........................................................................................ 30
i

TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000)...............................................................................6
Bowen v. Gilliard, 483 U.S. 587 (1987).............................................................................29
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).............................................................................29
Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013)..........................................................................3
Cook v. Colgate University, 992 F.2d 17 (2d Cir. 1993) .................................................................... 2
Denmeade v. King, No. 00-CV-0407E(F), 2002 WL 31018148 (W.D.N.Y. Aug. 1, 2002)........................................................................5
Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007) ............................................... 25, 26, 29
Faulkner v. Jones, 10 F.3d 226 (4th Cir. 1993)........................................................... 23, 29
Finkle v. Howard County, 12 F. Supp. 3d 780 (D. Md. 2014) ....................................................... 25
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000)...............................................................................6
G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016)....................................................... passim
Johnston v. University of Pittsburgh of the Commonwealth System of Higher Education, 97 F. Supp. 3d 657 (W.D. Pa. 2015)........................................ 25, 26, 29
Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981) ............................................................. 29
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...............................................................................4
ii

MCI Telecommunications Corp. v. American Telephone & Telecommunications Co., 512 U.S. 218 (1994).............................................................................17
Muth v. United States, 1 F.3d 246 (4th Cir. 1993)...................................................................28
Nguyen v. Immigration & Naturalization Service, 533 U.S. 53 (2001)...............................................................................28
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).............................................................................24
Real Truth About Obama, Inc. v. Federal Election Commission, 575 F.3d 342 (4th Cir. 2009)......................................................... 27, 30
Roberson v. Mullins, 29 F.3d 132 (4th Cir. 1994)...................................................................3
Robinson v. Parke-Davis & Co., 685 F.2d 912 (4th Cir. 1982).................................................................3
Ross v. City University of New York, 211 F. Supp. 3d 518 (E.D.N.Y. 2016)................................................ 4, 5
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) ..................................................... 25
Scoggins v. Lee’s Crossing Homeowners Association, 718 F.3d 262 (4th Cir. 2013).................................................................4
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)...............................................................25
System Operations, Inc. v. Science Games Development Corp., 555 F.2d 1131 (3d Cir. 1977) .............................................................. 28
Texas v. United States, 523 U.S. 296 (1998)...............................................................................4
United States v. Virginia, 518 U.S. 515 (1996)....................................................................... 23, 28
Whitaker v. Kenosha Unified School District, __ F.3d __, 2017 WL 2331751 (7th Cir. May 30, 2017) ..................... 26
iii

Statutes
20 U.S.C. § 1681 ........................................................................................ 5
20 U.S.C. § 1686 ........................................................................................ 7
28 U.S.C. § 1291 ........................................................................................ 3
Regulation
34 C.F.R. § 106.33 ........................................................................... passim
Rule
Fed. R. Civ. P. 54(b)...................................................................................2
Other Authorities
American College Dictionary (1970)........................................................ 16
American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders (5th ed. 2013) ........................... 12, 13, 15
American Psychiatric Association, What is Gender Dysphoria?, available at https://goo.gl/ymR8Nl ..................................................... 13
American Psychological Association & National Association of School Psychologists, Resolution on Gender and Sexual Orientation Diversity in Children and Adolescents in Schools (2015)................................................................................................... 12
Boy Scouts of America, BSA Addresses Gender Identity (Jan. 30, 2017), available at https://goo.gl/WxNoGY ................................................... 21
Department of Defense Instruction No 1300.28: In-Service Transition for Transgender Service Members (June 30, 2016), available at https://goo.gl/p9xsaB.......................................................21
Girl Scouts, Frequently Asked Questions: Social Issues, available at https://goo.gl/364fXI........................................................20
National Association of School Psychologists Position Statement, Safe Schools for Transgender and Gender Diverse Students, available at https://goo.gl/V5MuEz .................................................... 15
National Collegiate Athletic Association, NCAA Inclusion of Transgender Student-Athletes (2011), available at https://goo.gl/V2Oxb2......................................................21
iv

Oxford English Dictionary Online, Oxford Univ. Press ................... 16, 17 Virginia High School League, Criteria for Virginia High School
League Transgender Rule Appeals, available at https://goo.gl/fgQe2l ........................................................ 21 Webster’s Third New International Dictionary (1971)............................ 16
v

INTRODUCTION Gavin Grimm’s supplemental brief confirms the two central arguments made by the Gloucester County School Board (“Board”) in its own supplemental brief. First, Grimm’s impending graduation will moot this appeal, which should therefore be dismissed. Second, if the Court reaches the merits, the Board’s restroom and locker room policy is permitted by the plain text of the Title IX regulation allowing “separate toilet, locker room, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. Indeed, as Grimm’s brief implicitly concedes, Grimm Supp. Br. at 33–34, the prior panel “conclude[d]” that the regulation “permits … the Board’s reading.” G.G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 720 (4th Cir. 2016). It is therefore impossible to avoid the conclusion that the Board’s policy is lawful under Title IX, especially now that the sole basis for the panel’s prior decision—the federal guidance equating “sex” with “gender identity”—has been rescinded. The Court should either dismiss Grimm’s appeal or affirm the district court’s decision dismissing Grimm’s Title IX claim.

ARGUMENT I. Grimm’s Supplemental Brief Confirms That This Appeal
Will Become Moot When Grimm Graduates. The Board’s supplemental brief showed that when Grimm graduates on June 10, 2017, the question of Grimm’s bathroom access as a student will become moot. Supp. Br. at 18–20. Courts have routinely dismissed Title IX injunctive relief claims as moot when plaintiffs graduate. See, e.g., Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993) (collecting cases). The burden is therefore on Grimm to identify some other justiciable issue that will remain live. Supp. Br. at 19. Grimm’s supplemental brief anticipates the Board’s concern, but only underscores the incipient jurisdictional defect. This Court should therefore dismiss the appeal as moot. The sole basis Grimm offers for jurisdiction post-graduation is that the Board’s policy might apply to Grimm as an alumnus. Grimm Supp. Br. at 19.1 That theory has multiple flaws.

1

Grimm, correctly, does not contend that jurisdiction can be predicated on the

availability of nominal damages under Title IX. Compare Grimm Supp. Br. at 20–21,

with Supp. Br. at 19–20. The district court dismissed only Grimm’s Title IX claim,

not Grimm’s Equal Protection claim, see JA154, and did not enter a Rule 54(b) final

judgment as to Title IX. Its dismissal of the Title IX claim was thus not a “final

2

First, because Grimm has not pled how the Board’s policy will affect Grimm as an alumnus, Grimm lacks standing to seek relief in that capacity. To confer standing, threatened future injuries “must be certainly impending,” and not merely “allegations of possible future injury[.]” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (quotes and alteration omitted). But Grimm has not alleged any particular intention to return to school after graduation: Whether and when Grimm plans ever to attend “alumni events,” “homecoming or prom as a guest,” or “football games and other community events” is speculative. Grimm Supp. Br. at 19. These “‘some day’ intentions” “without … even any specification of when the some day will be” do not
decision” appealable under 28 U.S.C. § 1291; Robinson v. Parke-Davis & Co., 685 F.2d 912, 913 (4th Cir. 1982) (per curiam). This Court’s jurisdiction to review dismissal of Grimm’s Title IX claim is therefore pendent on its jurisdiction to review denial of Grimm’s preliminary injunction motion. See 28 U.S.C. § 1292(a)(1); Grimm Supp. Br. at 20–21. Grimm’s claim for nominal damages under Title IX does not independently support jurisdiction. See Roberson v. Mullins, 29 F.3d 132, 136 (4th Cir. 1994) (pendent jurisdiction applies only “[w]hen we properly have jurisdiction” over another order).
3

establish a justiciable claim. Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992).2
Second, because it is not evident that the Board’s policy even applies to alumni—it is directed at “students,” and says nothing about alumni, see JA15–16—Grimm’s claims regarding future alumni events are unripe. See, e.g., Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 270 (4th Cir. 2013) (ripeness turns on “fitness” of issues for adjudication and “hardship” to parties from withholding adjudication). The question whether the Board’s policy applies to alumni is unfit for adjudication because it “‘rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Id. (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). Furthermore, given that Grimm has not even pled any plan to attend alumni events, there is no obvious hardship in reserving adjudication until the policy’s application at alumni events becomes relevant. Id. at 271 (observing that

2

That distinguishes Ross v. City University of New York, where the plaintiff had

alleged “far more than the vague ‘some day’ intentions to return” to school after

graduation. 211 F. Supp. 3d 518, 524 (E.D.N.Y. 2016); Grimm Supp. Br. at 19.

4

an issue was “not time-sensitive, and thus a holding that the claim is not ripe will not present an immediate threat to the plaintiffs”).
Third, even if Grimm had standing and a ripe claim regarding alumni events, as an alumnus Grimm would lack a claim for injunctive relief under Title IX. Title IX prohibits discrimination in “any education program or activity.” 20 U.S.C. § 1681. As an alumnus, however, Grimm will no longer be a participant in Gloucester County “education program[s] or activit[ies],” but simply a member of the public. Grimm has cited no authority holding that Title IX applies to non-students in postgraduation programs and activities, or gives them a claim against schools they once attended. The only cases Grimm cites arose not under Title IX, but the Americans With Disabilities Act and other statutes that apply generally to programs and activities occurring on school property, not just educational ones provided to students. See Grimm Supp. Br. at 19 (citing Denmeade v. King, No. 00-CV-0407E(F), 2002 WL 31018148, at *4 (W.D.N.Y. Aug. 1, 2002), and Ross, 211 F. Supp. 3d 518).3

3

One of Grimm’s cases distinguishes, on that ground, a Title IX case finding

mootness post-graduation. See Denmeade, 2002 WL 31018148, at *4 (distinguishing

non-justiciable case because “the inaccessibility of the campus gives the plaintiffs—

as students or alumni—a personal stake in this action”) (footnote omitted).

5

Grimm attempts to avoid these jurisdictional flaws by citing cases where a “defendant claim[s] that its voluntary compliance moots a case.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000); Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000); Grimm Supp. Br. at 20 n.14. But that analogy is false; the mootness here comes not from any change in the Board’s policy, but from Grimm’s change in status from student to alumnus—one who may or may not return for any particular alumni events, who in any case would likely not be subject to the Board’s policy, and who would not have any Title IX recourse anyway. II. The Board’s Restroom And Locker Room Policy Is Plainly
Permitted By Title IX And Section 106.33. The Board’s supplemental brief showed that its policy—which designates multiple-user restrooms and locker rooms by biological sex and not gender identity—is valid under Title IX and its implementing regulation, 34 C.F.R. § 106.33. Supp. Br. at 21–23. First, that regulation permits a policy like the Board’s by allowing schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” if those facilities are “comparable” for “students of one sex” and “students of the other sex.” 34 C.F.R. § 106.33 (emphasis added). Second, Grimm’s
6

proposed re-interpretation of Title IX—making sex turn on gender identity—violates Title IX’s text, history, and structure. Supp. Br. at 21– 32, 38–45. Grimm’s view finds no support in any Title IX-era (or modern) dictionary, id. at 24–26, and would subvert Title IX’s structure, which allows separation of “the different sexes,” 20 U.S.C. § 1686, in settings such as living facilities, restrooms, locker rooms, showers, and athletic teams.4
Grimm’s supplemental brief fails to rebut any of these points. A. As Grimm concedes, the prior panel already found that
Section 106.33 permits the Board’s policy. Grimm all but concedes that the key Title IX regulation, Section 106.33, permits the Board’s policy. As Grimm’s brief acknowledges when it finally addresses that regulation—after 32 pages—it concedes that the prior panel found Section 106.33 “‘susceptible to more than one plausible reading’” regarding how to determine a transgender person’s sex. Supp. Br. at 33–34 (quoting G.G., 822 F.3d at 720). And one of those “plausible reading[s]” actually validates the Board’s policy: “[T]he regulation,”

4

The Board also argued that Grimm’s interpretation would invalidate Title IX

under the Spending Clause and should be rejected as a matter of constitutional

avoidance. Supp. Br. at 45–47. Grimm’s supplemental brief does not address this

issue and so neither does the Board’s reply.

7

explained the panel, “permits both the Board’s reading … and the Department’s interpretation[.]” 822 F.3d 720 (emphasis added). Now that the Department’s interpretation has been rescinded (and deference to it is no longer an issue), the outcome is plain: Because Section 106.33 “permits … the Board’s reading,” the Board’s policy must be valid under Title IX. Id.
Grimm vainly attempts to avoid this result. First, while acknowledging the panel’s conclusion that the regulation was “ambiguous … in the broader regulatory context,” Grimm now claims the “ambiguity disappears when the regulation is read … within the broader statutory context.” Grimm Supp. Br. at 34. That makes no sense: The term the panel found ambiguous—“sex”—appears in both the regulation and the statute, and, as the panel noted, that term “should be construed uniformly throughout Title IX and its implementing regulations.” G.G., 822 F.3d at 723. If the regulation “permits” the Board’s reading of “sex,” Title IX’s use of the same term cannot forbid it.
Furthermore, Grimm’s reading of the statute means that the regulation unambiguously requires equating a “transgender boy” with a “boy” under Title IX. See Grimm Supp. Br. at 35 (arguing “[t]he only way
8

to provide sex-separated restrooms … is to allow boys and girls who are transgender to use the same restrooms that other boys and girls use”). But this radical interpretation contradicts every prior resolution of the interpretive question before the Court. It contradicts the prior panel’s conclusion that the regulation is susceptible to “more than one plausible reading” regarding transgender persons. G.G., 822 F.3d at 720. It contradicts the United States’ previous view, which “consider[ed] § 106.33 to be ambiguous as to transgender students[.]” Id. at 719. It even contradicts Grimm’s own prior position before this Court. 5 Grimm’s newfound insistence that the regulation is “unambiguous” when applied to transgender students cannot be taken seriously.
Second, Grimm concedes the regulation “permits differential treatment on the basis of sex,” but claims that treatment is allowed only if it “does not subject anyone to unequal discrimination in violation of the statute.” Grimm Supp. Br. at 35. That also makes no sense: If the regulation permits the Board to provide sex-separated restrooms based

5

Grimm Opening Br. at 35 (Doc. 15) (stating “plain text of 34 C.F.R. § 106.33 …

does not resolve—or even address—whether schools may exclude transgender

students from the restrooms consistent with their gender identity”).

9

on its reading of “sex,” then Title IX cannot simultaneously condemn the Board’s policy as “sex” discrimination. Again, “sex” cannot mean one thing in the regulation and another in the statute.
Third, Grimm claims the regulation requires schools to provide “access to ‘comparable’ restrooms for all students.” Id. at 36. But Grimm misstates Section 106.33, which requires only that separate facilities “for students of one sex shall be comparable … for students of the other sex,” 34 C.F.R. § 106.33 (emphasis added). Grimm has never alleged that the facilities for males are not “comparable” to those for females. The fact that the Board has gone beyond what the regulation allows by providing additional single-user restrooms hardly means the Board has engaged in sex discrimination or failed to provide “comparable” facilities. Indeed, under Grimm’s reading of Title IX, the Board would apparently have to provide at least three comparable sets of restrooms and locker rooms: one for biological males, one for biological females, and another for transgender students. Title IX requires no such thing.
In short, as the prior panel correctly concluded, Section 106.33 by its terms permits the Board’s restroom and locker room policy, and so the Board’s policy does not violate Title IX.
10

B. Grimm is incorrect that Title IX requires treating “transgender boys and girls” exactly like other boys and girls for purposes of restroom and locker room access.
Grimm’s supplemental brief makes no attempt to show that gender identity should determine sex for Title IX purposes, even though this was previously one of Grimm’s central theories. See, e.g., Grimm Mem. in Supp. Mot. for Prelim. Inj. at 17 n.13 (Dist. Ct. Doc. 18) (claiming “no distinction between an individual’s gender identity and his or her ‘biological’ sex or gender”). Indeed, the idea that sex turns on gender identity was also central to the now-rescinded guidance documents. See G.G., 822 F.3d at 721 (noting “[t]he Department’s interpretation … that … sex as male or female is to be generally determined by reference to the student’s gender identity”). Instead of that position, Grimm’s supplemental brief defends the broader position that Title IX requires a “boy who is transgender” to be treated the same as other boys—and a “girl who is transgender” the same as other girls—for purposes of accessing sex-separated restrooms and locker rooms. See, e.g., Grimm Supp. Br. at 7, 34 (arguing that Section 106.33 does not authorize excluding “boys and girls who are transgender from the restrooms that other boys and girls use”). This broader theory has even less support in
11

Title IX’s text, history, and structure than the argument equating sex with gender identity.
To assess Grimm’s theory, one must flesh out what the term “transgender” means, based on Grimm’s own authorities.6 According to DSM-V, “[t]ransgender refers to the broad spectrum of individuals who transiently or persistently identify with a gender different from their natal gender.” DSM-V at 451; see also JA28–29 (Grimm Decl.); JA11 (Compl.). Transgender persons sometimes experience “gender dysphoria,” meaning distress caused by divergence between gender identity and birth sex. DSM-V at 451; JA36–37 (Ettner Decl.). According to Grimm’s sources, gender dysphoric persons may identify with the sex opposite their birth sex, DSM-V at 453; or they may “desire to be of an alternative gender,” id.; or they may be gender fluid (“having different gender identities at different times”), agendered (“having no gender identity”), or gender expansive (“a wider, more flexible range of gender

6

See, e.g., Grimm Supp. Br. at 3–4 & n. 2 (citing Am. Psychiatric Ass’n (“APA”),

Diagnostic & Statistical Manual of Mental Disorders (5th ed. 2013) (“DSM-V”)); id.

at 6 n. 5 (citing Am. Psychological Ass’n (“APsyA”) & Nat’l Ass’n Sch. Psychologists

(“NASP”), Resolution on Gender and Sexual Orientation Diversity in Children and

Adolescents in Schools (2015)); JA9, 11–14 (Complaint); JA28–30 (Grimm Decl.);

JA36–42 (Decl. of Randi Ettner, Ph.D.).

12

identity and/or expression than typically associated with the binary gender system”). APA, What is Gender Dysphoria?, available at https://goo.gl/ymR8Nl. Grimm’s sources also explain that gender dysphoria in children generally does not persist into adolescence or adulthood—i.e., for roughly 98% to 70% of males and 88% to 50% of females. DSM-V at 455; see also APA, What Is Gender Dysphoria? (“For many children the feelings [associated with gender dysphoria] do not continue into adolescence and adulthood.”) (at “Treatment” tab).
Some transgender persons are advised by doctors to “transition” so that their appearance, physiology, and social behavior match their gender identity. JA38 (Ettner Decl.). A transition may include using hormone blockers to prevent onset of puberty and cross-sex hormones to create the appearance of being a different sex; genital surgery; dressing and grooming like the opposite sex; adopting a name and pronouns characteristic of another sex (or no sex); and using restrooms and other facilities designated for the opposite sex. See id.
Having specified what Grimm means by “transgender,” the issue is whether Grimm is correct that “transgender boys” must be treated as equivalent to “other boys” (and “transgender girls” equivalent to “other
13

girls”) for purposes of Title IX’s prohibition on “sex” discrimination and Section 106.33’s allowance of sex-separated facilities. The answer is no.
First, as already demonstrated, all evidence shows that the Title IX term “sex” is a binary concept referring to the physiological differences between males and females, and no evidence suggests the term turned on gender identity. Supp. Br. at 23–38. That same evidence shows, even more strongly, that Title IX’s prohibition on “sex” discrimination does not require equating “boys” with “transgender boys” or “girls” with “transgender girls.” That is, no evidence shows that a “boy” for Title IX purposes must include someone born female but whose gender dysphoria led her to masculinize her appearance or physiology. This conclusion is reinforced by the fact that transgender persons may identify as neither male nor female, may shift between the two, may identify as having no sex, and usually desist from gender dysphoria after childhood. See supra. In short, Grimm points to no evidence showing that the Title IX term “sex” encompasses the multi-faceted and fluid concept of “transgender.”
Grimm’s medical sources also confirm that “sex” and “transgender” are distinct. For instance, the DSM-V defines “sex” as referring to “the biological indicators of male and female (understood in the context of
14

reproductive capacity),” and contrasts it with “gender identity,” which “refers to an individual’s identification as male, female, or occasionally, some category other than male or female.” DSM-V at 451; see Grimm Supp. Br. at 3 n.2 (citing DSM-V). Similarly the NASP defines “sex” as “refer[ring] to a person’s biological characteristics, including chromosomes, hormones, and anatomy,” in contrast to “transgender,” which means “having a gender identity that differs from culturally determined gender roles and biological sex.” NASP Position Statement, Safe Schools for Transgender and Gender Diverse Students 6 (emphasis added), available at https://goo.gl/V5MuEz; see Grimm Supp. Br. at 6 n.5 (citing NASP). Thus, even the medical sources on which Grimm relies distinguish “biological sex” from “transgender.”
Second, Grimm claims that equating “boys and girls who are transgender” with “other boys and girls” (respectively) is “entirely consistent with the ordinary definition of ‘sex,’ both at the time the regulations was [sic] enacted and today.” Grimm Supp. Br. at 37 (emphasis added). Grimm offers no support for that dramatic claim.
Instead, Grimm purports to rely on the prior panel, which supposedly “observed” that the “plain meaning of sex in 1972 extended
15

beyond physical characteristics such as anatomy or chromosomes,” and included “both physical differences and cultural ones,” id. at 37–38. But the panel did not say that: It simply quoted two 1970s-era definitions of “sex” referring to the “anatomical and physiological differences” between males and females and to “the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction.” G.G., 822 F.3d at 721 (quoting American College Dictionary 1109 (1970) and Webster’s Third New International Dictionary 2081 (1971)). It found on that basis that the term “sex” was ambiguous as applied to transgender persons, and thus deferred to the Department’s now-rescinded guidance documents, G.G., 822 F.3d at 722–23, but it hardly held that the “plain meaning” of the term includes “cultural” differences. Grimm Supp. Br. at 38.
Grimm points to only one other definition—from the online Oxford English Dictionary—to claim that the “plain meaning” of “sex” includes “cultural” differences between men and women. Grimm Supp. Br. at 38 (quoting OED Online, Oxford Univ. Press, “sex, n., 4a”). But Grimm refers to a subpart of one definition of “sex”—which merely considers the term as “a social or cultural phenomenon”—while disregarding another
16

definition that “sex” is “[e]ither of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions.” OED Online, sex, n, 1a. In any event, even assuming that “sex” has social and cultural aspects, that does not mean the term as used in Title IX hinges on gender identity or the fluid “transgender” concept. Cherry-picking definitions is no way to interpret text. See, e.g., MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 227–28 (1994).
Third, Grimm argues that, even if “sex” were “solely based on physiology or anatomy,” this would not determine the appropriate Title IX restrooms for transgender persons, because—given methods such as hormone therapy—“[m]any … have physiological and anatomical characteristics associated with their identity, not the sex identified for them at birth.” Grimm Supp. Br. at 38. But that is irrelevant. Grimm’s claims have never depended on external physical appearances, nor on whether someone has undergone a sex change—which in any event Grimm concedes would be inappropriate for minors. See JA38 (Ettner Decl.). But even if such considerations were relevant, there is no evidence suggesting that Title IX’s use of the term “sex” plausibly includes persons
17

of one birth sex who, given their gender dysphoria, have altered their appearance or physiology. In sum, to read into Title IX some definitive answer to the question of which “sex” a “transgender” person should be considered for purposes of sex-separated facilities—even assuming a single answer is possible—would be to legislate a version of Title IX that does not exist.
C. Grimm ignores the myriad administrative problems inherent in reading “sex” to encompass “gender identity” or “transgender status.”
The Board’s supplemental brief also highlighted the web of serious problems that would result from reading “sex” in Title IX to turn on “gender identity”: (1) eliminating schools’ ability to separate students of different physiological sexes in restrooms, locker rooms, and showers—a privacy measure contemplated by Title IX, Supp. Br. at 39–40; (2) eliminating schools’ ability to provide sex-separated athletic teams— also contemplated by Title IX, id. at 40–42; (3) requiring discrimination in favor of transgender persons, who could elect to use either facilities designated for their birth sex or gender identity, id. at 42; (4) unfairly disregarding the privacy of students distressed at being in intimate settings with students of the opposite physiological sex, id. at 42–43;
18

(5) exposing schools to potential hostile environment or harassment claims, id. at 43–44; (6) forcing schools to evaluate students’ sex according to masculine or feminine appearance, which is classic sexstereotyping, id. at 44; and (7) rendering Title IX invalid under the Spending Clause, id. at 45–47.
Grimm’s two-fold response is that any claimed administrative difficulties are contradicted, first, by the “actual experiences” of school administrators “across the country,” and second, by the “reality” that some institutions already “recognize boys who are transgender as boys and recognize girls who are transgender as girls.” Grimm Supp. Br. at 40–41. These responses fail to address the problems the Board raised.
For example, the School Administrators’ amicus brief on which Grimm relies, id. at 40, is from a self-selected group of administrators with a vested interest in defending their own transgender policies. See Br. of School Admins. (Doc. 155). Yet even these administrators admit that because of “‘weight, personal comfort, body image, social anxiety, or other reasons,’” some non-transgender students feel compelled to use alternative facilities when transgender students are present. Id. at 22– 24. They also admit to evaluating claims of transgender status based on
19

students’ consistent conformity to the stereotypes of their asserted gender identity—for example, by “wear[ing] female attire’” and “present[ing] as female to all of [one’s] friends and teachers[.]” Id. at 20– 21. In other words, these “successful” policies admittedly result in two of the harmful consequences identified by the Board, namely privacy violations and sex stereotyping. Supp. Br. at 42–44.
Grimm’s claims about the policies of various institutions—such as the Girl and Boy Scouts, the U.S. military, and the NCAA—are misleading. See Grimm Supp. Br. at 41 & nn. 24–29. Contrary to Grimm’s suggestion, those policies do not simply “recognize boys who are transgender as boys and … girls who are transgender as girls.” Id. at 41. For instance, the Girl Scouts’ policy handles placement of transgender youth “on a case-by-case basis”; considers “camping” arrangements “individually” through “special accommodations”; and promises only that someone who “lives culturally as a girl” will be “serve[d] … in a setting that is both emotionally and physically safe.” See Girl Scouts, Frequently Asked Questions: Social Issues, available at https://goo.gl/364fXI (cited at Grimm Supp. Br. at 41 n.24). The Girl Scouts’ policy guarantees nothing
20

about restroom, changing room, or shower access; it does not even mention the issue.7
The NCAA policy is even more carefully drawn. Supp. Br. at 41 n.14. While seeking to accommodate transgender athletes, the NCAA restricts male-to-female transgender individuals from competing on female teams “until completing one calendar year of testosterone suppression treatment.” Nat’l Collegiate Athletic Ass’n, NCAA Inclusion of Transgender Student-Athletes 13 (2011), available at https://goo.gl/V2Oxb2. The NCAA’s policy thus contradicts Grimm’s blanket policy by treating only certain transgender females as equivalent to other females.8

7

The Boy Scouts say only that they will “accept and register youth in the Cub

and Boy Scout programs based on the gender identity indicated on the application.”

See Boy Scouts of America, BSA Addresses Gender Identity (Jan. 30, 2017), available

at https://goo.gl/WxNoGY.

8

Similarly, the policies of the U.S. military and the Virginia High School League

(“VHSL”) (both cited by Grimm) do not simply treat “transgender boys and girls” as

other boys and girls. The military treats transgender persons according to their

“preferred gender” only following “a diagnosis from a military medical provider

indicating that gender transition is medically necessary,” and only when the

transition is “complete.” See Dep’t of Def. Instruction No 1300.28: In-Service

Transition for Transgender Service Members at 3–4 (June 30, 2016), available at

https://goo.gl/p9xsaB. The VHSL allows waivers for transgender students only under

certain circumstances, for instance where “hormonal therapy … has been

administered in a verifiable manner and for a sufficient length of time to minimize

gender-related advantages.” Va. High Sch. League, Criteria for VHSL Transgender

Rule Appeals, available at https://goo.gl/fgQe2l.

21

The fact that the very organizations on which Grimm relies reject Grimm’s one-size-fits-all policy is devastating to Grimm’s argument. Each of these organizations has a nuanced policy responsive to its own specific circumstances—just as the Board does. None of those varied policies suggests some magic bullet that will solve every issue raised by transgender persons. And none of those policies remotely suggests that Title IX dictates any particular approach to this novel and complex area, which is the core of Grimm’s argument.
Grimm thus has no answer to the concerns identified in the Board’s supplemental brief. Grimm’s position would make it impossible for schools to continue to separate students by “sex” in any setting. And if— as the School Administrators’ brief suggests—schools would evaluate transgender students’ claims based on outward conformity to inward gender, sex stereotyping is virtually inevitable. Any interpretation of Title IX that would put administrators in that precarious position should be rejected.
22

D. Grimm ignores the privacy concerns caused by reading “sex” in Title IX as encompassing “gender identity” or “transgender status.”
Grimm blithely dismisses other students’ privacy concerns with the ipse dixit that Grimm’s “use of the boys’ restroom does not infringe on anyone else’s privacy rights.” Grimm Supp. Br. at 44. Indeed, Grimm’s unconcern applies “even in the context of locker rooms” since, according to Grimm, “[i]n many schools, students … change [clothes] without fully undressing.” Id. at 45 n.32. All this would come as a surprise to Justice Ginsburg, who wrote in United States v. Virginia that admitting women to a previously all-male military school “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements[.]” 518 U.S. 515, 550 n.19 (1996). And it would also surprise many members of this Circuit, which has noted “society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns.” Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993).
People legitimately form privacy expectations in public restrooms, locker rooms, or showers not based on whether people might be partially or fully undressed in those facilities, or whether bathroom stalls have
23

“privacy strips,” but at the doors marked “M” and “W.” That is why Title IX regulations have long allowed certain separate “facilities” on the basis of “sex,” 34 C.F.R. § 106.33, a policy choice that Grimm does not purport to contest. If there is to be a different policy—one that recalibrates people’s privacy expectations in intimate facilities—it should come from Congress, or at least from an agency’s rulemaking. It should not come from courts under the guise of “interpreting” Title IX in a way that would subvert the expectations of its framers. As this Court has already concluded, “the weighing of privacy interests or safety concerns— fundamentally questions of policy—is a task committed to the agency,” or to Congress, “not to the courts.” G.G., 822 F.3d at 723–24.
E. The Board’s policy does not engage in “transgender status” discrimination or in “sex stereotyping.”
Relying on out-of-circuit precedent, Grimm asks this Court to recognize a Title IX claim for “transgender status” discrimination. Grimm Supp. Br. at 21–22. Relatedly, Grimm argues that the Board’s policy is “sex stereotyping” under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Id. at 23. Grimm is mistaken.
24

Grimm’s cases do not recognize a claim for “transgender status” discrimination.9 Instead, those cases—arising largely under Title VII— involve adverse action (such as firing) taken because a transgender person’s appearance does not conform to birth sex. See, e.g., Finkle v. Howard Cnty., 12 F. Supp. 3d 780, 781, 789 (D. Md. 2014) (Title VII claim based on allegations that male-to-female transgender was not hired due to masculine appearance). In those situations, some courts have recognized a sex stereotyping claim. See, e.g., Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004) (recognizing Title VII claim when male-tofemale transgender was allegedly fired for “conduct and mannerisms … [that] did not conform with his employer’s and co-workers’ sex stereotypes of how a man should look and behave”).

9

See, e.g., Schroer v. Billington, 577 F. Supp. 2d 293, 305 (D.D.C. 2008)

(observing that “transsexuality itself … [is] a characteristic that, in and of itself,

nearly all federal courts have said is unprotected by Title VII”); see also, e.g., Johnston

v. Univ. of Pittsburgh Univ. of the Com. Sys. of Higher Educ., 97 F. Supp. 3d 657, 674

(W.D. Pa. 2015) (observing that “nearly every federal court that has considered the

question in the Title VII context has found that transgendered individuals are not a

protected class under Title VII”); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221

(10th Cir. 2007) (joining “vast majority of federal courts … and conclud[ing] that

discrimination against a transsexual based on that person’s status as a transsexual

is not discrimination because of sex under Title VII”).

25

Whether or not those decisions are correct, they have no application
here. Most obviously, the Board’s policy distinguishes students based on
biological sex—not “transgender status” or masculine or feminine
appearance. The Board’s policy is thus the opposite of sex stereotyping.
Supp. Br. at 36–38. The Tenth Circuit agrees, explaining that the “[u]se
of a restroom designated for the opposite sex does not constitute a mere
failure to conform to sex stereotypes.” Etsitty, 502 F.3d at 1224. 10
Furthermore, far from taking adverse action against persons based on
gender-nonconforming appearance, the Board’s policy merely separates
students based on biological sex—as has been allowed by Title IX for
nearly half a century. See, e.g., Johnston, 97 F. Supp. 3d at 672–82, 678
(rejecting transgender plaintiff’s Title IX claim against sex-separated
restrooms and “find[ing] particularly compelling that the regulations
10 The Seventh Circuit recently became the first to recognize a sex stereotyping claim against sex-separated school restrooms, on the theory that establishing such restrooms “punishes [a transgender] individual for his or her gender nonconformance.” Whitaker v. Kenosha Unified Sch. Dist., __ F.3d __, 2017 WL 2331751 at *11 (7th Cir. May 30, 2017). But that is wrong, as explained in Etsitty, 502 F.3d at 1224, and Johnston, 97 F.Supp.3d at 679–82. To dismiss as a “stereotype” the physiological distinctions between men and women—especially in places like restrooms, locker rooms, and showers—pushes the sex-stereotyping theory into incoherence. See, e.g., Johnston, 97 F. Supp. 3d at 681 (requiring someone to use restroom of his or her biological sex does not allege discrimination based on “preconceived notions of gender stereotypes”).
26

implementing Title IX explicitly permit … separate toilet, locker room, and shower facilities on the basis of sex”). III. Grimm Is Not Entitled To A Preliminary Injunction.
Grimm lastly argues that this Court should direct entry of a preliminary injunction. To obtain a preliminary injunction, “the plaintiff must establish ‘[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.’” Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir. 2009) (alterations in original) (citation omitted). “[A]ll four requirements must be satisfied.” Id. Grimm has not met that standard.
First, Grimm cannot demonstrate likelihood of success. As to Title IX, as shown supra, the Board was plainly permitted by law to determine Grimm’s sex based on birth and physiology, and nothing compelled the Board to rely on Grimm’s gender identity or transgender status. Grimm’s new birth certificate—contrary to the assertion that it makes likelihood of success “overwhelming,” Grimm Supp. Br. at 48—has no relevance here under the governing Title IX standards. Supp. Br. at 11 n.5, 21 n.7.
27

Even if it did, Grimm’s own claims have never depended on a birth certificate, and Grimm “may not now raise an entirely new theory in this court” supporting a preliminary injunction motion. Sys. Operations, Inc. v. Sci. Games Dev. Corp., 555 F.2d 1131, 1144 (3d Cir. 1977); see also Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (considering newly raised arguments “only in very limited circumstances”).
Grimm also asserts likelihood of success on the Equal Protection claim, Grimm Supp. Br. at 48–50, but the Board has already shown in its brief as appellee why that claim has no merit. See Doc. 47 at 12–30. The Board’s policy does not classify Grimm based on transgender status; it impartially separates individuals based on physiological criteria, as the Equal Protection Clause unequivocally allows. Virginia, 518 U.S. at 533, 550 n.19; Nguyen v. INS, 533 U.S. 53, 63, 68, 73 (2001).
Nor would Grimm prevail if the policy did effect such a classification. It is not evident that transgender individuals form a “quasi-suspect” class subject to heightened scrutiny, as Grimm asserts. Grimm Supp. Br. at 48–49. Rather, Grimm’s own expert describes transgender persons as a diverse group with different needs and characteristics, whose treatment requires individualized medical
28

attention. JA38 (Ettner Decl.). The Supreme Court has declined to treat such groups as protected classes. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442–43 (1985); Bowen v. Gilliard, 483 U.S. 587, 602 (1987); see also Etsitty, 502 F.3d at 1222 (holding transgender individuals are not a protected class under Title VII). Even assuming heightened scrutiny, the Board’s policy need only be “substantially related to a legitimate state interest,” Cleburne Living Ctr., 473 U.S. at 441 (quotes omitted)—a standard it satisfies because of “society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns.” Faulkner, 10 F.3d at 232; Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981); see also Johnston, 97 F. Supp. 3d at 669 (dismissing transgender student’s Equal Protection claim on that ground). At any rate, the district court has never addressed Grimm’s Equal Protection claim and so the better course is for the district court to address it first on remand in the context of the Board’s still-pending motion to dismiss.
Second, Grimm has not established likelihood of irreparable harm in the absence of a preliminary injunction. As explained in Part I, Grimm’s request for a preliminary injunction will be moot when Grimm graduates. Given that Grimm’s alleged potential injuries are too
29

uncertain even to be justiciable, they are insufficient as a matter of law to support the required “clear showing that [Grimm] is likely to be irreparably harmed absent preliminary relief.” Real Truth About Obama, 575 F.3d at 347.
Because Grimm has not established likelihood of either success on the merits or irreparable injury, the other two preliminary injunction factors—balance of the equities and the public interest—are beside the point. Suffice to say that until challenged by a plaintiff with justiciable claims, the public interest and equities call for allowing local governmental bodies to maintain their policies without interference.
CONCLUSION The district court’s decision dismissing Grimm’s Title IX claim should be affirmed or the appeal dismissed as moot.
30

David P. Corrigan Jeremy D. Capps M. Scott Fisher, Jr. HARMAN, CLAYTOR, CORRIGAN & WELLMAN Post Office Box 70280 Richmond, VA 23255 (804) 747-5200 dcorrigan@hccw.com

Respectfully submitted,
/s/ S. Kyle Duncan S. Kyle Duncan Gene C. Schaerr Stephen S. Schwartz SCHAERR|DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 (202) 714-9492 kduncan@schaerr-duncan.com
Counsel for Gloucester County School Board

31

CERTIFICATE OF SERVICE I hereby certify that on June 2, 2017, I filed the foregoing document through the Court’s CM/ECF system, which will serve an electronic copy on all registered counsel of record.
/s/ S. Kyle Duncan S. Kyle Duncan SCHAERR|DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 (202) 714-9492 kduncan@schaerr-duncan.com Counsel for Gloucester County School Board
32

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B) because the brief contains 6,212 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. R. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief has been prepared in a proportionally spaced typeface using Microsoft Word for Mac 2011 in 14-point Century Schoolbook font.
/s/ S. Kyle Duncan S. Kyle Duncan Counsel for Gloucester County School Board Dated: June 2, 2017
33

 
 No. 15-2056
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

GAVIN GRIMM, Plaintiff-Appellant,
v. GLOUCESTER COUNTY SCHOOL BOARD,
Defendant-Appellee.

On Appeal from the United States District Court for the Eastern District of Virginia Newport News Division

REPLY SUPPLEMENTAL BRIEF OF PLAINTIFF-APPELLANT

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. Gail Deady (VSB No. 82035) 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 gdeady@acluva.org

AMERICAN CIVIL LIBERTIES UNION FOUNDATION Joshua A. Block Leslie Cooper 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jblock@aclu.org lcooper@aclu.org

Counsel for Plaintiff-Appellant

TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................... ii INTRODUCTION ................................................................................................1 ARGUMENT ........................................................................................................4
I. The Board Cannot Meet Its “Heavy Burden” Of Establishing Mootness.....................................................................................................4
II. Gavin Has Stated A Claim Under Title IX. ...............................................7 A. Under Title IX, discrimination based on transgender status is a form of discrimination on the basis of sex. ........................................7 B. Neither Title IX nor 34 C.F.R. § 106.33 authorizes the Board to discriminate against boys and girls who are transgender. ................13 C. The Board mischaracterizes Gavin’s claims as based solely on “internal perception” of gender identity. ..........................................16 D. Gavin’s claims do not implicate Pennhurst......................................18
III. Gavin’s Motion For A Preliminary Injunction Should Be Granted. .......23 A. Gavin has established a likelihood of success under both Title IX and the Equal Protection Clause. ......................................................23 B. Gavin has satisfied the remaining preliminary injunction requirements......................................................................................25
CONCLUSION ...................................................................................................27 CERTIFICATE OF COMPLIANCE..................................................................28 CERTIFICATE OF SERVICE ...........................................................................29
i

TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000).............................................................................................4
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006)...........................................................................................19
Barr v. United States, 324 U.S. 83 (1945).............................................................................................10
Bauer v. Lynch, 812 F.3d 340 (4th Cir. 2016) .............................................................................14
Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)...........................................................................................24
Bennett v. Ky. Dep’t of Educ., 470 U.S. 656 (1985)...........................................................................................20
Bilski v. Kappos, 561 U.S. 593 (2010)...........................................................................................12
Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011)...........................................................................................12
Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987)...........................................................................................14
Cannon v. Univ. of Chi., 441 U.S. 677 (1979).................................................................................... 21, 22
Chafin v. Chafin, 133 S. Ct. 1017 (2013).........................................................................................5
Crawford v. Davis, 109 F.3d 1281 (8th Cir. 1997) ...........................................................................22
ii

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999).............................................................................. 10, 19, 20
De Lima v. Bidwell, 182 U.S. 1 (1901)...............................................................................................10
Diamond v. Chakrabarty, 447 U.S. 303 (1980).............................................................................................9
Elwell v. Oklahoma, 693 F.3d 1303 (10th Cir. 2012) ...........................................................................5
Escue v. N. Okla. Coll., 450 F.3d 1146 (10th Cir. 2006) .........................................................................22
Evancho v. Pine-Richland Sch. Dist., No. CV 2:16-01537, 2017 WL 770619 (W.D. Pa. Feb. 27, 2017)....................17
Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016)..................................................................8
Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60 (1992).................................................................................. 7, 20, 22
Franks v. Ky. Sch. for the Deaf, 142 F.3d 360 (6th Cir. 1998) .............................................................................22
G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) .............................................................................25
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).................................................................................... 19, 20
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ................................................................... 12-13
Guardians Ass’n v. Civil Serv. Comm’n of City of N.Y., 463 U.S. 582 (1983)...........................................................................................19
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ..............................................................................21
iii

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005)................................................................................ 9, 20, 21
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)................................................................11
Lewis v. City of Chicago, 560 U.S. 205 (2010)...........................................................................................11
Litman v. George Mason Univ., 186 F.3d 544 (4th Cir. 1999) .............................................................................22
Massachusetts v. EPA, 549 U.S. 497 (2007).................................................................................... 10, 12
McWilliams v. Fairfax Cty. Bd. of Supervisors, 72 F.3d 1191 (4th Cir. 1996) .............................................................................10
Mercer v. Duke Univ., 401 F.3d 199 (4th Cir. 2005) ...............................................................................6
N. Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982).........................................................................................5, 9
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).......................................................................................22
Obergefell v. Hodges, 135 S. Ct. 2584 (2015).......................................................................................26
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).............................................................................................7
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)............................................................................... 8, 9, 10, 11
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)...............................................................................................18
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).............................................................................................7
iv

Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)...................................................................13
Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001)...........................................................................................12
Students & Parents for Privacy v. U.S. Dep’t of Educ., No. 16-CV-4945, 2016 WL 6134121 (N.D. Ill. Oct. 18, 2016) ........................16
Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001)...................................................................................... 23, 24
United States v. Craft, 535 U.S. 274 (2002)...........................................................................................12
United States v. Virginia, 518 U.S. 515 (1996)................................................................................ 6, 13, 14
Va. Dep’t of Educ.v. Riley, 106 F.3d 559 (4th Cir. 1997) .............................................................................21
Wall v. Wade, 741 F.3d 492 (4th Cir. 2014) ...............................................................................4
West v. Gibson, 527 U.S. 212 (1999)....................................................................................... 9-10
W. Va. Dep’t of Health & Human Res. v. Sebelius, 649 F.3d 217 (4th Cir. 2011) .............................................................................20
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., -- F.3d --, 2017 WL 2331751 (7th Cir. May 30, 2017) ............................. passim
Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138 (4th Cir. 1996) ...............................................................................11
Statutes
18 U.S.C. § 249(a)(2)...............................................................................................12
20 U.S.C. § 1681(a) ...............................................................................................5, 6
20 U.S.C. § 1682 ......................................................................................................23
v

42 U.S.C. § 13925(b)(13)(A) ...................................................................................12 IDEA Amendments for 1997, Pub. L. No. 105–17, § 612 ......................................21
Regulations
34 C.F.R. § 106.33 ...................................................................................................13 45 C.F.R. § 106.31(a).................................................................................................6 45 C.F.R. § 106.34(b) ................................................................................................6 45 C.F.R. § 106.41 .....................................................................................................6 45 C.F.R. § 106.51(b)(9)............................................................................................6
Other Authorities
Amicus Br. of Liberty Counsel & Am. Coll. of Pediatricians, Bostic v. Schaeffer, 760 F.3d 352 (4th Cir. 2014) (No. 14-1167), 2014 WL 1333847.....18
Amicus Br. of McHugh, Bostic v. Schaeffer, 760 F.3d 352 (4th Cir. 2014) (No. 14-1167), 2014 WL 1333850..............................................................................18
Boy Scouts of America, BSA Addresses Gender Identity (Jan. 30, 2017), https://goo.gl/WxNoGY ........................................................................................ 3
Dep’t of Justice and Dep’t of Educ, “Dear Colleague” (May. 13, 2016), https://goo.gl/p4z3Ch. .........................................................................................15
Dep’t of Justice, Title IX Legal Manual § VII.C.2 (2005), https://goo.gl/2TkL1t .........................................................................................23
Girl Scouts, Frequently Asked Questions: Social Issues, https://goo.gl/364fXI ............................................................................................ 3
Nat’l Collegiate Athletic Ass’n, NCAA Inclusion of Transgender StudentAthletes (2011), https://goo.gl/V2Oxb2................................................................3
Student Non-Discrimination Act, H.R. 4530, 111th Cong. (2010) .........................12 Va. High Sch. League, Criteria for VHSL, Transgender Rule Appeals,
https://goo.gl/fgQe2l .............................................................................................3
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INTRODUCTION No one disputes that Gavin Grimm is a boy who is transgender. He has socially transitioned and lives his entire life as the boy that he is. He has a treatment documentation letter from his medical providers. He has legally changed his name and obtained a Virginia I.D. card with a male gender marker. He already uses the men’s restrooms in restaurants, shopping malls, and governmental buildings throughout Gloucester County. He has male physiological characteristics as a result of chest surgery and years of hormone therapy. And for most of his senior year, he even had a Virginia court order and amended birth certificate reflecting that he is male. Despite all of this, the Gloucester County School Board (the “Board”) claims the authority to declare that Gavin’s “biological gender” is female and exclude him from using the same common restroom facilities that every other boy is allowed to use. The Board does not attempt to defend its treatment of Gavin as an individual or address Gavin’s actual arguments. Instead, the Board spends page after page arguing that the term “sex” includes reference to physiological characteristics (Def. Supp. Br. 23-27), even though Gavin has never argued otherwise. The Board also pretends that Gavin is seeking to access restrooms based “sole[ly]” on his “internal perception of a male gender identity” (id. at 21 n.7 (emphasis in original)), even though Gavin has never argued for such a policy. The Board is preoccupied with
1

the idea of “physiological males” suddenly declaring they have an internal female
gender identity in order to gain access to women’s locker rooms (id. at 39) or to
gain a competitive advantage in sports teams (id. at 41). And the Board claims that
it must banish Gavin from using the same restrooms as other boys in order to
forestall these imaginary scenarios that have nothing to do with Gavin, nothing to
do with restrooms, and nothing to do with the experiences of actual transgender
students.
The Board’s baseless speculation conflicts with the views of every major medical organization,1 school counselors and psychologists,2 and teachers and
administrators across the country working with real transgender students as opposed to hypothetical ones.3 See Pl.’s Supp. Br. 5-6. While the Board speculates
about imaginary scenarios, it willfully blinds itself to the reality that already exists
in Virginia and throughout the country. Boys and girls who are transgender are already using sex-separated facilities at school,4 participating in interscholastic
1 See Amicus Br. of Am. Acad. of Pediatrics, et al., ECF 135-1(“AAP Amicus”); Pl.’s Supp. Br. 5-6.
2 See Amicus Br. of Nat’l PTA, et al., ECF 145-1; Pl.’s Supp. Br. 5-6. 3 See Amicus Br. of Sch. Administrators, ECF 155 (“Sch. Admin. Amicus”); Amicus Br. of Nat’l Educ. Ass’n, et al., ECF 143-1. 4 See Amicus Br. of Transgender Students, ECF 137-1 (describing personal experiences of transgender students in Virginia and Maryland); Amicus Br. of PFLAG, et al., ECF 139-1 (describing personal experiences of parents of transgender students); Sch. Admin. Amicus Br. (brief on behalf of school
2

athletic teams in both high school and college,5 and joining girl-scout and boyscout troops.6 The Board’s refusal to acknowledge that reality is not a “sensible compromise” based on “deliberation.” Def.’s Supp. Br. 15. It is willful blindness based on myths of predation, invidious stereotypes, moral disapproval, and unfounded fears about people who are different.
The Board’s policy discriminates against Gavin in violation of both Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., and the Equal Protection Clause. This Court should reinstate Gavin’s Title IX claim and instruct the district court to issue a preliminary injunction based on both Title IX and the Fourteenth Amendment. See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., -- F.3d --, 2017 WL 2331751 (7th Cir. May 30, 2017) (affirming preliminary injunction in factually similar case).
administrators from 33 States and D.C.); Amicus Br. of New York, et al., ECF 148-1 (brief on behalf of 17 States and D.C.)
5 Va. High Sch. League, Criteria for VHSL, Transgender Rule Appeals, https://goo.gl/fgQe2l; Nat’l Collegiate Athletic Ass’n, NCAA Inclusion of Transgender Student-Athletes (2011), https://goo.gl/V2Oxb2.
6 See Girl Scouts, Frequently Asked Questions: Social Issues, https://goo.gl/364fXI. See Boy Scouts of America, BSA Addresses Gender Identity (Jan. 30, 2017), https://goo.gl/WxNoGY.
3

ARGUMENT I. The Board Cannot Meet Its “Heavy Burden” Of Establishing Mootness.
The burden of establishing mootness rests with the Board. See Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 221 (2000). In suggesting that the appeal has become moot, the Board does not dispute that, as an alumnus who will be attending a local college in the Gloucester area, Gavin will continue to be present on campus and at alumni activities, football games, and other community events. See Pl.’s Supp. Br. 18-21; Def.’s Supp. Br. 19. But the Board obliquely states that it is not “evident that the Board’s policy even applies to alumni.” Def.’s Supp. Br. 19.
That noncommittal statement by counsel falls far short of a representation that the Board will voluntarily cease discriminating against Gavin after he graduates, and it certainly does not satisfy the Board’s “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Wall v. Wade, 741 F.3d 492, 497 (4th Cir. 2014) (internal quotation marks and brackets omitted). “[B]ald assertions of a defendant—whether governmental or private—that it will not resume a challenged policy fail to satisfy any burden of showing that a claim is moot.” Id. (footnote omitted). Here, the Board is not even willing to provide bald assertions.
4

The Board also asserts that Gavin would no longer have a cause of action under Title IX after graduation because, according to the Board, the statute does not apply to “non-student alumni” and “non-educational events.” Def.’s Supp. Br. 19 (emphases in original). Even if that were true—and it is not—the question whether Gavin still has a cause of action under Title IX goes to the merits of his claim, not to mootness. See Chafin v. Chafin, 133 S. Ct. 1017, 1024 (2013). And even if the Board’s arguments about the scope of Title IX were relevant to mootness, they would not apply to Gavin’s equal protection claim, which provides an independent basis for his preliminary injunction motion.
In any event, Title IX protects all “person[s],” not merely current students. 20 U.S.C. § 1681(a). “Title IX does not limit its coverage at all, outlawing discrimination against any ‘person,’ broad language the Court has interpreted broadly.” Elwell v. Oklahoma, 693 F.3d 1303, 1311 (10th Cir. 2012) (Gorsuch, J.) (citation omitted). The statute thus prohibits schools from discriminating against employees on the basis of sex because “employees, like other ‘persons,’ may not be ‘excluded from participation in,’ ‘denied the benefits of,’ or ‘subjected to discrimination under’ education programs receiving federal financial support.” N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520 (1982) (quoting 20 U.S.C. § 1681(a)). The same principle applies here. Alumni, like other “persons,” may not be excluded from participation in, denied the benefits of, or subjected to
5

discrimination at Gloucester High School on the basis of sex. Cf. United States v. Virginia, 518 U.S. 515, 552 (1996) (explaining that educational benefits of school include the social and professional benefits of being an alumnus).
Moreover, despite the Board’s suggestions to the contrary, Title IX also applies to an educational program’s social and extracurricular activities, not merely academics. See 20 U.S.C. § 1681(a)(8) (permitting “father-son or mother-daughter activities”); 45 C.F.R. § 106.31(a) (defining educational programs to include any “extracurricular . . . program and activity”); 45 C.F.R. § 106.34(b) (discussing extracurricular activities); 45 C.F.R. § 106.41 (educational program includes club and intramural athletics); 45 C.F.R. § 106.51(b)(9) (prohibiting discrimination against employees with respect to school-sponsored “social or recreational” events).
Because Gavin’s appeal from the denial of a preliminary injunction is not moot, the Court also retains pendent appellate jurisdiction over the dismissal of Gavin’s Title IX claim, including his claim for nominal damages. Although the Board speculates that Gavin would not pursue nominal damages (Def.’s Supp. Br. 19-20), the entire purpose of seeking nominal damages is to ensure continued standing to vindicate civil rights even if injunctive relief becomes moot. Cf. Mercer v. Duke Univ., 401 F.3d 199, 207 (4th Cir. 2005) (although Title IX
6

plaintiff graduated and recovered only nominal damages, her case “marked a milestone in the development of the law under Title IX”). II. Gavin Has Stated A Claim Under Title IX.
A. Under Title IX, discrimination based on transgender status is a form of discrimination on the basis of sex.
As explained in Gavin’s supplemental brief (Pl.’s Supp. Br. 21-26), discriminating against individuals because they are transgender—that is, because their gender identity is different from the sex assigned to them at birth—is literally discrimination “on the basis of sex.” Regardless of whether the discrimination is conceived of as discrimination based on sexual characteristics, discrimination based on change of sex, or discrimination based on gender nonconformity, it is impossible to discriminate against a person for being transgender without taking the impermissible “criterion” of “sex” into account. Price Waterhouse v. Hopkins, 490 U.S. 228, 248 (1989) (plurality); id. at 262 (O’Connor, J., concurring); id. at 282 (Kennedy, J., dissenting); see also Whitaker, 2017 WL 2331751, at *9 (joining circuit consensus). None of the Board’s statutory arguments can overcome that simple fact.7
7 The Supreme Court interprets the term “sex” in Title IX in accordance with precedent interpreting “sex” in Title VII. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 616 n.1 (1999) (Thomas, J., dissenting); Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 75 (1992).
7

First, the Board stubbornly insists that applying Title IX to this type of sex discrimination would improperly “define” sex as “gender identity,” to the exclusion of all physiological characteristics. Def.’s Supp. Br. 23-26. To the contrary, far from excluding physiological characteristics, a person’s transgender status reflects the interrelationship between a person’s gender identity and the physiological characteristics that caused that person to be assigned a different sex at birth. “[D]iscrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes discrimination on the basis of the properties or characteristics typically manifested in sum as male and female—and that discrimination is literally discrimination” on the basis of “sex.” Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 (D. Conn. 2016).
Second, falling back on its own assumptions about legislative intent, the Board argues that this particular type of sex discrimination falls outside of Title IX because the legislators who passed the statute were principally focused on ending discrimination against women. See Def.’s Supp. Br. 28. The Supreme Court rejected that approach to statutory interpretation long ago. As Justice Scalia explained on behalf of a unanimous Court in Oncale v. Sundowner Offshore Servs., Inc.: “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather
8

than the principal concerns of our legislators by which we are governed.” 523 U.S. 75, 79 (1998).
Here, too, the legislators who passed Title IX may have been principally motivated to end discrimination against women, but they wrote a statute that “broadly prohibits a funding recipient from subjecting any person to ‘discrimination’ ‘on the basis of sex.’” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (quoting 20 U.S.C. § 1681(a)). “‘Discrimination’ is a term that covers a wide range of intentional unequal treatment; by using such a broad term, Congress gave the statute a broad reach.” Id. at 175. Sex-based discrimination that harms transgender individuals is a “reasonably comparable evil” that falls squarely within the statute’s plain text, Oncale, 523 U.S. at 79, and the courts must give the statute “a sweep as broad as its language,” N. Haven, 456 U.S. at 521.
The plain meaning of “discrimination” “on the basis of sex” cannot be narrowed to reach only the particular forms of sex discrimination recognized by Congress in 1972. The Supreme Court has repeatedly warned “that a statute is not to be confined to the particular applications contemplated by the legislators.” Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980) (internal quotation marks omitted; alterations incorporated). “[C]hanges, in law or in the world,” may often “require [a statute’s] application to new instances,” West v. Gibson, 527 U.S. 212,
9

218 (1999), and a broadly written statute “embraces all such persons or things as subsequently fall within its scope,” De Lima v. Bidwell, 182 U.S. 1, 217 (1901); cf. Massachusetts v. EPA, 549 U.S. 497, 532 (2007) (Clean Air Act covers carbon dioxide emissions even though legislators “might not have appreciated the possibility that burning fossil fuels could lead to global warming”). “If Congress has made a choice of language which fairly brings a given situation within a statute, it is unimportant that the particular application may not have been contemplated by the legislators.” Barr v. United States, 324 U.S. 83, 90 (1945).
The same principles apply to Title IX. The statute protects students from sexual harassment even though, when Congress enacted the statute, “the concept of ‘sexual harassment’ as gender discrimination had not been recognized or considered by the courts.” Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 664 (1999) (Kennedy, J., dissenting). The statute also extends to harassment between members of the same sex even though many judges have stated they “cannot believe that Congress … could have intended it to reach such situations.” McWilliams v. Fairfax Cty. Bd. of Supervisors, 72 F.3d 1191, 1196 (4th Cir. 1996), abrogated by Oncale, 523 U.S. 75. “It is not for [the courts] to rewrite the statute
10

so that it covers only what [they] think is necessary to achieve what [they] think Congress really intended.” Lewis v. City of Chicago, 560 U.S. 205, 215 (2010).8
In the years since Title IX was enacted, the plain meaning of the text has not changed, but our understanding of transgender people has grown. While transgender students have long been part of school communities, it is only in the last couple of decades that there has been more widespread access to the medical and psychological support that they need. See AAP Amicus Br. 6. Just as our increased understanding of the ‘[t]he real social impact of workplace behavior,” Oncale, 523 U.S. at 81-82, prompted courts to recognize that sexual harassment is a form of discrimination on the basis of sex, our increased understanding of people who are transgender makes clear that discrimination based on transgender status is a form of sex discrimination that violates Title IX’s plain terms. Cf. Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1203 (D. Utah 2013), aff’d, 755 F.3d 1193 (10th Cir. 2014) (“Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.”).
Finally, in a last-ditch effort, the Board contends that sex discrimination against transgender people is implicitly excluded from Title IX because Congress passed unrelated statutes in 2009 and 2013 that explicitly protect individuals based
8 See also Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 144 (4th Cir. 1996) (“[W]here Congress has unmistakably provided a cause of action, as it has through the plain language of Title VII, we are without authority in the guise of interpretation to deny that such exists, whatever the practical consequences.”).
11

on “gender identity.” See Def.’s. Supp. Br. 29-30 (citing 18 U.S.C. § 249(a)(2) and 42 U.S.C. § 13925(b)(13)(A)). This “[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011). Congress’s use of the term “gender identity” in 2009 and 2013 says little about the meaning of a statute adopted by Congress in 1972. “When a later statute is offered as an expression of how the Congress interpreted a statute passed by another Congress a half century before, such interpretation has very little, if any, significance.” Bilski v. Kappos, 561 U.S. 593, 645 (2010) (internal quotation marks and ellipses omitted).
Failed proposals to add the term “gender identity” to Title IX are even less probative. See United States v. Craft, 535 U.S. 274, 287 (2002). “A bill can be proposed for any number of reasons, and it can be rejected for just as many others.” Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 170 (2001); cf. Massachusetts, 549 U.S. at 529-30 (“That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant . . . in 1970 and 1977.”). By 2010, when Congress first considered the Student Non-Discrimination Act, H.R. 4530, 111th Cong. (2010), which included express protection for “gender identity,” lower courts had already held that transgender individuals are protected by existing statutes prohibiting sex discrimination. See Glenn v. Brumby, 663 F.3d 1312, 1317-
12

19 (11th Cir. 2011) (collecting cases). In this context, “another reasonable interpretation of that legislative non-history is that some Members of Congress believe that . . . the statute requires, not amendment, but only correct interpretation.” Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008); see also Whitaker, 2017 WL 2331751, at *10.
B. Neither Title IX nor 34 C.F.R. § 106.33 authorizes the Board to discriminate against boys and girls who are transgender.
Title IX and 34 C.F.R. § 106.33 allow schools to provide sex-separated restroom facilities based on the premise that such facilities do not disadvantage or stigmatize any student. The Board now seeks not only to provide separate restrooms for boys and girls, but to use discriminatory criteria designed solely to exclude boys and girls who are transgender. See Pl.’s Supp. Br. 27-28, 35-40. The Board’s discriminatory policy is based on “sex,” but neither Title IX nor 34 C.F.R. § 106.33 authorizes the Board to enact whatever sex-based restroom policy it chooses—no matter how discriminatory or harmful. When a school provides separate restrooms on the basis of sex pursuant to 34 C.F.R. § 106.33, it must do so in a manner that complies with the statute’s unambiguous prohibition on discrimination. Pl.’s Supp. Br. 33-37.
Although the Board attempts to draw support from Virginia, 518 U.S. at 550 n.19 (see Def.’s Supp. Br. 32-33), the case only undermines its argument. The parties in Virginia agreed that including women in the Virginia Military Institute
13

would require adjustments such as “locked doors and coverings on windows.” Id. at 588. The Court nevertheless concluded that these minor changes to provide “privacy from the other sex” would not disrupt the essential nature of the program and could not justify excluding women from admission. Id. at 550 n.19. The teaching of the case is not that privacy concerns justify discrimination. It is that privacy interests, where actually implicated, must be accommodated in a manner that does not exclude individuals from equal educational opportunity. See id. at 555 n.20.
Similarly, this Court’s decision in Bauer v. Lynch, 812 F.3d 340 (4th Cir. 2016), provides no support for the Board’s argument that Title IX allows schools to discriminate based on physiological characteristics. In that case, this Court held that employers may use gender-normed physical-fitness standards without violating Title VII because “the physiological differences between men and women impact their relative abilities to demonstrate the same levels of physical fitness.” Id. at 351 (emphasis added). The gender-normed standards were designed to treat employees equally by measuring the same levels of physical fitness for everyone. Cf. Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 289 (1987) (California law taking into account physical differences resulting from pregnancy treats employees equally because it “allows women, as well as men, to have families without losing their jobs”). Nothing in Bauer supports the notion that
14

schools or employers can use physical differences as a basis for unequal and stigmatizing treatment. 9
It also bears repeating that, no matter how many times the Board invokes physiological differences, the actual policy does not assign restrooms based on physiological characteristics. See Pl.’s Supp. Br. 38-39. It assigns restrooms based on “biological gender,” which the Board uses as a proxy for physiological characteristics that may or may not be present in any particular student. See Amicus Br. of interACT, et al., ECF 138-1; Whitaker, 2017 WL 2331751, at *13. The reality is that boys and girls who are transgender and who have received puberty blockers and hormone therapy have physiological and anatomical characteristics—including breasts in girls who are transgender, facial and body hair in boys who are transgender, muscle and bone structure, and the appearance of a person’s genitals—that do not typically align with the sex designated for them at birth. See Pl.’s Supp. Br. 38-39.
Moreover, even if the Board’s policy were actually based on physiological characteristics, those differences are not relevant to restroom use. The Board’s
9 The National College Athletic Association’s policy (Def.’s Supp. Br. 41 n.14) demonstrates that physiological differences between boys and girls who are transgender and other boys and girls—where those differences are actually relevant—can be addressed without categorically excluding transgender students from sports teams. See also Dep’t of Justice and Dep’t of Educ., “Dear Colleague” Letter at 3 & nn.14-15 (May. 13, 2016), https://goo.gl/p4z3Ch.
15

asserted interest in avoiding exposure to nudity is not implicated by Gavin’s use— or any other person’s use—of the restrooms, especially in light of the additional
privacy protections the Board has already installed. See Pl.’s Supp. Br. 38-39. A
boy who is transgender (and who may be indistinguishable from any other boy)
will be far more disruptive to expectations of privacy if he is forced to use the
girls’ restrooms than if he uses the same restrooms as other boys. See Whitaker, 2017 WL 2331751, at *15. Any purported discomfort with Gavin’s use of the restroom at Gloucester High School would be based on other people’s social knowledge that he is transgender, not any actual exposure to private anatomy.10
C. The Board mischaracterizes Gavin’s claims as based solely on “internal perception” of gender identity.
The Board ignores the substance of Gavin’s actual legal claims and asserts that Gavin’s treatment documentation letter, hormone therapy, name change,
surgery, State I.D. card, and amended birth certificate are “irrelevant” because Gavin seeks access to the restroom based solely on his “internal perception of a male gender identity.” Def.’s Supp. Br. 21 n.7.
10 Even in the context of locker rooms, the actual experience of school districts across the country reflects that transgender students and non-transgender students already use the same locker rooms without seeing “intimate part[s]” of one another’s bodies. Students & Parents for Privacy v. U.S. Dep’t of Educ., No. 16-CV-4945, 2016 WL 6134121, at *28-29 (N.D. Ill. Oct. 18, 2016) (report and recommendation); see Sch. Admin. Amicus Br. 18-19; NY Amicus Br. 21-25; Student Amicus Br. 10-19; Pl.’s Supp. Br. 45 n.32.
16

That is obviously not true. Gavin has brought an as-applied challenge alleging that because he has transitioned and lives his entire life as the boy that he is, excluding him from using the same restrooms as other boys discriminates against him on the basis of sex. JA 20-22. The undisputed facts of Gavin’s transition are extremely relevant to that challenge. Cf. Whitaker, 2017 WL 2331751, at *2-3; Evancho v. Pine-Richland Sch. Dist., No. CV 2:16-01537, 2017 WL 770619, at *2-5 (W.D. Pa. Feb. 27, 2017). Although a person’s gender identity is internal, Gavin’s gender transition is external, verifiable, and extensively documented. Cf. Whitaker, 2017 WL 2331751, at *11 (“This is not a case where a student has merely announced that he is a different gender.”).
The Board’s mischaracterization of Gavin’s claims reflects the Board’s mischaracterization of what it means to be a boy or girl who is transgender. Students do not become transgender by virtue of declaring at different points in time that they perceive themselves to be male or female. Boys and girls who are transgender are people who “consistently, persistently, and insistently” do not identify with the sex assigned to them at birth and who experience the debilitating distress of gender dysphoria when they are not able to live as the boys and girls
17

that they are. AAP Amicus Br. 8-11. The gender identity of these adolescents is
stable and fixed. Id.; see also Sch. Admin. Amicus Br. 19-21.11
There is no dispute that Gavin is a boy who is transgender. If a person’s
transgender status is ever legitimately in doubt, the Board can easily ask for
external verification from a medical provider or a parent. See Pl.’s. Supp. Br. 42-
43. Gavin has no objection to providing a treatment documentation letter; he
already presented one to school administrators before his sophomore year began.
D. Gavin’s claims do not implicate Pennhurst. Finally, the Board resorts to Pennhurst State School & Hospital v.
Halderman, 451 U.S. 1 (1981), and the doctrine of constitutional avoidance. Def.’s
Supp. Br. 45-47. If the Court chooses to consider this argument (which the Board
did not previously raise in this Court or the district court) it is foreclosed by
binding precedent.
11 Some of the Board’s amici reject this medical consensus and rely upon the fringe views of Dr. Paul McHugh and an organization that calls itself the American College of Pediatricians. See Amicus Br. of McHugh, et al., ECF 210. Those views fall far outside the mainstream medical community. See AAP Amicus Br. 17-18. Dr. McHugh and the American College of Pediatricians have a history of making similar fringe arguments regarding sexual orientation. See Amicus Br. of Liberty Counsel & Am. Coll. of Pediatricians, Bostic v. Schaeffer, 760 F.3d 352 (4th Cir. 2014) (No. 14-1167), 2014 WL 1333847, at *10 (rejecting medical consensus and advancing fringe arguments regarding “the inherent harms of living a homosexual lifestyle”); Amicus Br. of McHugh, Bostic v. Schaeffer, 760 F.3d 352 (4th Cir. 2014) (No. 14-1167), 2014 WL 1333850, at *13 (comparing homosexuality to polyamory and zoophilia and arguing that “there is serious doubt whether sexual orientation is a valid concept at all”).
18

First, Pennhurst provides no defense to Gavin’s claim for injunctive relief. In applying Pennhurst, the “central concern . . . is with ensuring that the receiving entity of federal funds has notice that it will be liable for a monetary award.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998) (internal quotation marks and brackets omitted). Pennhurst thus affects only the available remedy for violations of Title IX, not “the scope of the behavior Title IX proscribes.” Davis, 526 U.S. at 639; see Gebser, 524 U.S. at 284 (distinguishing between “the scope of the implied right” and “the scope of the available remedies”). “[A] court may identify the violation and enjoin its continuance or order recipients of federal funds prospectively to perform their duties incident to the receipt of federal money,” and then “the recipient has the option of withdrawing and hence terminating the prospective force of the injunction.” Guardians Ass’n v. Civil Serv. Comm’n of City of N.Y., 463 U.S. 582, 596 (1983) (White, J.); see Gebser, 524 U.S. at 287 (applying Justice White’s Guardians opinion to Title IX).12
Second, even with respect to damages, the Supreme Court has—in an unbroken line of cases—applied Pennhurst to Title IX by restricting liability for damages to acts of intentional discrimination, as opposed to negligence or
12 See also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) (applying Pennhurst in determining recipients’ financial liability for costs under the Individuals with Disabilities in Education Act).
19

vicarious liability. It has never applied Pennhurst to Title IX by restricting the scope of the statutory text. See Jackson, 544 U.S. at 182-83; Davis, 526 U.S. at 639; Gebser, 524 U.S. at 287; Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 74-75 (1992). As the Court has reaffirmed multiple times: “The Pennhurst notice problem does not arise in a case . . . in which intentional discrimination is alleged.” Jackson, 544 U.S. at 182-83 (alterations incorporated). Because the discrimination here is indisputably intentional and violates the statute’s plain terms, Pennhurst poses no barrier.
In arguing that Title IX must explicitly refer to discrimination against transgender students, the Board and its amici repeat the same argument that this Court rejected in West Virginia Department of Health & Human Resources v. Sebelius, 649 F.3d 217, 223 (4th Cir. 2011). In that case, this Court held that West Virginia’s “‘super-clear statement’ rule . . . misreads Pennhurst and its progeny.” Id. Pennhurst does not require Congress to “prospectively resolve every possible ambiguity concerning particular applications” of a statute. Id. at 224 (quoting Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 669 (1985)).
That is particularly true in the context of Title IX, which has an implied cause of action and does “not list any specific discriminatory practices” that are prohibited. Jackson, 544 U.S. at 175. “[A] State that accepts funds under [a statute with an implied cause of action] does so with the knowledge that the rules for . . .
20

liability will be subject to judicial determination.” Henrietta D. v. Bloomberg, 331
F.3d 261, 285 (2d Cir. 2003). Thus, “funding recipients have been on notice that
they could be subjected to private suits for intentional sex discrimination under
Title IX since 1979, when [the Supreme Court] decided Cannon[ v. University of
Chicago, 441 U.S. 677, 691 (1979)],” and “have been put on notice by the fact that
[Supreme Court] cases since Cannon . . . have consistently interpreted Title IX’s
private cause of action broadly to encompass diverse forms of intentional sex
discrimination.” Jackson, 544 U.S. at 182. A recipient who accepts federal funding
does so with the knowledge that disagreements over whether a particular practice
constitutes “discrimination” “on the basis of sex” will be resolved by the courts in
accordance with these precedents.13
The Board’s reliance on Pennhurst also fails for an additional reason:
Congress’s powers under the Fourteenth Amendment provide independent
13 Instead of relying on decisions interpreting Title IX, an amicus brief from West Virginia (see Amicus Br. of W. Va., et al, ECF 141, at 11) relies on this Court’s decision interpreting the IDEA in Virginia Department of Education v. Riley, 106 F.3d 559, 563 (4th Cir. 1997) (en banc), superseded by IDEA Amendments for 1997, Pub. L. No. 105–17, § 612. The question in Riley was whether the obligation to provide students with disabilities “a free appropriate public education” implicitly required Virginia to provide private tutors to students who are expelled for serious misconduct unrelated to their disability. See 106 F.3d at 562 The dispute was not about the meaning of particular statutory terms, such as “handicap” or “free appropriate public education.” It was about whether an entirely new condition completely unrelated to a student’s disability could be implied. Even without resorting to Pennhurst, this Court held that such a requirement had no basis in the statutory text. See id. at 563.
21

authority to enforce Title IX, and those powers are not subject to Pennhurst’s
limitations. See Franklin, 503 U.S. at 75 n.8 (reserving this argument); Litman v.
George Mason Univ., 186 F.3d 544, 557 (4th Cir. 1999) (same); see also Escue v.
N. Okla. Coll., 450 F.3d 1146, 1152 (10th Cir. 2006); Franks v. Ky. Sch. for the
Deaf, 142 F.3d 360, 362 (6th Cir. 1998); Crawford v. Davis, 109 F.3d 1281 (8th
Cir. 1997).14
14 West Virginia attempts to interject an additional issue into the case by arguing that applying Title IX to discrimination against students who are transgender is unconstitutionally coercive under National Federation of Independent Businesses (“NFIB”) v. Sebelius, 132 S. Ct. 2566, 2605 (2012). See WV Amicus Br. 23-27. It would be inappropriate for the Court to address an argument raised for the first time on appeal and raised only by amici.
Amici’s argument also fails on the merits. First, the statute in NFIB was unconstitutionally coercive because it threatened to terminate funds for States’ existing Medicaid program unless the States agree to participate in what amounted to an entirely “new program.” 132 S. Ct. at 2605 (opinion of Roberts, C.J.). Even if an unforeseen application of Title IX could be analogized to an alteration of the statute, it would not amount to the establishment of an entirely “new program” under NFIB. Rather, it would be analogous to the type of Medicaid amendments cited approvingly in NFIB, which “merely altered and expanded the boundaries” of the discrete categories States were required to cover. Id. at 2606.
Second, the coercion analysis in NFIB was limited to contexts in which Congress uses the Spending Clause to dragoon States into implementing a federal program. It does not apply to statutes such as Title IX, which merely seek “to avoid the use of federal resources to support discriminatory practices.” Cannon, 441 U.S. at 704. See NFIB, 132 S. Ct. at 2603-04 (distinguishing between requiring States to implement federal programs and imposing conditions on the use of federal funds).
Third, the amount of funding at issue in Title IX is far less than the amount of Medicaid funding at issue in NFIB. The joint dissent specifically noted that Medicaid funding “is at least twice the size of federal education funding as a percentage of state expenditures.” Id. at 2664 (joint dissent).
Fourth, amici’s argument rests on the mistaken premise that they risk losing all of their educational funding. To the contrary, Title IX’s “pinpoint” provision
22

III. Gavin’s Motion For A Preliminary Injunction Should Be Granted. A. Gavin has established a likelihood of success under both Title IX and the Equal Protection Clause. For the same reasons that Gavin has stated a claim under Title IX, he has
also established a likelihood of success. But, even if Title IX did not protect Gavin, he would still be entitled to a preliminary injunction under the Equal Protection Clause. The Court should address Gavin’s likelihood of success on both claims, and hold that Title IX and the Equal Protection Clause provide independent bases for issuing a preliminary injunction. See Whitaker, 2017 WL 2331751, at *8-14. A ruling based only on Title IX could subject Gavin to more petitions for certiorari and remands to separately address each alternative basis for issuing a preliminary injunction. The Court should avoid further unnecessary delay and address both claims now.
To the extent that the Board discusses equal protection at all, it relies on Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001), for the proposition that different treatment based on biological differences is not the type of “gender-based stereotype” that constitutes sex discrimination. Def.’s Supp. Br. 33. In Nguyen, the Supreme Court upheld a statute that provided different procedures for unmarried mothers and unmarried fathers to transmit U.S. citizenship to their children. The
limits termination of funding “to the particular program, or part thereof” where “noncompliance [is]…found.” 20 U.S.C. § 1682; see Dep’t of Justice, Title IX Legal Manual § VII.C.2 (2005), https://goo.gl/2TkL1t.
23

Court held that this distinction was permissible because “[t]he difference between men and women in relation to the birth process” meant that mothers, by virtue of having given birth, automatically had a biological connection to the child and an opportunity to form a meaningful relationship. 533 U.S. at 73. But the Court’s analysis did not begin and end with biology. The Court emphasized that the policy was tailored so that it imposed only a “minimal” burden that could be easily met with a written acknowledgement of paternity under oath. Id. at 70. The Court also emphasized that the statute was not “marked by misconception and prejudice” or “disrespect.” Id. at 73.
The Board’s policy bears no resemblance to the tailored statute that survived heightened scrutiny in Nguyen. It is a categorical exclusion. It lacks any rational connection to the Board’s stated interests in protecting privacy related to nudity. It inflicts physical and psychological harm. It is “marked by misconception,” id. at 73, and it stigmatizes boys and girls who are transgender as unfit to use the same restrooms as their peers. Indeed, the policy rests on a fear of “people who appear to be different in some respects from ourselves” that cannot justify discrimination under any standard of scrutiny. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring).
24

B. Gavin has satisfied the remaining preliminary injunction requirements.
Although the Board does not explicitly address the requirements for a preliminary injunction, it suggests that any harms inflicted on Gavin are outweighed by the hypothetical harms that would be inflicted on other students if Gavin uses the boys’ restrooms. Def.’s Supp. Br. 43. But according to the American Academy of Pediatrics and other medical organizations, “there is no evidence of any harm to the physical or mental health of other children and adolescents when transgender students use facilities that match their gender identity.” AAP Amicus Br. 19-20. There is also no evidence that Gavin’s use of the restrooms is a safety threat to himself or others. See G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 723 n.11 (4th Cir. 2016). And Gavin’s use of the restrooms does not implicate any privacy interests related to nudity. See id. at 723 n.10; Whitaker, 2017 WL 2331751, at *12-13.
Moreover, all students are free to use one of the single-stall restrooms if they are uncomfortable with Gavin’s presence, or the presence of anyone else, in the common restroom. “For other students, using the single-stall restrooms carries no stigma whatsoever, whereas for [Gavin] using those same restrooms is tantamount to humiliation and a continuing mark of difference among his fellow students.” G.G., 822 F.3d at 729 (Davis, J., concurring).
25

The Board argues that hypothetical classmates should not have to use the single-stall restrooms in order to protect “their own adolescent modesty, personal sensitivities, or religious scruples.” Def.’s Supp. Br. 43. As the NAACP Legal Defense Fund points out, the same arguments have been used to exclude black people, gay people, and people with disabilities from swimming pools, restrooms, and other common spaces. See Amicus Br. of NAACP LDF, ECF 146-1. Schools can provide options for students to enhance their own privacy (however broadly defined), but they cannot force transgender students to use separate facilities to accommodate other students’ purported privacy or discomfort. Cf. Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015) (“sincere, personal opposition” of some people cannot justify policy that “demeans or stigmatizes those whose own liberty is then denied”).
26

CONCLUSION For the foregoing reasons, the Court should reverse the dismissal of Plaintiff’s Title IX claim and reverse the denial of a preliminary injunction based on both Title IX and the Equal Protection Clause.

Respectfully submitted,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. /s/ Gail Deady (VSB No. 82035) 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 rglenberg@acluva.org gdeady@acluva.org

AMERICAN CIVIL LIBERTIES UNION FOUNDATION Joshua A. Block Leslie Cooper 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jblock@aclu.org lcooper@aclu.org

Dated: June 2, 2017

Counsel for Plaintiff-Appellant

27

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of this Court’s briefing order dated April 13, 2017, because it contains 6,439 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2013 in 14-point Times New Roman.

Dated: June 2, 2017

/s/ Joshua A. Block Joshua A. Block AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jblock@aclu.org Counsel for Plaintiff-Appellant

28

CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of June, 2017, I filed the foregoing brief with the Clerk of the Court using the CM/ECF system, which will automatically serve electronic copies upon all counsel of record.
/s/ Gail M. Deady Gail M. Deady (VSB No. 82035) AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 gdeady@acluva.org Counsel for Plaintiff-Appellant
29

 
 Case 4:15-cv-00054-AWA-DEM Document 107 Filed 08/02/17 Page 1 of 8 PageID# 990
PUBLISHED
FILED: August 2, 2017
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 15-2056 (4:15-cv-00054-RGD-DEM)
GAVIN 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; 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; LEAH FREGULIA; STANFORD PRESCOTT; ADELITA GRIJALVA; MICHELLE KING; MONICA GARCIA; REF RODRIGUEZ, Ph. D.; JULIE VITALE, Ph. D.; SAN DIEGO COOPERATIVE CHARTER SCHOOLS; WENDY RANCK-BUHR, Ph. D.; SAN DIEGO UNIFIED SCHOOL DISTRICT; CINDY MARTEN; SAN FRANCISCO UNIFIED SCHOOL DISTRICT; ELDGRIDGE GREER, Ph. D.; ACHIEVEMENT FIRST PUBLIC CHARTER SCHOOLS; MORGAN BARTH; EMILY BANKS; GREGORY R. MEECE; CAROLYNE ALBERT-GARVEY; DANIEL F. GOHL; JANICE K. JACKSON, Ed.D.; KAREN CARNEY; SARAH SHIRK; BETH BAZER, Ed.D.; PAULA INSLEY MILLER, Ed.D.; CHIMILLE E. DILLARD, Ed.D.; THOMAS WEBER;

Case 4:15-cv-00054-AWA-DEM Document 107 Filed 08/02/17 Page 2 of 8 PageID# 991
CATHERINE FROM; HOWARD COLTER; MATTHEW HANEY; KEN KUNIN; ROBERT A. MOTLEY; TOMMY CHANG, Ed.D.; CYNDY TAYMORE; LIZBETH DESELM; DELOIS COOKE SPRYSZAK; CRAIG MCCALLA; BLAKE PREWITT, Ed.S.; PAMELA RETZLAFF, Ed.D.; WASHOE COUNTY SCHOOL DISTRICT; JAMES C. MORSE, SR., Ed.D.; THE SCHOOL DISTRICT OF SOUTH ORANGE AND MAPLEWOOD; THOMAS SMITH, Ed.D.; CRAIG VAUGHN; ARTHUR DIBENEDETTO; LAS CRUCES PUBLIC SCHOOLS; HEIDI CARTER; ANTHONY GATTO; ERIC DOSS; PEYTON CHAPMAN; ZIAD W. MUNSON, Ph. D.; MICHAEL SCHILDER, Ed.D.; SUZANNE VINCENT; RACHEL SANTA, Ed.D.; KELLIE M HARGIS, Ed.D.; LINDSEY POLLOCK, Ed.D.; EMILY SUTHERLAND; BRIAN SCHAFFER; MONTPELIER PUBLIC SCHOOLS; WASHINGTON CENTRAL SUPERVISORY UNION; ARLINGTON COUNTY SCHOOL BOARD; SHERRI CYRA; LAURA H. LOVE; JERRY NICHOLSON; JILL GURTNER; WILLIAM DENO; MONICA SCHOMMER; BRYAN DAVIS, Ph. D.; PARU SHAH, Ph. D.; TIM KENNEY; THE NATIONAL WOMEN’S LAW CENTER; CONSTITUTIONAL ACCOUNTABILITY CENTER; SAMUEL R. BAGENSTOS; MARTIN S. LEDERMAN; MICHAEL C. DORF; LEAH M. LITMAN; AMERICAN ACADEMY OF PEDIATRICS; AMERICAN PSYCHIATRIC ASSOCIATION; AMERICAN ACADEMY OF CHILD AND ADOLESCENT PSYCHIATRY; AMERICAN COLLEGE OF PHYSICIANS; AMERICAN MEDICAL ASSOCIATION; AMERICAN ACADEMY OF FAMILY PHYSICIANS; AMERICAN ACADEMY OF NURSING; AMERICAN ACADEMY OF PHYSICIAN ASSISTANTS; AMERICAN MEDICAL WOMEN'S ASSOCIATION; AMERICAN NURSES ASSOCIATION; AMERICAN PSYCHOANALYTIC ASSOCIATION; ASSOCIATION OF MEDICAL SCHOOL PEDIATRIC DEPARTMENT CHAIRS; ENDOCRINE SOCIETY; GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; MENTAL HEALTH AMERICA; NATIONAL ASSOCIATION OF SOCIAL WORKERS; SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR PHYSICIAN ASSISTANTS IN PEDIATRICS; THE NATIONAL PTA; GLSEN; AMERICAN SCHOOL COUNSELOR ASSOCIATION; NATIONAL ASSOCIATION OF SCHOOL PSYCHOLOGISTS; MARYLAND PTA; EVIE PRIESTMAN; CARTER BROWN; KATE BROWN; SYDNEY GREENSTEIN, a/k/a Siddy; DYLAN KLEIMAN; SARAH LORE; KAYDEN ORTIZ; MAXWELL PLATT; ROWAN WOOLDRIDGE; INTERACT: ADVOCATES FOR INTERSEX YOUTH; DEANNA ADKINS, M.D.; MILTON DIAMOND, M.D.; JOEL FRADER, M.D.; KATRINA KARKAZIS, Ph. D.; AVIVA L. KATZ, M.D.; ELIZABETH REIS, Ph. D.; JOSHUA SAFER, M.D.; AIS-DSD SUPPORT GROUP; PFLAG, INC.; TRANS YOUTH EQUALITY FOUNDATION; GENDER SPECTRUM; GENDER DIVERSITY; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; ANTI-DEFAMATION LEAGUE; BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE; CENTRAL
2

Case 4:15-cv-00054-AWA-DEM Document 107 Filed 08/02/17 Page 3 of 8 PageID# 992
CONFERENCE OF AMERICAN RABBIS; HADASSAH; KESHET; NATIONAL LGBT BAR ASSOCIATION; RECONSTRUCTIONIST RABBINICAL ASSOCIATION; UNION FOR REFORM JUDAISM; THE UNITED SYNAGOGUE OF CONSERVATIVE JUDAISM; WOMEN OF REFORM JUDAISM; NAACP LEGAL DEFENSE AND EDUCATION FUND, INC.; NATIONAL EDUCATION ASSOCIATION; AMERICAN FEDERATION OF TEACHERS, AFL-CIO; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO; SERVICE EMPLOYEES INTERNATIONAL UNION; SCHOOL SOCIAL WORK ASSOCIATION OF AMERICA; AMERICAN BAR ASSOCIATION; STATE OF NEW YORK; STATE OF WASHINGTON; STATE OF CALIFORNIA; STATE OF CONNECTICUT; STATE OF DELAWARE; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF IOWA; STATE OF MAINE; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; STATE OF NEW MEXICO; STATE OF OREGON; COMMONWEALTH OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA; DISTRICT OF COLUMBIA; AFFIRM, INC.; AIRBNB, INC.; AKAMAI TEHCNOLOGIES, INC.; AMAZON.COM, INC.; APPLE, INC.; APPNEXUS, INC.; ASANA, INC.; BLOOMBERG, L.P.; BOX, INC.; RYZAC, INC., d/b/a Codecademy; CREDO MOBILE, INC.; DROPBOX, INC.; EBAY, INCORPORATED; FASTLY, INC.; FLIPBOARD, INC.; GENERAL ASSEMBLY SPACE, INC.; GITHUB, INC.; IBM CORPORATION; INDIEGOGO, INC.; INTEL CORPORATION; KAISER PERMANENTE; KICKSTARTER, PBC; KNOTEL, INC.; LINDEN RESEARCH, INC., d/b/a Linden Lab; LINKEDIN CORPORATION; MAC COSMETICS, INC; MAPBOX, INC.; MARIN SOFTWARE INC.; MASSMUTUAL LIFE INSURANCE COMPANY; MEETUP, INC.; MICROSOFT CORPORATION; THE MITCHELL GOLD CO., d/b/a Mitchell Gold + Bob Williams; MONGODB, INC.; NETAPP, INC.; NEXT FIFTEEN COMMUNICATIONS CORP; NEXTDOOR.COM, INC.; NIO; PANDORA MEDIA, INC.; PAYPAL HOLDINGS, INC.; POSTMATES INC.; REPLACEMENTS, LTD.; RETAILMENOT, INC.; SALESFORCE.COM, INC.; SHUTTERSTOCK, INC.; SLACK TECHNOLOGIES, INC.; SPOTIFY USA INC.; SUGARCRM INC; THE OUTCAST AGENCY; THE GAP, INC.; TUMBLR, INC.; TWILIO, INC.; TWITTER, INCORPORATED; WARBY PARKER; WEEBLY, INC.; WILLIAMS-SONOMA, INCORPORATED; XEROX CORPORATION; YAHOO! INCORPORATED; YELP, INC.; ZENDESK, INC.; A BETTER BALANCE: THE WORK & FAMILY LEGAL CENTER; CENTER FOR REPRODUCTIVE RIGHTS; FUTURES WITHOUT VIOLENCE; GIRLS INC.; HARVARD LAW GENDER VIOLENCE POLICY WORKSHOP; KNOW YOUR IX; LEGAL AID AT WORK; NATIONAL COUNCIL OF JEWISH WOMEN; NATIONAL ORGANIZATION FOR WOMEN FOUNDATION; NATIONAL WOMEN’S POLITICAL CAUCUS; NEW VOICES FOR REPRODUCTIVE
3

Case 4:15-cv-00054-AWA-DEM Document 107 Filed 08/02/17 Page 4 of 8 PageID# 993
JUSTICE; PUBLIC JUSTICE; STOP SEXUAL ASSAULT IN SCHOOLS; THE NATIONAL CRITTENTON FOUNDATION; THE WOMEN'S LAW PROJECT; WOMEN’S SPORTS FOUNDATION; ARNE DUNCAN; JOHN B. KING, JR.; CATHERINE ELIZABETH LHAMON; JAMES COLE, JR.; MATHEW S. NOSANCHUK; PATRICIA SHIU; M. PATRICIA SMITH; DAVID MICHAELS; DAVID LOPEZ; JOCELYN SAMUELS,
Amici Supporting Appellant,
STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF NEBRASKA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF UTAH; STATE OF WEST VIRGINIA; MATTHEW G. BEVIN, Governor, Commonwealth of Kentucky; JUDITH REISMAN, Ph. D.; THE CHILD PROTECTION INSTITUTE; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND; FOUNDATION FOR MORAL LAW; NORTH CAROLINA VALUES COALITION; FAMILY RESEARCH COUNCIL; ALLIANCE DEFENDING FREEDOM; WOMEN’S LIBERATION FRONT; FAMILY POLICY ALLIANCE; CITIZENS UNITED; CITIZENS UNITED FOUNDATION; PUBLIC ADVOCATE OF THE UNITED STATES; UNITED STATES JUSTICE FOUNDATION; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; THE BECKET FUND FOR RELIGIOUS LIBERTY; PAUL R. MCHUGH, M.D.; PAUL HRUZ, Ph. D., M. D.; LAWRENCE MAYER, Ph. D.,
Amici Supporting Appellee.
O R D E R
Gavin Grimm, a transgender boy, commenced this action against the Gloucester
County School Board in July 2015, alleging that the School Board’s policy of assigning
students to restrooms based on their biological sex violated Title IX and the Equal
Protection Clause of the Fourteenth Amendment. Shortly thereafter, the district court
issued a memorandum opinion and order dated September 17, 2015, (1) dismissing
4

Case 4:15-cv-00054-AWA-DEM Document 107 Filed 08/02/17 Page 5 of 8 PageID# 994
Grimm’s claim under Title IX for failure to state a claim, and (2) denying his motion for a preliminary injunction based on alleged violations of Title IX and the Equal Protection Clause. 132 F. Supp. 3d 736, 753 (E.D. Va. 2015).
In a decision dated April 19, 2016, we reversed the district court’s dismissal of Grimm’s Title IX claim, relying on a guidance document issued by the U.S. Department of Education and U.S. Department of Justice. We also remanded the order denying the injunction, finding that the district court had applied the incorrect evidentiary standard in evaluating Grimm’s motion for a preliminary injunction. 822 F.3d 709 (4th Cir. 2016). Based on our ruling on Grimm’s Title IX claim, the district court issued an order dated June 23, 2016, granting Grimm’s motion for a preliminary injunction and requiring the School Board to allow Grimm to use bathrooms designated for males. 2016 WL 3581852 (E.D. Va. June 23, 2016).
The School Board filed a petition for a writ of certiorari to review our April 2016 decision, and the Supreme Court granted the petition. 137 S. Ct. 369 (2016) (mem.).
After the Supreme Court calendared the case for argument, the new Administration issued a guidance document on February 22, 2017, that withdrew the prior Administration’s guidance document regarding the treatment of transgender students, and the Court then vacated our April 2016 decision and remanded the case to us “for further consideration in light of the [new] guidance document issued by the Department of Education and Department of Justice.” 137 S. Ct. 1239 (2017) (mem.). In turn, we vacated the district court’s June 23, 2016 preliminary injunction. 853 F.3d 729 (4th Cir. 2017) (mem.).
5

Case 4:15-cv-00054-AWA-DEM Document 107 Filed 08/02/17 Page 6 of 8 PageID# 995
Because the Supreme Court vacated our April 2016 decision and we thereafter vacated the district court’s June 2016 preliminary injunction, we now have before us on appeal the district court’s original memorandum opinion and order dated September 17, 2015.
To account for intervening events from when Grimm first filed his appeal, the parties have submitted supplemental briefs that address several issues that were not before us when we previously heard the case or before the district court when it issued its September 17, 2015 memorandum opinion and order. In its supplemental briefing, the School Board contends that this case has become moot because, after our April 2016 decision, Grimm apparently graduated from high school on June 10, 2017. The School Board argues that, absent any allegation of a “particular intention to return to school after graduation,” this change of status deprives Grimm of a continued interest in the litigation, rendering the case moot. Supp. Reply Br. of Sch. Bd. at 4; see also Supp. Br. of Sch. Bd. at 18–20. The School Board states further that its bathroom policy does not necessarily apply to alumni, and that the issue of whether the policy is applicable to alumni is not yet ripe for adjudication. In his briefing, Grimm challenges these contentions, arguing that his possible “future attendance at alumni and school-community events” establishes a concrete interest in obtaining an injunction, Supp. Br. of Pl.-Appellant at 19, and that the School Board’s “noncommittal statement” regarding the enforceability of its policy “falls far short of a representation that the Board will voluntarily cease discriminating against [him].” Supp. Reply Br. of Pl.-Appellant at 4. The School Board thus suggests an absence of our jurisdiction, while Grimm contends that we continue to have jurisdiction.
6

Case 4:15-cv-00054-AWA-DEM Document 107 Filed 08/02/17 Page 7 of 8 PageID# 996
Of course, at any stage of litigation, a federal court must have jurisdiction to resolve the merits of a dispute, as an absence of jurisdiction deprives a court of the power to act. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed”); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (“The inability of the federal judiciary ‘to review moot cases derives from the requirement of Art. III of the Constitution’” (quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964))). Because our power may be at issue, we are not free simply to avoid the question of whether the case has become moot and proceed to decide the case on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–95 (1998). Jurisdiction, when questioned or when questionable, must always be determined first, as it is “always an antecedent question.” Id. at 101.
Thus, a crucial threshold question arises in this appeal whether “one or both of the parties plainly lack a continuing interest” in the resolution of this case such that it has become moot. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192 (2000). While our jurisdiction is thus questioned, the facts on which our jurisdiction could be decided are not in the record before us. Because all of the prior litigation was conducted while Grimm was a student, the parties have presented us with nothing more than unsupported assertions regarding Grimm’s continued connection to his high school and the applicability of the School Board’s policy. And our own “analysis of these matters . . . cannot be achieved simply by reviewing the plaintiffs’ pleadings and the limited record on appeal.” Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 536 (4th Cir. 2014) (remanding to allow for factfinding related to whether the case presented a
7

Case 4:15-cv-00054-AWA-DEM Document 107 Filed 08/02/17 Page 8 of 8 PageID# 997 nonjusticiable political question). Accordingly, we conclude that it is necessary to remand this case to the district court to determine, in the first instance, whether this case has become moot by reason of Grimm’s graduation — a resolution that will likely “require factual development of the record by the district court and possibly additional jurisdictional discovery.” Id.; see also 28 U.S.C. § 2106. Accordingly, we remand this to the district court for the limited purpose of resolving, in the first instance, whether this case has become moot. Entered at the direction of Judge Niemeyer, with the concurrence of Judge Duncan and Judge Floyd. For the Court /s/ Patricia S. Connor, Clerk
8

 
 Case 4:15-cv-00054-AWA-DEM Document 113 Filed 08/22/17 Page 1 of 17 PageID# 1028

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Newport News Division

GAVIN GRIMM, , Plaintiff,
v. GLOUCESTER COUNTY SCHOOL BOARD,
Defendant.

) ) ) ) ) Civil Case No. 4:15-cv-54 ) ) ) ) ) )

AMENDED COMPLAINT

1. Gavin Grimm (“Gavin”) is an 18-year-old young man who is transgender. When

Gavin was 15, he came out to his family as a boy and, with the help of his medical providers,

transitioned to living in accordance with his male identity as part of medically necessary

treatment for gender dysphoria.

2. By the time Gavin began his sophomore year at Gloucester High School, he had

legally changed his name to Gavin and begun using male pronouns. Gavin wore his clothing and

hairstyles in a manner typical of other boys and used the men’s restrooms in public venues,

including restaurants, libraries, and shopping centers, without encountering any problems.

Gavin’s medical providers also gave him a “treatment documentation letter,” which confirmed

that Gavin was receiving treatment for gender dysphoria and stated that he should be treated as a

boy in all respects, including when using the restroom.

3. With the support of the school principal and superintendent, Gavin used the boys’

restrooms at Gloucester High School for approximately seven weeks without incident.

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4. But in response to complaints from some adults in the community, the Gloucester County School Board (the “Board”) overruled its own administrators and enacted a new policy prohibiting boys and girls “with gender identity issues” from using the same restrooms as other boys and girls. The new policy directed transgender students to an “alternative appropriate private facility.”
5. The Board continued to exclude Gavin from using the same restrooms as other boys, even after he began receiving hormone therapy, obtained a Virginia state I.D. card listing his sex as male, underwent chest reconstruction surgery, obtained a court order legally changing his sex to male under Virginia law, and received a new Virginia birth certificate reflecting that his sex is male.
6. Throughout the rest of high school, Gavin was forced to use separate restrooms that no other student was required to use. That degrading and stigmatizing policy singled Gavin out as unfit to use the same restrooms that are available to every other student.
7. The Board’s policy conflicts with the views of every major medical and mental health organization and school counselors, teachers, and administrators across the country.
8. In every part of the country, including Virginia, boys and girls who are transgender are already using sex-separated restroom and locker room facilities at school, participating in interscholastic athletic teams in both high school and college, and joining girlscout and boy-scout troops.
9. Ignoring these realities, the Gloucester County School Board has adhered to its categorical ban, which prohibits the Board’s own school administrators from ever allowing any transgender student to use the common facilities that are available to every other boy and girl.
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10. Gavin is recognized by his family, his medical providers, the Virginia Department of Health, and the world at large as a boy. Allowing him to use the same restrooms as other boys is the only way to provide him access to sex-separated restrooms without discrimination.
11. By segregating Gavin from his peers, excluding him from using the same restrooms that every other boy is allowed to use, and relegating him to separate restroom facilities, the Board has discriminated against Gavin—and continues to discriminate against him, in violation of the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972. Gavin seeks redress from this Court.
JURISDICTION AND VENUE 12. This action arises under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., the Constitution of the United States, and 42 U.S.C. § 1983. This Court has jurisdiction pursuant to Article III of the United States Constitution and 28 U.S.C. § 1331. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 13. Venue lies with this Court pursuant to 28 U.S.C. §§ 1391(b)(1)-(2), because the defendant resides in this District and a substantial part of the events or omissions giving rise to the claim occurred in this District.
PARTIES 14. Plaintiff Gavin Grimm (“Gavin”) is eighteen years old. From September 2013 to June 2017, he attended Gloucester High School, a public high school in Gloucester County, Virginia. 15. The Gloucester County School Board (the “School Board” or “Board”) is an elected body responsible for the operation of the Gloucester County Public Schools (“GCPS”),
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including the promulgation of policies. At all times relevant, the School Board has acted and continues to act under color of state law.
FACTUAL ALLEGATIONS Transgender youth and gender dysphoria
16. Gavin was born in Gloucester County and has lived in Gloucester County his entire life. Gavin is a typical teenager who is articulate and intelligent, reads broadly, loves his dog and cats, and enjoys hanging out with his friends.
17. When Gavin was born, the hospital staff identified him as female, but from a young age, Gavin knew that he was a boy. Although the sex assigned to Gavin at birth was female, Gavin has a male gender identity.
18. Everyone has a gender identity. It is an established medical concept, referring to a person’s deeply felt, inherent sense of being a boy, a man, or male; a girl, a woman, or female. Most people have a gender identity that matches the sex they are identified as at birth. But people who are transgender have a gender identity that differs from the sex they are assigned at birth.
19. Like many transgender students, Gavin succeeded at school until the onset of puberty, when he began to suffer debilitating levels of distress from gender dysphoria, a condition in which transgender individuals experience persistent and clinically significant distress caused by the incongruence between their gender identity and the sex assigned to them at birth. Although gender dysphoria is a serious medical condition recognized by the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders (5th ed. 2013), being transgender is not a mental disorder and “implies no impairment in judgment, stability, reliability, or general social or vocational capabilities.” Am. Psychiatric Ass’n, Position
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Statement on Discrimination Against Transgender & Gender Variant Individuals (2012), at https://goo.gl/iXBM0S.
20. There is a medical and scientific consensus that the treatment for gender dysphoria is for boys who are transgender to live as boys and for girls who are transgender to live as girls. When medically appropriate, treatment also includes hormone therapy and surgery. This medical consensus is embraced by the American Medical Association, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Endocrine Society, and every other major medical and mental health organization in the United States.
21. The ability of transgender individuals to live consistently with their identity is critical to their health and well-being. That includes using names and pronouns consistent with their identity, grooming and dressing in a manner typically associated with that gender, and using restrooms and other sex-separated facilities that match their gender identity. Preventing transgender students from living in a manner that is consistent with their gender identity puts them at increased risk of debilitating depression and suicide. By contrast, when gender dysphoria is properly treated, transgender individuals experience profound relief and can go on to lead healthy, happy, and successful lives.
22. Boys and girls who are transgender are people who consistently, persistently, and insistently do not identify with the sex assigned to them at birth, and who can experience the debilitating distress of gender dysphoria when they are not able to live as the boys and girls that they are. The gender identity of these adolescents is stable and fixed.
23. Boys and girls who are transgender are attending schools across the country. While transgender students have long been part of school communities, it is only in the last
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couple decades that there has been more widespread access to the medical and psychological support that they need. Beginning in the early 2000s, as a result of advances in medical and psychological treatment for transgender youth, transgender students finally began to receive the treatment necessary to alleviate the devastating pain of gender dysphoria and live their lives in accordance with who they really are.
24. Many transgender students attend school without classmates and peers knowing they are transgender. For example, many students have already transitioned before beginning school and many others transfer to a new school after transitioning.
25. With hormone therapy, transgender students develop physical sex characteristics typical of their gender identity—not the sex they were identified as at birth. Hormone therapy affects bone and muscle structure, alters the appearance of a person’s genitals, and produces secondary sex characteristics such as facial and body hair in boys and breasts in girls.
26. In addition, transgender children who receive puberty blockers never go through puberty as their birth-designated sex. They will be exposed to the same levels of testosterone or estrogen as other boys and girls during puberty, and those hormones will affect every major body system.
27. Under widely accepted standards of care developed by the World Professional Association of Transgender Health (“WPATH”), genital surgery is not recommended for minors, but boys who are transgender may undergo medically necessary chest-reconstruction surgery after they turn 16.
28. According to every major medical and mental health organization, including the American Medical Association, the American Academy of Pediatrics, the American Psychiatric Association, and the American Psychological Association, excluding boys and girls who are
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transgender from using the same restrooms as other boys and girls is harmful to their health and wellbeing. When excluded from the common restrooms, transgender students often avoid using the restroom entirely, either because the separate restrooms are too stigmatizing or too difficult to access. They suffer infections and other negative health consequences as a result of avoiding restroom use. The exclusion also increases their risk of depression and self-harm.
29. Educators and school administrators across the country also recognize that excluding transgender boys and girls from using the common restrooms interferes with their ability to learn and thrive at school. It impairs their ability to develop a healthy sense of self, peer relationships, and the cognitive skills necessary to succeed in adult life. In light of these harms, the National Association of School Psychologists, National Association of Secondary School Principals, National Association of Elementary School Principals, and the American School Counselor Association have all called upon schools to allow boys and girls who are transgender to use the same restrooms as other boys and girls.
30. According to the American Academy of Pediatrics and other major medical and mental health organizations, there is no evidence that allowing boys and girls who are transgender to use the same restrooms as other boys and girls causes any harm to the physical or mental health of students who are not transgender.
31. Schools can provide accommodations for all students—whether transgender or not—to enhance their own privacy without discriminating against transgender students by excluding them from common spaces.
32. In schools across the country, including Virginia, transgender boys and girls already use the same restrooms and locker rooms as other boys and girls
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33. In high school athletic associations across the country, including Virginia, transgender boys and girls already play on the same sports teams as other boys and girls.
34. Institutions ranging from the Girl Scouts and Boy Scouts to the Seven Sisters colleges to the National Collegiate Athletic Association already recognize boys who are transgender as boys and recognize girls who are transgender as girls.
35. Treating boys who are transgender as boys, and treating girls who are transgender as girls, is the only way they can equally participate in school, work, or society at large. Gavin’s experience at Gloucester High School
36. In 2014, near the end of his first year of high school, the distress caused by Gavin’s untreated gender dysphoria became so great that he was unable to attend class. At that point, Gavin came out to his parents as a boy and, at his request, began seeing a psychologist with experience counseling transgender youth.
37. With the help of his medical providers, Gavin transitioned to living in accordance with his male identity as part of medically necessary treatment for gender dysphoria.
38. Gavin legally changed his name to Gavin and began using male pronouns. Gavin wore his clothing and hairstyles in a manner typical of other boys and began using the men’s restrooms in public venues, including restaurants, libraries, and shopping centers, without encountering any problems. His medical providers also referred Gavin to an endocrinologist to begin hormone therapy.
39. Gavin and his mother met with the school principal and guidance counselor in August 2014, before the beginning of his sophomore year, to explain that Gavin is a boy who is transgender and would be attending school as a boy.
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40. Gavin and his mother gave the school principal and guidance counselor a “treatment documentation letter” from his psychologist, which confirmed that Gavin was receiving treatment for gender dysphoria and stated that he should be treated as a boy in all respects, including when using the restroom.
41. At the time Gavin and his mother met with the school principal and guidance counselor, the School Board did not have policies addressing which restrooms transgender students should use.
42. Gavin initially requested to use the restroom in the nurse’s office, but he soon felt stigmatized and isolated using a different restroom from everyone else. The restroom in the nurse’s office was also located far away from many of his school classes, and Gavin was often unable to use the restroom without being late for class.
43. After a few weeks of using the restroom in the nurse’s office, Gavin sought permission to use the boys’ restrooms.
44. On October 20, 2014, with the principal’s support, Gavin began using the boys’ restrooms, and did so for seven weeks without incident.
45. Gavin also requested permission to complete his physical-education requirements through a home-bound program. As a result, he never needed to use the locker rooms at school.
46. The principal of Gloucester High School and the superintendent of Gloucester County Public Schools informed the Board that they had authorized Gavin to use the same restrooms as other boys, but otherwise kept the matter confidential.
47. Although the principal and superintendent treated the matter as confidential, some adults in the community learned that a boy who is transgender was using the boys’ restrooms at
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Gloucester High School. They contacted the Board to demand that the transgender student (who was not publicly identified as Gavin until later) be barred from the boys’ restrooms.
48. The Board has not disclosed the nature or source of the complaints it received. 49. On information and belief, at least some of the complaints came from a Gloucester High School employee who runs the school Bible club and is a pastor at a local church. That employee told the Washington Post that he spoke out against Gavin’s use of the boys’ restroom because “God puts us on this Earth as who we are.” 50. The Board considered the matter at a private meeting and took no action for several weeks. 51. Unsatisfied with the results of the private meeting, one member of the Board alerted the broader community by proposing the following policy for public debate at the Board’s meeting on November 11, 2014: Whereas the GCPS 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. 52. The policy categorically prohibits administrators from allowing any boy who is transgender to use any boys’ restroom (or allowing any girl who is transgender to use any girls’ restroom) in any school within the Gloucester County School District, regardless of the student’s individual circumstances.
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53. The policy does not define “biological gender,” and the term has no common or accepted meaning. There are many biological components of sex, including chromosomal, anatomical, hormonal, and reproductive elements, some of which could be ambiguous or in conflict within an individual, either because that individual has intersex traits or because that individual has undergone medical care for gender dysphoria.
54. After learning about the meeting through social media, Gavin and his parents decided to speak against the proposed policy. In order to speak against the policy, Gavin was forced to reveal himself to the entire community and the local media as the boy whose restroom use was at issue.
55. Gavin told the Board: I use the public restroom, the men’s public restroom, in every public space in Gloucester County and others. I have never once had any sort of confrontation of any kind. … All I want to do is be a normal child and use the restroom in peace, and I have had no problems from students to do that—only from adults. … I did not ask to be this way, and it’s one of the most difficult things anyone can face. … I am just a human. I am just a boy. A recording of his remarks can be viewed online at https://goo.gl/CYh4gd 56. By a vote of 4-3, the School Board voted to defer a vote on the policy until its meeting on December 9, 2014. 57. Before its next meeting, the Board issued a press release announcing plans for “adding or expanding partitions between urinals in male restrooms, and adding privacy strips to the doors of stalls in all restrooms.” In addition, the press release announced “plans to designate single stall, unisex restrooms … to give all students the option for even greater privacy.”
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58. Speakers at the December 9, 2014 Board meeting nonetheless demanded that Gavin be excluded from the boys’ restrooms immediately, and many threatened to vote Board members out of office if they refused to pass the new policy.
59. With Gavin in attendance, several speakers pointedly referred to him as a “young lady.” One speaker called Gavin a “freak” and compared him to a person who thinks he is a “dog” and wants to urinate on fire hydrants. “Put him in a separate bathroom if that’s what it’s going to take,” said another.
60. The Board meeting made Gavin feel that he had been turned into a public spectacle in front of the entire community.
61. The Board passed the policy on December 9, 2014, by a 6-1 vote. 62. The following day, the principal told Gavin he could no longer use the same restrooms as other boys. 63. The Board’s new policy did not affect the restroom usage of any other student at Gloucester High School. Every other student was allowed to continue using the same restrooms they had been using before the new policy was adopted. The only person who had to use a different restroom was Gavin. 64. The Board subsequently installed three single-user restrooms. One of the restrooms had previously been designated as a restroom for teachers and staff. The other two restrooms were converted from old utility closets. 65. None of the single-user restrooms was located near Gavin’s classes. 66. Although any student was allowed to use the single-user restrooms, no one else did so. Everyone knew they were created for Gavin as part of the policy prohibiting him from using the same restrooms as other boys.
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67. Being relegated to the separate restrooms was demeaning and shameful for Gavin. It signaled to Gavin and the entire school community that he is different, and it sent a public message to all his peers that he is not fit to be treated like everyone else.
68. Gavin did everything he could to avoid using the restroom at school. As a result, he developed painful urinary tract infections and was often distracted and uncomfortable in class.
69. When Gavin absolutely had to use the restroom, he used the nurse’s restroom, but he still felt ashamed doing so. Every time he had to walk to the other side of school to use the nurse’s restroom, Gavin felt like he was taking a “walk of shame.” It was a constant reminder to Gavin—and to anyone who saw him—that Gavin is transgender and had been barred from using the same restrooms as other boys.
70. Being excluded from the common boys’ restroom and forced to use separate restroom facilities also physically isolated Gavin from the rest of his peers by requiring him to travel to a separate part of the school if he had to use the restroom between classes.
71. When Gavin attended school football games, there was no restroom for him to use at all. The Gloucester High School building was locked after school, and there are no single-user restroom facilities in the stadium. When he had to use the restroom, Gavin’s only option was to call his mother to pick him up and take him home early. Enforcement of the policy
72. The Board continued to exclude Gavin from the same restrooms as other boys throughout the remainder of his sophomore, junior, and senior years of high school.
73. In December 2014, Gavin began hormone therapy, which has altered his bone and muscle structure, deepened his voice, and caused him to grow facial hair.
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74. In June 2015, the Virginia Department of Motor Vehicles issued Gavin a state I.D. card identifying him as male.
75. In June 2016, Gavin underwent chest-reconstruction surgery, in accordance with the medical standards of care for treating gender dysphoria.
76. On September 9, 2016, the Gloucester County Circuit Court issued an order changing Gavin’s sex under Virginia state law and directing the Virginia Department of Health to issue Gavin a birth certificate listing his sex as male.
77. On October 27, 2016, the Virginia Department of Health issued Gavin a birth listing his sex as male.
78. Despite all of this, the Board disregarded Gavin’s medical treatment, his Virginia I.D. card, his new Virginia birth certificate, and the court order changing his sex under Virginia state law. The Board maintained that Gavin’s “biological gender” remains female and continued to prohibit its administrators from allowing Gavin to use the boys’ restrooms.
79. Gavin graduated high school on June 10, 2017. 80. As an alumnus with close ties to the community, Gavin will continue to be on school grounds when attending football games, alumni activities, or social event with friends who are still in high school.
CLAIMS FOR RELIEF COUNT I
Fourteenth Amendment to the United States Constitution 81. The Board is the final policymaker for Gloucester County Public Schools, acting under color of state law. 82. By excluding Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities, the Board has treated, and
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continues to treat, Gavin differently from similarly situated students in violation of the Equal Protection Clause of the Fourteenth Amendment.
83. By excluding Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities, the Board has discriminated, and continues to discriminate, against Gavin on the basis of gender, which is subject to heightened scrutiny under the Equal Protection Clause.
84. By excluding Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities, the Board has discriminated, and continues to discriminate, against Gavin on the basis of transgender status, which is also subject to heightened scrutiny under the Equal Protection Clause.
a. Transgender people as a class have historically been subject to discrimination. b. Transgender people as a class have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society. c. Transgender people as a class exhibit immutable or distinguishing characteristics that define them as a discrete group. d. Transgender people as a class are a minority with relatively little political power. 85. By excluding Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities, the Board has discriminated, and continues to discriminate, against Gavin based on invidious stereotypes, moral disapproval, and unfounded fears about people who are different. 86. The Board’s discrimination against Gavin is not narrowly tailored to advance a compelling government interest.
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87. The Board’s discrimination against Gavin is not substantially related to any important government interest.
88. The Board’s discrimination against Gavin is not rationally related to any legitimate government interest.
89. The Board is liable for its violation of Gavin’s Fourteenth Amendment rights under 42 U.S.C. § 1983.
COUNT II Title IX of the Education Amendments of 1972
20 U.S.C. § 1681 et seq. 90. Title IX provides that “[n]o 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. § 1681(a). 91. Gloucester County Public Schools and Gloucester High School are education programs receiving Federal financial assistance. 92. Excluding Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities violates his rights under Title IX by excluding him from participation in, denying him the benefits of, and subjecting him to discrimination in educational programs and activities at Gloucester County Public Schools and Gloucester High School “on the basis of sex.”
REQUEST FOR RELIEF For the foregoing reasons, Plaintiff respectfully requests that the Court grant the following relief:
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A. A declaration that the Board’s policy violated Gavin’s rights under the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., on the day the policy was first issued and throughout the remainder of his time as a student at Gloucester High School;
B. Nominal damages in an amount determined by the Court; C. A declaration that the Board’s policy continues to violate Gavin’s rights under the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.; D. A permanent injunction requiring the Board to allow Gavin to use the same restrooms as other male alumni; E. Plaintiff’s reasonable costs and attorneys’ fees pursuant to 42 U.S.C. § 1988; and F. Such other relief as the Court deems just and proper.

Dated: August 11, 2017

Respectfully submitted,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. ___________/S/______________ Gail Deady (VSB No. 82035) 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733
gdeady@acluva.org
* Admitted pro hac vice.
Counsel for Plaintiff Gavin Grimm

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
Joshua A. Block* Leslie Cooper* 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jblock@aclu.org lcooper@aclu.org
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 Case 4:15-cv-00054-AWA-DEM Document 118 Filed 09/22/17 Page 1 of 2 PageID# 1060

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division

GAVIN GRIMM,

Plaintiff,

v.

Case No. 4:15-cv-00054

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

MOTION TO DISMISS AMENDED COMPLAINT

NOW COMES the Defendant Gloucester County School Board (“School Board”), by

counsel, pursuant to Federal Rule of Civil Procedure 12(b)(6) and moves this Court to dismiss,

with prejudice, the entire Amended Complaint (ECF Doc. 113) filed by the Plaintiff. The

Amended Complaint does not state a claim upon which relief can be granted as a matter of law,

and does not allege facts sufficient to establish a legally cognizable cause of action. The

School Board relies upon, and incorporates, its Brief in Support of the Motion to Dismiss as if

fully set forth herein.

WHEREFORE, Defendant Gloucester County School Board respectfully requests that

this Court enter an Order granting the Motion to Dismiss and dismissing the Amended

Complaint with prejudice, and award costs and attorney fees as allowed by law.

GLOUCESTER COUNTY SCHOOL SCHOOL BOARD

By Counsel

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/s/ David P. Corrigan VSB 26341 Jeremy D. Capps VSB No. 43909 M. Scott Fisher, Jr. VSB 78485 Attorney for Gloucester County School School Board Harman, Claytor, Corrigan & Wellman P.O. Box 70280 Richmond, Virginia 23255 804-747-5200 - Phone 804-747-6085 - Fax dcorrigan@hccw.com
C E R T I F I C A T E I hereby certify that on the 22nd day of September 2017, I filed a copy of the foregoing
document with the Clerk of the Court using the CM/ECF system, which will automatically send
a Notice of Electronic Filing to all counsel of record.
/s/ David P. Corrigan VSB No. 26341 Attorney for Gloucester County School School Board Harman, Claytor, Corrigan & Wellman P.O. Box 70280 Richmond, Virginia 23255 804-747-5200 - Phone 804-747-6085 - Fax dcorrigan@hccw.com
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 Case 4:15-cv-00054-AWA-DEM Document 123 Filed 10/26/17 Page 1 of 7 PageID# 1169

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division

F LED

GAVIN GRIMM,

Plaintiff,

OCT 2 6 2017
CLERK, U.S. DISTRICT COURT NORFOLK. VA

V.
GLOUCESTER COUNTY SCHOOL BOARD,
Defendant.

Civil No.4:15.cv-54

ORDER
Currently pending before this Court is Defendant's Motion to Dismiss the Amended Complaint for Failure to State a Claim, filed pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 118. For the reasons stated herein, the Court defers ruling on the Motion to Dismiss insofar as Defendant argues that Plaintiff has failed to state a claim for relief pursuant to Rule 12(b)(6). Instead, the parties are directed to file supplemental briefing on the question of
mootness.
1. BACKGROUND
Plaintiff Gavin Grimm, a transgender male teenager, commenced this action against the Gloucester County School Board in July 2015, alleging that the School Board's policy of assigning students to restrooms based on their biological sex violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) and the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. In September 2015, another judge of this Court
issued a Memorandum Opinion and Order that (1) dismissed Grimm's claim under Title IX for failure to state a claim, and (2) denied his Motion for a Preliminary Injunction based on alleged

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violations of Title IX and the Equal Protection Clause. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 132 F. Supp. 3d 736, 753 (E.D. Va. 2015).
An interlocutory appeal of those decisions followed, which led to an appellate review process by the United States Court of Appeals for the Fourth Circuit and the United States Supreme Court that lasted nearly two years. Grimm v. Gloucester Cty. Sch. Bd., No. 15-2056, slip op. at 5-6 (4th Cir. Aug. 2, 2017). During this time, the district court case was re-assigned to the undersigned. In August 2017, the Fourth Circuit was again presented with the parties' original appeal ofthe September 2015 Memorandum Opinion and Order. Id. at 6.
During the pendency of the appeal, a potential mootness issue arose when Plaintiff graduated high school. On August 2, 2017, the Fourth Circuit issued an Order remanding the case to this Court for a finding on the question of mootness and to develop a factual record on
this issue. Id. at 6-8. This Court ordered the parties to submit a Joint Position Statement
proposing procedures for developing this factual record and conducting proceedings on remand.
ECFNo. 108.
In their Joint Position Statement, the parties advised that they had filed a stipulation to
voluntarily dismiss the Plaintiff's interlocutory appeal regarding the Preliminary Injunction. ECF No. 111. Because of this, they believed that "there will be no need for additional factfinding to determine whether the motion for preliminary injunction has become moot." Id. Instead, parties suggested that this Court grant Plaintiffs Motion to Amend the Complaint and
seta schedule allowing Defendant to file a motion to dismiss. ECF Nos. 109, 111.
This Court considered the Joint Position Statement, the record, and the history of the
litigation, and granted the Consent Motion, allowing the parties to proceed with briefing in
accordance with their proposed schedule. ECF No. 112.

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II. ANALYSIS
Regardless of whether a controversy over the need for a preliminary injunction remains, the threshold jurisdictional question of whether Plaintiffs graduation from high school mooted
the entire case remains before this Court. See North Carolina v. Rice, 404 U.S. 244, 245-46
(1971) ("Mootness is a jurisdictional question because the Court is not empowered to decide moot questions or abstract propositions.") (internal citations and quotation marks omitted).
Defendant's recent Motion to Dismiss alludes briefly to the mootness issue. See ECF No.
118 at 36. Although not expressly framed as an argument sounding in mootness, Defendant questions whether a justiciable claim remains after Plaintiffs graduation from high school and
his concomitant transition from student to alumni status. Id. This question implicates whether
"an actual controversy" remains among the parties to this case and is, therefore, a question of
mootness. See Preiser v. Newkirk, 422 U.S. 395,401-02 (1975).
Although Defendant purports to raise the issue under Rule 12(b)(6), generally parties must raise mootness issues by moving to dismiss under Rule 12(b)(1), which permits challenges on the basis of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The Court construes the Motion as one brought pursuant to Rule 12(b)(1) to the extent it raises whether this case presents a justiciable controversy. See Mims v. Kemp, 516 F.2d 21, 22 (4th Cir. 1975); see also KCE Properties, Inc. v. Holy Mackerel, Inc., No. 4:16cv42, 2017 WL 376151, at *2 (E.D. Va. 2017).
Even if Defendant's Motion to Dismiss did not raise mootness, the Court would raise it sua
sponte as litigants cannot concede mootness. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Furthermore, Federal Rule of Civil Procedure 12(h)(3) requires this Court
to dismiss the action if it "determines at any timethat it lacks subject-matter jurisdiction."

Case 4:15-cv-00054-AWA-DEM Document 123 Filed 10/26/17 Page 4 of 7 PageID# 1172

Because constitutional mootness is a jurisdictional issue, the Court has a "special

obligation" to resolve the question satisfactorily and cannot proceed until it is assured that this

case presents a live controversy. See Bender^ 475 U.S. at 541 (holding that every federal court

has a "special obligation" to satisfy itself of its own jurisdiction, even though the parties are

prepared to concede it). Accordingly, this Court must first be satisfied that it has jurisdiction

over this case by making a determination as to mootness before it is able to proceed to the merits

of this case. The Court defers consideration of all other matters pending supplemental briefing in

accordance with the directives provided herein.

III. ISSUES FOR SUPPLEMENTAL BRIEFING
Parties shall fully brief the issue of whether either of Plaintiffs claims are moot, in light

of: (1) Plaintiff Gavin Grimm's graduation from Gloucester High School and status as an

alumnus of Gloucester High School, and (2) the Gloucester School Board's (a) stated school

bathroom policy and (b) the functional—that is,

application/enforcement ofthe school

bathroom policy to non-students (including, but not limited to, alumni).^ Specifically, the new

briefing mustaddress, but is not limited to, the following issues:
(a) Whether the mootness question presented here implicates constitutional or prudential mootness, or some combination of both doctrines. See, e.g., S-1 v. Spongier, 832 F.2d 294, 297 (4th Cir. 1987) (discussing both constitutional and

prudential mootness).
(b) The evidentiary framework applied to Rule 12(b)(1) motions and the burden of
proofto establish mootness at this stage in the proceedings.

' Counsel shall brief the mootness issuesbefore the Court comprehensively. Arguments from other filings, if any, should not be incorporated by reference.

Case 4:15-cv-00054-AWA-DEM Document 123 Filed 10/26/17 Page 5 of 7 PageID# 1173
(c) Whether this case implicates any of the recognized exceptions to the mootness
doctrine.
1. Specifically, the parties should consider whether Defendant's representations that the School Boardpolicyno longer applies to Plaintiff(both as a matterof stated policy and as a matter of enforcement) amounts to voluntary cessation, see, e.g.. Friends ofthe Earth, Inc. v. Laidlaw Environmental Services (TOC),
Inc., 528 U.S. 167,189-94 (2000);
2. If these representations amount to a voluntary cessation argument, the parties
should address whether Defendant's unsworn statements meet its burden to
make it "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate ExportAss% 393 U.S. 199, 203 (1968).
(d) Both parties shall summarize and attach evidence that establishes the facts underlying the mootness issue, including, but not limited to, the following:
1. Whether the Gloucester School Board's bathroom use policy applies to nonstudents, including, but not limited to, alumni;
2. Whether the policy would be enforced as to non-students, including, but not
limited to, alumni;
3. If the policy is enforced as to non-students, how it is enforced; 4. Whether anyother policy governs non-students' bathroom use; 5. Whether any informal practice governs non-students' bathroom use;
^Parties are advised that if factual disputes arise as to these questions, the parties must present evidence as tothese disputes. See infra Section IV for guidance as to additional discovery procedures.

Case 4:15-cv-00054-AWA-DEM Document 123 Filed 10/26/17 Page 6 of 7 PageID# 1174
6. Whether non-students' bathroom use is managed through ad hoc decisions. If
so:
i. Who makes those decisions; ii. On what basis the decision-maker resolves the issue;
7. Whether Plaintiff intends to visit Gloucester High School as an alumnus; and 8. Whether, if Plaintiff visits and uses Gloucester High School's bathrooms,
what policies, if any, apply to him, and how such policies would beenforced.
IV. BRIEFING PROCEDURES AND SCHEDULE
Defendant shall file its Supplemental Memorandum no later than sixty calendar days after the date of the entry of this Order. Plaintiff shall file its Response no later than twenty-one calendar days after service of the Defendant's Memorandum. Defendant may file a Reply no later than seven calendar days after the service of the Response. Briefs shall not exceed thirty-
five pages, excluding exhibits.
Because the mootness inquiry is jurisdictional in nature and applies to the case as a
whole, the parties may wish to request limited jurisdictional discovery. See Careflrst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 402-03 (4th Cir. 2003). When considering a jurisdictional issue such as mootness, the trial court is not limited to the pleadings, and "may consider evidence by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.. . [ujnlike the procedure ina 12(b)(6)
motion." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (citing Mims v. Kemp, 516 F.2d 21, 22 (4th Cir. 1974)). Discovery may be useful to develop the factual record upon which the mootness issue will be resolved. Before undertaking any jurisdictional discovery, the party

Case 4:15-cv-00054-AWA-DEM Document 123 Filed 10/26/17 Page 7 of 7 PageID# 1175

seeking to undertake discovery is ORDERED to file a motion for jurisdictional discovery no later than fourteen calendar days after the date of the entry of this Order.
V. CONCLUSION
The parties are ORDERED to file supplemental briefing on mootness pursuant to the
directives herein.
A ruling on Defendant's Motion to Dismiss for Failure to State a Claim (ECF No. 118) is
DEFERRED pending resolution of the mootness issue.
IT IS SO ORDERED.

October

2017

Norfolk, Virginia

ArendaCSWrigh't Allen United States District Judge

 
 Case 4:15-cv-00054-AWA-DEM Document 125 Filed 11/02/17 Page 1 of 4 PageID# 1212

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Newport News Division

GAVIN GRIMM, Plaintiff,
v. GLOUCESTER COUNTY SCHOOL BOARD,
Defendant.

) ) ) ) ) Civil Case No. 4:15-cv-54 ) ) ) ) ) )

PLAINTIFF’S NOTICE OF CONSENT TO DISMISSAL OF REQUESTS FOR RELIEF (C) AND (D)

Plaintiff Gavin Grimm respectfully submits this notice of consent to Defendant’s Motion

to Dismiss the Amended Complaint with respect to Requests for Relief (C) and (D) pursuant to

Federal Rule of Civil Procedure 12(b)(1).

BACKGROUND

1. Plaintiff’s Amended Complaint alleges claims under Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681(a), and the Equal Protection Clause of the Fourteenth

Amendment. ECF No. 109-1.

2. The Amended Complaint seeks both retrospective and prospective relief.

Requests for Relief (A) and (B) seek a retrospective declaratory judgment and nominal damages.

Requests for Relief (C) and (D) seek a prospective declaratory judgment and permanent

injunctive relief.

3. Defendant has filed a motion to dismiss the Amended Complaint for failure to

state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 118.

1

Case 4:15-cv-00054-AWA-DEM Document 125 Filed 11/02/17 Page 2 of 4 PageID# 1213
4. On October 26, 2017, this Court issued an order construing the Defendant’s motion as one brought pursuant to Rule 12(b)(1) to the extent it raises the question whether this case presents a justiciable controversy. ECF No. 123 at 3. The Court explained that “[r]egardless of whether a controversy over the need for a preliminary injunction remains, the threshold jurisdictional question of whether Plaintiff’s graduation from high school mooted the entire case remains before this Court.” Id.
5. The Court thus deferred resolution of whether the Amended Complaint stated a claim for purposes of Rule 12(b)(6) and directed the parties to submit evidence and supplemental briefs regarding mootness. ECF No. 123 at 4. The Court directed Defendant to file its supplemental brief no later than December 18, 2017, which is 60 calendar days from the entry of the Court’s order. Id. at 6.
CONSENT TO DISMISSAL OF REQUESTS FOR RELIEF (C) AND (D) 6. Continuing to pursue claims for prospective declaratory and injunctive relief would require the parties and the Court to expend time and resources resolving factual questions that would delay and distract from the central legal question of whether Defendant violated Gavin’s rights under Title IX and the Fourteenth Amendment while he was a student at Gloucester High School. 7. Plaintiff therefore voluntarily consents to dismissal of Requests for Relief (C) and (D), which seek a permanent injunction and prospective declaratory judgment. 8. Counsel for Defendant has informed counsel for Plaintiff that Defendant consents to dismissal of Requests for Relief (C) and (D).
2

Case 4:15-cv-00054-AWA-DEM Document 125 Filed 11/02/17 Page 3 of 4 PageID# 1214

CONCLUSION For these reasons, Plaintiff respectfully requests that this Court dismiss the Amended Complaint’s Requests for Relief (C) and (D) pursuant to Federal Rule of Civil Procedure 12(b)(1).

Respectfully submitted,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. ___________/s/______________ Gail Deady (VSB No. 82035) 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 gdeady@acluva.org
* Admitted pro hac vice.
Counsel for Plaintiff Gavin Grimm
Dated: November 2, 2017

AMERICAN CIVIL LIBERTIES UNION FOUNDATION Joshua A. Block* Leslie Cooper* 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jblock@aclu.org lcooper@aclu.org

3

Case 4:15-cv-00054-AWA-DEM Document 125 Filed 11/02/17 Page 4 of 4 PageID# 1215 CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of November, 2017, I filed the foregoing notice with the Clerk of the Court using the CM/ECF system, which will automatically serve electronic copies upon all counsel of record.
___________/s/______________ Gail Deady (VSB No. 82035) American Civil Liberties Union
Foundation of Virginia, Inc. 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 gdeady@acluva.org
4

 
 Case 4:15-cv-00054-AWA-DEM Document 132 Filed 12/12/17 Page 1 of 6 PageID# 1250

GAVIN GRIMM,

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division

FILED
DEC 1 2 i?OI/
CLERK, U.S. DISTRICT COURT
NORFOLK. VA

Plaintiff,

V.
GLOUCESTER COUNTY SCHOOL
BOARD,

Civil No. 4:15-cv-54

Defendant.

ORDER
Currently before this Court are Plaintiff Gavin Grimm's Motion to Vacate Order for Supplemental Briefing and Plaintiffs Notice of Consent to Dismissal of Requests for Relief (C) and (D). ECF Nos. 125, 126. For the reasons stated herein, the Court dismisses Requests for Relief (C) and (D) in the Amended Complaint (ECF No. 113 at 17), and vacates its October 26, 2017 Order directing Supplemental Briefing (ECF No. 123).
I. BACKGROUND
The Court has recounted the procedural history of this case. See ECF No. 123 at 1-2.'
On August 22, 2017, Plaintiff filed an Amended Complaint, alleging claims under Title IX of the

' Plaintiff Gavin Grimm, a transgender male teenager, commenced this action against the
Gloucester County School Board in July 2015, alleging that the School Board's policy of assigning students to restrooms based on their biological sex violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In September 2015, another judge of this Court issued a Memorandum Opinion and Order that (1) dismissed Grimm's claim under Title IX for failure to state a claim, and (2) denied his Motion for a Preliminaiy Injunction based on alleged violations of Title IX and the Equal Protection Clause. G.G. exrei Grimm v. Ghucesfer Oy. Sch. Bd, 132 F. Supp. 3d 736, 753 (E.D. Va. 2015).
An interlocutory appeal of those decisions followed, which led to an appellate review process by the United States Court of Appeals for the Fourth Circuit and the United States Supreme Court that lasted nearly two years. Grimm v. Gloucester Cly. Sch. Bd., No. 15-2056, slip op. at 5-6 (4th Cir. Aug. 2, 2017). During this time, the district court case was re-assigned to the undersigned. In August 2017, the

Case 4:15-cv-00054-AWA-DEM Document 132 Filed 12/12/17 Page 2 of 6 PageID# 1251
Education Amendments of 1972, 20 U.S.C. § 1681(a), and under the Equal Protection Clause of
the Fourteenth Amendment. ECF No. 113. The Amended Complaint sought: (1) a retrospective
declaratory judgment and nominal damages, and (2) a prospective declaratory judgment and
permanent injunctive relief. Id. at 17. Subsequently, Defendant filed a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 118.
After the parties briefed the Motion to Dismiss, this Court issued an Order advising the
parties that Plaintiffs graduation from high school raised threshold jurisdictional issues related
to mootness. The Court further advised the parties that to the extent that the Motion to Dismiss
questioned whether the case still presented a justiciable controversy, the Court would construe
the Motion to Dismiss as brought pursuant to Rule 12(b)(1). The Court then ordered
supplemental briefing regarding mootness. ECF No. 123. In response to the Court's Order,
Plaintiff filed the Motions currently before the Court.
II. ANALYSIS
A. Plaintiffs Notice of Consent to Dismissal of Requests for Relief TC^ and CD)
With respect to Plaintiffs Notice of Consent to Dismissal of Requests for Relief (C) and
(D), Plaintiff has advised the Court that "[cjontinuing to pursue claims for prospective
Fourth Circuit was again presented with the parties' original appeal of the September 2015 Memorandum Opinion and Order. Id. at 6.
During the pendency of the appeal, a potential mootness issue arose when Plaintiff graduated from high school. On August 2, 2017, the Fourth Circuit issued an Order remanding the case to this Court for a finding on the question of mootness and to develop a factual record on this issue. Id. at 6-8. This Court ordered the parties to submit a Joint Position Statement proposing procedures for developing this factual record and conducting proceedings on remand. ECF No. 108.
In their Joint Position Statement, the parties advised that they had filed a stipulation to voluntarily dismiss Plaintiffs interlocutory appeal regarding the Preliminary Injunction. ECF No. 111. Because of this, they believed that "there will be no need for additional fact-finding to determine whether the motion for preliminary injunction has become moot." Id. Instead, parties proposed that this Court grant Plaintiffs Motion to Amend the Complaint and set a schedule allowing Defendant to file a motion to dismiss. ECF Nos. 109, 111. This Court considered the Joint Position Statement, the record, and the history of the litigation, and granted the Consent Motion, allowing the parties to proceed with briefing in accordance with their proposed schedule. ECF No. 112.

Case 4:15-cv-00054-AWA-DEM Document 132 Filed 12/12/17 Page 3 of 6 PageID# 1252
declaratory and injunctive relief would require the parties and the court to expend time and resources resolving factual questions that would delay and distract from the central legal question of whether Defendant violated [Plaintiffs] rights under Title IX and the Fourteenth Amendment while he was a student at Gloucester High School." ECF No. 125 at 2. Accordingly, the parties consent to dismissal of Requests for Relief (C) and (D), and ask that the Court dismiss such Requests pursuant to Federal Rule of Civil Procedure 12(b)(1). Id. at 3. Based on parties' consent, the Court DISMISSES Requests for Relief (C) and (D), which seek a permanent injunction and a prospective declaratory judgment (ECF No. 113 at 17).
B. Plaintiffs Motion to Vacate Order for Supplemental Briefing
The dismissals of the requests for prospective declaratory relief leave Requests for Relief (A) and (B), which seek retrospective relief. Plaintiff has advised that these remaining requests should not be subject to mootness challenges, but may be subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 126 at 2.
Plaintiff argues that his graduation did not moot his request for nominal damages. "Even if a plaintiffs injunctive relief claim has been mooted, the action is not moot if the plaintiff may be 'entitled to at least nominal damages.'" Rendelman v. Rouse, 569 F.3d 182, 187 (4th Cir. 2009) (quoting Covenant Media ofS.C., LLC v. City ofN. Charleston, 493 F.3d 421, 429 n.4 (4th Cir. 2007)).
Plaintiff also argues that his request for a retrospective declaratory judgment is not moot because this request is intertwined with the damages claim. A "plaintiffs request for declaratory relief is not moot [when] his 'damages claim is contingent upon a finding by the court that the [complained of activity] is unconstitutional.'" Marks v. City Council ofCity ofChesapeake, Va.,

Case 4:15-cv-00054-AWA-DEM Document 132 Filed 12/12/17 Page 4 of 6 PageID# 1253
723 F. Supp. 1155, 1160 (E.D. Va. 1988) (second brackets in original), affd 883 F.2d 308 (4th Cir. 1989).
Defendant responds by acknowledging that "a claim is not moot when there is a claim for compensatory damages and nominal damages pending such that the plaintiff could at a minimum recover nominal damages." ECF No. 128 at 3 (emphasis added). However, Defendant argues, because Plaintiff only seeks nominal damages in relation to his request for retroactive declaratory relief, but does not seek compensatory damages, Plaintiffs case should be declared
moot. Id.
"When students challenge the constitutionality of school policies, their claims for declaratory and injunctive relief generally become moot when they graduate." Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir. 2003) (internal citations omitted). After a student has graduated, "a case or controversy no longer exists between [the parties] with respect to the validity of the rules at issue." Bd. ofSch. Comm'rs v. Jacobs, 420 U.S. 128, 129 (1975) (per curiam).
However, claims for damages may continue to present a live controversy. Id. at 365. That is, "even if a plaintiffs injunctive relief claim has been mooted, the action is not moot if the plaintiff may be 'entitled to at least nominal damages.'" Rendelman, 569 F.3d at 187. To be awarded nominal damages, a plaintiff need only show that a constitutional deprivation occurred, not proof of actual injury. Chapin Furniture Outlet Inc. v. Town ofChapin, 252 Fed. App'x 566, 572 (4th Cir. 2007).
The decision in Mellen is particularly instructive on this point. In Mellen, cadets at the Virginia Military Institute filed a complaint alleging that the Institute's supper prayer violated federal and state constitutions and the Virginia Act for Religious Freedom. The cadets sought

Case 4:15-cv-00054-AWA-DEM Document 132 Filed 12/12/17 Page 5 of 6 PageID# 1254
declaratory and injimctive relief, as well as nominal damages. 327 F.3d at 363. The district court entered summary judgment in favor of the cadets, awarding declaratory relief and enjoining the defendant from sponsoring the supper prayer. However, as to the request for monetary damages, the district court concluded that the defendant was entitled to qualified immunity. The parties then filed cross-appeals. Id.
On appeal, the Fourth Circuit considered whether the case had become moot because the plaintiffs no longer attended the Institute. Id. The Fourth Circuit concluded that although the former cadets' claims for declaratory and injunctive relief were moot, "their damage claim"— that is, their claim for nominal damages—"continue[d] to present a live controversy." Id. at 365 (citing Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir. 1999)).
Furthermore, "to the extent that . . . resolution [of a claim for declaratory relief] determines liability for damages to redress injuries alleged and proven," a plaintiffs claim for declaratory relief is not necessarily moot. See Marks, 723 F. Supp. at 1159 (citing City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 n.7 (1985); Lane v. Reid, 559 F. Supp. 1047, 1048-51 (S.D.N.Y. 1983)). Accordingly, the Court finds that because Plaintiffs claim for damages rests upon a determination of the constitutionality of the complained-of action, his claim for retrospective declaratory relief is not moot. See Powell v. McCormack, 395 U.S. 486 (1969). That is, "this Court must decide the constitutional issue in order to make possible a decision on [plaintiffs] damages claim." Marks, 723 F. Supp. at 1160 (citing Shifrin v. Wilson, 412 F. Supp. 1282, 1292 (D.D.C. 1976)).
This Court concludes that Plaintiffs graduation did not moot either his request for nominal damages for the School Board's alleged past violations of his rights under Title IX and the Equal Protection Clause or his request for a declaratory judgment regarding these alleged

Case 4:15-cv-00054-AWA-DEM Document 132 Filed 12/12/17 Page 6 of 6 PageID# 1255

violations. This Court has jurisdiction over this case to the extent that Plaintiff seeks a retrospective declaratory judgment and nominal damages for past alleged violations of Title IX and the Equal Protection Clause. Defendant's Motion to Dismiss pursuant to Rule 12(b)(6) will be taken under advisement after additional briefing.
III. CONCLUSION
For the reasons stated herein, the Consent Motion for Dismissal of Requests for Relief (C) and (D) (ECF No. 125) and Plaintiffs Motion to Vacate Order for Supplemental Briefing (ECF No. 126) are GRANTED. Accordingly, Requests for Relief (C) and (D) of Plaintiffs Amended Complaint (ECF No. 113) are DISMISSED. The October 26, 2017 Order (ECF No. 123) directing the parties to file supplemental briefing on the question of mootness is
VACATED.
The parties are DIRECTED to file amended briefing regarding Defendant's Motion to Dismiss (ECF No. 118) as follows: Defendant shall file an amended Motion to Dismiss regarding the remaining Requests for Relief no later than forty-five days after the date of entry of this Order. Plaintiff shall file a Response no later than twenty-one days after service of Defendant's amended Motion. Defendant may file a Reply no later than seven days after service of the Response.
IT IS SO ORDERED.

^
December | ^ , 2017
Norfolk, Virginia

Arenda-frTWright Allen United States District Judge

 
 Case 4:15-cv-00054-AWA-DEM Document 135 Filed 01/05/18 Page 1 of 3 PageID# 1260

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division

GAVIN GRIMM,

Plaintiff,

v.

Case No. 4:15-cv-00054

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

AMENDED MOTION TO DISMISS AMENDED COMPLAINT

NOW COMES the Defendant Gloucester County School Board (“School Board”), by

counsel, pursuant to Federal Rule of Civil Procedure 12(b)(6) and moves this Court to dismiss,

with prejudice, the entire Amended Complaint (ECF Doc. 113) filed by the Plaintiff. The

Amended Complaint does not state a claim upon which relief can be granted as a matter of law,

and does not allege facts sufficient to establish a legally cognizable cause of action. The

School Board relies upon, and incorporates, its Brief in Support of the Amended Motion to

Dismiss as if fully set forth herein.

WHEREFORE, Defendant Gloucester County School Board respectfully requests that

this Court enter an Order granting the Amended Motion to Dismiss and dismissing the

Amended Complaint with prejudice.

1

Case 4:15-cv-00054-AWA-DEM Document 135 Filed 01/05/18 Page 2 of 3 PageID# 1261
GLOUCESTER COUNTY SCHOOL BOARD By Counsel
/s/ David P. Corrigan VSB 26341 Jeremy D. Capps VSB No. 43909 M. Scott Fisher, Jr. VSB 78485 Douglas E. Pittman VSB 87915 Attorney for Gloucester County School Board Harman, Claytor, Corrigan & Wellman P.O. Box 70280 Richmond, Virginia 23255 804-747-5200 - Phone 804-747-6085 - Faxdcorrigan@hccw.com jcapps@hccw.com sfisher@hccw.com dpittman@hccw.com
2

Case 4:15-cv-00054-AWA-DEM Document 135 Filed 01/05/18 Page 3 of 3 PageID# 1262
C E R T I F I C A T E I hereby certify that on the 5th day of September 2018, I filed a copy of the foregoing document with the Clerk of the Court using the CM/ECF system, which will automatically send a Notice of Electronic Filing to all counsel of record.
/s/ David P. Corrigan VSB No. 26341 Attorney for Gloucester County School Board Harman, Claytor, Corrigan & Wellman P.O. Box 70280 Richmond, Virginia 23255 804-747-5200 - Phone 804-747-6085 - Fax dcorrigan@hccw.com
3

 
 Case 4:15-cv-00054-AWA-DEM Document 148 Filed 05/22/18 Page 1 of 31 PageID# 1523

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division

GAVIN GRIMM, Plaintiff,
V.
GLOUCESTER COUNTY SCHOOL
BOARD,
Defendant.

Civil No. 4:15cv54

ORDER
Pending before the Court is an Amended Motion to Dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6) (ECF No. 135) filed by Defendant Gloucester County School Board

("Defendant" or "the Board"). For reasons set forth herein, the Motion is DENIED.

I.

FACTUAL AND PROCEDURAL BACKGROUND

When ruling on a motion to dismiss for failure to state a claim, courts accept a

complaint's well-pled factual allegations as true, and draw any reasonable inferences in favor of

the plaintiff. See Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012).

Accordingly, the Court reviews the facts as alleged by Plaintiff Gavin Grimm ("Plaintiff or

"Mr. Grimm"). See Am. Compl., ECF No. 113. Mr. Grimm is an eighteen-year-old man who attended Gloucester High School, a public
school in Gloucester County, Virginia, from September 2013 through his graduation in June

2017. M 1, 79. When Mr. Grimm was bom, hospital staff identified him as female. Id, H17. However, Mr. Grimm has known from a young age that he has a male gender identity—^that is, he has a "deeply felt, inherent sense of being a boy, a man, or male," rather than a sense of being

1

Case 4:15-cv-00054-AWA-DEM Document 148 Filed 05/22/18 Page 2 of 31 PageID# 1524
"a girl, a woman, or a female." Id, 18. Because his gender identity differs from the sex
assigned to him at birth, he is transgender. Id. 17-19.
Like many of his transgender peers, after the onset of puberty, Mr. Grimm began suffering from "debilitating levels of distress" as the result of gender dysphoria, "a condition in
which transgender individuals experience persistent and clinically significant distress caused by
the incongruence between their gender identity and the sex assigned to them at birth." Id. ^ 19.
There is a medical and scientific consensus that treatment for gender dysphoria includes allowing
transgender individuals to live in accordance with their gender identity, including "use of names
and pronouns consistent with their identity, grooming and dressing in a manner typically
associated with that gender, and using restrooms and other sex-separated facilities that match
their gender identity."' Id. 20-21. Furthermore, when medically appropriate, treatment also
includes hormone therapy and surgery so that transgender individuals "may develop physical sex
characteristics typical of their gender identity."^ Id. fl 20, 25. In addition, under widely
accepted standards of care, "boys who are transgender may undergo medically necessary chest-
reconstruction surgery after they turn [sixteen years old]." Id. Tj 27.
In 2014, by the end of his freshman year of high school, Mr. Grimm experienced such
distress from his untreated gender dysphoria that he was unable to attend class. Id. H36. At this
' The consensus within medical and mental health communities is that excluding transgender
individuals from using restrooms consistent with their gender identity "is harmftil to their health and wellbeing. When excluded from the common restrooms, transgender [individuals] often avoid using the restroom entirely, either because the separate restrooms are too stigmatizing or too difficult to access." Id. ^28. As a result, they suffer from physical consequences, and their risk of depression and self-harm is increased. Id\ see also id. 29.
^ "Hormone therapy affects bone and muscle structure, alters the appearance of a person's
genitals, and produces secondary sex characteristics such as facial and body hair in boys and breasts in girls." Id. ^ 25; see also Tim C. van de Grift et al., Effects ofMedical Interventions on Gender Dysphoria and Body Image: A Follow-Up Study, 79:7 PSYCHOSOMATIC MED. 815 (2017) ("Overall, the levels of gender dysphoria . . . were significantly lower at follow-up [after medical intervention such as hormone therapy and genital or chest surgery] compared with clinical entry.").

Case 4:15-cv-00054-AWA-DEM Document 148 Filed 05/22/18 Page 3 of 31 PageID# 1525
time, he informed his parents of his male gender identity. Id. He began treatment with a psychologist experienced in counseling transgender youth and, as part of the medically-necessary treatment for his gender dysphoria, commenced the process of transitioning to live in accordance with his male identity. Id. 1, 36-37. By the time he began his sophomore year, Mr. Grimm had legally changed his first name to Gavin and had begun using male pronouns. He wore clothing and a hairstyle in a manner consistent with other males, and used men's restrooms in public venues without incident. Id. 2, 38. He also obtained a treatment documentation letter from his medical providers confirming that he was receiving treatment for gender dysphoria and was to be treated as a male in all respects—including restroom use. Id. 2.
In August 2014, prior to the beginning of his sophomore year, Mr. Grimm and his mother met with the Gloucester High School Principal and the Guidance Counselor, explaining that Mr. Grimm is a transgender boy and would be attending school as a boy. Mr. Grimm and his mother also provided the Principal and Counselor with the treatment documentation letter. Id. ^ 39. At the time of the meeting, the Board lacked a policy addressing the restrooms that transgender students would use. Id. ^ 41. Mr. Grimm initially requested the use of the restroom in the nurse's office. However, that restroom was located remotely, and using it left Mr. Grimm feeling stigmatized and isolated. That restroom was also far from many of his classrooms, causing Mr. Grimm to be late for class when he used it. After a few weeks, Mr. Grimm sought permission to use the boys' restrooms. With the Principal's support, he began using the boys'
restrooms on October 20, 2014, and did so without incident for approximately seven weeks.^ Id.
1142-47.
^ He also requested permission to complete his physical education requirements through a homebound program, bypassing any need to use the locker rooms atthe school. Id. ^ 45.

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The Principal and Superintendent informed the Board that they had authorized Mr. Grimm to use the boys' restrooms, but otherwise kept the matter confidential. Id. H 47. However, several adults in the community learned of a transgender student's use of the boys' restrooms. They contacted the Board, demanding that the transgender student be barred from the boys' restrooms. Id. The Board considered the matter in a private meeting and took no action for several weeks. However, one Board member proposed a policy regarding the use of restrooms by transgender students and submitted the policy for public debate at a Board meeting scheduled for November 11, 2014. In pertinent part, the policy proposed that "[i]t shall be the practice of the [Gloucester County Public Schools ("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.""^ Id.^5\.
At the meeting, Mr. Grimm decided to address the issue publicly, describing how he sought to use the restrooms "in peace" and had experienced "no problems from students" when using the boys' restrooms, "only from adults." Id. H55. The School Board deferred a vote on the proposed policy until its December 9, 2014 meeting. Id. ^ 56. Before the next meeting, the
The entirety of the policy stated: Whereas the GCPS 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. Id.^5\.

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Board announced plans to add or expand partitions between urinals in the male restrooms, add privacy strips to the doors of stalls in all restrooms, and to designate single-stall, unisex restrooms "to give all students the option for even greater privacy/' Id. f 57.
Despite the announced plans, speakers at the December 9, 2014 meeting continued to demand that Mr. Grimm be excluded from using the boys' restrooms immediately. Id. ^ 59. The Board then passed the policy at the meeting by a six-to-one vote. The following day, Mr. Grimm was informed by the principal that he could no longer use the boys' restrooms. Id. UU 61-62. The Board then installed three single-user restrooms, none of which was located near Mr. Grimm's classes. Although any student was allowed to use them, no student besides Mr. Grimm did. M nil 65-66.
Because using the single-user restrooms underscored his exclusion and left him physically isolated, Mr. Grimm refrained from using any restroom at school. He developed a painfiil urinary tract infection and had difficulty concentrating in class because of his physical discomfort. Id. 67-70. When he attended school football games, no restroom was available for Mr. Grimm's use. As a result, Mr. Grimm was forced to have his mother pick him up from games early. Id.^lX.
Throughout his sophomore, junior, and senior years of high school, Mr. Grimm continued the process of transitioning to live in accordance with his male identity. In December 2014, the middle of his sophomore year, he had begun hormone therapy, which altered his bone and muscle structure, deepened his voice, and caused him to grow facial hair. Id. 72-73. In June 2015, prior to the beginning of his junior year, the Virginia Department of Motor Vehicles issued Mr. Grimm a state identification card designating his gender as male. Id. 1] 74. A year later, prior to the beginning of his senior year, Mr. Grimm underwent chest-reconstruction

Case 4:15-cv-00054-AWA-DEM Document 148 Filed 05/22/18 Page 6 of 31 PageID# 1528
surgery, in accordance with the medical standards of care for treating gender dysphoria. Id. \15\ see id. ^ 27. Later that year, in September 2016, the Gloucester County Circuit Court issued an order changing his sex under Virginia state law and directing the Virginia Department of Health to issue Mr. Grimm a birth certificate listing his sex as male; this certificate was issued in October 2016. Id. 76-77. Throughout the process of these changes—^up through Mr. Grimm's graduation in June 2017—^the School Board maintained that Mr. Grimm's "biological gender" was female and prohibited administrators from permitting Mr. Grimm to use the boys'
restrooms. Id. 78-79.
Mr. Grimm commenced this action against the Gloucester County School Board in July 2015, alleging that the Board's policy of assigning students to restrooms based on their biological sex violated Title DC of the Education Amendments of 1972, 20 U.S.C. § 1681(a), as well as the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In September 2015, another judge of this Court issued a Memorandum Opinion and Order (1) dismissing Mr. Grimm's claim under Title IX for failure to state a claim and (2) denying his Motion for a Preliminary Injunction based on the alleged Title IX and Equal Protection Clause violations. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 132 F. Supp. 3d 736, 753 (E.D. Va. 2015), rev'd in part and vacated in part, 822 F.3d 709 (4th Cir. 2016). An interlocutory appeal of those decisions followed, leading to appellate review by the United States Court of Appeals for the Fourth Circuit and by the United States Supreme Court. See infra HI.A; see also ECF No. at 132 at 1-2. During this time, the district court suit was re-assigned to the undersigned. The case was remanded to this Court for consideration of the Title IX claim. The Equal Protection Claim also remains pending before this Court.

Case 4:15-cv-00054-AWA-DEM Document 148 Filed 05/22/18 Page 7 of 31 PageID# 1529

Following the filing of Mr. Grimm's Amended Complaint (ECF No. 113), the School

Board filed the instant Motion to Dismiss (ECF No. 135). With respect to the Title IX claim

(Count II, ECF No. 113 90-92), the School Board argues that its policy of separating

restrooms by physiological sex is valid under Title IX because (1) Title IX only allows for claims on the basis of sex, rather than gender identity, and (2) gender identity and sex, as addressed in

Title IX, are not equivalent. See ECF No. 136 at 6, 12-26. With respect to the Equal Protection

claim (Count I, ECF No. 113 81-89), the School Board argues that its policy does not violate

the Equal Protection Clause because transgender individuals are not members of a suspect class

entitled to heightened scrutiny, and the Policy should be viewed as presumptively constitutional

under both rational basis review and intermediate scrutiny. Id. at 28-36.

11.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint. "To

survive a Rule 12(b)(6) motion to dismiss, a complaint must *state a claim to relief that is

plausible on its face.'" United States ex rel Nathan v. Takeda Pharm. N, Am., Inc., 707 F.3d

451, 455 (4th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at

678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more

than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Bell Atl Corp. v.

Twombly, 550 U.S. 544, 556 (2007)). "Facts that are 'merely consistent with' liability do not

establish a plausible claim to relief" Takeda Pharm., 707 F.3d at 455 (quoting Iqbal, 556 U.S.

at 678). Rather, the "'[factual allegations must be enough to raise a right to relief above the

speculative level,' thereby 'nudg[ing] [the plaintiffs] claims across the line from conceivable to

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plausible.'" Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (quoting Twombly, 550 U.S. at 555) (first and second alteration in original).

At this stage, "(0 the complaint is construed in the light most favorable to the plaintiff,

(2) its allegations are taken as true, and (3) all reasonable inferences that can be drawn from the

pleading are drawn in favor of the pleader." 5B Charles A. Wright et al.. Federal Practice

& Procedure § 1357 & n.ll (3d ed.) (collecting cases); accord Wag More Dogs^ 680 F.3d at

365.
However, courts "will not accept 'legal conclusions couched as facts or unwarranted

inferences, imreasonable conclusions, or arguments.'" Takeda Pharm., 707 F.3d at 455 (quoting Wag More Dogs, 680 F.3d at 365). Additionally, a threadbare recitation of the "elements of a cause of action, and bare assertions devoid of fiirther factual enhancement fail to constitute wellpled facts for Rule 12(b)(6) purposes." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009); Iqbal, 556 U.S. at 678 (noting that "the tenet that a court must
accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of
action's elements, supported by mere conclusory statements").

Ill, ANALYSIS

A.

Reconsideration of the Interlocutory Order

As a preliminary matter, this Court must consider whether it is boimd by the previous

dismissal of the Title DC claim. See ECF No. 57. Following Mr. Grimm's interlocutory appeal

of the dismissal, the Fourth Circuit reversed the dismissal. The reversal was based on the Fourth

Circuit's conclusion that deference should be given to a guidance letter issued by the Department

of Education's Office of Civil Rights that construed a Title IX regulation as generally requiring

schools to treat transgender students consistent with their gender identity when electing to

separate students on the basis of sex. G.G. ex rel. Grimm v. Gloucester County Sch. Bd. {Grimm

8

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I), 822 F.3d 709, 718-22 (4th Cir. 2016) (citing Auer v. Robbins, 519 U.S. 452 (1997)), vacated and remanded, 137 S. Ct. 1239 (2017). The United States Supreme Court granted a stay of the Fourth Circuit's mandate and granted the Board's writ of certiorari. After the guidance letter was rescinded as the result of a change in administration, the Supreme Court vacated the Fourth
Circuit's decision and remanded for reconsideration of the Title IX claim. ECF No. 91. The
Fourth Circuit dismissed the appeal, and Mr. Grimm filed an Amended Complaint with this Court. ECFNos. 113, 114.
The Board argues that this Court remains bound by the previous dismissal of the Title IX claim. In support of this position, the Board contends that because Mr. Grimm's "current Title DC claim is virtually identical to the claim that [the previous judge] already dismissed, [Mr. Grimm] is essentially asking the Court to reconsider" the original decision. ECF No. 136 at 7. The Board contends that this Court need not reevaluate the previous dismissal of the Title IX claim because the prior decision analyzed the Title DC claim thoroughly without applying Auer
deference to the letter and instead based its conclusion that Mr. Grimm had failed to state a Title
DC claim on "valid precedent." Id. at 6-7. Such reconsiderations are govemed by Federal Rule of Civil Procedure 54(b), which
provides that: any order or other decision, however designated, that adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and
liabilities.
Both parties acknowledge that district courts retain the discretion to revise an interlocutory order at any time before the entry of a judgment adjudicating all the claims. Carlson v. Boston ScientificCorp., 856 F.3d 320, 325 (4th Cir. 2017) (citing Fed. R. Civ. P. 54(b)).

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Although courts have concluded that a successor judge should hesitate to overrule the earlier determination, id. (internal citation omitted), "whether rulings by one district judge become binding as Maw of the case' upon subsequent district judges is not a matter of rigid legal rule, but more a matter of proper judicial administration which can vary with the circumstances." Hill V. BASF Wyandotte Corp., 696 F.2d 287, 290 n.3 (4th Cir. 1982); see also Stoffels ex rel. SBC Tel. Concession Plan v. SBC Commc'ns, Inc., 611 F.3d 720, 727 n.3 (5th Cir. 2012) ("When a successor judge is reviewing another judge's interlocutory order, the law of the case doctrine requires only that the successor judge respect principles of comity when considering issues that have already been decided."); Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003) (noting that reconsideration of interlocutory orders "is committed to the discretion of the district court," and that related doctrines such as law of the case "have evolved
as a means of guiding that discretion" but "cannot limit the power of a court to reconsider an earlier ruling"). This Court's primary responsibility—^the responsibility of all federal courts—^"is to reach the correct judgment under law." Am. Canoe Ass'n, 326 F.3d at 515.
The Fourth Circuit has "cabined revision pursuant to Rule 54(b) by treating interlocutory rulings as law of the case." Carlson, 856F.3d at 325 (internal citations omitted). Accordingly, a "court may review an interlocutory order under the same circumstances in which it may depart from the law of the case: (1) a subsequent trial producing substantially different evidence; (2) a change in applicable law; or (3) clear error causing manifest injustice." Id. (internal quotations and citations omitted). The Board argues that none of these requirements has been met, and that this Court should not depart from the previous adjudication of the Title IX claim. ECF No. 136
at 8.
10

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This Court disagrees. First, there has been a significant change in the applicable law since the Motion to Dismiss the Title IX claim was initially considered in 2015. See Carlson, 856 F.3d at 325; see also Bridget Coal Co. v. Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor, 669 F.3d 1183, 1192 (10th Cir. 2012) (noting that the emergence of a circuit split can justify reconsideration). The Sixth and Seventh Circuits have since held that excluding boys and girls who are transgender from the restrooms that align with their gender identity may subject them to discrimination on the basis of sex under Title DC, the Equal Protection Clause, or both. See Whitaker v. Kenosha Unified School Dist. No. 1 Board ofEducation, 858 F.3d 1034, 1049-51 (7th Cir. 2017); Dodds v. United States Dep't of Educ., 845 F.3d 217, 221 (6th Cir. 2016).
A number of district courts have also reached the same conclusion. See A.H. by Handling V. Minersville Area Sch. Dist., No. 3:17cv391, 2017 WL 5632662, at *1, *3-*7 (M.D. Pa. Nov. 22, 2017) (denying school district's motion to dismiss a transgender student's Title DC and Equal Protection Claims based on school district's bathroom policy "dictating that children must use the bathroom corresponding to the sex listed on the student's birth certificate"); Evancho v. PineRichland Sch. Dist., 237 F. Supp. 3d 267, 288, 295 (W.D. Pa. 2017); Bd of Educ. of the Highland Local Sch. Dist. v. US Dep't ofEduc., 208 F. Supp. 3d 850, 865, 869, 871 (S.D. Ohio 2016).
Recently, the District of Maryland denied a strikingly similar Motion to Dismiss a transgender student's Title IX and Equal Protection claims stemming from his school's policy of barring him from using the boys' locker room. M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 711 (D. Md. 2018). Although these precedents are not binding upon this Court, the thorough analyses of analogous questions provided by the rulings proves persuasive.
11

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Moreover, to the extent that the Fourth Circuit's consideration of the Title DC claim provides

meaningful guidance for this Court's analysis of the Title IX regulation, the earlier dismissal of

the Title IX claim lacked such guidance. See infra p. 15 and note 6.

Second, a number of factual developments warrant reconsideration of the original

decision to dismiss the Title DC claim. When Mr. Grimm filed his initial complaint in 2015, he

alleged that the Board's policy violated his rights under Title DC on the day the policy was first

issued, which occurred in the middle of his sophomore year. The Amended Complaint alleges

that the Board violated his rights under Title IX when the policy was issued, and also throughout

the remainder of his time as a student at Gloucester High School. Am. Compl., ECF No. 1131]

A. Since the previous dismissal of the Title DC claim, Mr. Grimm has received chest

reconstruction surgery, obtained an order from Gloucester County Circuit Court legally changing

his sex under Virginia law, and has received a new birth certificate from the Virginia Department

of Health listing his sex as male. Id. 75-77. The previous decision was rendered without any

opportunity to consider whether the Board's policy violated Title DC throughout the remainderof

Mr. Grimm's time at Gloucester High School, and in light of these factual developments. For these reasons, the Court concludes that revisiting the question of whether Mr. Grimm

has stated a plausible Title DC claim is warranted. The Court now examines the claim's merits.

5eeECFNo. 113 Iffl 90-92.

B.

Title DC Claim

Title DC provides that no person "shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

educational program or activity receiving Federal financial assistance . . . ." 20 U.S.C. §

1681(a); see also 34 C.F.R. § 106.31. A covered institution may not, on the basis of sex, (1)

12

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provide different aid, benefits, or services; (2) deny aid, benefits, or service, or (3) subject any
person to separate or different rules, sanctions, or treatment. 34 C.F.R. § 106.31(b)(2)-(4). However, "[n]ot all distinctions on the basis of sex are impermissible under Title DC."
Grimm /, 822 F.3d at 718. The statute's regulations permit an institution to provide separate bathroom, shower, and locker facilities by sex, so long as the facilities are comparable. 34 C.F.R. § 106.33; also Whitaker, 858 F.3d at 1047-48.
1. A Plaintiffs Claim of Discrimination on the Basis of Transgender Status
Constitutes a Claim of Sex Discrimination Under Title DC
The parties dispute whether a transgender student's allegation of discrimination based on his or her transgender status can constitute a claim of sex discrimination under Title DC. Neither Title DC nor its regulations defines the term "sex." The Fourth Circuit has noted that because 34 C.F.R. § 106.33 permits separate toilets, locker rooms, and shower facilities on the basis of sex, "[b]y implication, the regulation also permits schools to exclude males from the female facilities and vice-versa." Grimm /, 822 F.3d at 720.
The Board notes that § 106.33 permits schools to establish separate facilities on the basis of sex. The Board also contends that the term "sex" "at a minimum includes the physiological
distinction between men and women." ECF No. 136 at 13. Therefore, the Board argues, this
Court must interpret Title DC as applying only to discrimination on the basisof physiological sex,
rather than gender identity. See id. at 12-26. Before evaluating whether discrimination on the basis of a plaintiffs transgender status
constitutes sex discrimination under Title DC, the Court must address the difficulties inherent in the Board's view of "sex" under Title IX. That construction may be an appealingly simple way of interpreting the term "sex." However, the Board argues that the Policy "distinguishes boys and girls based on physical sex characteristics alone," ECF No. 136 at 21, but fails to
13

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acknowledge that there are individuals who possess both male and female physical sex characteristics. As Mr. Grimm contends, attempting to draw lines based on physiological and anatomical characteristics proves unmanageable: how would the Board's policy apply to individuals who have had genital surgery, individuals whose genitals were injured in an accident, or those with intersex traits who have genital characteristics that are neither typically male nor
female? See Grimm /, 822 F.3d at 720-21;^ Evancho, 237 F. Supp. 3d at 279 ("[T]he Board has
adopted a student bathroom policy that turns exclusively on the then-existing presence of a determinate external sex organ, no matter what other biological or gender markers may exist. .. ."). In Mr. Grimm's situation, how would the Board have continued to implement the Policy after Mr. Grimm's medical procedures? Mr, Grinmi had attained some secondary male physical sex characteristics after hormone therapy and chest reconstruction surgery. Accordingly, acts of discrimination on the basis of physiological sex certainly could have occurred.
The Policy in question assigned restrooms based on "biological gender," not physiological characteristics. This term has not been accepted by the medical community, because "sex"—^the "attributes that characterize biological maleness or femaleness" (such as sexdetermining genes, sex chromosomes, internal and external genitalia, and secondary sex characteristics)—is distinct from "gender," or the "internal, deeply held sense" of being a man or a woman. See Wylie C. Hembree et al.. Endocrine Treatment of Gender-dysphoric/GenderIncongruent Persons: An Endocrine Society Clinical Practice Guideline^ 102(11) J. Clin.
^Grimm I specifically noted:
It is not clear to us how the regulation would apply in a number of situations—even under the Board's own "biological gender" formulation. For example, which restroom would a transgender individual who had undergone sex reassignment surgery use? What about an
intersex individual? What about an individual bom with X-X-Y sex chromosomes?
What about an individual who lost extemal genitalia in an accident?
822 F.3d at 720-21.
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Endocrinology & Metabolism 3869, 3875 (2017) (noting that the terms "biological male or female" should be avoided because not all individuals have physical attributes that align perfectly with biological maleness or femaleness, such as individuals with XY chromosomes who may have female-appearing genitalia). Given the Policy's disregard for these distinctions, its use of the term "biological gender" functioned as a proxy for physiological characteristics that a student may or may not have had. The term allowed the Board to isolate, distinguish, and subject to differential treatment any student who deviated from what the Board viewed a male or female student should be, and from the physiological characteristics the Board believed that a
male or female student should have.
The Court next turns to consideration of § 106.33. As the Fourth Circuit noted, the
"inquiry is not ended" by § 106.33's reference to males and females. Grimm /, 822 F.3d at 720.^
"Although the regulation may refer unambiguously to males and 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." Id. The Fourth Circuit initially determined that § 106.33 was ambiguous "as applied to transgenderstudents," and grantedAuer deference to the guidance letter interpreting § 106.33 to generally require access to sex-segregated facilities on the basis of gender identity. Id. at 721-23. Following remand from the Supreme Coiut as the result of the withdrawal of the letter, the Fourth Circuit vacated its decision. Accordingly, Grimm I fails to

^ The District of Maryland recognized that although the Supreme Court vacated the Fourth

Circuit's judgment in Grimm I in light of the withdrawal of the guidance letter, the remainder of that

decision remains binding law because (1) it has not overruled by a subsequent en banc opinion of the Fourth Circuit and (2) there has been no superseding contrary decision from the Supreme Court. See

United States v. Giddens, 858 F.3d 870, 886 n.l2 (4th Cir. 2017) (citing United States v. Collins, 415 F.3d

304, 311 (4th Cir. 2005)). "Thus, the Court will rely on [the Fourth Circuit's previous Grimm I

judgment] to the extent it offers guidance for deciding the Motions present."

286 F. Supp. 3d at

712 n.5.

15

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inform this Court how § 106.33 is to be interpreted with respect to transgender students. The

Fourth Circuit has not addressed this issue or Title DC's application to transgender students since.

The Board asks this Court to resolve this issue by cabining the defmition of sex to the

"then-universal understanding of 'sex' as a binary term encompassing the physiological

distinctions between men and women," as understood during the passage of Title IX and the

promulgation of § 106.33. See ECF No. 136 at 16. However, as noted above, this fails to

address the question of how § 106.33 is to be interpreted regarding transgender students or other

individuals with physiological characteristics associated with both sexes.

The Court has some guidance in resolving § 106.33's ambiguity. Courts may "look to

case law interpreting Title VII of the Civil Rights Act of 1964," as amended, 42 U.S.C. §§ 2000e

et seq. (2018)—^which prohibits employment discrimination on the basis of, among other

qualities, sex—^"for guidance in evaluating a claim brought under Title IX." Id, at 718 (citing

Jennings v. Univ. ofN.C., 482 F.3d 686, 695 (4th Cir. 2007)); also

286 F. Supp. 3d

at 713 ("[T]he Court turns to Title VII precedent for guidance [in interpreting a Title IX

claim].").

Neither the Fourth Circuit nor the Supreme Court has addressed how Title VII applies to

transgender individuals. See

286 F. Supp. 3d at 713. However, the Supreme Court has

constructed a framework for addressing sex discrimination claims brought by individuals who

fail to conform to social expectations for their gender group. In Price Waterhouse v. Hopkins,

490 U.S. 228, 235 (1989), the Supreme Court considered whether the plaintiff, a woman who

was denied partnership in an accounting firm, had an actionable Title VII claim against the firm

because the firm had allegedly denied her a promotion because she failed to conform to certain

gender stereotypes related to women. Id. at 235, 250-53 (summarizing how firm partners

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described the plaintiff as "macho" and a "tough-talking somewhat masculine hard-nosed manager"). Firm partners advised the plaintiff that her partnership chances would improve if she were to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry," Id. at 235. Six Justices of the Price Waterhouse Court agreed that Title VII barred discrimination not only based on the plaintiffs gender, but based on "sex stereotyping" because the plaintiff had failed to act in accordance with gender stereotypes associated with women. Id. at 250-51; id. at 258-61 (White, J., concurring); id. at 272-73 (O'Connor, J., concurring). In noting that "we are beyond the day when an employer could evaluate employees by assuming or insisting that they match[] the stereotype associated with their group," the Price Waterhouse Court recognized that Title VII's prohibition on sex discrimination necessarily includes a prohibition on gender stereotyping. Id. at 251.
Price Waterhouse, by its own terms, took an expansive view as to the forms of sex discrimination that Title VII was meant to reach, expressly leaving open the possibility of other forms of gender stereotyping. "By focusing on [gender stereotypes associated with appearance and behavior], however, we do not suggest a limitation on the possible ways of proving that stereotypingplayed a motivating role in an employment decision " Id. at 251-52.
The Supreme Court's expansion recognizes that the prohibition on sex discrimination pursuant to Title VII also includes same-sex harassment claims. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998) (noting that same-sex "sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII," but that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable
17

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evils, and it is ultimately the provisions of our laws rather than the principal concerns of our
legislators bywhich we are govemed")7
The First, Second, Third, Seventh, and Ninth Circuits have all recognized that based on the logic of Price Waterhouse, a gender stereotyping allegation generally is actionable sex
discrimination under Title VII. Hively v. Ivy Tech Cmty. Coll, 854 F.3d 339, 351-52 (7th Cir. 2017 (en banc) (holding that a lesbian plaintiff could state a Title VII claim under a sex stereotyping theory); Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200-01 (2d Cir. 2017) (per curiam) (holding that a plaintiff had stated a plausible Title VII claim based on a gender
stereotyping theory); Prowel v. Wise Bus. Forms., Inc., 579 F.3d 285, 290 (3d Cir. 2009);
Nichols V. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001); Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999).
Although the Fourth Circuit has yet to apply Price Waterhouse expressly to Title VII
claims brought by transgender individuals,^ this Court joins the District of Maryland in
concluding that "discrimination on the basis of transgender status constitutes gender stereotyping because *by definition, transgender persons do not conform to gender stereotypes.'" M.A.B., 286 F. Supp. 3d at 714 (quoting Finkle v. Howard Cty., 12 F. Supp. 3d 780, 787-88 (D. Md. 2014)). The Court also concludes that, pursuant to the logic of Price Waterhouse, transgender
' Forthese reasons, the Court rejects the Board's argument that Title IX should be cabined to its
expressed purpose: ending discrimination against women in university admissions and appointments. See ECF No. 136 at 9, 24-25. The Court also finds unpersuasive the Board's argument that other students' privacy concems—^mentioned in the legislative history of Title IX regulations, id. at 10-12—should prevail in this context. See infra pp. 27-30 (rejecting such privacy concems as a rationale for the Board's Pohcy).
Relatedly, the Board also objects to this interpretation of Title IX because of hypothetical privacy concems (rather than those found in legislative history). ECF No. 136 at 22-24. For the reasons discussed below, the Court finds these concems—although worthy of consideration—^are conjectural and abstract and fail to provide a basis for interpreting Title IX in the manner sought by the Board.
®The Fourth Circuit also has not applied Price Waterhouse expressly to gender stereotyping
claims brought under Title VII. M.A.B., 286 F. Supp. 3d at 714.
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discrimination is per se actionable sex discrimination under Title VII. Id; see also G.G. ex rel Grimm {Grimm 11), 654 Fed. App'x 606, 606-07 (4th Cir. 2016) (Davis, J., concurring) (internal citations omitted) (noting that "the Supreme Court has expressly recognized that claims based on an individual's failure to conform to societal expectations based on that person's gender constitute discrimination 'because of sex' under Title Vn," and noting that the First, Sixth, Ninth, and Eleventh Circuits have held that based on the logic of Price Waterhouse, discrimination against transgender individuals based on their transgender status is discrimination because of sex under federal civil rights statutes and the Equal Protection Clause).
This conclusion comports with decisions from the First, Sixth, Ninth, and Eleventh Circuits, all of v^^hich recognize that based on the gender-stereotyping theory from Price
Waterhouse, claims of discrimination on the basis of transgender status are per se sex discrimination under Title VII or other federal civil rights laws. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574-75 (6th Cir. 2018) (confirming that claims of
discrimination on the basis of transgender status is per se sex discrimination imder Title VII);^
Glenn v. Brumby, 663 F.3d 1312, 1316-19 (11th Cir. 2011) (recognizing that a "person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes," and holding that terminating an employee because she is transgender violates the prohibition on sex-based discrimination under the Title VII and the Equal Protection
Clause following the reasoning ofPrice Waterhouse);^^ Smith v. City ofSalem, Ohio, 378 F.3d
566, 573-75 (6th Cir. 2004) (recognizing that discrimination against a transgender individual
' The Sixth Circuit also reasoned (1) that "it is analytically impossible to fire an employee based
on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex," 884 F. 3d at 575, and (2) that "discrimination against transgender persons necessarily implicatesTitle VII's proscriptions against sex stereotyping,"id. at 576-77.
Glenn also held that "discrimination against a transgender individual because of her gendernonconformity is sex discrimination, whether it's described as being on the basis of sex or gender." 663
F.3datl317.
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because of his or her gender non-conformity amounts to gender stereotyping prohibited by Title VII and the Equal Protection Clause, and holding that a transgender employee had stated a claim under Title VII);v. Park W. Bank <&. Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000) (holding that a transgender individual could state a claim for sex discrimination under the Equal Credit Opportunity Act based on Price Waterhouse); Schwenk v. Hartford, 204 F.3d 1187, 120103 (9th Cir. 2000) (holding that a transgender individual could state a claim under the Gender Motivated Violence Act under the reasoning of Price Waterhouse).
Numerous district courts have also concluded that a transgender individual can state a claim under Title VII for sex discrimination on the basis of a sex or gender-stereotyping theory. See Roberts v. Clark Cty. Sch. Dist., 215 F. Supp. 3d 1001, 1014 (D. Nev. 2016), reconsideration denied. No. 2:15-cv-00388-JAD-PAL, 2016 WL 6986346 (D. Nev. Nov. 28, 20\6)\ Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 (D. Conn. 2016); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008); Schroer v. Billington, 577 F. Supp. 2d 293, 305 (D.D.C. 2008).
Accordingly, allegations of gender stereotyping are cognizable Title VII sex
discrimination claims and, by extension, cognizable Title IX sex discrimination claims." This
Court joins the District of Maryland and several other appellate courts in concluding that "claims of discrimination on the basis of transgender status are per se actionable under a gender stereotyping theory" under Title DC, M.A.B,, 286 F, Supp. 3d at 715. Mr. Grimm has properly
" The Board's argument that Title IX must explicitly refer to discrimination against transgender
students to fulfill the notice requirements under Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), ECF No. 136 at 25-27, is unavailing. Title IX funding recipients "have been on notice that they could be subjected to private suits for intentional sex discrimination under Title IX since 1979," when the Supreme Court decided Cannon v. UniversityofChicago, 441 U.S. 677, 691 (1979), and "have been put on notice by the fact that . . . cases since Cannon . . . have consistently interpreted Title IX's private cause of action broadly to encompass diverse forms of intentional sex discrimination." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182 (2005); see also West Virginia Dep't ofHealth & Human Resources v. Sebelius, 649 F.3d 217, 223 (4th Cir. 2011).
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brought a Title IX claim of discrimination "on the basis of sex"—^that is, based on his

transgender status.

2. Mr. Grimm Has Sufficiently Pled a Title DC Claim

Having concluded that Mr. Grimm may bring a Title IX claim based on his transgender

status, this Court next turns to the question of whether he has pled his claim of discrimination on

the basis of sex sufficiently. To state a claim under Title IX, a plaintiff must allege: (1) that he or

she was excluded from participation in an education program because of his or her sex; (2) that

the educational institution was receiving federal financial assistance at the time of his or

exclusion; and (3) that the improper discrimination caused the plaintiff harm. Grimm /, 822 F.3d

at 718 (citing Preston v. Virginia ex rel New River Cmty. Coll, 31 F.3d 203, 206 (4th Cir.

1994)); but cf.

286 F. Supp. 3d at 716-17 (finding plaintiff had stated a Title DC claim

under a gender stereotyping theory because he had alleged that he was denied access to the boys'

locker room on the basis of sex—^that is, his transgender status); Evancho, 237 F. Supp. at 295

(describing the three requirements for stating a Title DC claim as (1) discrimination in an

educational program that (2) receives federal assistance in which (3) such discrimination was on

the basis of sex).

Before considering whether Mr. Grimm has stated a plausible Title DC claim, the Court

recognizes the similarities between this case and Whitaker, in which a transgender male teenager

was also subjected to a school policy in which he could use only the girls' restrooms or gender-

neutral restrooms that were far from his classrooms. 858 F.3d at 1040, 1041-42. This limitation

was imposed despite the undisputed facts that the plaintiff had begun socially transitioning to life

as a male during his freshman year, including changing his legal name and pronouns, and had

been diagnosed with gender dysphoria by a therapist. As a result of the school policy, the

plaintiff suffered from depression and anxiety; avoided water intake to avoid needing to use the

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restroom, thereby exacerbating medical issues; and contemplated suicide. He also attempted to use the boys' restrooms in violation of the administration's decision. In response, administrators removed him from class on several occasions and instructed security guards to monitor his restroom use. Id. at 1040-41. Eventually, the school permitted him to use the boys' restrooms after a surgical transition. Id. at 1041. In reviewing the facts as alleged by the plaintiff, the Seventh Circuit concluded that the plaintiff had established a likelihood of success on the merits of his Title DC, and affirmed the district court's granting of a preliminary injunction on behalf of the plaintiff. Id. at 1050.
The Court now considers the first prong in determining if the Title IX claim is pled sufficiently: whether Mr. Grimm has sufficiently alleged that he was improperly discriminated against on the basis of his sex—^that is, his transgender status. The Seventh Circuit concluded that a policy that requires transgender students to use bathrooms not in conformity with their gender identity subjects "a transgender student ... to different rules, sanctions, and treatment than non-transgender students," and amounts to discrimination on the basis of transgender status in violation of Title IX. Whitaker, 858 F.3d at 1049-50. This conclusion is sound. Furthermore, the provision of a gender-neutral alternative is insufficient to relieve a school board of liability, "as it is the policy itself which violates [Title IX]." See id. at 1050. Offering restroom alternatives that impose hardships like unreasonable distances to a student's classroom and increased stigma on a student is inadequate. See id.
In M.A.B., the District of Maryland recognized that because the plaintiff had alleged that the school board had denied him access to the boys' locker rooms because of his transgender status, the policy subjected him to sex discrimination under a gender stereotyping theory. M.A.B. concluded that the plaintiff had sufficiently alleged discrimination under Title DC. 286 F. Supp.
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Case 4:15-cv-00054-AWA-DEM Document 148 Filed 05/22/18 Page 23 of 31 PageID# 1545

3d at 716. Given the persuasive reasoning in Whitaker and

the Court concludes that Mr.

Grimm has sufficiently pled that the Policy subjected him to sex discrimination xmder a gender

stereotyping theory.

Having concluded that Mr. Grimm has properly alleged discrimination on the basis of

sex, and finding the second pleading requirement is met because GCPS and Gloucester High

School "are education programs receiving Federal financial assistance," ECF No. 113 ^ 91, the

Court now turns to determining whether Mr. Grimm has sufficiently alleged that the

discrimination harmed him. The location of the bathrooms, coupled with the stigmatization and

physical and mental anguish inflicted upon Mr. Grimm, caused harm. "A policy that requires an

individual to use a bathroom that does not conform with his or her gender identity punishes that

individual for his or her gender non-conformance, which in turn violates Title DC." Whitaker,

858 F.3d at 1049; see also id. at 1041 (noting that, among other harms, the plaintiff suffered

fi^om depression and anxiety because of the bathroom policy, and restricted his water intake to

avoid restroom use, exacerbating his medical problems);

286 F. Supp. 3d at 716-17

(applying Whitaker to conclude that the plaintiff had sufficiently pled a Title IX claim based on

the school's policy of excluding him from use of the boys' locker room because of his

transgender status). After full consideration of the facts presented and the compelling scope of

relevant legal analyses, the Court concludes that Mr. Grimm has sufficiently pled a Title IX

claim of sex discrimination under a gender stereotyping theory.

C.

Equal Protection Claim

Mr. Grimm also brings a claim under the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution (ECF No. 113 81-89), which provides that

"[n]o State shall. . . deny to any person within its jurisdiction the equal protection of the laws."

U.S. Const, amend. XIV § 1. As Whitaker recognized, the Equal Protection Clause "is

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essentially a directive that all persons similarly situated should be treated alike." 858 F.3d at 1050 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Under "rational basis review," state action will generally be presumed to be lawful and upheld if the classification drawn by the statute is rationally related to a legitimate state interest. City of Cleburne, 473 U.S. at 440. However, a state must not distinguish between classes of people in an "arbitrary or irrational" manner or out of a "bare . . . desire to harm a politically unpopular group." Id. at 446-47 (internal citation omitted).
Under "rational basis review," if a state classification of a group of people is rationally related to a legitimate state interest, courts will uphold the classifications. Id. at 440. However, when a state classifies a "suspect" or "quasi-suspect" group of people, courts will apply "heightenedscrutiny." Mat440-41.
Sex-based classifications are subject to heightened scrutiny. The state bears the burden of demonstrating that its proffered justification for the use of a sex-based classification is "exceedingly persuasive." United States v. Virginia, 518 U.S. 515, 533 (1996). That is, the state is required to demonstrate that the classification "serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Id. at 524 (intemal citation omitted). Hypothesized or post hoc justifications created in response to litigation are insufficient to meet this burden, as are justifications based on overbroad generalizations about sex. Id. at 533. Furthermore, "[i[f a state actor cannot defend a sex-based classification by relying upon overbroad generalizations, it follows that sex-based
stereotypes are also insufficient sustain a classification." Kenosha, 858 F.3d at 1051 (intemal citation omitted).
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1. The Board's Policy Warrants Intermediate Scrutiny

The parties dispute which level of scrutiny is warranted. The Board contends that

rational basis review should apply because transgender individuals do not constitute a quasi-

suspect class under the Equal Protection Clause. ECF No. 136 at 28. Mr. Grimm contends that

classification based upon transgender status amounts to classification based on sex, and so

warrants heightened scrutiny. ECF No. 139 at 37-38.

The Fourth Circuit has not considered the question of whether transgender classifications

are sex-based. See

286 F. Supp. 3d at 718. The Seventh and Eleventh Circuits have

considered the issue and have concluded that heightened scrutiny applies. See Whitaker, 858

F,3d at 1051; Glenn, 663 F.3d at 1321. This Court agrees and concludes that intermediate

scrutiny is warranted for at least two reasons.

First, transgender individuals constitute at least a quasi-suspect class, and the Policy

classified Mr. Grimm on the basis of his transgender status. See

286 F. Supp. 3d at

718-20. Four factors are used to determine whether a group of people who have been classified

by a state amount to a suspect or quasi-suspect class: (1) whether the class has historically been

subject to discrimination, Bowen v. Gilliard, 483 U.S. 587, 602 (1987); (2) whether the class has

a defining characteristic that bears a relation to ability to perform or contribute to society,

Clebume, 473 U.S. at 440-41; (3) whether the class exhibits obvious, immutable, or

distinguishing characteristics that define the class as a discrete group, Bowen, 483 U.S. at 602;

and (4) whether the class is a minority or politically powerless. Id. This Court joins the District

of Maryland in concluding that transgender individuals meet all four factors and constitute at

least a quasi-suspect class.

As to the first factor, there is no doubt that transgender individuals historically have been

subjected to discrimination on the basis of their gender identity, including high rates of violence

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and discrimination in education, employment, housing, and healthcare access. See Whitaker, 858

F.3d at 1051;

286 F. Supp. 3d at 720; see also Evancho, 237 F. Supp. 3d at 288;

Highland, 208 F. Supp. 3d at 874; Adkins v. City of New York, 143 F. Supp. 3d 134, 139

(S.D.N.Y. 2015).

The second factor is also met because transgender status has no bearing on a transgender

individual's ability to contribute to society. See

286 F. Supp. 3d at 720.

As to the third factor, "transgender status is immutable." Id. at 720-21. Furthermore,

transgender individuals have distinguishing characteristics—^the disparity between the gender

they were assigned at birth and the gender they identify with—^that define them as a discrete

group. Id. at 721.

As to the fourth factor, there can be no doubt that transgender individuals are a minority

and are politically powerless, comprising just a fraction of the population and frequently

subjected to discriminatory federal policies and state laws. Id. at 721. This Court joins the

District of Maryland, as well as a host of other district courts, in concluding that because

transgender individuals are part of a quasi-suspect class, classifications based on transgender

status are per se entitled to heightened scrutiny. Id. at 720-22; see also Doe 1 v. Trump, 21S F.

Supp. 3d 167, 208-09 (D.D.C. 2017); Evancho, 237 F. Supp. 3d at 288; Highland, 208 F. Supp.

3d at 874; Adkins, 143 F. Supp. 3d at 139-40; Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119

(N.D. Cal. 2015).

Second, intermediate scrutiny is also warranted because, as Mr. Grimm has pled the

matter, the Board Policy at issue relies on sex stereotypes. Accordingly, Mr. Grimm's claims

amount to an allegation of a sex-based classification and, therefore, an allegation of sex-based

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discrimination in violation of the Equal Protection Clause. See

286 F. Supp. 3d at 718-

19.

In Whitaker, the Seventh Circuit declined to conclude whether "transgender status is per

se entitled to heightened scrutiny," but recognized that "it is enough to say that, just as in Price

Waterhouse" that the record demonstrated that the plaintiff had been subject to sex stereotyping

and therefore had experienced sex discrimination, Whitaker, 858 F.3d at 1051. The court

reasoned that because "the School District decides which bathroom a student may use based upon the sex listed on the student's birth certificate," the policy could not be stated without

referencing sex. Id. Accordingly, Whitaker concluded, "[t]his policy is inherently based upon a

sex-classification," and "heightened review applies." Id.\ see also Glenn, 663 F.3d at 1319-20

(recognizing that the consistent purpose of applying intermediate scrutiny to sex-based

classifications has been to eliminate discrimination on the basis of gender stereotypes, and

concluding that discrimination against a transgender individual because of his or her gender non

conformity constitutes sex discrimination under the Equal Protection Clause).

This Court joins other courts that have concluded that because the Policy relies on sex-

based stereotypes, it is a sex-based classification. See M.A.B., 286 F. Supp. 3d at 718-19. The

Policy classified Mr. Grimm differently on the basis of his transgender status and, accordingly,

subjected him to sex stereotyping. The Equal Protection Clause protects Mr. Grimm from

impermissible sex stereotypes—just as Title IX does, for the reasons articulated previously—and the Court need only find that the Board's Policy demonstrated sex stereotyping under the Equal

Protection Clause. Cf. Price Waterhouse, 490 U.S. 250-52. Mr. Grimm was subjected to sex

discrimination because he was viewed as failing to conform to the sex stereotype propagated by

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the Policy. Because the Policy relies on sex-based stereotypes, the Court finds that review of the Policy is subject to intermediate scrutiny.
2. As Pled by Mr. Grimm, the Policy was Not Substantially Related to Achieving an Important Governmental Objective
The Court next turns to whether the Policy survives review under heightened scrutiny. To survive, the Board must demonstrate that the classification serves an important governmental objective, and that the discriminatory means employed are substantially related to the achievement of those objectives. Virginia, 518 U.S. at 533 (internal citation omitted).
The Board argues that the Policy is substantially related to an important governmental objective: protecting the privacy rights of its students. See ECF No. 136 at 35-37. The Board expands this argument by contending that concerns over student privacy extend to protecting students like Mr. Grimm who, for whatever reason, may be uncomfortable using a restroom corresponding with their physiological sex. The Board argues that by permitting such students to use a single-user restroom, the Board is also protecting the privacy of students like Mr. Grimm.
Id. at 36.
The Board's argument rings hollow. In Whitaker, the Seventh Circuit concluded that although the school's privacy justification may be a legitimate and important interest, the policy was not genuine because it is "based upon sheer conjecture and abstraction." Whitaker, 858 F.3d
at 1052; see also Grimm /, 822 F.3d at 723. Such conjecture is obvious. First, the plaintiff in Whitaker—like Mr. Grimm—^used the
boys' bathrooms for weeks without incident before other adults in the community—not students—complained of this use. Second, as the Seventh Circuit observed, a "transgender student's presence in a restroom provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak
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glances at his or her classmates performing their bodily functions." Whitaker, 858 F.3d at 1052.

Third, if school districts were genuinely concerned with protecting the privacy of students who

have different-looking anatomies, "then it would seem that separate bathrooms also would be

appropriate for pre-pubescent and post-pubescent children who do not look alike anatomically,"

which the school district had not provided. Id. at 1052-53. This Court declines to further

evaluate the legitimacy of the purported privacy concerns. The record here is less developed

than it was in Whitaker. However, the Court underscores that, as pled by Mr. Grimm, Mr.

Grimm used the boys' bathrooms for weeks without incident.

The Court concludes that, as pled by Mr. Grimm, the policy at issue was not substantially

related to protecting other students' privacy rights. See

286 F. Supp. 3d at 724-26.'^

There were many other ways to protect privacy interests in a non-discriminatory and more

effective manner than barring Mr. Grimm from using the boys' restrooms. For example, the

Board had taken steps "to give all students the option for even greater privacy" by installing

partitions between urinals and privacy strips for stall doors. ECF No. 113 H 57. Additionally,

students who wanted greater privacy for any reason could have used one of the new single-stall

restrooms made available upon implementation of the policy. See Grimm /, 822 F.3d at 728-29

(Davis, J., concurring). Furthermore, as the M.A.B. court recognized, it is significant when a

The Court emphasizes that M.A.B. rejected the defendants' argument that single-use restrooms and stalls in the boys' locker room would be insufficientto assuage privacy concems, because "if M.A.B. changing clothes in the designated restrooms makes him feel humiliated and embarrassed . . . then studentswho use those restrooms for greater privacy will feel the same way." 286 F. Supp. 3d at 724.
M.A.B. rejected that argument for four reasons: (1) the policy interfered with M.A.B.'s health and well-being because it prevented him from social transitioning, as required for treating his gender dysphoria; (2) M.A.B. was required to use the designated restrooms, unlike the students who had the option to do so if they desired greater privacy; (3) the policy singled out M.A.B. "and marks him as different for being transgender," again in contrast to students for whom using a single-stall restroom carried no stigma; and (4) "even if some boys feel humiliated, embarrassed, or alienated for deciding to change clothes in a single-use restroom or stall, changing there still serves [the defendants'] privacy concems because those boys still enjoy greater privacy." Id. at 724-25. The Court agrees with MA.B.'s reasoning.
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school board fails to provide "any explanation for why completely barring [the transgender

student] from the boys' [segregated facility] protects the privacy of other boys," "while the

availability of single-use restrooms or locker stalls does not."

286 F. Supp. 3d at 725.

As in Whitaker and

preventing Mr. Grimm from using the boys' restrooms did nothing

to protect the privacy rights of other students, but certainly singled out and stigmatized Mr.

Grimm. Id.

Similarly, the Board's argument that the policy should not be construed as violating the

Equal Protection Clause because the policy treated all boys and girls the same is unavailing. ECF No. 136 at 26-37. The Policy singled out Mr, Grimm for differing treatment because it

"treat[ed] transgender students . . . who fail to conform to the sex-based stereotypes associated

with their assigned sex at birth[] differently," whereas a boy making the personal choice to

change clothes in or use a single-stall restroom would not have been singled out by the school

policy. Whitaker^ 858 F.3d at 1051; see also Grimm /, 822 F.3d at 729 (Davis, J., concurring) ("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.").

For these reasons, the Court concludes that Mr. Grimm has sufficiently pled that the Policy was not substantially related to protecting other students' privacy rights, because there were many other ways to protect privacy interests in a non-discriminatory and more effective

manner than barring Mr. Grimm from using the boys' restrooms. The Board's argument that the

policy did not discriminate against any one class of students is resoundingly unpersuasive.

Accordingly, the Court declines to dismiss his Equal Protection Claim.

IV. CONCLUSION

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For the reasons set forth herein, the Amended Motion to Dismiss (ECF No. 135) is DENIED. The Motion to Dismiss (ECF No. 118) is DISMISSED as moot.
Counsel for the parties are DIRECTED to contact the Courtroom Deputy for the United States Magistrate Judges at (757) 222-7222 within thirty days of entry of this Order to schedule a
settlement conference. IT IS SO ORDERED.

/ Noirolk, Virginia

Cou^uo,
Arenda L^Wright-Anen United States District Judge

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 Case 4:15-cv-00054-AWA-RJK Document 177 Filed 02/15/19 Page 1 of 19 PageID# 1684

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Newport News Division

GAVIN GRIMM, Plaintiff,
v. GLOUCESTER COUNTY SCHOOL BOARD,
Defendant.

) ) ) ) ) Civil Case No. 4:15-cv-54 ) ) ) ) ) )

SECOND AMENDED COMPLAINT

1. Gavin Grimm (“Gavin”) is a 19-year-old young man who is transgender. When

Gavin was 15, he came out to his family as a boy and, with the help of his medical providers,

transitioned to living in accordance with his male identity as part of medically necessary

treatment for gender dysphoria.

2. By the time Gavin began his sophomore year at Gloucester High School, he had

legally changed his name to Gavin and begun using male pronouns. Gavin wore his clothing and

hairstyles in a manner typical of other boys and used the men’s restrooms in public venues,

including restaurants, libraries, and shopping centers, without encountering any problems.

Gavin’s medical providers also gave him a “treatment documentation letter,” which confirmed

that Gavin was receiving treatment for gender dysphoria and stated that he should be treated as a

boy in all respects, including when using the restroom.

3. With the support of the school principal and superintendent, Gavin used the boys’

restrooms at Gloucester High School for approximately seven weeks without incident.

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4. But in response to complaints from some adults in the community, the Gloucester County School Board (the “Board”) overruled its own administrators and enacted a new policy prohibiting boys and girls “with gender identity issues” from using the same restrooms as other boys and girls. The new policy directed students who are transgender to an “alternative appropriate private facility.”
5. The Board continued to exclude Gavin from using the same restrooms as other boys, even after he began receiving hormone therapy, obtained a Virginia state I.D. card listing his sex as male, underwent chest reconstruction surgery, obtained a court order legally changing his sex to male under Virginia law, and received a new Virginia birth certificate reflecting that his sex is male.
6. Throughout the rest of high school, Gavin was forced to use separate restrooms that no other student was required to use. That degrading and stigmatizing policy singled Gavin out as unfit to use the same restrooms that are available to every other student.
7. The Board’s policy conflicts with the views of every major medical and mental health organization and school counselors’, teachers’, and administrators’ organizations across the country.
8. In every part of the country, including Virginia, boys and girls who are transgender are already using sex-separated restroom and locker room facilities at school, participating in interscholastic athletic teams in both high school and college, and joining girlscout and boy-scout troops.
9. Ignoring these realities, the Gloucester County School Board has adhered to its categorical ban, which prohibits the Board’s own school administrators from ever allowing any
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student who is transgender to use the common facilities that are available to every other boy and girl.
10. Gavin is recognized by his family, his medical providers, the Virginia Department of Health, and the world at large as a boy. Allowing him to use the same restrooms as other boys is the only way to provide him access to sex-separated restrooms without discrimination.
11. By segregating Gavin from his peers, excluding him from using the same restrooms that every other boy is allowed to use, and relegating him to separate restroom facilities, the Board discriminated against Gavin, in violation of the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972.
12. The Board also continues to discriminate against Gavin by refusing to update his official school transcript to match the male sex on his birth certificate, despite Gavin’s repeated requests. As a result, every time Gavin is required to provide a high school transcript to a college or potential employer, he must provide a transcript that—unlike all his other identification documents—declares that his sex is “female.” The Board thus continues to stigmatize and humiliate Gavin by treating Gavin differently from every other graduating student with a male birth certificate, in violation of Title IX and the Fourteenth Amendment.
13. Gavin seeks redress from this Court. JURISDICTION AND VENUE
14. This action arises under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., the Constitution of the United States, and 42 U.S.C. § 1983. This Court has jurisdiction pursuant to Article III of the United States Constitution and 28 U.S.C. § 1331. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202.
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15. Venue lies with this Court pursuant to 28 U.S.C. §§ 1391(b)(1)-(2), because the defendant resides in this District and a substantial part of the events or omissions giving rise to the claim occurred in this District.
PARTIES 16. Plaintiff Gavin Grimm (“Gavin”) is nineteen years old. From September 2013 to June 2017, he attended Gloucester High School, a public high school in Gloucester County, Virginia. 17. The Gloucester County School Board (the “School Board” or “Board”) is an elected body responsible for the operation of the Gloucester County Public Schools (“GCPS”), including the promulgation of policies. At all times relevant, the School Board has acted and continues to act under color of state law.
FACTUAL ALLEGATIONS Transgender youth and gender dysphoria
18. Gavin was born in Gloucester County and has lived in Gloucester County his entire life. Gavin is a typical teenager who is articulate and intelligent, reads broadly, loves his dog and cats, and enjoys hanging out with his friends.
19. When Gavin was born, the hospital staff identified him as female, but from a young age, Gavin knew that he was a boy. Although the sex assigned to Gavin at birth was female, Gavin has a male gender identity.
20. Everyone has a gender identity. It is an established medical concept, referring to a person’s deeply felt, inherent sense of one’s gender. Most people have a gender identity that matches the sex they are identified as at birth. But people who are transgender have a gender identity that differs from the sex they are assigned at birth.
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21. Like many students who are transgender, Gavin succeeded at school until the onset of puberty, when he began to suffer debilitating levels of distress from gender dysphoria, a condition in which individuals who are transgender experience persistent and clinically significant distress caused by the incongruence between their gender identity and the sex assigned to them at birth. Although gender dysphoria is a serious medical condition recognized by the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders (5th ed. 2013), being transgender is not a mental disorder and “implies no impairment in judgment, stability, reliability, or general social or vocational capabilities.” Am. Psychiatric Ass’n, Position Statement on Discrimination Against Transgender & Gender Variant Individuals (2012).
22. There is a medical and scientific consensus that the treatment for gender dysphoria is for boys who are transgender to live as boys and for girls who are transgender to live as girls. When medically appropriate, treatment also includes hormone therapy and surgery. This medical consensus is embraced by the American Medical Association, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Endocrine Society, and every other major medical and mental health organization in the United States.
23. The ability of individuals who are transgender to live consistently with their identity is critical to their health and well-being. That includes using names and pronouns consistent with their identity, grooming and dressing in a manner typically associated with that gender, and using restrooms and other sex-separated facilities that match their gender identity. Preventing students who are transgender from living in a manner that is consistent with their gender identity puts them at increased risk of debilitating depression and suicide. By contrast,
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when gender dysphoria is properly treated, individuals who are transgender experience profound relief and can go on to lead healthy, happy, and successful lives.
24. Boys and girls who are transgender are people who consistently, persistently, and insistently do not identify with the sex assigned to them at birth, and who can experience the debilitating distress of gender dysphoria when they are not able to live as the boys and girls that they are. The gender identity of these adolescents is stable and fixed.
25. Boys and girls who are transgender are attending schools across the country. While students who are transgender have long been part of school communities, it is only in the last couple decades that there has been more widespread access to the medical and psychological support that they need. Beginning in the early 2000s, as a result of advances in medical and psychological treatment, students who are transgender finally began to receive the treatment necessary to alleviate the devastating pain of gender dysphoria and live their lives in accordance with who they really are.
26. Many students who are transgender attend school without classmates and peers knowing they are transgender. For example, many students have already transitioned before beginning school and many others transfer to a new school after transitioning.
27. With hormone therapy, students who are transgender develop physical sex characteristics typical of their gender identity—not the sex they were identified as at birth. Hormone therapy affects bone and muscle structure, alters the appearance of a person’s genitals, and produces secondary sex characteristics such as facial and body hair in boys and breasts in girls.
28. In addition, children who are transgender who receive puberty blockers never go through puberty as their birth-designated sex. They will be exposed to the same levels of
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testosterone or estrogen as other boys and girls during puberty, and those hormones will affect every major body system.
29. Under widely accepted standards of care developed by the World Professional Association of Transgender Health (“WPATH”), genital surgery is not recommended for minors, but boys who are transgender may undergo medically necessary chest-reconstruction surgery after they turn 16.
30. According to every major medical and mental health organization, including the American Medical Association, the American Academy of Pediatrics, the American Psychiatric Association, and the American Psychological Association, excluding boys and girls who are transgender from using the same restrooms as other boys and girls is harmful to their health and wellbeing. When excluded from the common restrooms, students who are transgender often avoid using the restroom entirely, either because the separate restrooms are too stigmatizing or too difficult to access. They suffer infections and other negative health consequences as a result of avoiding restroom use. The exclusion also increases their risk of depression and self-harm.
31. Educators and school administrators across the country also recognize that excluding boys and girls who are transgender from using the common restrooms interferes with their ability to learn and thrive at school. It impairs their ability to develop a healthy sense of self, peer relationships, and the cognitive skills necessary to succeed in adult life. In light of these harms, the National Association of School Psychologists, National Association of Secondary School Principals, National Association of Elementary School Principals, and the American School Counselor Association have all called upon schools to allow boys and girls who are transgender to use the same restrooms as other boys and girls.
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32. According to the American Academy of Pediatrics and other major medical and mental health organizations, there is no evidence that allowing boys and girls who are transgender to use the same restrooms as other boys and girls causes any harm to the physical or mental health of students who are not transgender.
33. Schools can provide accommodations for all students—whether transgender or not—to enhance their own privacy without discriminating against students who are transgender by excluding them from common spaces.
34. In schools across the country, including Virginia, boys and girls who are transgender already use the same restrooms and locker rooms as other boys and girls.
35. In high school athletic associations across the country, including Virginia, boys and girls who are transgender already play on the same sports teams as other boys and girls.
36. Institutions ranging from the Girl Scouts and Boy Scouts to the Seven Sisters colleges to the National Collegiate Athletic Association already recognize boys who are transgender as boys and recognize girls who are transgender as girls.
37. Treating boys who are transgender as boys, and treating girls who are transgender as girls, is the only way they can equally participate in school, work, or society at large. Gavin’s experience at Gloucester High School
38. In 2014, near the end of his first year of high school, the distress caused by Gavin’s untreated gender dysphoria became so great that he was unable to attend class. At that point, Gavin came out to his parents as a boy and, at his request, began seeing a psychologist with experience counseling youth who are transgender.
39. With the help of his medical providers, Gavin transitioned to living in accordance with his male identity as part of medically necessary treatment for gender dysphoria.
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40. Gavin legally changed his name to Gavin and began using male pronouns. Gavin wore his clothing and hairstyles in a manner typical of other boys and began using the men’s restrooms in public venues, including restaurants, libraries, and shopping centers, without encountering any problems. His medical providers also referred Gavin to an endocrinologist to begin hormone therapy.
41. Gavin and his mother met with the school guidance counselor in August 2014, before the beginning of his sophomore year, to explain that Gavin is a boy who is transgender and would be attending school as a boy.
42. Gavin and his mother gave the guidance counselor a “treatment documentation letter” from his psychologist, which confirmed that Gavin was receiving treatment for gender dysphoria and stated that he should be treated as a boy in all respects, including when using the restroom.
43. At the time Gavin and his mother met with the guidance counselor, the School Board did not have policies addressing which restrooms students who are transgender should use.
44. Gavin initially agreed to use the restroom in the nurse’s office, but he soon felt stigmatized and isolated using a different restroom from everyone else. The restroom in the nurse’s office was also located far away from many of his school classes, and Gavin was often unable to use the restroom without being late for class.
45. After a few weeks of using the restroom in the nurse’s office, Gavin sought permission to use the boys’ restrooms.
46. On October 20, 2014, with the school principal’s support, Gavin began using the boys’ restrooms, and did so for seven weeks without incident.
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47. Gavin also requested permission to complete his physical-education requirements through a home-bound program. As a result, he never needed to use the locker rooms at school.
48. The principal of Gloucester High School and the superintendent of Gloucester County Public Schools informed the Board that they had authorized Gavin to use the same restrooms as other boys, but otherwise kept the matter confidential.
49. Although the principal and superintendent treated the matter as confidential, some adults in the community learned that a boy who is transgender was using the boys’ restrooms at Gloucester High School. They contacted the Board to demand that the transgender student (who was not publicly identified as Gavin until later) be barred from the boys’ restrooms.
50. On information and belief, at least some of the complaints came from a Gloucester High School employee who runs the school Bible club and is a pastor at a local church. That employee told the Washington Post that he spoke out against Gavin’s use of the boys’ restroom because “God puts us on this Earth as who we are.”
51. The Board considered the matter at a private meeting and took no action for several weeks.
52. Unsatisfied with the results of the private meeting, one member of the Board alerted the broader community by proposing the following policy for public debate at the Board’s meeting on November 11, 2014:
Whereas the GCPS 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
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biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility. 53. The policy categorically prohibits administrators from allowing any boy who is transgender to use any boys’ restroom (or allowing any girl who is transgender to use any girls’ restroom) in any school within the Gloucester County School District, regardless of the student’s individual circumstances. 54. The policy does not define “biological gender,” and the term has no common or accepted meaning. There are many biological components of sex, including chromosomal, anatomical, hormonal, and reproductive elements, some of which could be ambiguous or in conflict within an individual, either because that individual has intersex traits or because that individual has undergone medical care for gender dysphoria. 55. After learning about the meeting through social media, Gavin and his parents decided to speak against the proposed policy. In order to speak against the policy, Gavin was forced to reveal himself to the entire community and the local media as the boy whose restroom use was at issue. 56. Gavin told the Board: I use the public restroom, the men’s public restroom, in every public space in Gloucester County and others. I have never once had any sort of confrontation of any kind. … All I want to do is be a normal child and use the restroom in peace, and I have had no problems from students to do that—only from adults. … I did not ask to be this way, and it’s one of the most difficult things anyone can face. … I am just a human. I am just a boy. A recording of his remarks can be viewed online at https://goo.gl/CYh4gd
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57. By a vote of 4-3, the School Board voted to defer a vote on the policy until its meeting on December 9, 2014.
58. Before its next meeting, the Board issued a press release announcing plans for “adding or expanding partitions between urinals in male restrooms, and adding privacy strips to the doors of stalls in all restrooms.” In addition, the press release announced “plans to designate single stall, unisex restrooms … to give all students the option for even greater privacy.”
59. Speakers at the December 9, 2014 Board meeting nonetheless demanded that Gavin be excluded from the boys’ restrooms immediately, and many threatened to vote Board members out of office if they refused to pass the new policy.
60. With Gavin in attendance, several speakers pointedly referred to him as a “young lady.” One speaker called Gavin a “freak” and compared him to a person who thinks he is a “dog” and wants to urinate on fire hydrants. “Put him in a separate bathroom if that’s what it’s going to take,” said another.
61. The Board meeting made Gavin feel that he had been turned into a public spectacle in front of the entire community.
62. The Board passed the policy on December 9, 2014, by a 6-1 vote. 63. The following day, the principal told Gavin he could no longer use the same restrooms as other boys. 64. The Board’s new policy did not affect the restroom usage of any other student at Gloucester High School. Every other student was allowed to continue using the same restrooms they had been using before the new policy was adopted. The only person who had to use a different restroom was Gavin.
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65. The Board subsequently installed three single-user restrooms. One of the restrooms had previously been designated as a restroom for teachers and staff. The other two restrooms were converted from old utility closets.
66. None of the single-user restrooms was located near Gavin’s classes. 67. Although any student was allowed to use the single-user restrooms, no one else did so. Everyone knew they were created for Gavin as part of the policy prohibiting him from using the same restrooms as other boys. 68. Being relegated to the separate restrooms was demeaning and shameful for Gavin. It signaled to Gavin and the entire school community that he is different, and it sent a public message to all his peers that he is not fit to be treated like everyone else. 69. Gavin did everything he could to avoid using the restroom at school. As a result, he developed painful urinary tract infections and was often distracted and uncomfortable in class. 70. When Gavin absolutely had to use the restroom, he used the nurse’s restroom, but he still felt ashamed doing so. Every time he had to walk to the other side of school to use the nurse’s restroom, Gavin felt like he was taking a “walk of shame.” It was a constant reminder to Gavin—and to anyone who saw him—that Gavin is transgender and had been barred from using the same restrooms as other boys. 71. Being excluded from the common boys’ restroom and forced to use separate restroom facilities also physically isolated Gavin from the rest of his peers by requiring him to travel to a separate part of the school if he had to use the restroom between classes. 72. When Gavin attended school football games, there was no restroom for him to use at all. The Gloucester High School building was locked after school, and there are no single-user
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restroom facilities in the stadium. When he had to use the restroom, Gavin’s only option was to call his mother to pick him up and take him home early. Enforcement of the policy
73. The Board continued to exclude Gavin from the same restrooms as other boys throughout the remainder of his sophomore, junior, and senior years of high school.
74. In December 2014, Gavin began hormone therapy, which has altered his bone and muscle structure, deepened his voice, and caused him to grow facial hair.
75. In June 2015, the Virginia Department of Motor Vehicles issued Gavin a state I.D. card identifying him as male.
76. In June 2016, Gavin underwent chest-reconstruction surgery, in accordance with the medical standards of care for treating gender dysphoria.
77. On September 9, 2016, the Gloucester County Circuit Court issued an order changing Gavin’s sex under Virginia state law and directing the Virginia Department of Health to issue Gavin a birth certificate listing his sex as male.
78. On October 27, 2016, the Virginia Department of Health issued Gavin a birth listing his sex as male.
79. Despite all of this, the Board disregarded Gavin’s medical treatment, his Virginia I.D. card, his new Virginia birth certificate, and the court order changing his sex under Virginia state law. The Board maintained that Gavin’s “biological gender” remains female and continued to prohibit its administrators from allowing Gavin to use the boys’ restrooms. Refusal to update gender designation on Gavin’s official transcript
80. During his senior year, Gavin received an updated Virginia birth certificate reflecting that his sex is male and provided that birth certificate to school administrators. But
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despite Gavin’s repeated requests, the Board refused to update his official school transcript to match the male sex on his birth certificate. In doing so, the Board once again singled out Gavin for different treatment from every other student at Gloucester High School with a male birth certificate.
81. Every time Gavin is required to provide a high school transcript to a college or employer, he must provide a transcript that—unlike all his other identification documents— declares that his sex is “female.”
82. Gavin graduated high school on June 10, 2017. But by refusing to update Gavin’s official school transcript, the Board continues to stigmatize and humiliate Gavin to this day.
CLAIMS FOR RELIEF COUNT I
Fourteenth Amendment to the United States Constitution 83. The Board is the final policymaker for Gloucester County Public Schools, acting under color of state law. 84. By excluding Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities, the Board treated Gavin differently from similarly situated students in violation of the Equal Protection Clause of the Fourteenth Amendment. 85. By excluding Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities, the Board discriminated against Gavin on the basis of gender, which is subject to heightened scrutiny under the Equal Protection Clause. 86. By excluding Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities, the Board discriminated against
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Gavin on the basis of transgender status, which is also subject to heightened scrutiny under the Equal Protection Clause.
a. People who are transgender as a class have historically been subject to discrimination.
b. People who are transgender as a class have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society.
c. People who are transgender as a class exhibit immutable or distinguishing characteristics that define them as a discrete group.
d. People who are transgender as a class are a minority with relatively little political power.
87. By excluding Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities, the Board discriminated against Gavin based on invidious stereotypes, moral disapproval, and unfounded fears about people who are different.
88. By refusing to update Gavin’s official school transcript to match the male designation on his updated birth certificate, the Board has discriminated—and continues to discriminate—against Gavin.
89. The Board’s discrimination against Gavin is not narrowly tailored to advance a compelling government interest.
90. The Board’s discrimination against Gavin is not substantially related to any important government interest.
91. The Board’s discrimination against Gavin is not rationally related to any legitimate government interest.
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92. The Board is liable for its violation of Gavin’s Fourteenth Amendment rights under 42 U.S.C. § 1983.
COUNT II Title IX of the Education Amendments of 1972
20 U.S.C. § 1681 et seq. 93. Title IX provides that “[n]o 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. § 1681(a). 94. Gloucester County Public Schools and Gloucester High School are education programs receiving Federal financial assistance. 95. By prohibiting Gavin from using the same restrooms that every other boy is allowed to use and relegating him to separate restroom facilities, the Board violated his rights under Title IX. 96. By refusing to update Gavin’s official school transcript to match the male designation on his updated birth certificate, the Board violated—and continues to violate—his rights under Title IX.
REQUEST FOR RELIEF For the foregoing reasons, Plaintiff respectfully requests that the Court grant the following relief: A. A declaration that the Board’s policy violated Gavin’s rights under the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., on the day the policy was first issued and throughout the remainder of his time as a student at Gloucester High School;
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B. A declaration that the Board’s refusal to update Gavin’s official school transcript to match the “male” designation on his updated birth certificate violated—and continues to violate—Gavin’s rights under the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.
C. Nominal damages in an amount determined by the Court; D. A permanent injunction requiring the Board to update Gavin’s official school records to match the male designation on his updated birth certificate; E. Plaintiff’s reasonable costs and attorneys’ fees pursuant to 42 U.S.C. § 1988; and F. Such other relief as the Court deems just and proper.

Dated: February 15, 2019

Respectfully submitted,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, INC.

/s/

.

Nicole Tortoriello (VSB No. 91129)

Eden B. Heilman*

Jennifer Safstrom**

ACLU of Virginia

701E. Franklin Street, Suite 1412

Richmond, VA 23219

(804) 644-8022 (Phone)

(804) 649-2733 (Fax)

ntortoriello@acluva.org

eheilman@acluva.org

jsafstrom@acluva.org

AMERICAN CIVIL LIBERTIES UNION FOUNDATION Joshua A. Block* Leslie Cooper* Shayna Medley-Warsoff* 125 Broad Street 18th Floor New York, NY 10004 (212) 549-2627 (Phone) (212) 549-2650 (Fax) jblock@aclu.org lcooper@aclu.org smedley@aclu.org

* Admitted pro hac vice **Admission pending, notice of appearance forthcoming

Counsel for Plaintiff Gavin Grimm
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CERTIFICATE OF SERVICE I hereby certify that on the 15th day of February 2019, I electronically filed the foregoing with the Clerk of the Court for the U.S. District Court for the Eastern District of Virginia by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Nicole Tortoriello Nicole Tortoriello (VSB No. 91129) ACLU Foundation of Virginia 701 E. Franklin Street, Suite 1412 Richmond, VA 23219 (804) 644-8022 (Phone) (804) 649-2733 (Fax) ntortoriello@acluva.org
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 Case 4:15-cv-00054-AWA-RJK Document 229 Filed 08/09/19 Page 1 of 28 PageID# 3535

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division

GAVIN GRIMM, Plaintiff,
GLOUCESTER COUNTY SCHOOL
BOARD,
Defendant.

Civil No.4:15cv54

ORDER

Pending before the Court are a Motion to Strike Exhibits(ECF No.213)and Cross-Motions

for Summary Judgment filed by Plaintiff Gavin Grimm(ECF No. 184)and Defendant Gloucester

County School Board("the Board")(ECF No 191). For the following reasons,the Board's Motion

to Strike is GRANTED IN PART and DENIED IN PART, Mr. Grimm's Motion for Summary

Judgment is GRANTED,and the Board's Motion for Summary Judgment is DENIED.

I.

FACTUAL BACKGROUND

Gavin Grimm is a twenty-year-old man who attended Gloucester High School, a public

high school in Gloucester County, Virginia, from September 2013 until his graduation in June

2017. See Gavin Grimm Decl. 3,5,ECF No. 186. When Mr. Grimm was bom,hospital staff

identified him asfemale. Id.^7. Despite this designation,Mr.Grimm has always"related to male

characters" and "ha[s]always known that[he is] a boy." Id.^ 6.

When Mr.Grimm enrolled in the Gloucester County School System,he was listed as a girl.

He began his freshman year in 2013 at Gloucester High School with a female birth certificate.

Andersen Decl.,ECF No. 196-6.

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In April 2014, Mr. Grimm disclosed to his parents that he was transgender. Gavin Grimm
Decl. H 20; Deirdre Grimm Decl. ^ 7, ECF No. 187. According to Dr. Melinda Penn, M.D.,^
"gender identity" refers to "a person's innate sense of belonging to a particular gender." Penn Expert Rep. and Decl. H 17, ECF No. 192-3. She opines that people's gender identity usually matches the sex consistent with their external genitalia possessed at birth, but that transgender individuals have a gender identity different from the one assigned to them at birth. Id. 18-19.
At Mr. Grimm's request, he began therapy in May 2014 with Dr. Lisa Griffin, Ph.D., a psychologist with experience counseling transgender youth. Gavin Grimm Decl.^24. Dr.Griffin diagnosed Mr.Grimm with gender dysphoria. Id. Dr.Griffin prepared a treatment documentation letter stating that Mr. Grimm has gender dysphoria, that he should present as a male in his daily life, that he should be considered and treated as a male, and that he should be allowed to use restrooms consistent with that identity. ECF No. 186-1 at 1.
The American Psychiatric Association's Diagnostic & Statistical Manual of Mental Disorders("DSM V")defines"gender dysphoria"as a condition experienced by some transgender people that inflicts clinically significant stress because their gender identity differs from the sex assigned to them at birth. Penn Expert Rep.and Decl. 21. Dr.Penn's report explains that"to be diagnosed with gender dysphoria, the incongruence [between gender identity and assigned sex] must have persisted for at least six months and be accompanied by clinically significant distress or impairment in social, occupational,or other important areas offunctioning." Id.
' Mr. Grimm retained Dr. Penn to "provide expert testimony on the applicable standards of care and treatment guidelines for transgender youth." ECF No. 214-2 at 1. Dr. Penn is a pediatric endocrinologist with the Children's Hospital ofthe King's Daughters in Norfolk, Virginia,holds a medical degree from Eastern Virginia Medical School, and is board certified in pediatric endocrinology by the American Board of Pediatrics. ECF No. 192-3 THI3-4. One ofher specialties is transgender health. Id.

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During the course ofhis treatmentfor gender dysphoria,Mr.Grimm changed his first name legally to Gavin and began using male pronouns to describe himself. Gavin Grimm Decl. 23, 25. He also began using men's restrooms in public venues. Id. 37,38. Dr. Griffin referred Mr. Grimm to an endocrinologist for hormone treatment around this time. Id.^24.
In August 2014, before the beginning of Mr. Grimm's sophomore year, Mr. Grimm and his mother met with Ms.Tiffany Durr,a school guidance counselor. Id. 26-27. They gave Ms. Durr a copy of Dr. Griffin's treatment documentation letter and requested that Mr. Grimm be treated as a boy at school. Id. Mr. Grimm and Ms. Durr agreed that Mr. Grimm would use the restroom in the nurse's office. Id.^ 29.
Mr. Grimm "soon found it stigmatizing to use a separate restroom," however,and "began to feel anxiety and shame surrounding [his] travel to the nurse's office." Id. He also found that
the distance to this bathroom caused him to be late to class. Id.
After a few weeks of using the restroom in the nurse's office, Mr. Grimm met with Ms. Durr and sought permission to use the school's male restrooms. Id.^33;Durr Dep.23:6-17,ECF No. 192-11. Ms. Durr relayed Mr. Grimm's request to Principal Nate Collins. Durr Dep. 24:117. Principal Collins spoke with Superintendent Walter demons,who offered to supportPrincipal Collins' ultimate decision. Collins Dep.49:7-50:1,ECF No. 192-9;demons Dep.24:4-20,ECF No. 192-10. Principal Collins allowed Mr.Grimm to use the male restrooms. Collins Dep.50:22-
51:13.
Mr. Grimm used the male restrooms at Gloucester High School for seven weeks. Gavin Grimm Decl.^36. During this time,there were no incidents in the restroomsinvolving Mr.Grimm and other students. Id. Mr. Grimm was given permission to complete his physical education

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courses online and never needed to use the locker rooms at school. Gavin Grimm Dep. 96:14-
97:9.
Subsequently, however, Dr. demons, Principal Collins, and Board members began receiving complaints from adult members of the community who had learned that a transgender boy was using male restrooms atthe high school. See Collins Dep.66:1-22;demons Dep.32:1633:6; Def.'s Response to First Set of Interrogatories 1, ECF No. 192-1. Some members of the community demanded that the transgender student be barred from the male restrooms. Id. One student personally complained to Principal Collins. ECF No. 192-1 ^ 1.
Following these complaints. Board member Carla Hook proposed the following policy at the Board's public meeting on November 11,2014:
Whereas the GCPS 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 ofall students,therefore It shall be the practice ofthe 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.
Hook Nov.9,2014 Email,ECF No. 192-21.
Mr. Grimm and his parents spoke against the proposed policy at the November 11, 2014 meeting. Gavin Grimm Decl.^40. The Board voted 4-3 to defer a decision regarding the policy until the next Board meeting on December 9, 2014. Recorded Minutes of the Board, Nov. 11,
2014 at 4,ECF No. 192-37.

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The Board passed the proposed policy on December 9, 2014 by a 6-1 vote. Recorded Minutes of the Board, Dec. 9, 2014, at 3, BCF No. 192-23. The Board also announced that it would construct single-stall, unisex restrooms for all students to use. Id. The following day. Principal Collins told Mr. Grimm that his further use of the male restrooms at Gloucester High School would result in disciplinary consequences. Collins Dec. 10, 2014 Memo to Deirdre and David Grimm,ECF No. 192-24; Gavin Grimm Decl.1]44.
In December 2014, Mr. Grimm began hormone therapy. This "deepened [his] voice, increased[his]growth offacial hair,and[gave him]a more masculine appearance." Gavin Grimm
Decl. H 60. Single-user restrooms had not yet been constructed when the Board enacted the policy.
Gavin Grimm Decl.^ 46. Mr. Grimm has recounted an incident when he stayed after school for an event, realized the nurse's office was locked, and broke down in tears because there was no restroom he could use comfortably. Id. A librarian witnessed this and drove him home. Id.
Mr.Grimm also declared that when the single-user restrooms were built,they were located far from classes that he attended. Id. ^ 49. A map of the school confirms that no single-user restrooms were located in Hall D, where Mr. Grimm attended most classes. ECF Nos. 192-28, 192-29. There was also no single-user restroom at the school's stadium, limiting Mr. Grimm's ability to attend events there. Gavin Grimm Decl.^52.
The single-stall restrooms made Mr. Grimm feel"stigmatized and isolated." Id.^47. He never saw any other student use these restrooms. Id. ^ 48. Principal Collins testified at his deposition that he never saw a student use the single-user restrooms,but that he assumed that they
were used because they were cleaned daily. Collins Dep. 132:7-20.

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Mr. Grimm avoided using restrooms at school and later developed urinary tract infections.
Gavin Grimm Decl. 51-52. This caused him to become distracted and uncomfortable in class.
Id, Mr. Grimm's mother kept medication for urinary tract infections "always stocked at home."
Deirdre Grimm Decl.^26. In June 2015, the Virginia Department of Motor Vehicles issued Mr. Grimm a state
identification card identifying him as male. Gavin Grimm Decl. 61;ECF No.41-2. During his junior year of high school, Mr. Grimm was admitted to the boys' ward at the
hospital at Virginia Commonwealth University "because he was having thoughts of suicide." Deirdre Grimm Decl.^24.
In June 2016,Mr.Grimm underwent chest-reconstruction surgery. Grimm Decl.^62. On September 9,2016,the Gloucester County Circuit Court issued an order declaring Mr. Grimm's sex to be male and directing the Virginia Department of Health to issue him a birth certificate listing his sex as male. Id. T| 63; ECF No. 41-3. The order referred to Mr. Grimm's chest reconstruction surgery as "gender reassignment surgery" and concluded that Mr. Grimm is "now functioning fully as a male." ECF No.41-3. On October 27, 2016, the Virginia Department of Health issued a birth certificate listing Mr. Grimm's sex as male. Gavin Grimm Decl. H 64;ECF No.41-4. After receiving an updated birth certificate, Mr. Grimm and his mother provided Gloucester High School with a photocopy of it and asked that his school records be updated. Gavin Grimm Decl. ^ 66. The school has declined to correct Mr. Grimm's transcript, which still reflects his sex as female. ECF No.41-5.

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Troy Andersen, the Board's 30(b)(6) witness,^ testified that the Board has declined to
update Mr. Grimm's transcripts because it believes that the amended birth certificate does not accord with Virginia law and because the photocopy presented was marked "void." Andersen Dep.65:8-66:1,BCFNo. 192-13.
On January 18,2017,the Board informed Mr.Grimm thathe had a rightto a hearing related to the Board's decision not to amend his official transcript and educational records. ECF No. 171I. Mr. Grimm did not request a hearing.
Mr.Grimm graduated high school on June 10,2017. Gavin Grimm Decl.^ 57. He is now attending Berkeley City College in California and intends to transfer to a four-year college. Id. 1169.
II. PROCEDURAL BACKGROUND
Mr. Grimm commenced this action against the Board on June 11, 2015, at the end of his sophomore school year, alleging that the Board's policy of assigning students to restrooms based on their biological sex violated Title DC of the Education Amendments of 1972, 20 U.S.C. § 1681(a), and violated the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution. ECF No. 1. This Court considered the Board's motion to dismiss Mr.
Grimm's Amended Complaint. On May 22,2018,this Court denied the motion to dismiss. ECF
No. 148.
In doing so, this Court held that a plaintiffs claim of discrimination on the basis of transgender status constitutes a viable claim of sex discrimination under Title IX. Id. at 13-21. Specifically, this Court relied on Price Waterhouse v. Hopkins,490 U.S. 228(1989), which held
^ Under Federal Rule of Civil Procedure 30(b)(6), if an organization is named as a deponent in a civil matter, the organization must designate one or more persons who consent to testify on its behalf. The Board designated Troy Andersen,a Board member,to testify on its behalf.

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that Title VII of the Civil Rights Act of 1964 bars discrimination not only based on a person's gender,but also based on whether the person conforms to stereotypes associated with the person's
gender.^ This Court joined the District of Maryland in concluding that under Title DC
"discrimination on the basis of transgender status constitutes gender stereotyping because *by definition,transgender persons do not conform to gender stereotypes.'" M.A.B. v. Bd ofEduc. of Talbot Cty.,286 F. Supp.3d 704,714(D. Md.2018)(quoting Finkle v. Howard Cty., 12 F.Supp. 3d 780,787-88(D.Md.2014)).^
This Court also held that state action that discriminates against transgender individuals is subject to intermediate scrutiny under the Constitution's Equal Protection Clause for two reasons. BCF No. 148 at 25-28. First, transgender individuals constitute at least a quasi-suspect class. See M.A.B.,286 F.Supp.3d at 718-20. Second,discrimination based on sex stereotypes constitutes a sex-based classification ofa type subject to intermediate scrutiny. Id. at 718-19.
On February 15, 2019, this Court permitted Mr. Grimm to file a Second Amended Complaint. This filing added a claim that the Board continues to discriminate against Mr. Grimm in violation of Title DC and the Equal Protection Clause by refusing to update his official school transcripts to reflect his sex as male. ECF No. 177.
^ Courts may, and frequently do, look to case law interpreting Title VII for guidance in evaluating a claim brought under Title IX.See, e.g., G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd. ("Gr/'/w/w /"),822 F.3d 709,718(4th Cir. 2016),vacatedandremanded,853 F.3d 729(Apr. 17,2017)(citing Jennings v. Univ. ofN.C.y 482 F.3d 686,695(4th
Cir. 2007)). The First, Sixth, Ninth, and Eleventh Circuits have all relied on Price Waterhouse in holding that claims of
discrimination based on transgender status constitute per se sex discrimination under Title VII or other civil rights laws. See EEOC v. R.G.& G.R. Harris Funeral Homes,Inc.,884 F.3d 560,574-75(6th Cir.2018)cert,granted 139 S. Ct. 1599 (2019)(Title VII); Glenn v. Brumby,663 F.3d 1312, 1316-19(11th Cir. 2011)(Title VH and Equal Protection Clause); Smith v. City ofSalem, 378 F.3d 566,513-15 (6th Cir. 2004)(Title VII and Equal Protection Clause); Rosa v. Park fV. Bank & Trust Co.,214 F.3d 213,215-16(1st Cir. 2000)(Equal Credit Opportunity Act); Schwenk v. Hartford,204 F.3d 1187, 1201-03(9th Cir. 2000)(Gender Motivated Violence Act).
8

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The parties filed motions for summaryjudgment. ECFNos. 184,191. The Board has also moved to strike certain exhibits relied upon by Mr. Grimm. ECF No.213. On July 23,2019,this Court heard argument on these pending motions. ECF No. 228. The motions are now ripe for
consideration. III. LEGAL STANDARDS
Rule 56 of the Federal Rules of Civil Procedure permits a party to move for summary judgment and directs a court to grant such motion "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled tojudgment as a matter oflaw." Fed.R. Civ. P. 56(a). The party "seeking summary judgment always bears the initial responsibility of informing the [court] of the basis for its motion, and identifying those portions of the pleadings, depositions,answers to interrogatories,and admissions on file,together with the affidavits,ifany, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986)(quotations omitted). Subsequently, the burden shifts to the non-moving party to present specific facts demonstrating that a genuine dispute of material fact exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S.574,586(1986) ("When the moving party has carried its burden under Rule 56(c),its opponent must do more than simply show that there is some metaphysical doubt as to the material facts."). For the evidence to present a "genuine" dispute of material fact, it must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., All U.S. 242, 248 (1986). When deciding a motion for summaryjudgment,courts must view the facts, and inferences to be drawn from the facts,in the light mostfavorable to the non-moving party. Id. at 255.
[A]party asserting that a fact cannot be or is genuinely disputed must support the assertion by:(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only),

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admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence ofa genuine dispute,or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c). When ruling on a summary judgment motion,"a court may also give credence to other facts supporting the movant,regardless oftheir source,ifsuch facts are notchallenged by the nonmoving party because a failure to challenge proffered facts may render such facts 'admitted.'" XVP Sports, LLC v. Bangs,No.2:1lcv379,2012 WL4329258,at *4(E.D. Va. Sept. 17,2012). As specified in Local Civil Rule 56(B),"the Court may assume that facts identified by the moving party in its listing of [undisputed] material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." E.D. Va. Loc. Civ. R.56(B). The applicable standards for resolving the challenges raised by the Board's Motion to
Strike are addressed where needed below. IV. ANALYSIS A. Motion to Strike Exhibits
In his Reply in support of his Motion for Summary Judgment, Mr. Grimm submitted the following records:(1)a treatment documentation letter written by Dr. Griffin on May 26,2014; (2)a hormone documentation letter written by Dr. Griffin on May 26,2014;(3)a"To Whom It May Concern" letter written by Dr. Griffin on July 1, 2014;(4)a "To Whom It May Concern" letter written by Dr. Eva Abel,Psy.D.;(5)treatment records prepared by Dr. Hope Sherie, M.D. FACS;(6)a"To Whom It May Concern" letter written by Dr. Sherie on June 21,2016; and(7)
treatment records from VCU Medical Center.
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The Board has filed a Motion to Strike Exhibits submitted by Mr.Grimm in support ofhis Motion for Summary Judgment. ECF No. 213. The Board seeks to strike four categories of

exhibits:(1)the medical records kept by Dr.Penn,Dr. Griffin, and Dr. Sherie that are referred to

above;(2)the"To Whom It May Concern"letters;(3)policy statements and amicus briefs relied upon by Mr.Grimm;and(4)references to a public hearing that was held in February 2019. These

challenges are addressed in turn.

1.

Medical Business Records

The Board argues that Mr. Grimm's submission of medical records from Dr. Penn, Dr.

Griffin,and Dr.Sherie constitute experttestimony and that these records must be stricken because

Mr.Grimm did not disclose these experts under Federal Rule ofCivil Procedure 26. Federal Rule

of Civil Procedure 26 provides that a party must disclose, without awaiting a discovery request,

any witness it may use to present evidence under Federal Rule of Evidence 702, 703, or 705

governing expert testimony. Fed. R. Civ. P. 26(a)(2)(A). When a party does not comply with

Rule 26(a),"the party is not allowed to use that information or witness to supply evidence on a motion,at a hearing,or at a trial, unless the failure was substantiallyjustified or is harmless." Fed.

R. Civ. P. 37.

Mr. Grimm is not presenting these exhibits as expert opinion testimony and they are not

govemed by Rules 702, 703, or 705. Mr. Grimm has established that he is using these records only to demonstrate the fact that Mr. Grimm was diagnosed with gender dysphoria and received treatment pursuant to that diagnosis. ECF No. 216 at 1-6. The Court is not asked to determine

whether that diagnosis was medically sound. Nor is the Court asked to determine whether it was

medically necessary for Mr. Grimm to use the restrooms consistent with his gender identity. Mr.

Grimm does not seek such a ruling and reiterated this at oral argument. Draft Tr. at 11-12.

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To support its request to strike, the Board cited cases that excluded documents that differ
from the evidence submitted in this case. See ECF No. 214 at 6-7. In these decisions, the courts
excluded expert reports that were not timely disclosed. See, e.g., United States ex rel Lutz, et al. V. Berkeley Heartlab,Inc.,etal.No.9:11-CV-1593-RMG,2017 WL 5957738,at *1(D.S.C.Dec. 1,2017)(excluding expert reports opining that certain laboratory tests were medically necessary).
By contrast, Mr. Grimm has submitted documents prepared contemporaneously to his treatment that detail the factual background attendant to his diagnosis and treatment. These documents are permissible. Morris v. Bland,666 F. App'x 233,239(4th Cir. 2016)(holding that physicians testifying as fact witnesses may "discuss their examination of[a patient] and their diagnoses or findings," but may not offer expert opinions as to proximate cause).
These records also qualify as hearsay exceptions as defined in Federal Rule of Evidence 803(6). Under Federal Rule of Evidence 803(6), records of an act, event, condition, opinion, or diagnosis are excluded from the bar against hearsay if:
(A)the record was made at or near the time by-or from information transmitted by-someone with knowledge; (B)the record was keptin the course ofa regularly conducted activity ofa business, organization, occupation, or calling, whether or not for profit; (C)making the record was a regular practice ofthat activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness,or by a certification that complies with[certain rules or statutes];
and
(E)the opponent does not show that the source of information or the method or circumstances ofpreparation indicate a lack oftrustworthiness. Fed. R. Evid. 803(6).
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Medical records are quintessentially business records, and Mr. Grimm has identified adequate custodians for each record presented. For these reasons, the Court denies the Board's
Motion to Strike Mr. Grimm's medical documentation.
2. "To Whom It May Concern" Letters The Board also seeks to strike the "To Whom It May Concern" letters on the basis of
hearsay. The Board asserts thatsuch letters"are notthe type ofrecords regularly keptin the course of a medical practice ...." ECF No. 214 at 7-8. The Board also argues that the letters are untrustworthy because they are addressed to unknown recipients. Id, at 8.
The Board offers no support for its assertion that these letters are not the type of records kept regularly in the course ofthe medical practice. The fact that three different doctors prepared
these types ofletters contemporaneously with their treatment ofMr.Grimm suggests otherwise.^
Regarding trustworthiness. Rule 803(6) makes clear that the burden of showing untrustworthiness falls on the opponent ofthe records. The Board cites Garrett v. City ofTupelo, No. l:16-cv-197,2018 WL 2994808(N.D.Miss.June 14,2018)to assert that letters addressed to unknown recipients are untrustworthy. However, Garrett did not turn on the identity of the recipient ofinformation, but instead turned on the identity ofthe source ofsuch information. Id. at*4(recognizing that documents may be untrustworthy when information comesfrom the patient, notthe doctor,or when the''source ofthe information is unknown")(emphasis added). The Board has not met its burden ofshowing thatthese documents are untrustworthy. Accordingly,the Court declines to strike the "To Whom It May Concern" letters provided by Dr. Griffin, Dr. Abel, and
Dr. Sherie.
^ The Court also notes that the World Professional Association for Transgender Health acknowledges that the role of a health professional working with transgender youth encompasses providing referral letters for hormone therapy and includes advocacy on behalfoftheir patients at school. WPATH Standards ofCare at 13,31-32,ECF No. 192-5.
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3. Policy Statements and Amicus Briefs The Board seeks to strike evidence submitted by Mr. Grimm that include:(1)the World
Professional Association for Transgender Health Standards of Care,(2) amicus briefs from a variety of organizations, including the American Academy of Pediatrics, the National Parent Teacher Association, and school administrators from thirty-three states and the District of Columbia; and (3)other documents reflecting the views of the American Psychological Association and National Association ofSchool Psychologists,Gender Spectrum,and the National Association ofSecondary School Principals. See ECF No.214 at 9-13.
The Board does not dispute that the statements presented in these documents reflect the views of these organizations. Instead, the Board argues that Mr. Grimm cannot use these documents to prove the truth ofthe matters asserted. Mr. Grimm responds that he is using these documents only as evidence ofthese organizations'views. Given thatthere is no dispute regarding the propriety ofthe intended use ofthese documents,the Court need not strike them. The Court has considered these documents as evidence ofthe views ofthe organizations that prepared them, and not as substantive evidence ofthe accuracy ofsuch views.
4. Public Hearing References
On February 19, 2019, the Board announced that it was considering a new policy that would allow transgender students to use restrooms consistent with their gender identity if certain
criteria were met. Feb.3,2019 Press Release,ECF No.192-35. The proposed policy arose out of settlement negotiations between the parties. Shayna Medley-Warsoff Decl. ^ 53, ECF No. 192. The policy was ultimately rejected.
The Board argues that the Court should strike any evidence related to the February 2019 hearing under Federal Rule of Evidence 408, which prohibits the use of evidence related to
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compromise negotiations. At the summaryjudgment hearing, counsel for Mr. Grimm stated that

the Court need not consider the statements made at the February 2019 hearing. Draft Tr. at 11. Accordingly, the Court has not considered evidence related to that hearing and GRANTS the Board's Motion to Strike any evidence related to it.

B. Gavin Grimm's Motion for Summary Judgment

1.

Title IX

Title DC provides that no person "shall,on the basis ofsex,be excluded from participation

in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance." 20 U.S.C.§ 1681(a);see also 34 C.F.R.§ 106.31. To obtain relieffor claims alleging a violation ofTitle DC,a plaintiffmust demonstrate that(1)he or she was excluded from participation in an education program because ofhis or her sex;(2)the educational institution wasreceiving federal financial assistance atthe time ofhis or her exclusion; and(3)the improper discrimination caused the plaintiff harm. Grimm /, 822 F.3d at 718(citing Preston v. Virginia ex ret. New River Cmty. Coll., 31 F.3d 203,206(4th Cir. 1994)). The Board

does not dispute that it receives federal financial assistance. ECF No.154H 91. Accordingly,only

the first and third elements are disputed. (a) Gavin Grimm was excluded from participation in an education program on the
basis of sex.
In its May 22,2018 Order,this Court concluded that claims ofdiscrimination on the basis oftransgender status areper se actionable under a gender stereotyping theory. ECF No. 148 at 20. The Board argues that this decision was made in error and that"the plain language ofTitle IX and its implementing regulation, 34 C.F.R. § 106.33," define sex as a binary term encompassing the physiological distinctions between men and women. ECF No.200 at 27-28.

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The Board presents no intervening case law that compels reconsideration ofthis decision. To the contrary, every court to consider the issue since May 22,2018 has agreed with the analysis relied upon by this Court. See Doe by &through Doe v. Boyertown AreaSch. Dist.,897 F.3d 518, 530 (3d Cir. 2018)(stating that a policy forcing transgender students to use separate facilities "would very publicly brand all transgender students with a scarlet'T,' and they should not have to endure that as the price ofattending their public school");Adams by & through Kasper v. Sch. Bd. ofSt. Johns C/^.,318 F.Supp.3d 1293,1325(M.D.Fla.2018)(holding that"the meaning of'sex' in Title DC includes 'gender identity' for purposes of its application to transgender students" and that the transgender student proved a Title DC violation where a school board denied him from using male restrooms, causing him harm) appeal docketed^ No. 18-13592 (11th Cir. Aug. 24, 2018);Parentsfor Privacy v. Dallas Sch. Dist. No. 2,326 F. Supp. 3d 1075, 1106(D. Or.2018) ("Forcing transgender students to use facilities inconsistent with their gender identity would undoubtedly harm those students and prevent them from equally accessing educational opportunities and resources. Such a...District policy would punish transgender students for their gender noncomformity and constitute a form of sex-stereotyping.") appeal docketed^ 18-35708 (9th Cir. Aug.23,2018). This Court believes that this reasoning is sound and correct and declines to revisit its prior holding.
In sum, there is no question that the Board's policy discriminates against transgender students on the basis of their gender noncomformity. Under the policy, all students except for transgender students may use restrooms corresponding with their gender identity. Transgender students are singled out, subjected to discriminatory treatment, and excluded from spaces where similarly situated students are permitted to go.
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The Board responds that its policy treats all students equally on the basis of physiological or anatomical characteristics, and that these characteristics should not be considered sex stereotypes under Price Waterhouse. This argument is unpersuasive.
The Board's policy relies on the term "biological gender." See BCF No. 192-21. As this Court recognized previously, biological gender is not a medically accepted term. See EOF No. 148 at 14-15 (explaining that "sex" refers to biological attributes such as genes, chromosomes, genitalia, and secondary sex characteristics, and "gender" refers to the "'internal, deeply held sense' of being a man or woman'")(citing Wylie C. Hembree et al.^ Endocrine Treatment of Gender-dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline, 102(11), J. Clin.Endocrinology & Metabolism 3869,3875(2017)). The policy's use of an ambiguous term obscures the basis for excluding transgender students from restrooms that they believe are appropriate and safe for them.
Moreover, the Board has inadequately explained the physiological and anatomical characteristics it relies upon to enforce its policy. For example, Mr. Grimm has had chest reconstruction surgery. The Gloucester County Circuit Court referred to Mr. Grimm's chest reconstruction surgery as "gender reassignment surgery," relying on that surgery in part in determining that Mr. Grimm is a male. However, this surgery is insufficient under the Board's policy. At the summaryjudgment hearing,counsel for the Board argued that an individual must have"the primary genitals and sex characteristic ofa particular gender." Draft Tr.at 26. "Primary genitals" may be sufficiently clear, but "sex characteristic" is troublingly ambiguous. Many aspects of biology determine a person's sex, including genitalia, and also including hormones, genes,chromosomes,and other factors that comprise a person's biological makeup. The policy at issue uses some of these factors to define sex and ignores others. In determining the physical
17

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characteristics that define male and female and the characteristics that are disregarded, the Board has crafted a policy that is based on stereotypes about gender. See Brumby^ 663 F.3d at 1316("A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.... There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis ofgender-based behavioral norms.");City ofLA.,Dep'tofWater &Power v. Manhart,435 U.S.702,707(1978)(stating that protections from sex discrimination are not limited to discrimination based on "myths and purely habitual assumptions," but also extend to discrimination based on generalizations that are "unquestionably true").
Additionally, Mr. Grimm has both a valid court order and a state-issued birth certificate identifying him as male. All other students with male birth certificates at Gloucester High School are permitted to use male restrooms. Mr. Grimm was the only student with a male birth certificate excluded from the male restrooms. This constitutes discriminatory treatment by the Board.
Furthermore, the Board has refused to update Mr. Grimm's transcripts and education documents, despite his amended birth certificate. The Board argues that his amended birth certificate does not comply with Virginia law and questions its authenticity. Such questions have been dispelled by the Declaration of Janet M. Rainey. EOF No. 195. Ms. Rainey is the State Registrar and Director ofthe Division ofVital Records and administers Virginia's system ofvital records in accordance with Virginia law. She issued Gavin Grimm an amended birth certificate on October 27, 2016 that identifies him as male. Id. Regardless of prior concerns about the amended birth certificate's authenticity,^ the Board's continued recalcitrance in the face of Ms.
® It is obvious from the face of the amended birth certificate that the photocopy presented to the Board was marked "void" because it was a copy of a document printed on security paper, not because it was fabricated. See ECF No. 184-6 (a copy of Mr. Grimm's birth certificate, stating that it the original is printed on security paper and is void
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Rainey's Declaration and the court order from the Gloucester County Circuit Court is egregious.

It is also discriminatory. Other students in the Gloucester County School system with male birth

certificates also have male transcripts. Undeniably, the Board discriminates against Mr. Grimm

in violation ofTitle DC in refusing to afford him the same dignity.

The Board also argues that Mr. Grimm has not proven that his use of male restrooms was

medically necessary. However,the questions presented in this case do not require a finding that

Mr. Grimm's use of a male restroom was medically necessary. The Board treated Mr. Grimm

differently than other students on the basis of sex and, as established below, he suffered some

measure of harm from that treatment. The existence of other methods of social transition for

transgender individuals is,for the purposes ofresolving the questions presented,irrelevant.

The Court concludes that the Board has discriminated against Gavin Grimm on the basis

of his transgender status in violation of Title IX. The Court must next determine whether the

improper discrimination caused Mr. Grimm harm.

(b)The Board's policy harmed Gavin Grimm.

In his Declaration, Mr. Grimm described under oath feeling stigmatized and isolated by

having to use separate restroom facilities. Gavin Grimm Decl.%47. His walk to the restroom felt

like a"walk ofshame." Id.^50. He avoided using the restroom as much as possible and developed

painful urinary tract infections that distracted him from his class work.

This stress "was

unbearable" and the resulting suicidal thoughts he suffered led to his hospitalization at Virginia

Commonwealth University Medical Center Critical Care Hospital. Id.^ 54.

Despite this evidence,the Board contends that Mr.Grimm has suffered no harm. ECF No.

200 at 29-30. The Board has discounted Mr. Grimm's testimony that separate restroom facilities

without a watermark). In any event, given Ms. Rainey's Declaration, the Board rationalizes its continuing denial of Mr. Grimm's amended birth certificate on specious grounds: that a photocopy was marked void.
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caused him mental distress because he has not identified an expert to testify that he suffered such
distress.^ Id. Similarly, the Board argues that Mr. Grimm cannot prove that he suffered from
painful urinary tract infections because he presented no supporting medical evidence. Id. The Board's argument that Mr. Grimm's testimony regarding his harm is inadequate
because it is not bolstered by expert testimony is untenable.^ The Board's argument has no basis
in law. See Adams,318 F. Supp.3d at 1316(relying on a transgender student's own testimony to conclude that the student suffered harm in the form ofstigma and humiliation).
The Board's assertion that Mr. Grimm has suffered no harm as a result of its policy is strikingly unconvincing. Mr.Grimm broke down sobbing at school because there was no restroom he could access comfortably. After one breakdown, Mr. Grimm was hospitalized with suicidal thoughts. He avoided after-school activities such as football games. He experienced pain and
discomfort as a result of avoiding restrooms while at school.^ Further expert testimony is
unnecessary to conclude that the Board's policy harmed Mr. Grimm during his high school years.
There is also sufficient evidence to conclude that the Board continues to harm Mr. Grimm
by refusing to update his school records to reflect his male identity. Whenever Mr. Grimm has to provide a copy ofhis transcript to another entity,such as a new school or employer,he must"show them a documentthat negates[his] male identity and marks him differentfrom other boys." Gavin
'The Board"disputes" Mr.Grimm's statements regarding his harm suffered because the Board labels his Declaration as "self-serving." Dismissing a party's testimony as self-serving while failing to present contradicting evidence is plainly insufficient to establish a genuine dispute of material fact. " At the hearing, the Court read portions of Mr. Grimm's declaration into the record regarding the humiliation and stigma he suffered as a result of the Board's policy. The Court asked defense counsel whether that testimony could support a finding of harm, warranting at least an award of nominal damages. Counsel responded that "I think the answer is yes....I don't think we can say there[are]no nominal damages here." Draff Tr. at 26.
'Medical documentation confirming that his discomfort was caused by urinary tract infections is irrelevant for the purposes presented here. There is sufficient evidence that Mr.Grimm suffered pain ofsome measure,for which he requests only injunctive reliefand nominal damages.
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Grimm Decl.T|69. The Board continues to harm Mr.Grimm every time he is asked to furnish his records. This harm compels at least an award ofinjunctive reliefand nominal damages.
Mr.Grimm has established(1)that he was excluded from the restrooms at Gloucester High School on the basis ofgender stereotypes;(2)the educational institution received federal financial assistance at the time of his exclusion; and(3)improper discrimination caused him harm. For these reasons, summary judgment is GRANTED in favor of Mr. Grimm regarding his claim asserting a violation ofTitle IX(Count Two).
2. Equal Protection Clause
Mr. Grimm also alleges that the Board's actions violated the Equal Protection Clause of the Fourteenth Amendmentto the United States Constitution,which provides that"[n]o State shall ...deny to any person within itsjurisdiction the equal protection ofthe laws." U.S.Const,amend. XrV § 1. The Equal Protection Clause "is essentially a directive that all persons similarly situated should be treated alike." Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. I Bd. ofEduc., 858 F.3d 1034, 1050(7th Cir. 2017)(quoting City ofClehurne v. Cleburne Living Ctr.,473 U.S.
432,439(1985)).
In its May 22, 2018 ruling, this Court held that intermediate scrutiny must be applied in analyzing claims ofdiscrimination against transgender individuals. ECF No. 148 at 24. Although the Board seeks reconsideration of this holding, it presents no authorities that compel a different result.'® Other courts that have considered this issue since May 2018 have agreed that heightened scrutiny applies. See, e.g., Karnoski v. Trump, 926 F.3d 1180, 1200-02(9th Cir. 2019)(holding that intermediate scrutiny applies to alleged discrimination against transgender individuals in the
Instead, the Board's citations include out-of-circuit cases from the 1980s and 1990s, cases that interpret Title VII instead ofthe Equal Protection Clause,and cases that pertain to sexual orientation, not gender identity. The Board's citations are unpersuasive.
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military); Adams by & through Kasper^ 318 F. Supp.3d at 1296, 1312-13(applying intermediate scrutiny and noting that"federalcourts around the country have recognized the rightoftransgender students to use the bathroom matching their gender identity"). In light ofthese rulings,this Court rejects defense counsel's argument that it is "step[ping] out on its own." See ECF No.200 at 32.
When applying intermediate scrutiny to a sex-based classification, the Board bears the burden of demonstrating that its proffered justification for its use of the classification is "exceedingly persuasive." United States v. Virginia, 518 U.S. 515, 533 (1996). The Board is required to demonstrate that the classification "serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Id. at 524.
In response, the Board asserts an interest in protecting the privacy rights of students,
specifically privacy interests that students have in protecting their unclothed bodies.'' ECF No.
200 at 33. There is little doubt that students have a privacy right in avoiding exposure of their
unclothed bodies.
Defendant makes no showing,however,thatthe challenged policy is"substantially related" to protecting student privacy. First, it is undisputed that the Board received no complaints regarding any encounter with Mr.Grimm in a restroom. Andersen Dep. 13:20-14:5. The fact that
Mr. Grimm used male restrooms for seven weeks without incident is evidence suggesting that the Board's privacy concerns are unwarranted. Cf. Whitaker,858 F.3d at 1052(noting that the school district's privacy argument was undermined by the fact that a transgender boy used male restrooms for six months without incident).
'' The Board cites a case involving strip searches ofstudents. See ECF No.200 at 33(citing Doe v. Renfrew,631 F.2d 91, 92-93 (7th Cir. 1980)). Those situations are starkly distinct from transgender students seeking to use a
restroom,
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The Board's privacy argument also ignores the practical realities of how transgender individuals use a restroom. See Grimm /,822 F.3d at 723 n.10(expressing doubt that"G.G.'s use ...or for that matter any individual's appropriate use ofa restroom" would involve the types of intrusions present in other cases where privacy abuses were found); Whitaker, 858 F.3d at 1052 (holding that a similar policy "ignores the practical reality of how [the plaintiff], as a transgender boy,uses the bathroom: by entering a stall and closing the door");Adams,318 F.Supp.3d at 1296, 1314("When he goes into a restroom,[the transgender student] enters a stall, closes the door, relieves himself,comes out ofthe stall, washes his hands,and leaves.").
At the summary judgment hearing, defense counsel conceded that there is no privacy concem for other students when a transgender student walks into a stall and shuts the door. Draft Tr. at 38. However,the Board's 30(b)(6)witness,Troy Andersen,testified that privacy concems are implicated when students use the urinal, use the toilet, or open their pants to tuck in their shirts. Andersen Dep.30:10-20. When asked why the expanded stalls and urinal dividers could not fully address those situations, Mr. Andersen responded that he "was sure" the policy also protected privacy interests in other ways,but that he"[couldn't]think ofany other offthe top of[his]head." Id. This Court is compelled to conclude that the Board's privacy argument "is based upon sheer conjecture and abstraction." See Whitaker,858 F.3d at 1052.
Even if there were a plausible risk of exposure to nudity, transgender individuals often undergo a variety ofprocedures and treatmentsthatresultin anatomical and physiologicalchanges, such as puberty blockers and hormone therapy. Such treatments can result in transgender girls developing breasts or transgender boys developing facial hair. If exposure to nudity were a real concem, forcing such a transgender girl to use the male restrooms could likely expose boys to
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viewing physical characteristics of the opposite sex. From this perspective, the Board's privacy concerns fail to support the policy it implemented.
When asked why transgender students present a greater risk of invasion of privacy to students than the risk from someone of the same physiological sex, Mr. Andersen answered "I would say that it just goes back to [bathroom] use relying on the social norms of binary sexes." Andersen Dep. 31:4-10. However,"mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable...are not permissible bases"for discrimination. Cleburne Living Ctr., 473 U.S. at 448. The Board has failed to meet its burden to provide an "exceedingly persuasive justification" for its policy. Accordingly, its policy must be found unconstitutional under the Equal Protection Clause.
Moreover,the Board's continued refusal to update Mr.Grimm's school records implicates no privacy concerns. The Board has put forward no justification for refusing to correct these records other than alleged concerns about his amended birth certificate's compliance with law and authenticity. These unsubstantiated doubts are easily dispelled by Janet Rainey's Declaration.
For these reasons, summary judgment must be GRANTED in favor of Gavin Grimm on his claim for a violation ofthe Equal Protection Clause(Count One). 3. Mr.Grimm's request for a permanent injunction
Mr. Grimm seeks an injunction requiring the Board to update his school records to reflect his male identity. To obtain a permanent injunction,a plaintiff mustshow:"(1)irreparable injury, (2)remedies at law are inadequate to compensate for that injury,(3) the balance of hardships between the plaintiffand defendant warrants a remedy,and(4)an injunction would not disserve the public interest." Raub v. Campbell^ 785 F.3d 876, 885 (4th Cir. 2015)(internal quotations
24

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omitted). "[T]he deprivation of constitutional rights unquestionably constitutes irreparable injury." Melendres v. Arpaio,695 F.3d 990, 1002(9th Cir.2012)(internal quotations omitted).
The Court has already determined that Mr. Grimm has suffered injury that is ongoing and thus cannot be compensated by mere monetary damages. The balance ofhardships also weighs in Mr. Grimm's favor. The Board has not identified any difficulty in altering Mr. Grimm's records. Nor has it identified any other governmental interest in refusing to update Mr. Grimm's records other than those already addressed in this Order. By contrast, Mr. Grimm suffers great hardship when he presents school records that negate his male identity. Finally, an injunction would serve the public's interest in upholding constitutional rights. See Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013)(en banc)(internal quotations omitted). For these reasons, a permanent injunction requiring the Board to update Mr. Grimm's school records is warranted. C. Gloucester County School Board's Motion for Summary Judgment
The Board also moves for summaryjudgment. ECF No. 195. The Board first argues that Title DCs prohibition of discrimination "on the basis of sex" does not encompass the Board's policy and that the definition ofsex in the statute and its implementing regulation do not account for gender identity. ECF No. 196 at 10-30. The Court rejected this argument on May 22,2018 and it reaffirms that holding today.
Regarding the Equal Protection Clause, the Board argues that its policy should not be subjected to heightened scrutiny butshould be subjected to a lower level ofscrutiny: rational basis review.'^ Id. at 32-37. The Board argues that its policy survives such review. Id. The Court
Much ofthe Board's Summary Judgment Motion is an attemptto relitigate this Court's prior holdings. Forexample, the Board argues that if"sex" were equated with "gender identity," Title IX and its regulations would be invalid for lack ofclear notice. ECF No.\962X29-30{cximgPennhurstStateSch. &Hosp.v. Halderman,A5\ U.S.1,17(1981)). This Court found this exact argument"unavailing." ECF No. 148 at 20 n.11.
Under rational basis review, a court analyzes whether a law is "rationally related to a legitimate governmental interest." U.S. Dep't. ofAgric. v. Moreno,413 U.S.528,533(1973).
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again rejects this argument. The Board also reasserts that its policy survives intermediate scrutiny
for the same reasons advanced in opposition to Mr. Grimm's Motion for Summary Judgment, as
addressed above. Those arguments remain unavailing. Accordingly, the Gloucester County
School Board's Motion for Summary Judgment,EOF No. 195,is DENIED.
V. CONCLUSION
Parents,teachers and administrators share"a solemn obligation to guard the well-being of
the children in their charge." Adams,318 F. Supp.3d at 1296.
As recent events from around the country have tragically demonstrated, this is a very challengingjob. Recognizingthe difficulty ofthistask and thatlocal school boards,answerable to the citizens oftheir community,are bestsituated to set school policy, federal courts are reluctant to interfere. Nevertheless, the federal court also has a solemn obligation: to uphold the Constitution and laws ofthe United States. That is whyfederal courts around the country have recognized the right of transgender students to use the bathroom matching their gender identity.
Id.
Nelson Mandela said that "[hjistory will judge us by the difference we make in the
everyday lives of children." One need only trace the arduous journey that this litigation has
followed since its inception over four years ago to understand that passion eind conviction have
infused the arguments and appeals along the way.'"* The Board undertook the unenviable
A cursory collection ofsalient events docketed in this matter include the following: the initial Complaint,June 11, 2015;a Motion to Dismiss Complaint argued,July 27,2015,and partially granted; Order denying Plaintiffs Motion for Preliminary Injunction, September 4, 2015; Order denying an injunction appealed to the United States Court of Appeals for the Fourth Circuit,September 8,2015;the Memorandum Opinion granting dismissal and denying motion for injunction,September 17,2015;the Fourth Circuit's partial reversal ofdismissal Order,April 19,2016;the Order permitting Plaintiffs use ofmale restrooms at Gloucester County High School,June 23,2016;Defendant's appeal of the June 23, 2016 Order, June 27, 2016; the Order denying a stay pending appeal, July 6, 2016; the United States Supreme Court's stay of the injunction pending resolution of an anticipated petition for writ of certiorari, August 3, 2016; the Fourth Circuit vacating the preliminary injunction, April 7, 2017; reassignment of the case to the undersigned, June 6, 2017; an Amended Complaint, August 22, 2017; a Motion to Dismiss Amended Complaint, September 22, 2017; supplemental briefing ordered, October 26, 2017; an Amended Motion to Dismiss, January 5, 2018; an Order denying the Amended Motion to Dismiss, May 22, 2018; Order granting a Motion for Leave to take Interlocutory Appeal, June 5, 2018; a Second Amended Complaint, February 15, 2019; cross-motions for summary judgment,March 26,2019;Defendant's Motion to Exclude and Strike Exhibits, April 30,2019;and oral argument on cross-motions for summaryjudgment and on the Motion to Strike, July 23,2019.
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responsibility of trying to honor expressions of concern advanced by its constituency as it navigated the challenges presented by issues that barely could have been imagined or anticipated a generation ago. This Courtacknowledges the many expressions ofconcem arising from genuine love for our children and the fierce instinct to protect and raise our children safely in a society that is growing ever more complex. There can be no doubt that all involved in this case have the best
interests ofthe students at heart.
At the same time, the Court acknowledges that for seven weeks, the student body at Gloucester High School accommodated Mr. Grimm without incident as he—^assisted by compassionate school and medical representatives—^took new paths in his everyday life. This Court is compelled to acknowledge too that some of the external challenges seeking to reroute these new paths inflicted grief, pain,and suicidal thoughts on a child.
However well-intentioned some external challenges may have been and however sincere worries were about possible unknown consequences arising from a new school restroom protocol, the perpetuation of harm to a child stemming from unconstitutional conduct cannot be allowed to stand. These acknowledgements are made in the hopes of making a positive difference to Mr. Grimm and to the everyday lives ofour children who rely upon us to protectthem compassionately and in ways that more perfectly respect the dignity ofevery person.
Therefore, the Board's Motion to Strike, ECF No. 213, is GRANTED IN PART and DENIED IN PART. Gavin Grimm's Motion for Summary Judgment, ECF No. 184, is GRANTED. The Board's Motion for Summary Judgment,ECF No. 191,is DENIED.
"When confronted with something affecting our children that is new, outside of our experience, and contrary to gender norms we thought we understood, it is natural that parents want to protect their children. But the evidence is that[the plaintiff] poses no threat to the privacy or safety ofany of his fellow students. Rather,[the plaintiff] is just like every other student...,a teenager coming ofage in a complicated,uncertain and changing world." Adams,318 F. Supp. 3d at 1297.
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The Court ORDERS the following relief: • The Court DECLARES that the Board's policy violated Mr. Grimm's rights under
the Fourteenth Amendment to the United States Constitution and Title IX of the
Education Amendments of 1972, on the day the policy was first issued and throughout the remainder of his time as a student at Gloucester High School; • The Court DECLARES that the Board's refusal to update Mr. Grimm's official school transcript to conform to the "male" designation on his birth certificate violated and continues to violate his rights under the Fourteenth Amendment to the
United States Constitution and Title IX ofthe Education Amendments of 1972;
• Nominal damages are awarded to Mr. Grimm in the amount ofone dollar; • The Court issues a permanent injunction requiring the Board to update Mr.
Grimm's official school records to conform to the male designation on his updated birth certificate and to provide legitimate copies of such records to Mr. Grimm within ten days ofthe date ofthis Order; • The Board shall pay Mr. Grimm's reasonable costs and attomeys' fees pursuant to 42U.S.C. § 1988. The Clerk is REQUESTED to forward a copy of this Order to all parties and coimsel of
record. IT IS SO ORDERED.

V^^2019
NorfolkJJVviirrggiinniha

Aren^a L. Wngbt^llen United States District Judge

28

 
 Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 1 of 20
APPEAL,CLOSED
U.S. District Court Eastern District of Virginia − (Newport News) CIVIL DOCKET FOR CASE #: 4:15−cv−00054−AWA−RJK

Grimm v. Gloucester County School Board Assigned to: District Judge Arenda L. Wright Allen Referred to: Magistrate Judge Robert J. Krask

Case in other court:

4CCA Case Manager Jennifer Rice, 15−02056

4CCA − Case Manager Jennifer Rice, 16−01733

4CCA Case Manager Cathi Bennett, 19−01952

Cause: 20:1681 Civil Rights Education Amendments Act 1972

Plaintiff

Date Filed: 06/11/2015 Date Terminated: 08/09/2019 Jury Demand: Defendant Nature of Suit: 448 Civil Rights: Education Jurisdiction: Federal Question

Gavin Grimm

represented by Nicole Gloria Tortoriello American Civil Liberties Union of Virginia 701 E Franklin Street Suite 1412 Richmond, VA 23219 (804) 726−6013 Fax: (804) 649−2733 Email: ntortoriello@acluva.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Guthrie Gastanaga ACLU of Virginia 701 E. Franklin Street Suite 1412 Richmond, VA 23219 (804) 644−8022 Email: claire@acluva.org TERMINATED: 09/19/2018

Eden Brooke Heilman ACLU of Virginia 701 E. Franklin Street Suite 1412 Richmond, VA 23219 (804) 523−2152 Fax: (804) 649−2733 Email: eheilman@acluva.org ATTORNEY TO BE NOTICED

Gail Marie Deady Center for Reproductive Rights 199 Water Street 22nd Floor New York, NY 10038 (917) 637−3726 Fax: (917) 637−3666 Email: gdeady@reprorights.org TERMINATED: 04/28/2018

Jennifer Marie Safstrom ACLU of Virginia 701 E. Franklin Street Suite 1412

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 2 of 20

Richmond, VA 23219 (804) 523−2159 Fax: (804) 649−2733 Email: jsafstrom@acluva.org ATTORNEY TO BE NOTICED

Joshua Abraham Block American Civil Liberties Union 125 Broad St 18th Floor New York, NY 10004 **NA** (212) 549−2627 Fax: (212) 549−2650 Email: jblock@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Jill Cooper American Civil Liberties Union (NY−NA) 125 Broad St 18th Floor New York, NY 10004 **NA** (212) 549−2627 Fax: (212) 549−2650 Email: lcooper@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca Kim Glenberg ACLU of Virginia 701 E. Franklin Street Suite 1412 Richmond, VA 23219 (804) 644−8080 Fax: (804) 649−2733 Email: rglenberg@aclu−il.org TERMINATED: 05/16/2017

Shayna Medley−Warsoff American Civil Liberties Union (NY−NA) 125 Broad St 18th Floor New York, NY 10004 NA (212) 549−2500 Fax: (212) 549−2650 Email: smedley@aclu.org TERMINATED: 08/22/2019 PRO HAC VICE

Defendant Gloucester County School Board

represented by David P. Corrigan Harman Claytor Corrigan & Wellman PO Box 70280 Richmond, VA 23255 (804) 747−5200 Email: dcorrigan@hccw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Edward Pittman Reed Smith LLP (Richmond)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 3 of 20

901 East Byrd Street Suite 1900 Richmond, VA 23219−4068 (804) 344−3400 Fax: (804) 334−3410 Email: dpittman@reedsmith.com TERMINATED: 02/14/2019

Jeremy David Capps Harman Claytor Corrigan & Wellman PO Box 70280 Richmond, VA 23255 (804) 747−5200 Email: jcapps@hccw.com ATTORNEY TO BE NOTICED

Maurice Scott Fisher , Jr Harman Claytor Corrigan & Wellman PO Box 70280 Richmond, VA 23255 804−747−5200 Email: sfisher@hccw.com TERMINATED: 03/09/2018

Interested Party The United States

represented by Clare Patricia Wuerker U.S. Attorney's Office (Norfolk) 101 W. Main Street Suite 8000 Norfolk, VA 23510 (757) 441−6361 Fax: (757) 441−6689 Email: clare.wuerker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victoria Lill United States Department of Justice Educational Opportunities Section PHB 950 Pennsylvania Ave, N. W. Washington, DC 20530 **NA** (202) 514−4092 Fax: (202) 514−8337 Email: victoria.lill@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Fairfax County School Board, Alexandria City School Board, Arlington School Board, Falls Church City School Board

represented by Stuart Alan Raphael Hunton Andrews Kurth LLP 2200 Pennsyvania Ave NW Washington, DC 20037 202−419−2021 Fax: 202−828−3728 Email: sraphael@huntonak.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trevor Stephen Cox Hunton Andrews Kurth LLP (Richmond) 951 East Byrd Street Riverfront Plaza − East Tower Richmond, VA 23219

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 4 of 20
(804) 788−8200 Fax: (804) 788−8218 Email: tcox@huntonak.com ATTORNEY TO BE NOTICED

Date Filed 06/11/2015 06/11/2015 06/11/2015 06/11/2015 06/11/2015 06/11/2015
06/11/2015 06/11/2015 06/11/2015 06/11/2015 06/11/2015 06/11/2015
06/16/2015 06/16/2015 06/17/2015 06/17/2015 06/17/2015

# Docket Text
2 Sealed Complaint per 1 Order entered on 6.16.15. (Attachments: # 1 Exhibit A) # 2 Civil Cover Sheet, # 3 Letter, # 4 Receipt) (epri). (Entered: 06/16/2015)
3 Sealed Declaration of G.G. Document re 2 Sealed Complaint. (Attachments: # 1 Exhibit A)(epri) (Entered: 06/16/2015)
4 Sealed Expert Declaration of Randi Ettner, Ph.D. re 2 Sealed Complaint. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(epri) (Entered: 06/16/2015)
5 SEALED PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION, by G. G. (epri) (Entered: 06/16/2015)
6 SEALED PLAINTIFF'S MOTION FOR LEAVE TO FILE BRIEF IN EXCESS OF THIRTY PAGES by G. G. (epri) (Entered: 06/16/2015)
7 Sealed Memorandum in Support of Plaintiff's Motion for Leave to File a Brief in Excess of Thirty Pages re 5 SEALED PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION, by G. G 6 SEALED PLAINTIFF'S MOTION FOR LEAVE TO FILE BRIEF IN EXCESS OF THIRTY PAGES by G. G. (Attachments: # 1 Proposed Memorandum of law in support of Plaintiff's Motion for Preliminary Injunction)(epri) (Entered: 06/16/2015)
8 COMPLAINT (Redacted) against Gloucester County School Board ( Filing fee $ 400, receipt number 24683027454.), filed by G. G. (Attachments: # 1 Civil Cover Sheet (Redacted), # 2 Letter (Redacted), # 3 Receipt)(epri) (Entered: 06/16/2015)
9 Declaration of G. G. re 8 Complaint (epri) (Entered: 06/16/2015)
10 Expert Declaration of Randi Ettner, Ph.D Preliminary Statement re 8 Complaint (epri) (Entered: 06/16/2015)
11 PLAINTIFF'S MOTION for Preliminary Injunction by G. G. (epri) (Entered: 06/16/2015)
12 PLAINTIFF'S MOTION for Leave to File Brief in excess of thirty pages by G. G. (epri) (Entered: 06/16/2015)
13 Memorandum in Support of Plaintiff's Motion for Leave to File a Brief in Excess of Thirty Pages re 11 PLAINTIFF'S MOTION for Preliminary Injunction 12 PLAINTIFF'S MOTION for Leave to File Brief in excess of thirty pages filed by G. G. (Attachments: # 1 Proposed Memorandum of law in support of Plaintiff's Motion for Preliminary Injunction)(epri) (Entered: 06/16/2015)
1 Sealed ORDER Signed by District Judge Robert G. Doumar on 6/15/2015. (epri) (Entered: 06/16/2015)
14 One Summons, with service copy, Issued as to Gloucester County School Board. (Attachments: # 1 Civil Motions Procedures)(epri) (Entered: 06/16/2015)
15 Motion to appear Pro Hac Vice by Joshua Abraham Block and Certification of Local Counsel Rebecca Kim Glenberg Filing fee $ 75, receipt number 0422−4501488. by G. G.. (Glenberg, Rebecca) (Entered: 06/17/2015)
16 Motion to appear Pro Hac Vice by Leslie Jill Cooper and Certification of Local Counsel Rebecca Kim Glenberg Filing fee $ 75, receipt number 0422−4501506. by G. G.. (Glenberg, Rebecca) (Entered: 06/17/2015)
17 ORDER granting 12 Motion for Leave to File a brief in excess of thirty pages in support of the plaintiff's motion for a preliminary injunction.. Signed by Magistrate Judge Tommy E. Miller on 6/17/2015. (Miller, Tommy) (Entered: 06/17/2015)

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06/18/2015 06/18/2015 06/23/2015 06/23/2015 06/29/2015 06/29/2015 06/29/2015 06/29/2015 06/29/2015
06/29/2015
06/29/2015 06/30/2015
06/30/2015
06/30/2015
07/07/2015
07/07/2015 07/07/2015
07/07/2015 07/07/2015
07/07/2015 07/08/2015

18 Memorandum in Support re 11 MOTION for Preliminary Injunction filed by G. G.. (Deady, Gail) (Entered: 06/18/2015)
19 Request for Hearing by G. G. re 11 MOTION for Preliminary Injunction (Deady, Gail) (Entered: 06/18/2015)
20 ORDER granting 15 Motion for Pro hac vice for Joshua Abraham Block as to G. G.. Signed by District Judge Robert G. Doumar on 6/23/15. (tlev, ) (Entered: 06/24/2015)
21 ORDER granting 16 Motion for Pro hac vice for Leslie Jill Cooper as to G. G.. Signed by District Judge Robert G. Doumar on 6/23/15. (tlev, ) (Entered: 06/24/2015)
22 AFFIDAVIT of Service by G. G. (bgra, ). (Entered: 06/29/2015)
23 NOTICE of Appearance by David P. Corrigan on behalf of Gloucester County School Board (Corrigan, David) (Entered: 06/29/2015)
24 NOTICE of Appearance by Jeremy David Capps on behalf of Gloucester County School Board (Capps, Jeremy) (Entered: 06/29/2015)
25 NOTICE of Appearance by Maurice Scott Fisher, Jr on behalf of Gloucester County School Board (Fisher, Maurice) (Entered: 06/29/2015)
26 MOTION for Extension of Time to File Response/Reply to Motion for Preliminary Injunction by Gloucester County School Board. (Fisher, Maurice) (Entered: 06/29/2015)
27 RESPONSE to Motion re 26 MOTION for Extension of Time to File Response/Reply to Motion for Preliminary Injunction filed by G. G.. (Glenberg, Rebecca) (Entered: 06/29/2015)
28 Statement of Interest of The United States by The United States. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(bgra) (Entered: 06/29/2015)
Motion Hearing as to 11 MOTION for Preliminary Injunction set for 7/20/2015 at 02:30 PM in Norfolk Mag Courtroom 1 before District Judge Robert G. Doumar. (lbax, ) (Entered: 06/30/2015)
MOTIONS REFERRED to Magistrate Judge: Tommy E. Miller. 26 MOTION for Extension of Time to File Response/Reply to Motion for Preliminary Injunction (bgra) (Entered: 06/30/2015)
29 ORDER granting 26 Motion for Extension of Time to File Response/Reply re 11 MOTION for Preliminary Injunction. Response due July 7, 2015.Signed by Magistrate Judge Tommy E. Miller on 6/30/2015. (bgra) (Entered: 06/30/2015)
30 Opposition to 11 MOTION for Preliminary Injunction filed by Gloucester County School Board. (Attachments: # 1 Exhibit Exhibit A −, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Corrigan, David) (Entered: 07/07/2015)
31 MOTION to Dismiss for Failure to State a Claim by Gloucester County School Board. (Corrigan, David) (Entered: 07/07/2015)
32 Brief in Support to 31 MOTION to Dismiss for Failure to State a Claim filed by Gloucester County School Board. (Attachments: # 1 Exhibit Exhibit 1)(Corrigan, David) (Entered: 07/07/2015)
33 CERTIFICATE of Service re 30 Opposition by David P. Corrigan on behalf of Gloucester County School Board (Corrigan, David) (Entered: 07/07/2015)
34 CERTIFICATE of Service re 31 MOTION to Dismiss for Failure to State a Claim by David P. Corrigan on behalf of Gloucester County School Board (Corrigan, David) (Entered: 07/07/2015)
35 CERTIFICATE of Service re 32 Brief in Support by David P. Corrigan on behalf of Gloucester County School Board (Corrigan, David) (Entered: 07/07/2015)
36 MOTION for Hearing re 31 MOTION to Dismiss for Failure to State a Claim by Gloucester County School Board. (Corrigan, David) Mo (Entered: 07/08/2015)

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07/08/2015 07/08/2015 07/10/2015 07/10/2015 07/13/2015 07/13/2015 07/16/2015 07/16/2015 07/16/2015 07/17/2015
07/17/2015 07/17/2015 07/22/2015 07/27/2015
07/30/2015 07/31/2015

37 Brief in Support to 36 MOTION for Hearing (Corrigan, David) Modified docket text on 7/8/2015 (ccol); Modified docket text to correct linkage to motion on 7/10/2015 (bgra). (Entered: 07/08/2015)
38 RESPONSE in Opposition re 36 MOTION for Hearing re 31 MOTION to Dismiss for Failure to State a Claim filed by G. G.. (Glenberg, Rebecca) (Entered: 07/08/2015)
39 Motion to appear Pro Hac Vice by Victoria Lill and Certification of Local Counsel Clare P. Wuerker by The United States. (Attachments: # 1 Exhibit Pro Hac Vice Application)(Wuerker, Clare) (Entered: 07/10/2015)
40 Reply to Motion re 36 MOTION for Hearing re 31 MOTION to Dismiss for Failure to State a Claim filed by Gloucester County School Board. (Corrigan, David) (Entered: 07/10/2015)
41 REPLY to Response to Motion re 11 MOTION for Preliminary Injunction filed by G. G.. (Attachments: # 1 Exhibit A)(Deady, Gail) (Entered: 07/13/2015)
Notice of Correction: The filing user has been notified to file a separate Certificate of Service. re 41 Reply to Response to Motion (bgra) (Entered: 07/16/2015)
42 ORDER granting 39 Motion for Pro hac vice for Victoria Lill as to The United States. Signed by District Judge Robert G. Doumar on 7/15/15. (tlev, ) (Entered: 07/16/2015)
43 CERTIFICATE of Service re 41 Reply, Reply to Response to Motion by Gail Marie Deady on behalf of G. G. (Deady, Gail) (Entered: 07/16/2015)
44 RESPONSE in Opposition re 31 MOTION to Dismiss for Failure to State a Claim filed by G. G.. (Attachments: # 1 Exhibit A − Tudor Opinion, # 2 Exhibit B − Tudor Intervenor Complaint)(Glenberg, Rebecca) (Entered: 07/16/2015)
45 ORDER: This Court will hear the fully briefed Motion to Dismiss before it will consider any other motions. The hearing set on July 20, 2015, is hereby VACATED, and no motions will be heard at that time. Instead, all motions then pending and responded to will be heard on July 27, 2015 at11:00 a.m. in this Court. Copies distributed to all counsel of record. re 36 Motion for Hearing. Signed by District Judge Robert G. Doumar on 7/16/2015. (bgra) (Entered: 07/17/2015)
Reset Hearing as to 31 MOTION to Dismiss for Failure to State a Claim , and Motions :. Motion Hearing reset for 7/27/2015 at 11:00 AM in Norfolk Grand Jury Courtroom before District Judge Robert G. Doumar. (ptom, ) (Entered: 07/17/2015)
Reset Hearing as to 31 MOTION to Dismiss for Failure to State a Claim , and Motions. Motion Hearing set for 7/27/2015 at 11:00 AM in Norfolk Mag Courtroom 1 before District Judge Robert G. Doumar. (Courtroom change from Grand Jury Room to Mag Courtroom 1) (ptom, ) (Entered: 07/17/2015)
46 Reply to Motion re 31 MOTION to Dismiss for Failure to State a Claim , REPLY to Response to Motion , Reply filed by Gloucester County School Board. (Corrigan, David) (Entered: 07/22/2015)
47 Motion Hearing before District Judge Robert G. Doumar held on 7/27/2015 re 11 MOTION for Preliminary Injunction filed by G.G., 31 MOTION to Dismiss for Failure to State a Claim filed by Gloucester County School Board. Appearances: Rebecca K. Glenberg, Gail Deady, Leslie J. Cooper and Joshua A. Block appeared for the Plaintiff. David P. Corrigan and Jeremy D. Capps appeared for the Defendant. Clare P. Wuerker and Victoria Lill appeared on behalf of the Interested Party, The United States. Arguments of counsel. Comments of Court. The Court DISMISSED the Title IX claim but takes the remainder of the motions under advisement. The Court will issue a written opinion as to its findings. The Defendants will have 21 days from the filing of the Court's opinion to file an answer. The case will be referred for scheduling at that time. Court adjourned. (Court Reporter Heidi Jeffreys, OCR.)(lbax, ) (Entered: 07/28/2015)
49 Transcript Redaction Request re 48 Transcript,,, by attorney Rebecca Kim Glenberg. (Glenberg, Rebecca) (Entered: 07/30/2015)
50 Redacted Version of 48 Transcript (afar) (Entered: 07/31/2015)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 7 of 20

07/31/2015
09/03/2015 09/04/2015 09/08/2015 09/09/2015 09/10/2015 09/17/2015 09/22/2015 09/23/2015 10/01/2015
10/05/2015 10/05/2015 04/19/2016 04/19/2016
05/03/2016

51 ORDER: The Court ORDERS that G.G.'s identifying information, as shownon page fifteen (15) of the transcript of the June 27. 2015 hearing, lines fourteen (14). fifteen (15), sixteen (16). and eighteen (18), shall be under seal. The Court further ORDERS that this identifying information shall not be released by the Clerk or any party or individual without a specific order of the Court. Copy of Order provided to all counsel of record. Signed by District Judge Robert G. Doumar on 7/31/2015. (bgra) (Entered: 07/31/2015)
Case Reassigned to Magistrate Judge Douglas E. Miller. Magistrate Judge Tommy E. Miller no longer assigned to the case. (afar) (Entered: 09/03/2015)
53 ORDER − DENIES 11 Plaintiff's Motion for Preliminary Injunction. Signed by District Judge Robert G. Doumar on 9/4/15. (afar) (Entered: 09/04/2015)
54 NOTICE OF APPEAL as to 53 Order on Motion for Preliminary Injunction by G. G.. Filing fee $ 505, receipt number 0422−4626161. (Glenberg, Rebecca) (Entered: 09/08/2015)
55 Transmission of Notice of Appeal to US Court of Appeals re 54 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (Attachments: # 1 Notice of Appeal)(bgra) (Entered: 09/09/2015)
56 USCA Case Number 15−2056 4CCA Case Manager Jennifer Rice for 54 Notice of Appeal filed by G. G. (15−2056) (bgra) (Entered: 09/10/2015)
57 MEMORANDUM OPINION − the Court GRANTED the Motion to Dismiss as to Count II, Plaintiff's claim under Title IX, and DENIED the Plaintiff's Motion for Preliminary Injunction. Signed by District Judge Robert G. Doumar on 9/17/15. (afar) (Entered: 09/17/2015)
58 Consent MOTION for Leave to File Corrected Copies of Redacted Documents by G. G.. (Attachments: # 1 Corrected Decl. of G.G., # 2 Corrected Decl. of Dr. Ettner)(Deady, Gail) (Entered: 09/22/2015)
MOTIONS REFERRED to Magistrate Judge: Douglas E. Miller. 58 Consent MOTION for Leave to File Corrected Copies of Redacted Documents (bgra) (Entered: 09/24/2015)
59 ORDER granting 58 Motion for Leave to File Corrected Copies of Redacted Exhibits. The corrected copies attached to the Motion (ECF Nos. 58−1 and 58−2) may be filed as substitutes for the redacted Declarations of G.G. and Dr. Randi Ettner originally filed in support of the Motion for Preliminary Injunction (ECF Nos. 9 and 10). Signed by Magistrate Judge Douglas E. Miller on October 1, 2015. (Miller, Douglas) (Entered: 10/01/2015)
60 Declaration re 9 Declaration − Corrected by G. G.. (Deady, Gail) (Entered: 10/05/2015)
61 Declaration re 10 Declaration − Corrected by G. G.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Deady, Gail) (Entered: 10/05/2015)
62 Published Opinion of USCA (Copy): Reversed in part, Vacated in part, and Remanded. re 54 Notice of Appeal attached copy of judgment will not take effect until issuance of the mandate. (15−2056) (bgra) (Entered: 04/19/2016)
63 USCA JUDGMENT as to 54 Notice of Appeal filed by G. G.: In accordance with the decision of this court, the judgment of the district court is reversed in part and vacated in part. This case is remanded to the district court for further proceedings consistent with the court's decision.This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. (15−2056) (bgra) (Entered: 04/19/2016)
64 STAY OF MANDATE: Under Fed. R. App. P. 41(d)(1), the timely filing of a petition for rehearing or rehearing en banc or the timely filing of a motion to stay the mandate stays the mandate until the court has ruled on the petition for rehearing or rehearing en banc or motion to stay. In accordance with Rule 41(d)(1), the mandate is stayed pending further order of this court. as to 54 Notice of Appeal filed by G.G. (cchr) (Entered: 05/03/2016)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 8 of 20

05/31/2016 06/07/2016
06/09/2016 06/17/2016 06/23/2016 06/23/2016
06/27/2016 06/28/2016 06/28/2016 06/28/2016 06/29/2016
06/30/2016 06/30/2016 07/01/2016 07/06/2016

65 PUBLISHED ORDER of USCA : denying Motion for rehearing en banc 54 Notice of Appeal filed by G. G. (15−2056) (bgra) (Entered: 06/01/2016)
66 STAY OF MANDATE re 54 Notice of Appeal : Under Fed. R. App. P. 41(d)(1), the timely filing of a petition for rehearing or rehearing en banc or the timely filing of a motion to stay the mandate stays the mandate until the court has ruled on the petition for rehearing or rehearing en banc or motion to stay. In accordance with Rule 41(d)(1), the mandate is stayed pending further order of this court. (15−2056) (bgra) (Entered: 06/08/2016)
67 ORDER of USCA as to 54 Notice of Appeal filed by G. G. Upon consideration of the motion to stay mandate pending filing of petition for writ of certiorari, the court denies the motion. Judge Floyd and Senior Judge Davis voted to deny the motion. Judge Niemeyer voted to grant the motion. (15−2056) (bgra) (Entered: 06/09/2016)
68 USCA Mandate re 54 Notice of Appeal. The judgment of this court, entered 4/19/2016, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (15−2056) (bgra) (Entered: 06/17/2016)
Rule 16(b) Scheduling Conference set for 6/29/2016 at 10:00 AM in Norfolk Grand Jury Courtroom before District Judge Robert G. Doumar. (lbax, ) (Entered: 06/23/2016)
69 ORDER: Based on the evidence submitted through declarations previously proffered for the purpose of the hearing on the Preliminary Injunction, this Court, pursuant to Title IX, hereby ORDERS that Gloucester County School Board permit the plaintiff, G.G., to use the boys' restroom at Gloucester High School until further order of this Court. Copy of Order delivered to all counsel of record. Signed by District Judge Robert G. Doumar on 6/23/2016. (bgra) (Entered: 06/23/2016)
70 NOTICE OF APPEAL as to 69 Order, by Gloucester County School Board. Filing fee $ 505, receipt number 0422−5050850. (Corrigan, David) (Entered: 06/27/2016)
Transmission of Notice of Appeal to US Court of Appeals re 70 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (bgra) (Entered: 06/28/2016)
71 MOTION to Stay re 69 Order, Pending Appeal by Gloucester County School Board. (Corrigan, David) (Entered: 06/28/2016)
72 Memorandum in Support re 71 MOTION to Stay re 69 Order, Pending Appeal filed by Gloucester County School Board. (Corrigan, David) (Entered: 06/28/2016)
Scheduling Conference − Rule 16b held on 6/29/2016 before District Judge Robert G. Doumar: Rebecca Glenberg and Joshua block present on behalf of the plaintiff; David Corrigan and Jeremy Capps present on behalf of the defendant; Comments of Court and Counsel; Court directed counsel to file a response to motion by 7/1/16. Trial date selected; Discovery schedule reviewed. Order to follow. Court adjourned. (Court Reporter Heidi Jeffreys.)(lhow, ) (Entered: 06/30/2016)
73 Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that the Final Pretrial Conference set for 1/19/2017 at 10:00 AM in Norfolk. Bench Trial set for 1/31/2017 at 10:00 AM in Newport News. Signed by District Judge Robert G. Doumar & filed on 6/30/16. (ptom, ) (Entered: 06/30/2016)
74 USCA Case Number 16−1733 4CCA − Case Manager Jennifer Rice for 70 Notice of Appeal filed by Gloucester County School Board. [16−1733] (cchr) (Entered: 06/30/2016)
75 RESPONSE to Motion re 71 MOTION to Stay re 69 Order, Pending Appeal filed by G. G.. (Glenberg, Rebecca) (Entered: 07/01/2016)
76 ORDER denying 71 Motion to Stay. This Court is bound by the Judgment of the Court of Appeals. The Court of Appeals' actions in denying a rehearing en banc and a stay of its mandate indicate that it desires that its Judgment take effect immediately. The Court of Appeals itself is bound by its own prior precedents. Although Defendant has filed an appeal of the Preliminary Injunction, the Court of Appeals' prior opinion in this case will control in that appeal. This Court believes that based on the law as laid

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07/06/2016 07/07/2016 07/12/2016
08/03/2016
08/18/2016 08/18/2016 08/19/2016 08/23/2016 08/23/2016 08/23/2016 08/24/2016 08/31/2016
09/02/2016 10/31/2016 02/07/2017

out in that opinion and the evidence submitted by declarations in this case, thePreliminary Injunction was warranted. There are no grounds for a stay. Accordingly, the Court DENIES the Motion for Stay Pending Appeal. ECF No. 71. Signed by District Judge Robert G. Doumar on 7/6/2016. (bgra) (Entered: 07/06/2016)
77 ANSWER to 8 Complaint by Gloucester County School Board.(Corrigan, David) (Entered: 07/06/2016)
Jury Trial set for 1/31/2017 at 10:00 AM in Newport News Courtroom 1 before District Judge Robert G. Doumar. (lbax, ) (Entered: 07/07/2016)
78 ORDER of USCA as to 70 : Upon consideration of submissions relative to the motion of appellant for stay pending appeal, the court denies the motion.Entered at the direction of Judge Floyd. Senior Judge Davis wrote an opinion concurring in the denial of a stay pending the filing of, and action on, a petition for certiorari. Judge Niemeyer wrote an opinion dissenting from the denial of a stay pending appeal. Notice of Appeal filed by Gloucester County School Board (16−1733) (bgra) (Entered: 07/14/2016)
79 SUPREME COURT REMARK: The application to recall and stay the mandate of the United States Court of Appeals for the Fourth Circuit in case No. 152056, presented to THE CHIEF JUSTICE and by him referred to the Court, is granted and the preliminary injunction entered by the United States District Court for the Eastern District of Virginia on June 23, 2016, is hereby stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the judgment of this Court. (15−2056)(bgra) (Entered: 08/04/2016)
80 MOTION to Stay by Gloucester County School Board. (Corrigan, David) (Entered: 08/18/2016)
81 Brief in Support to 80 MOTION to Stay filed by Gloucester County School Board. (Corrigan, David) (Entered: 08/18/2016)
82 ORDER of USCA as to 70 Notice of Appeal filed by Gloucester County School Board : Upon consideration of the joint motion to hold appeal in abeyance pending disposition of certiorari petition, the court grants the motion. (16−1733) (bgra) (Entered: 08/19/2016)
83 Joint MOTION for Protective Order by G. G.. (Deady, Gail) (Entered: 08/23/2016)
84 Memorandum in Support re 83 Joint MOTION for Protective Order filed by G. G.. (Attachments: # 1 Proposed Order Protective Order)(Deady, Gail) (Entered: 08/23/2016)
MOTIONS REFERRED to Magistrate Judge: Douglas E. Miller. 83 Joint MOTION for Protective Order (bgra) (Entered: 08/23/2016)
85 AGREED CONFIDENTIALITY PROTECTIVE ORDER: granting 83 Joint MOTION for Protective Order by G. G. Signed by Magistrate Judge Douglas E. Miller on 8/24/2016. (bgra) (Entered: 08/24/2016)
86 ORDER granting 80 Motion to Stay. The Court hereby GRANTS the Motion to Stay and STAYS this matter pending the disposition of the School Board's petition for a writ of certiorari with the United States Supreme Court. ECF No. 80. Copy of Order provided to all Counsel of Record. Signed by District Judge Robert G. Doumar on 8/31/2016. (bgra) (Entered: 08/31/2016)
87 SUPREME COURT REMARK: The petition for a writ of certiorari in the above entitled case was filed on August 29, 2016 and placed on the docket September 1, 2016 as No. 16−273. re 54 Notice of Appeal. [15−2056] (ldab, ) (Entered: 09/02/2016)
88 Supreme Court Remark re 54 Notice of Appeal : The petition for a writ of certiorari is granted limited to Questions 2 and 3 presented by the petition. (bgra) (Entered: 11/02/2016)
89 Appeal Remark re 70 Notice of Appeal : RECORD requested by Supreme Court from court of appeals and district court/agency. Supreme Court Docket No.: 16−273 (15−2056)(bgra) (Entered: 02/08/2017)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 10 of 20

02/07/2017 03/06/2017 04/07/2017 04/07/2017
04/07/2017 04/13/2017 04/13/2017 04/13/2017
04/18/2017 04/18/2017
05/01/2017 05/03/2017 05/03/2017 05/04/2017 05/04/2017

90 Appeal Remark re 70 Notice of Appeal : RECORD (4CCA) transmitted to Supreme Court. Supreme Court Docket No.: 16−273 (15−2056) (bgra) (Entered: 02/08/2017)
91 SUPREME COURT REMARK−−order remanding case received. 03/06/2017, REMANDED vacated. re 70 Notice of Appeal, 54 Notice of Appeal : [15−2056, 16−1733] (bgra) (Entered: 03/07/2017)
92 SUPREME COURT REMARK−−judgment remanding case received. REMANDED vacated, 04/07/2017. 70 Notice of Appeal, 54 Notice of Appeal. (15−2056) (16−1733) (bgra) (Entered: 04/11/2017)
93 PUBLISHED OPINION of USCA (Copy): Upon consideration of the unopposed motion to vacate preliminary injunction, the court vacates the preliminary injunction entered by the district court on June 23, 2016. Senior Judge Davis wrote a concurring opinion in which Judge Floyd joined. Entered at the direction of Judge Floyd with the concurrence of Judge Niemeyer and Senior Judge Davis. re 70 Notice of Appeal attached copy of judgment will not take effect until issuance of the mandate. (16−1733) (bgra) (Entered: 04/11/2017)
94 USCA JUDGMENT as to 70 Notice of Appeal: In accordance with the decision of this court, the district court preliminary injunction entered June 23, 2016 is vacated. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. (16−1733) (bgra) (Entered: 04/11/2017)
95 MOTION to Continue Stay, Unopposed by Gloucester County School Board. (Corrigan, David) (Entered: 04/13/2017)
96 Brief in Support to 95 MOTION to Continue Stay, Unopposed filed by Gloucester County School Board. (Corrigan, David) (Entered: 04/13/2017)
97 ORDER granting 95 Motion to Continue. The Court hereby GRANTS the Motion to Continue Stay and STAYS this matter pending the Fourth Circuit's ruling on the preliminary injunction and the dismissal of the Title IX claim. ECF No. 95.Copy of Order provided all counsel of record.Signed by District Judge Robert G. Doumar on 4/13/2017. (bgra) (Entered: 04/13/2017)
98 AMENDED ORDER of USCA as to 70 Notice of Appeal filed by Gloucester County School Board. The Court amends its order filed April 7, 2017, as follows: On page 4, line 12, Shehab is corrected to read Shihab. [16−1733] (bgra) (Entered: 04/19/2017)
99 AMENDED PUBLISHED ORDER of USCA (Copy) re 70 Notice of Appeal attached copy of judgment will not take effect until issuance of the mandate. Upon consideration of the unopposed motion to vacate preliminary injunction, the court vacates the preliminary injunction entered by the district court on June 23, 2016. Senior Judge Davis wrote a concurring opinion in which Judge Floyd joined. Entered at the direction of Judge Floyd with the concurrence of Judge Niemeyer and Senior Judge Davis. [16−1733] (bgra) (Entered: 04/19/2017)
100 USCA Mandate: The judgment of this court, entered 4/7/2017, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. re 70 Notice of Appeal. (16−1733) (bgra) (Entered: 05/01/2017)
101 MOTION to Withdraw as Attorney by G. G.. (Attachments: # 1 Proposed Order)(Glenberg, Rebecca) (Entered: 05/03/2017)
102 ORDER of USCA as to 54 Notice of Appeal filed by G. G. The court grants the motion to withdraw from further representation on appeal. (15−2056) (bgra) (Entered: 05/04/2017)
103 MOTION to Amend/Correct 8 Complaint by G. G.. (Attachments: # 1 Memorandum of Law In Support of Plaintiff's Unopposed Motion to Amend Case Caption)(Deady, Gail) (Entered: 05/04/2017)
Notice of Correction: The filing user is requested to refile the Memorandum in Support as a separate pleading, linking same back to Motion to Amend/Correct. re 103 MOTION to Amend/Correct 8 Complaint (bgra) (Entered: 05/04/2017)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 11 of 20

05/04/2017 05/16/2017 05/16/2017
06/06/2017 08/02/2017 08/04/2017
08/11/2017 08/17/2017 08/18/2017 08/22/2017
08/22/2017 08/30/2017
08/30/2017 08/30/2017 08/31/2017

104 Memorandum in Support re 103 MOTION to Amend/Correct 8 Complaint Caption filed by G. G.. (Deady, Gail) (Entered: 05/04/2017)
105 ORDER granting 101 Motion to Withdraw as Attorney. Upon consideration of Rebecca K. Glenberg's motion to withdraw as attorney in this case, it is hereby ORDERED that the motion to withdraw is GRANTED. Signed by District Judge Robert G. Doumar on 5/16/2017. (bgra) (Entered: 05/16/2017)
106 ORDER granting 103 Motion to Amend/Correct. The Court finds that Plaintiff has reached the legal age of majority in Virginia. Accordingly, the Court hereby GRANTS Plaintiffs Motion. ECF No. 103. The Court ORDERS the Clerk of the Court to amend the docket by substituting "Gavin Grimm" as Plaintiff for "G.G., by his next friend and mother, Deirdre Grimm" in the case caption, and further ORDERS that all future filings in this matter employ this case styling. Signed by District Judge Robert G. Doumar on 5/16/2017. (bgra) (Entered: 05/16/2017)
Case Reassigned to District Judge Arenda L. Wright Allen. District Judge Robert G. Doumar no longer assigned to the case. (afar) (Entered: 06/06/2017)
107 Published Opinion and Order DIRECTING LIMITED REMAND [4CCA retains jurisdiction] re 54 Notice of Appeal attached copy of judgment will not take effect until issuance of the mandate. 15−2056 (ldab, ) (Entered: 08/02/2017)
108 ORDER re 107 Published Opinion and Order DIRECTING LIMITED REMAND [4CCA retains jurisdiction]. On August 25, 2017, each party shall submit a Response to the Position Statements. SEE ORDER FOR DETAILS. Signed by District Judge Arenda L. Wright Allen and filed on 8/4/17. Copies distributed to all parties 8/4/17.(ldab, ) (Entered: 08/04/2017)
109 Consent MOTION to Amend/Correct 8 Complaint by Gavin Grimm. (Attachments: # 1 Exhibit A)(Deady, Gail) (Entered: 08/11/2017)
110 ORDER of USCA as to 54 Notice of Appeal filed by Gavin Grimm. The court grants the motion to withdraw from further representation on appeal. (15−2056) (epri) (Entered: 08/18/2017)
111 STATUS REPORT Joint Position Statement by Gavin Grimm. (Deady, Gail) (Entered: 08/18/2017)
112 ORDER granting 109 , the Consent Motion to Amend/Correct the Complaint, as follows: the Clerk is DIRECTED to lodge the Plaintiff's Amended Complaint; the Defendant shall file a responsive pleading or motion on or before September 15, 2017. If Defendant files a motion to dismiss, the parties' respective memoranda in support and opposition shall not exceed forty−five pages, exclusive of affidavits and supporting documentation. All briefs shall otherwise comply with the requirements of this Court's Local Rules. Signed by District Judge Arenda L. Wright Allen on 8/22/2017. (Allen, Arenda) (Entered: 08/22/2017)
113 AMENDED COMPLAINT FILED AS DIRECTED against Gloucester County School Board, filed by Gavin Grimm.(ecav, ) (Entered: 08/22/2017)
114 ORDER of USCA as to 54 Notice of Appeal filed by Gavin Grimm Upon consideration of the motion to dismiss this appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, and there appearing no opposition, the court grants the motion. Entered at the direction of Judge Niemeyer with the concurrence of Judge Duncan and Judge Floyd. 15−2056(ldab, ) (Entered: 08/30/2017)
115 USCA Rule 42(b) Mandate re 54 Notice of Appeal. This court's order dismissing this appeal pursuant to Local Rule 42(b) takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. 15−2056 (ldab, ) (Entered: 08/30/2017)
116 MOTION for Extension of Time to File Motion to Dismiss the Amended Complaint by Gloucester County School Board. (Attachments: # 1 Proposed Order Agreed)(Corrigan, David) (Entered: 08/30/2017)
117 ORDER granting 116 Defendant's agreed Motion for Extension of Time to File a Motion to Dismiss the Amended Complaint as follows: Defendant's Motion shall be filed on or before September 22, 2017. Signed by District Judge Arenda L. Wright

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 12 of 20

09/22/2017 09/22/2017 09/29/2017 10/02/2017
10/11/2017 10/26/2017
11/01/2017 11/02/2017 11/02/2017 11/02/2017 11/16/2017 11/17/2017 11/20/2017 11/28/2017 12/12/2017

Allen on 08/31/2017. (Allen, Arenda) (Entered: 08/31/2017)
118 MOTION to Dismiss for Failure to State a Claim by Gloucester County School Board. (Corrigan, David) (Entered: 09/22/2017)
119 Brief in Support to 118 MOTION to Dismiss for Failure to State a Claim filed by Gloucester County School Board. (Corrigan, David) (Entered: 09/22/2017)
120 Memorandum in Opposition re 118 MOTION to Dismiss for Failure to State a Claim filed by Gavin Grimm. (Deady, Gail) (Entered: 09/29/2017)
121 ORDER deferring ruling on 118 , the Motion to Dismiss for Failure to State a Claim; under the circumstances presented by counsel jointly in a communication to the Court, the Court shall permit Defendant to file its Reply brief on or before Wednesday, October 11, 2017. The motion will be taken under advisement as of that date. If a hearing is deemed warranted by the Court, the Court will notify counsel for purposes of scheduling the hearing after October 11, 2017. Signed by District Judge Arenda L. Wright Allen on 10/2/2017. (Allen, Arenda) (Entered: 10/02/2017)
122 RESPONSE in Support re 118 MOTION to Dismiss for Failure to State a Claim filed by Gloucester County School Board. (Attachments: # 1 Exhibit A)(Corrigan, David) (Entered: 10/11/2017)
123 ORDER − The parties are ORDERED to file supplemental briefing on mootness pursuant to the directives herein. A ruling on Defendant's Motion to Dismiss for Failure to State a Claim 118 is DEFERRED pending resolution of the mootness issue. Before undertaking any jurisdictional discovery, the party seeking to undertake discovery is ORDERED to file a motion for jurisdictional discovery no later than 14 calendar days after the date of the entry of this Order. Defendant shall file its Supplemental Memorandum no later than 60 calendar days after the date of the entry of this Order. Plaintiff shall file its Response no later than 21 calendar days after service of the Defendant's Memorandum. Defendant may file a Reply no later than 7 calendar days after the service of the Response. Briefs shall not exceed 35 pages, excluding exhibits. Signed by District Judge Arenda L. Wright Allen on 10/26/17. (bpet, ) (Entered: 10/26/2017)
124 NOTICE by Gavin Grimm Supplemental Authority in Opposition to Defendant's Motion to Dismiss (Attachments: # 1 Exhibit A)(Deady, Gail) (Entered: 11/01/2017)
125 NOTICE by Gavin Grimm Consent to Dismissal of Requests for Relief (C) and (D) (Deady, Gail) (Entered: 11/02/2017)
126 MOTION to Vacate 123 Order,,, by Gavin Grimm. (Deady, Gail) (Entered: 11/02/2017)
127 ORDER of USCA as to 54 Notice of Appeal filed by Gavin Grimm. The court grants the motion to withdraw from further representation on appeal. (15−2056) (bpet, ) (Entered: 11/03/2017)
128 Opposition to 126 MOTION to Vacate 123 Order,,, filed by Gloucester County School Board. (Corrigan, David) (Entered: 11/16/2017)
129 REPLY to Response to Motion re 126 MOTION to Vacate 123 Order,,, filed by Gavin Grimm. (Deady, Gail) (Entered: 11/17/2017)
130 NOTICE by Gavin Grimm re 126 MOTION to Vacate 123 Order,,, Oral Argument (Deady, Gail) (Entered: 11/20/2017)
131 NOTICE by Gavin Grimm re 118 MOTION to Dismiss for Failure to State a Claim Supplemental Authority (Attachments: # 1 Exhibit A)(Deady, Gail) (Entered: 11/28/2017)
132 ORDER GRANTING 126 Motion to Vacate, DISMISSING Requests for Relief (C) and (D). Defendant shall file an amended Motion to Dismiss within 45 days of this Order. Plaintiff shall file a Response to same within 21 days, and Defendant may file a Reply 7 days thereafter. Signed by District Judge Arenda L. Wright Allen on 12/12/17. (bpet, ) (Entered: 12/13/2017)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 13 of 20

01/05/2018 01/05/2018 01/05/2018 01/05/2018 01/09/2018 01/09/2018 01/10/2018 01/16/2018 03/02/2018 03/06/2018 03/09/2018
03/13/2018 04/23/2018 04/23/2018 04/28/2018
05/22/2018
06/01/2018

133 NOTICE of Appearance by David P. Corrigan on behalf of Gloucester County School Board (Corrigan, David) (Entered: 01/05/2018)
134 NOTICE of Appearance by Douglas Edward Pittman on behalf of Gloucester County School Board (Pittman, Douglas) (Entered: 01/05/2018)
135 Amended MOTION to Dismiss for Failure to State a Claim Amended Complaint by Gloucester County School Board. (Pittman, Douglas) (Entered: 01/05/2018)
136 Brief in Support to 135 Amended MOTION to Dismiss for Failure to State a Claim Amended Complaint filed by Gloucester County School Board. (Pittman, Douglas) (Entered: 01/05/2018)
137 MOTION to Withdraw , MOTION to Withdraw as Attorney by Gloucester County School Board. (Attachments: # 1 Exhibit A)(Fisher, Maurice) (Entered: 01/09/2018)
138 Brief in Support of Motion to Withdraw as Attorney filed by Gloucester County School Board. (Fisher, Maurice) (Entered: 01/09/2018)
139 Memorandum in Opposition re 135 Amended MOTION to Dismiss for Failure to State a Claim Amended Complaint filed by Gavin Grimm. (Deady, Gail) (Entered: 01/10/2018)
140 REPLY to Response to Motion re 135 Amended MOTION to Dismiss for Failure to State a Claim Amended Complaint filed by Gloucester County School Board. (Attachments: # 1 Exhibit A)(Corrigan, David) (Entered: 01/16/2018)
141 ORDER of USCA as to 54 Notice of Appeal filed by Gavin Grimm. The court grants the motion to withdraw from further representation on appeal. [15−2056] (bpet) (Entered: 03/05/2018)
142 NOTICE of Supplemental Authority by Gavin Grimm re 135 Amended MOTION to Dismiss for Failure to State a Claim Amended Complaint (Attachments: # 1 Exhibit A) (Deady, Gail) Dkt text modified on 3/6/2018 (bpet). (Entered: 03/06/2018)
143 ORDER granting 137 , the Motion to Withdraw as Attorney filed by M. Scott Fisher, as follows: Mr. Fisher, counsel of record for Defendant Gloucester County School Board, is granted permission to withdraw from this matter as counsel. Defendant will continue to be represented in this matter by Harman Claytor Corrigan & Wellman and David Corrigan, Jeremy Capps, and Douglas Pittman of that firm, who are also counsel of record. Signed by District Judge Arenda L. Wright Allen on 3/9/2018. (Allen, Arenda) (Entered: 03/09/2018)
144 NOTICE of Supplemental Authority by Gavin Grimm re 135 Amended MOTION to Dismiss for Failure to State a Claim Amended Complaint (Attachments: # 1 Exhibit A)(Deady, Gail) Dkt text modified on 3/13/2018 (bpet). (Entered: 03/13/2018)
145 NOTICE of Appearance by Claire Guthrie Gastanaga on behalf of Gavin Grimm (Gastanaga, Claire) (Entered: 04/23/2018)
146 MOTION to Withdraw as Attorney by Gavin Grimm. (Attachments: # 1 Proposed Order)(Deady, Gail) (Entered: 04/23/2018)
147 ORDER granting 146 , the Motion to Withdraw as Attorney filed by Gail Deady, as follows: Ms. Deady, counsel of record for Plaintiff Gavin Grimm, is granted permission to withdraw from this matter as counsel. Plaintiff will continue to be represented in this matter by Claire Gastanaga of the American Civil Liberties Union Foundation of Virginia, Inc., and Joshua Block and Leslie Cooper of the American Civil Liberties Union Foundation, who are all counsel of record. Signed by District Judge Arenda L. Wright Allen on 4/28/2018. (Allen, Arenda) (Entered: 04/28/2018)
148 ORDER denying 135 Amended Motion to Dismiss for Failure to State a Claim, DISMISSING as moot 118 Motion to Dismiss for Failure to State a Claim. Counsel for the parties are DIRECTED to contact the Magistrate Courtroom Deputy within 30 days to schedule a settlement conference. Signed by District Judge Arenda L. Wright Allen on 5/22/18. (bpet) (Entered: 05/22/2018)
149 Consent MOTION for Leave to Appeal to the United States Fourth Circuit Court of Appeals by Gloucester County School Board. (Corrigan, David) (Entered: 06/01/2018)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 14 of 20

06/01/2018 06/04/2018 06/04/2018 06/05/2018
07/20/2018 07/23/2018 07/31/2018 07/31/2018 08/02/2018
09/11/2018 09/11/2018 09/11/2018 09/12/2018 09/17/2018 09/18/2018 09/19/2018

150 Brief in Support to 149 Consent MOTION for Leave to Appeal to the United States Fourth Circuit Court of Appeals filed by Gloucester County School Board. (Corrigan, David) (Entered: 06/01/2018)
151 Joint MOTION to Stay All Proceedings in this Case Pending Appeal and for an Extension of Time for the School Board to File an Answer to Grimm's Amended Complaint by Gloucester County School Board. (Corrigan, David) (Entered: 06/04/2018)
152 Brief in Support to 151 Joint MOTION to Stay All Proceedings in this Case Pending Appeal and for an Extension of Time for the School Board to File an Answer to Grimm's Amended Complaint filed by Gloucester County School Board. (Corrigan, David) (Entered: 06/04/2018)
153 ORDER: Defendant's 149 Consent Motion to Certify an Interlocutory Appeal to the 4th Circuit Court of Appeals is GRANTED. The Court's 5/22/18 148 Order is AMENDED as described in the instant Order. The parties' 151 Joint Motion to Stay All Proceedings in this Case Pending Appeal and for an Extension of Time for the School Board to File an Answer to Plaintiff's Amended Complaint is GRANTED. It is ORDERED that all proceedings in this case are stayed pending a ruling by the Fourth Circuit, and Defendant's deadline to file an Answer to Plaintiff's Amended Complaint is extended to 10 days after the entry of such ruling. Signed by District Judge Arenda L. Wright Allen on 6/5/18. (bpet) (Entered: 06/05/2018)
154 ANSWER to Complaint by Gloucester County School Board.(Corrigan, David) (Entered: 07/20/2018)
Refer for 16(b). (bpet) (Entered: 07/23/2018)
Set Hearings Settlement Conference set for 10/4/2018 at 09:30 AM in Norfolk Judges Chamber before Magistrate Judge Douglas E. Miller. (cdod, ) (Entered: 07/31/2018)
155 RULE 26(f) PRETRIAL ORDER: Rule 16(b) Scheduling Conference set for 9/17/2018 at 10:00 AM in Norfolk Courtroom 3. Signed by Magistrate Judge Robert J. Krask and filed on 7/31/18. (lhow) (Entered: 07/31/2018)
156 Settlement Conference Order entered. Settlement conference scheduled for October 4, 2018 at 9:30 a.m. at the United States District Court in Norfolk. The parties must submit a brief memorandum of five pages or less directly to the chambers of the undersigned via facsimile by noon on October 1, 2018. See order for further details. Signed by Magistrate Judge Douglas E. Miller on 08/02/18. (jjon) (Entered: 08/02/2018)
157 NOTICE of Appearance by Nicole Gloria Tortoriello on behalf of Gavin Grimm (Tortoriello, Nicole) (Entered: 09/11/2018)
158 Motion to appear Pro Hac Vice by Eden Heilman and Certification of Local Counsel Nicole Gloria Tortoriello Filing fee $ 75, receipt number 0422−6266806. by Gavin Grimm. (Tortoriello, Nicole) (Main Document 158 replaced w/ ink−signed copy on 9/19/18) (bpet, ). (Entered: 09/11/2018)
159 Motion to appear Pro Hac Vice by Shayna Medley−Warsoff and Certification of Local Counsel Nicole Gloria Tortoriello Filing fee $ 75, receipt number 0422−6266816. by Gavin Grimm. (Tortoriello, Nicole) (Entered: 09/11/2018)
160 MOTION to Withdraw as Attorney by Gavin Grimm. (Gastanaga, Claire) Motion terminated on 9/18/18 (bpet, ). (Entered: 09/12/2018)
Scheduling Conference − Rule 16b held on 9/17/2018. Eden Heilman appeared on behalf of the plaintiff. (pro hac application pending) (lhow) (Entered: 09/17/2018)
161 MOTION to Withdraw as Attorney by Gavin Grimm. (Attachments: # 1 Proposed Order)(Gastanaga, Claire) (Entered: 09/18/2018)
162 ORDER granting 161 , the Motion to Withdraw as Attorney as follows: Ms. Gastanaga, counsel of record for Gavin Grimm, is granted permission to withdraw from this matter as counsel. The Plaintiff has consented, and remains fully represented. Signed by District Judge Arenda L. Wright Allen on 9/19/2018. (Allen, Arenda) (Entered: 09/19/2018)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 15 of 20

09/19/2018
09/19/2018
09/19/2018
09/26/2018
10/04/2018
10/18/2018 10/19/2018 10/29/2018 10/29/2018 10/29/2018 10/29/2018 12/07/2018 12/21/2018 12/27/2018 02/13/2019 02/13/2019 02/14/2019

Notice of Correction re 158 Motion to appear Pro Hac Vice by Eden Heilman: the filing user has been advised to resubmit 158 via email with the proper signatures, and the Clerk's Office will substitute it for the existing document. (bpet, ) (Entered: 09/19/2018)
163 ORDER granting 159 , the Motion to appear Pro Hac Vice by Shayna Medley−Warsoff as certified by local counsel Nicole Gloria Tortoriello for Gavin Grimm. Signed by District Judge Arenda L. Wright Allen on 9/19/2018. (Allen, Arenda) (Entered: 09/19/2018)
164 ORDER granting 158 , the Motion to appear Pro Hac Vice by Eden Heilman as certified by local counsel Nicole Gloria Tortoriello for Gavin Grimm. Signed by District Judge Arenda L. Wright Allen on 9/19/2018. (Allen, Arenda) (Entered: 09/19/2018)
165 Order Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that Final Pretrial Conference set for 7/12/2019 at 11:00 AM at the courthouse in Norfolk. Jury Trial set for 7/23/2019 at 10:00 AM at the courthouse in Newport News. Signed by District Judge Arenda L. Wright Allen on 9/25/18 and filed on 9/26/18. (lhow) (Entered: 09/26/2018)
166 SECOND SETTLEMENT CONFERENCE ORDER. Settlement conference scheduled for 10/18/18 at 10:00 a.m. in the Richmond Courthouse; any supplemental memoranda due by noon on 10/16/18; all other terms of the original 156 Settlement Conference Order remain in full force and effect; see Order for details. Signed by Magistrate Judge Douglas E. Miller on 10/4/18. (bpet, ) (Entered: 10/04/2018)
Settlement Conference held on 10/18/2018 before Magistrate Judge Douglas E. Miller. (lwoo) (Entered: 10/19/2018)
167 ORDER Reassigning Case. Case reassigned to Magistrate Judge Robert J. Krask; Magistrate Judge Douglas E. Miller no longer assigned to case. Signed by Magistrate Judge Douglas E. Miller on 10/19/18. (bpet, ) (Entered: 10/19/2018)
168 Consent MOTION to Strike Jury Demand and Set Case for Bench Trial by Gavin Grimm. (Attachments: # 1 Proposed Order)(Tortoriello, Nicole) (Entered: 10/29/2018)
MOTION REFERRED to Magistrate Judge Robert J. Krask: 168 Consent MOTION to Strike Jury Demand and Set Case for Bench Trial. (bpet, ) (Entered: 10/29/2018)
169 ORDER granting 168 Motion to Strike Jury Demand and Set Case for Bench Trial. Signed by Magistrate Judge Robert J. Krask on 10/29/18. (bpet, ) (Entered: 10/29/2018)
Bench Trial set for 7/23/2019 at 10:00 AM in Newport News Courtroom 1 before District Judge Arenda L. Wright Allen. (lhow) (Entered: 10/29/2018)
170 MOTION for Leave to File Second Amended Complaint by Gavin Grimm. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Tortoriello, Nicole) (Entered: 12/07/2018)
171 Memorandum in Opposition re 170 MOTION for Leave to File Second Amended Complaint filed by Gloucester County School Board. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Corrigan, David) (Entered: 12/21/2018)
172 REPLY to Response to Motion re 170 MOTION for Leave to File Second Amended Complaint filed by Gavin Grimm. (Tortoriello, Nicole) (Entered: 12/27/2018)
173 MOTION to Withdraw as Counsel for Defendant by Gloucester County School Board. (Attachments: # 1 Exhibit Proposed Order)(Pittman, Douglas) (Entered: 02/13/2019)
174 Brief in Support to 173 MOTION to Withdraw as Counsel for Defendant filed by Gloucester County School Board. (Pittman, Douglas) (Entered: 02/13/2019)
175 ORDER granting 173 , the Motion to Withdraw as Counsel for Defendant filed by Gloucester County School Board. Douglas E. Pittman is hereby granted leave to withdraw as counsel of record. Signed by District Judge Arenda L. Wright Allen on 2/14/2019. (Allen, Arenda) (Entered: 02/14/2019)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 16 of 20

02/15/2019 02/15/2019 02/19/2019 02/20/2019 02/21/2019
03/01/2019 03/07/2019 03/19/2019 03/19/2019
03/26/2019 03/26/2019 03/26/2019
03/26/2019 03/26/2019
03/26/2019 03/26/2019 03/26/2019

176 ORDER granting 170 Motion for Leave to File Second Amended Complaint. The Clerk is DIRECTED to file the Second Amended Complaint. Signed by District Judge Arenda L. Wright Allen on 2/14/19. (bpet, ) (Entered: 02/15/2019)
177 SECOND AMENDED COMPLAINT against Gloucester County School Board, filed by Gavin Grimm. (bpet, ) (Entered: 02/15/2019)
178 MOTION for Extension of Time to Serve Expert Disclosures by Gloucester County School Board. (Capps, Jeremy) (Entered: 02/19/2019)
MOTION REFERRED to Magistrate Judge Robert J. Krask: 178 MOTION for Extension of Time to Serve Expert Disclosures. (bpet, ) (Entered: 02/20/2019)
179 ORDER granting 178 Motion for Extension of Time to File expert disclosure by Gloucester County School Board. The defendant's expert disclosure responding to, contradicting, or rebutting plaintiff's expert disclosure shall be made on or before February 26, 2019. Signed by Magistrate Judge Robert J. Krask on 02/21/2019. (Krask, Robert) (Entered: 02/21/2019)
180 ANSWER to Complaint (Second Amended) by Gloucester County School Board.(Corrigan, David) (Entered: 03/01/2019)
181 NOTICE of Appearance by Jennifer Marie Safstrom on behalf of Gavin Grimm (Safstrom, Jennifer) (Entered: 03/07/2019)
182 Consent MOTION for Leave to File Excess Pages by Gavin Grimm. (Attachments: # 1 Proposed Order)(Heilman, Eden) (Entered: 03/19/2019)
183 ORDER granting 182 , Plaintiff's consent motion for leave to file summary judgment briefs in excess of the thirty−page limit on briefs imposed by Local Civil Rule 7(F)(3) as follows: for good cause shown, briefs filed in support of summary judgment, in opposition of summary judgment, and in reply shall be subject to a sixty−page limit. Signed by District Judge Arenda L. Wright Allen on 3/192019. (Allen, Arenda) (Entered: 03/19/2019)
184 MOTION for Summary Judgment by Gavin Grimm. (Attachments: # 1 Proposed Order)(Heilman, Eden) (Entered: 03/26/2019)
185 Memorandum in Support re 184 MOTION for Summary Judgment filed by Gavin Grimm. (Heilman, Eden) (Entered: 03/26/2019)
186 EXHIBIT 1 Declaration of Gavin Grimm re 185 Memorandum in Support by Gavin Grimm. (Attachments: # 1 Exhibit A − Treatment Documentation Letter (Redacted), # 2 Exhibit B − DMV, # 3 Exhibit C − Court Order (Redacted), # 4 Exhibit D − Birth Certificate (Redacted), # 5 Exhibit E − Transcript (Redacted))(Heilman, Eden) Modified on 3/27/19 (bpet, ) (Entered: 03/26/2019)
187 EXHIBIT 2 Declaration of Deirdre Grimm re 185 Memorandum in Support by Gavin Grimm.. (Heilman, Eden) Modified on 3/27/19 (bpet, ) (Entered: 03/26/2019)
188 MOTION Leave to File Brief in Support of Plaintiff Unopposed Motion of Amicus Curiae Fairfax County School Board and Other Virginia School Boards for Leave to File Brief in Support of Plaintiff by Fairfax County School Board, Alexandria City School Board, Arlington School Board, Falls Church City School Board. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Cox, Trevor) (Entered: 03/26/2019)
189 NOTICE of Appearance by Trevor Stephen Cox on behalf of Fairfax County School Board, Alexandria City School Board, Arlington School Board, Falls Church City School Board (Cox, Trevor) (Entered: 03/26/2019)
190 NOTICE of Appearance by Stuart Alan Raphael on behalf of Fairfax County School Board, Alexandria City School Board, Arlington School Board, Falls Church City School Board (Raphael, Stuart) (Entered: 03/26/2019)
191 MOTION for Summary Judgment by Gloucester County School Board. (Corrigan, David) (Entered: 03/26/2019)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 17 of 20

03/26/2019
03/26/2019 03/26/2019 03/26/2019 03/26/2019 03/26/2019 03/27/2019 03/27/2019

192 EXHIBIT 3 Declaration of Shayna Medley−Warsoff re 185 Memorandum in Support by Gavin Grimm. (Attachments: # 1 Exhibit 1 − Def.'s Response to First Set of Interrogatories, # 2 Exhibit 2 − Def.'s Supplemental Response to First Set of Interrogatories, # 3 Exhibit 3 − Penn Expert Rep. & Decl., # 4 Exhibit 4 − Penn CV, # 5 Exhibit 5 − WPATH Standards of Care, # 6 Exhibit 6 − Endocrine Society Guidelines, # 7 Exhibit 7 − Van Meter Expert Rep., # 8 Exhibit 8 − Penn Rebuttal Rep., # 9 Exhibit 9 − Collins Dep., # 10 Exhibit 10 − Clemons Dep., # 11 Exhibit 11 − Durr Dep., # 12 Exhibit 12 − Lord Dep., # 13 Exhibit 13 − Anderson Dep., # 14 Exhibit 14 − Van Meter Dep., # 15 Exhibit 15 − Collins memo dated 10/14/2014 (GCSB 894), # 16 Exhibit 16 − Clemons email dated 10/22/14 (WAVYTVFOIA 007), # 17 Exhibit 17 − Collins memo dated 10/23/14 (GCSB 4122), # 18 Exhibit 18 − Hook email dated 10/24/14 (GCSB−0854), # 19 Exhibit 19 − Hook email dated 10/31/14 (GCSB 0844), # 20 Exhibit 20 − Hook email to Board dated 11/4/14 (GCSB 0513), # 21 Exhibit 21 − Hook email to the Board dated 11/9/14 with attachment (GCSB 0507−08), # 22 Exhibit 22 − Press Release dated 12/3/14, # 23 Exhibit 23 − Recorded Minutes of the Gloucester County School Board, December 9, 2014, # 24 Exhibit 24 − Collins memo to Deirdre and David Grimm dated 12/10/2014 (GCSB 0893), # 25 Exhibit 25 − Email to Nate Collins dated 11/19/2014 (GCSB 3932), # 26 Exhibit 26 − Gavin transcript GCSB, # 27 Exhibit 27 − VSBA Presentation, # 28 Exhibit 28 − Map of Gloucester High School 17 (GCSB 1276), # 29 Exhibit 29 − Annotated Map of GHS, # 30 Exhibit 30 − List of Restrooms at GHS (GCSB 03944), # 31 Exhibit 31 − Ltr. from J. Block to D. Corrigan dated 12/23/16, # 32 Exhibit 32 − Ltr. from D. Corrigan to J. Block dated 1/18/17, # 33 Exhibit 33 − Ltr. from J. Block to D. McNerney dated 1/18/17, # 34 Exhibit 34 − Ltr. from K. Duncan to D. McNerney dated 1/19/17, # 35 Exhibit 35 − Press Release dated 02/13/2019, # 36 Exhibit 36 − Press Release dated 02/21/2019, # 37 Exhibit 37 − Recorded Minutes of the Gloucester County School Board, November 11, 2014, # 38 Exhibit 38 − AAP Amicus, # 39 Exhibit 39 − School Administrator Amicus, # 40 Exhibit 40 − Nat'l PTA Amicus, # 41 Exhibit 41 − APA & NASP Resolution, # 42 Exhibit 42 − Gender Spectrum Frequently Asked Questions (2016), # 43 Exhibit 43 − NASSP Statement)(Heilman, Eden) Modified on 3/27/19 (bpet, ) (Entered: 03/26/2019)
193 EXHIBIT 4 Declaration of Diana Bruce re 185 Memorandum in Support by Gavin Grimm. (Heilman, Eden) Modified on 3/27/19 (bpet, ) (Entered: 03/26/2019)
194 EXHIBIT 5 Declaration of Thomas Aberli re 185 Memorandum in Support by Gavin Grimm. (Heilman, Eden) Modified on 3/27/19 (bpet, ) (Entered: 03/26/2019)
195 EXHIBIT 6 Declaration of Janet M. Rainey re 185 Memorandum in Support by Gavin Grimm. (Heilman, Eden) Modified on 3/27/19 (bpet, ) (Entered: 03/26/2019)
196 Brief in Support to 191 MOTION for Summary Judgment filed by Gloucester County School Board. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O)(Corrigan, David) (Entered: 03/26/2019)
197 EXHIBIT 7 Declaration of James H. Loving re 185 Memorandum in Support by Gavin Grimm. (Attachments: # 1 Exhibit A − 1st multi user 1, # 2 Exhibit B − 1st multi user 2, # 3 Exhibit C − 1st multi user 3, # 4 Exhibit D − 2nd multi user 1, # 5 Exhibit E − 2nd multi user 2, # 6 Exhibit F − 2nd multi user 3, # 7 Exhibit G − 2nd multi user 4, # 8 Exhibit H − single user 1, # 9 Exhibit I − single user 2, # 10 Exhibit J − single user 3, # 11 Exhibit K − single user 4, # 12 Exhibit L − single user 5)(Heilman, Eden) Modified on 3/27/19 (bpet, ) (Entered: 03/26/2019)
Notice of Correction re 186 , 187 , 192 , 193 , 194 , 195 , 197 Exhibits: The exhibits are not linked back to the document to which they refer. Additionally, to the extent possible, exhibits should filed as attachments to the document they support. In the event that exhibits are too numerous to be contained in one docket entry, they should be filed as attachments to a Notice of Submission bearing the signature of the filing user, as outlined in the ECF Policies and Procedures Manual. The filing user has been advised to note same for future reference. No further action is required at this time. (bpet, ) (Entered: 03/27/2019)
198 ORDER granting 188 , the Unopposed Motion of Amici Curiae for Leave to File Brief in Support of Plaintiff, filed by Fairfax County School Board and other Virginia school boards. The Clerk is directed to please file the proposed amicus brief, ECF No. 188−1.

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 18 of 20

03/27/2019 04/09/2019
04/09/2019 04/15/2019
04/16/2019 04/16/2019 04/16/2019 04/16/2019 04/16/2019 04/16/2019 04/16/2019 04/16/2019 04/19/2019 04/22/2019 04/30/2019 04/30/2019
05/01/2019

Signed by District Judge Arenda L. Wright Allen on 3/27/2019. (Allen, Arenda) (Entered: 03/27/2019)
199 Amicus Brief by Fairfax County School Board, Alexandria City School Board, Arlington School Board, Falls Church City School Board. (bpet, ) (Entered: 03/27/2019)
200 RESPONSE in Opposition re 184 MOTION for Summary Judgment filed by Gloucester County School Board. (Attachments: # 1 Exhibit 1 − Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P)(Corrigan, David) (Entered: 04/09/2019)
201 RESPONSE in Opposition re 191 MOTION for Summary Judgment filed by Gavin Grimm. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Heilman, Eden) (Entered: 04/09/2019)
202 REPLY to Response to Motion re 191 MOTION for Summary Judgment filed by Gloucester County School Board. (Attachments: # 1 List of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J)(Corrigan, David) (Entered: 04/15/2019)
203 REPLY to Response to Motion re 184 MOTION for Summary Judgment filed by Gavin Grimm. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Heilman, Eden) (Entered: 04/16/2019)
204 MOTION to Seal by Gavin Grimm. (Attachments: # 1 Proposed Order)(Heilman, Eden) (Entered: 04/16/2019)
205 Notice of Filing Sealing Motion LCvR5(C) by Gavin Grimm re 204 MOTION to Seal (Heilman, Eden) (Entered: 04/16/2019)
206 Sealed Attachment/Exhibit(s) B re 204 MOTION to Seal . (Heilman, Eden) (Entered: 04/16/2019)
207 Sealed Attachment/Exhibit(s) C re 204 MOTION to Seal . (Heilman, Eden) (Entered: 04/16/2019)
208 Sealed Attachment/Exhibit(s) D re 204 MOTION to Seal . (Attachments: # 1 Supplement Continuation of Sealed Filing, # 2 Supplement Continuation of Sealed Filing)(Heilman, Eden) (Entered: 04/16/2019)
209 Sealed Attachment/Exhibit(s) E re 204 MOTION to Seal . (Heilman, Eden) (Entered: 04/16/2019)
210 Memorandum in Support re 204 MOTION to Seal filed by Gavin Grimm. (Heilman, Eden) (Entered: 04/16/2019)
211 RESPONSE to Motion re 204 MOTION to Seal filed by Gloucester County School Board. (Capps, Jeremy) (Entered: 04/19/2019)
212 ORDER granting 204 Motion to Seal. Signed by Magistrate Judge Robert J. Krask on 4/22/19. (bpet, ) (Entered: 04/22/2019)
213 MOTION to Exclude and Strike Exhibits Filed with Gavin Grimm's Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment by Gloucester County School Board. (Corrigan, David) (Entered: 04/30/2019)
214 Brief in Support to 213 MOTION to Exclude and Strike Exhibits Filed with Gavin Grimm's Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment filed by Gloucester County School Board. (Attachments: # 1 List of Exhibits, # 2 Exhibit A, # 3 Exhibit B)(Corrigan, David) (Entered: 04/30/2019)
215 Request for Hearing by Gloucester County School Board re 191 MOTION for Summary Judgment , 213 MOTION to Exclude and Strike Exhibits Filed with Gavin Grimm's Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment, 184 MOTION for Summary Judgment (Corrigan, David) (Entered: 05/01/2019)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 19 of 20

05/06/2019 05/13/2019 05/21/2019
05/21/2019
05/21/2019
05/24/2019 05/24/2019 05/31/2019 06/06/2019 06/18/2019 06/21/2019 07/23/2019
08/09/2019

216 Memorandum in Opposition re 213 MOTION to Exclude and Strike Exhibits Filed with Gavin Grimm's Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment filed by Gavin Grimm. (Safstrom, Jennifer) (Entered: 05/06/2019)
217 RESPONSE in Support re 213 MOTION to Exclude and Strike Exhibits Filed with Gavin Grimm's Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment filed by Gloucester County School Board. (Corrigan, David) (Entered: 05/13/2019)
218 ORDER deferring ruling on 184 the Motion for Summary Judgment filed by Plaintiff, and the other pending motions; oral argument will be heard on these motions at 9 AM on Tuesday, July 23, 2019 in Norfolk. The trial date of July 23, 2019, the Pretrial Conference previously set for July 12, 2019, and all trial document filing deadlines are stricken, and will be rescheduled if necessary after the pending motions are resolved. Signed by District Judge Arenda L. Wright Allen on 5/21/2019. (Allen, Arenda) (Entered: 05/21/2019)
219 ORDER deferring ruling on 191 the Motion for Summary Judgment filed by the Defendant, as well as the other pending motions; oral argument will be heard on these motions at 9 AM on Tuesday, July 23, 2019 in Norfolk. The trial date of July 23, 2019, the Pretrial Conference previously set for July 12, 2019, and all trial document filing deadlines are stricken, and will be rescheduled if necessary after the pending motions are resolved. Signed by District Judge Arenda L. Wright Allen on 5/21/2019. (Allen, Arenda) (Entered: 05/21/2019)
220 ORDER deferring ruling on 213 the Motion to Strike Exhibits filed by Defendant, as well as the other pending motions; oral argument will be heard on these motions at 9 AM on Tuesday, July 23, 2019 in Norfolk. The trial date of July 23, 2019, the Pretrial Conference previously set for July 12, 2019, and all trial document filing deadlines are stricken, and will be rescheduled if necessary after the pending motions are resolved. Signed by District Judge Arenda L. Wright Allen on 5/21/2019. (Allen, Arenda) (Entered: 05/21/2019)
221 MOTION to Stay by Gloucester County School Board. (Corrigan, David) (Entered: 05/24/2019)
222 Brief in Support to 221 MOTION to Stay filed by Gloucester County School Board. (Corrigan, David) (Entered: 05/24/2019)
223 Memorandum in Opposition re 221 MOTION to Stay filed by Gavin Grimm. (Heilman, Eden) (Entered: 05/31/2019)
224 REPLY Brief in Support re 221 MOTION to Stay filed by Gloucester County School Board. (Corrigan, David) Modified docket text on 6/6/2019 (jrin). (Entered: 06/06/2019)
225 NOTICE of Supplemental Authority by Gavin Grimm re 201 Response in Opposition to Motion, 223 Memorandum in Opposition, 184 MOTION for Summary Judgment. (Attachments: # 1 Exhibit A)(Heilman, Eden) Modified text on 6/18/19 (bpet, ) (Entered: 06/18/2019)
226 ORDER denying 221 Motion to Stay. Signed by District Judge Arenda L. Wright Allen on 6/21/19. (bpet, ) (Entered: 06/21/2019)
228 Motions Hearing held before District Judge Arenda L. Wright Allen on 7/23/2019 re 184 MOTION for Summary Judgment 191 MOTION for Summary Judgment 213 MOTION to Exclude. Joshua Block, Nicole Tortoriello, Eden Heilman, Jennifer Safstrom and Shayna Medley−Warsoff present on behalf of the plaintiff. David Corrigan and Jeremy Capps present on behalf of the defendant. Arguments of counsel heard. Court to take the matter under advisement. (Court Reporter Jody Stewart.)(lhow) (Entered: 07/23/2019)
229 ORDER. The Board's 213 Motion to Strike Exhibits is GRANTED IN PART andDENIED IN PART. Gavin Grimm's 184 Motion for Summary Judgment isGRANTED. The Board's 191 Motion for Summary Judgment is DENIED. Signed by District Judge Arenda L. Wright Allen on 8/9/19. (bpet, ) (Entered: 08/09/2019)

Case: 4:15-cv-54 As of: 07/09/2020 07:29 PM EDT 20 of 20

08/09/2019 08/16/2019 08/19/2019
08/21/2019 08/22/2019
08/30/2019 08/30/2019
09/03/2019 09/27/2019

230 CLERK'S JUDGMENT. Signed by Clerk on 8/9/19. (bpet, ) (Entered: 08/09/2019)
231 Joint MOTION to Defer Filing of Bill of Costs and Petition for Fees by Gavin Grimm. (Heilman, Eden) (Entered: 08/16/2019)
232 ORDER granting 231 , the Joint Motion to Defer Filing of Bill of Costs and Petition for Fees filed by Gavin Grimm, as follows: Plaintiff shall file his bill of costs and petition for fees within twenty−one days after the United States Court of Appeals for the Fourth Circuit issues its mandate on appeal. Signed by District Judge Arenda L. Wright Allen on 8/19/2019. (Allen, Arenda) (Entered: 08/19/2019)
233 MOTION to Withdraw as Attorney Shayna Medley−Warsoff by Gavin Grimm. (Attachments: # 1 Proposed Order)(Heilman, Eden) (Entered: 08/21/2019)
234 ORDER granting 233 , the Motion to Withdraw as Attorney filed by Shayna Medley−Warsoff for Gavin Grimm. Ms. Medley−Warsoff is terminated as counsel of record in this matter. Signed by District Judge Arenda L. Wright Allen on 8/22/2019. (Allen, Arenda) (Entered: 08/22/2019)
235 NOTICE OF APPEAL by Gloucester County School Board. Filing fee $ 505, receipt number 0422−6814437. (Corrigan, David) (Entered: 08/30/2019)
236 Transmission of Notice of Appeal to US Court of Appeals re 235 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov). (Attachments: # 1 Notice of Appeal) (bpet, ) (Entered: 08/30/2019)
237 USCA Case Number 19−1952, 4CCA Case Manager Cathi Bennett for 235 Notice of Appeal filed by Gloucester County School Board. [19−1952] (bpet, ) (Entered: 09/03/2019)
238 TRANSCRIPT of proceedings held on 7−23−2019, before Judge Arenda W. Allen, Court Reporter/Transcriber Jody Stewart, Telephone number 757−222−7071. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 10/28/2019. Redacted Transcript Deadline set for 11/27/2019. Release of Transcript Restriction set for 12/26/2019.(stewart, jody) (Entered: 09/27/2019)

 
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No. 15-2056

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________

G.G., by his next friend and mother DEIRDRE GRIMM,

Plaintiff-Appellant

v.

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant-Appellee _________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA _________________

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFF-APPELLANT AND URGING REVERSAL _________________

JAMES COLE, JR. General Counsel

GREGORY B. FRIEL Deputy Assistant Attorney General

FRANCISCO LOPEZ VANESSA SANTOS MICHELLE TUCKER Attorneys U.S. Department of Education Office of the General Counsel

DIANA K. FLYNN SHARON M. MCGOWAN CHRISTINE A. MONTA Attorneys U.S. Department of Justice Civil Rights Division Appellate Section – RFK 3730 Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 353-9035

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TABLE OF CONTENTS
PAGE
INTEREST OF THE UNITED STATES ..................................................................1
STATEMENT OF THE ISSUES...............................................................................2
STATEMENT OF THE CASE..................................................................................3
1. Background ...........................................................................................3
2. Statement Of Facts ................................................................................5
3. Procedural History................................................................................7
ARGUMENT
WHERE A SCHOOL PROVIDES SEPARATE RESTROOMS FOR BOYS AND GIRLS, BARRING A STUDENT FROM THE RESTROOMS THAT CORRESPOND TO HIS OR HER GENDER IDENTITY BECAUSE THE STUDENT IS TRANSGENDER CONSTITUTES UNLAWFUL SEX DISCRIMINATION UNDER TITLE IX........................................................8
A. GCSB’s Restroom Policy Violates Title IX.................................8
1. Treating A Transgender Student Differently From Other Students Because He Is Transgender Constitutes Differential Treatment On The Basis Of Sex........................................9
2. Where A School Provides Sex-Segregated Restrooms, Denying A Student Access To The Restrooms Consistent With His Or Her Gender Identity Denies That Student Equal Educational Opportunity ................................................14

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TABLE OF CONTENTS (continued):

PAGE

3. General Invocations Of Privacy And Safety Do Not Override Title IX’s Prohibition Against Sex Discrimination .........................................................18

B. The Department Of Education’s Title IX Regulations Do Not Permit Schools To Enact Discriminatory Restroom Policies Like GCSB’s ...............................................22

CONCLUSION ........................................................................................................30

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CASES:

PAGE

Auer v. Robbins, 519 U.S. 452 (1997)...............................................................24, 28

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988).......................................28

Chase Bank USA, N.A. v. McCoy, 562 U.S. 195 (2011) ...................................25, 28

Christensen v. Harris Cnty., 529 U.S. 576 (2000) ..................................................27

Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981 (8th Cir. 2002) ..........................20

Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) .....................................19

D.L. v. Baltimore City Bd. of Sch. Comm’rs, 706 F.3d 256 (4th Cir. 2013) ...........25

Doe v. Regional Sch. Unit 26, 86 A.3d 600 (Me. 2014) .........................................26

Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007)................................13

Finkle v. Howard Cnty., 12 F. Supp. 3d 780 (D. Md. 2014).............................11, 14

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)............................................10, 14

Humanoids Grp. v. Rogan, 375 F.3d 301 (4th Cir. 2004) ........................... 25-26, 28

Jennings v. University of N.C., 482 F.3d 686 (4th Cir.), cert. denied, 552 U.S. 887 (2007)..................................................................10

Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) .........................................................................28

Lewis v. High Point Reg’l Health Sys., 79 F. Supp. 3d 588 (E.D.N.C. 2015) .............................................................14

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CASES (continued):

PAGE

Lusardi v. Department of the Army, No. 0120133395, 2015 WL 1607756 (EEOC Apr. 1, 2015)...............................................passim

Macy v. Department of Justice, No. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012)..............................................12, 20

M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2011)........................................................24

O’Donnabhain v. Commissioner, 134 T.C. 34 (2010) ..............................................4

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ............................13

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ........................................passim

Rumble v. Fairview Health Servs., No. 14-CV-2037, 2015 WL 1197415 (D. Minn. Mar. 16, 2015) .........................................11, 14

Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) ..............................passim

Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) .................................. 10-11, 14

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)........................................10, 14

Talk Am., Inc. v. Michigan Bell Tel. Co., 131 S. Ct. 2254 (2011) ..........................28

Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985)..........................................................10, 13

United States v. Southeastern Okla. State Univ., No. 5:15-CV-324, 2015 WL 4606079 (W.D. Okla. July 10, 2015) ............................................14

Zuni Pub. Sch. Dist. No. 89 v. Department of Educ., 550 U.S. 81 (2007) ..............13

STATUTES:

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq..........................10

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STATUTES (continued):

PAGE

Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. 1681 et seq. .....................................................................................1 20 U.S.C. 1681(a) ............................................................................................8 20 U.S.C. 1682.................................................................................................1 20 U.S.C. 1687(2)(B).....................................................................................14

28 U.S.C. 517.......................................................................................................2, 24

42 U.S.C. 2000d-1......................................................................................................2

Me. Rev. Stat. Ann. Tit. 20-a, § 6501 (2013) ..........................................................26

REGULATIONS:

28 C.F.R. 0.51 ............................................................................................................2

34 C.F.R. 106 .............................................................................................................1

34 C.F.R. 106.33 ...............................................................................................passim

Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980) ..................................2

RULES:

Fed. R. App. P. 29(a) .................................................................................................2

Fed. R. Civ. P. 12(b)(6)..............................................................................................7

MISCELLANEOUS:

American Psychiatric Association, Gender Dysphoria (2013), http://dsm5.org/documents/gender dysphoria fact sheet.pdf...........................3

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MISCELLANEOUS (continued):

PAGE

DOJ, Office for Civil Rights, Office of Justice Programs, FAQ: Nondiscrimination Grant Condition in the Violence Against Women Reauthorization Act of 2013 (Apr. 9, 2014), www.justice.gov/ ovw/docs/faqs-ngc-vawa.pdf .........................................................................18

HUD, Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities (Feb. 20, 2015), https://www.hudexchange.info/resources/documents/Notice-CPD-1502-Appropriate-Placement-for-Transgender-Persons-in-Single-SexEmergency-Shelters-and-Other-Facilities.pdf ............................................... 18

Jaime M. Grant et al., Injustice At Every Turn: A Report of the National Transgender Discrimination Survey, National Center for Transgender Equality and National Gay and Lesbian Task Force (2011), http://www.thetaskforce.org/downloads/reports/ntds_ full.pdf........................................................................................................4, 19

Letter from James A. Ferg-Cadima, OCR Acting Deputy Assistant Secretary of Policy (Jan. 7, 2015)..................................................23

Memorandum to Regional Administrators and State Designees from John B. Miles, Jr., Director of Compliance Programs, Regarding OSHA’s Interpretation of 29 C.F.R. 1910.141(c)(1)(i): Toilet Facilities (Apr. 6, 1998), https://www.osha.gov/pls/oshaweb/ owadisp.show_document?p_table =INTERPRETATIONS&p_ id=22932 ........................................................................................................17

OCR, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014), www.ed.gov/ocr/docs/qa-201404-title-ix.pdf ......................2

OCR, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014), www.ed.gov/ocr/docs/faqs-title-ix-s ingle-sex-201412.pdf ................................................................................2, 23

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MISCELLANEOUS (continued):

PAGE

OPM, Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, http://www.opm.gov/ policy-data-oversight/diversity-and-inclusion/referencematerials/gender-identity-guidance (last visited Oct. 27, 2015) ...................18

OSHA, A Guide to Restroom Access for Transgender Workers (June 1, 2015), http://www.osha.gov/Publications/OSHA3795.pdf ....... 17-18

Resolution Agreement Between the United States and Arcadia Unified School District (July 24, 2013), http://www.justice.gov/ crt/about/edu/documents/arcadiaagree.pdf ....................................................24

Resolution Agreement Between the United States and Downey Unified School District (Oct. 8, 2014), http://www2.ed.gov/documents/pressreleases/downey-school-district-agreement.pdf ............................................24

WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People (7th ed. 2012), http://www.wpath.org/uploaded_files/140/files/Standards Of Care, V7 Full Book.pdf ............................................................................................... 3-5

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IN THE 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 __________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA _________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFF-APPELLANT AND URGING REVERSAL _________________
INTEREST OF THE UNITED STATES
Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. 1681 et
seq., prohibits sex discrimination in educational programs and activities receiving
federal financial assistance. The United States Department of Education (ED)
provides federal funding to many educational programs and activities and oversees
their compliance with Title IX. 20 U.S.C. 1682. Through its Office for Civil
Rights (OCR), ED investigates complaints and conducts compliance reviews; it
also promulgates regulations effectuating Title IX, 34 C.F.R. 106, and guidance to

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help recipients understand their Title IX obligations. See, e.g., OCR, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014) (OCR Single-Sex Q&A), www.ed.gov/ocr/docs/faqs-title-ix-single-sex-201412.pdf; OCR, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014), www.ed.gov/ocr/docs/qa-201404-title-ix.pdf.
The Department of Justice (DOJ) coordinates ED’s and other agencies’ implementation and enforcement of Title IX. Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980); 28 C.F.R. 0.51. DOJ may file federal actions in Title IX cases where DOJ provides financial assistance to recipients or where ED refers a matter to DOJ. 42 U.S.C. 2000d-1. Pursuant to 28 U.S.C. 517, the United States filed a Statement of Interest in the district court in this case to protect its interest in the proper interpretation of Title IX and its implementing regulations. The United States files this brief pursuant to Federal Rule of Appellate Procedure 29(a).
STATEMENT OF THE ISSUES We address the following question: Whether a school district violates Title IX’s prohibition on discrimination “on the basis of sex” when it bars a student from accessing the restrooms that correspond to his gender identity because he is transgender.

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STATEMENT OF THE CASE 1. Background
A transgender person is someone whose gender identity (i.e., internal sense of being male or female) differs from the sex assigned to that person at birth. Someone who was designated male at birth but identifies as female is a transgender girl or woman; someone who was designated female at birth but identifies as male is a transgender boy or man. Gender dysphoria is a medical diagnosis given to individuals who experience an ongoing “marked difference between” their “expressed/experienced gender and the gender others would assign” them. American Psychiatric Association, Gender Dysphoria, at 1 (2013), http://dsm5.org/ documents/gender dysphoria fact sheet.pdf.
To alleviate the psychological stress that this disconnect creates, transgender individuals often undertake some level of gender transition to bring external manifestations of gender into conformity with internal gender identity. The clinical basis for gender transition, and the protocol for transitioning, are wellestablished. Since the 1970s, the World Professional Association for Transgender Health (WPATH), an internationally recognized organization devoted to the study and treatment of gender-identity-related issues, has published “Standards of Care,” which set forth recommendations for the treatment of gender dysphoria and the research supporting those recommendations. WPATH, Standards of Care for the

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Health of Transsexual, Transgender, and Gender-Nonconforming People (7th ed. 2012) (WPATH Standards), http://www.wpath.org/uploaded_files/140/files/ Standards Of Care, V7 Full Book.pdf.
A critical stage of gender transition is the “real-life experience,” during which a transgender person experiences living full-time as the gender to which he or she is transitioning. See O’Donnabhain v. Commissioner, 134 T.C. 34, 38 (2010). This experience necessarily includes using the sex-segregated facilities (e.g., restrooms) corresponding with that gender. See WPATH Standards, at 61 (“During this time, patients should present consistently, on a day-to-day basis and across all settings of life, in their desired gender role.”).
For individuals for whom genital surgery is appropriate, the WPATH Standards require that they live full-time in their new gender for at least one year. WPATH Standards at 21, 58, 60-61. Contrary to popular misconception, however, the majority of transgender people do not have genital surgery. See Jaime M. Grant et al., Injustice At Every Turn: A Report of the National Transgender Discrimination Survey, National Center for Transgender Equality and National Gay and Lesbian Task Force, at 2, 26 (2011), http://www.thetaskforce.org/ downloads/reports/ntds_full.pdf (NCTE Survey) (survey of 6450 transgender and gender non-conforming adults revealed that just 33% of respondents had surgically transitioned). Determinations about medical care must be made by physicians and

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their patients on an individualized basis. WPATH Standards at 5, 8-9, 58, 97. For some, health-related conditions make invasive surgical procedures too risky; for others, the high cost of surgical procedures, which are often excluded from insurance coverage, poses an insurmountable barrier. See id. at 58. Moreover, and of special salience to the operation of Title IX, sex reassignment surgery is generally unavailable to transgender children under age 18. See WPATH Standards at 21, 104-106. 2. Statement Of Facts
G.G., a 16-year-old transgender boy, is a junior at Gloucester High School in Gloucester County, Virginia. Although G.G. was designated female at birth, in April 2014, a psychologist diagnosed him with gender dysphoria and started him on a course of treatment, which included a full social gender transition. JA29. As part of that transition, G.G. legally changed his name to a traditionally male name, changed the gender marker on his driver’s license to male, is referred to by male pronouns, uses men’s restrooms when not at school, and began hormone treatment, which has deepened his voice, increased his facial hair, and given him a more masculine appearance. JA29-30, 60.
In August 2014, at the start of his sophomore year, G.G. and his mother informed Gloucester High School officials about his gender transition and name change. JA30. School officials changed his name in his school records and

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instructed G.G. to email his teachers to explain his transition and request that they refer to him by his new name and male pronouns. JA30. Although G.G. initially agreed to use a separate restroom in the nurse’s office, he soon found this option stigmatizing and inconvenient, as well as unnecessary, as his teachers and peers generally respected that he is a boy. JA30-31. Accordingly, upon G.G.’s request, the school permitted him to begin using the boys’ restrooms, which he did for seven weeks without incident. JA31.
In November 2014, however, some adults in the community learned that G.G. was using the boys’ restroom and demanded that the Gloucester County School Board (GCSB) bar him from doing so. JA15. On December 9, 2014, after two public meetings, GCSB enacted a policy limiting students to restrooms corresponding to their “biological genders” and requiring students with “gender identity issues” to use “an alternative appropriate private facility.” JA16.
The next day, G.G.’s principal informed him that, due to GCSB’s new policy, he could no longer use the boys’ restroom and would be disciplined if he attempted to do so. JA32. Although the school subsequently installed three unisex, single-stall restrooms,1 G.G. found using these restrooms even more

1 The school also made several privacy-related improvements to its communal restrooms, including raising the doors and walls around the stalls and installing partitions between the urinals in the boys’ restrooms. JA17, 143-144.

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stigmatizing than using the nurse’s restroom. JA32. Therefore, for the rest of his sophomore year, G.G. tried to avoid using the restroom altogether while at school, leading him to develop painful urinary tract infections. JA32-33. 3. Procedural History
On June 11, 2015, G.G. sued GCSB alleging that its policy violated Title IX and the Equal Protection Clause. JA9-24. G.G. also filed a motion for a preliminary injunction to enjoin GCSB from enforcing the policy and thereby permit him to resume using the boys’ restrooms when school started in September. JA25-27. The United States filed a Statement of Interest in support of G.G.’s preliminary injunction motion. JA4-5. On July 7, 2015, GCSB filed a motion to dismiss G.G.’s complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). JA5.
At a July 27, 2015, hearing to address both motions, the court announced that it was dismissing G.G.’s Title IX claim based solely on the fact that ED’s Title IX regulations permit schools to provide separate boys’ and girls’ restrooms. JA114-116. The court stated that it would allow G.G.’s equal protection claim to proceed but postponed ruling on his preliminary injunction motion. JA129-131.
On September 4, 2015, the district court denied G.G.’s preliminary injunction motion (JA137-138), and on September 17, 2015, it issued its memorandum opinion (JA139-164). As to Title IX, the court stated that it need not

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decide whether Title IX’s prohibition on sex discrimination includes transgender discrimination because, in its view, G.G.’s Title IX claim “is precluded by” 34 C.F.R. 106.33, ED’s regulation authorizing sex-segregated restrooms. JA149.
ARGUMENT WHERE A SCHOOL PROVIDES SEPARATE RESTROOMS FOR BOYS AND GIRLS, BARRING A STUDENT FROM THE RESTROOMS THAT CORRESPOND TO HIS OR HER GENDER IDENTITY BECAUSE THE
STUDENT IS TRANSGENDER CONSTITUTES UNLAWFUL SEX DISCRIMINATION UNDER TITLE IX
A. GCSB’s Restroom Policy Violates Title IX Title IX provides that no person shall “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 “on the basis of sex.” 20 U.S.C. 1681(a). Since the Supreme Court’s decision in Price Waterhouse v. Hopkins, it is well-established that discrimination on the basis of “sex” is not limited to preferring males over females (or vice versa) but includes differential treatment based on any “sex-based consideration[].” 490 U.S. 228, 242 (1989) (plurality).
Here, GCSB’s restroom policy denies G.G. a benefit that all of his peers enjoy—access to restrooms consistent with their gender identity—because, unlike them, his birth-assigned sex does not align with his gender identity. The policy subjects G.G. to differential treatment, and the basis for that treatment—the

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divergence between his gender identity and what GCSB deemed his “biological gender”—is unquestionably a “sex-based consideration[].” Price Waterhouse, 490 U.S. at 242 (plurality). GCSB’s generalized assertions of safety and privacy cannot override Title IX’s guarantee of equal educational opportunity. Accordingly, G.G. established a likelihood of success on his claim that GCSB’s policy violates Title IX.
1. Treating A Transgender Student Differently From Other Students Because He Is Transgender Constitutes Differential Treatment On The Basis Of Sex
GCSB’s restroom policy denies G.G. a benefit that every other student at his school enjoys: access to restrooms that are consistent with his or her gender identity. Whereas the policy permits non-transgender students to use the restrooms that correspond to their gender identity (because their gender identity and “biological gender” are aligned), it prohibits G.G. from doing so because, although he identifies and presents as male, the school deems his “biological gender” to be female. Indeed, prohibiting G.G. from using the boys’ restrooms was precisely GCSB’s purpose in enacting the policy.
Treating a student differently from other students because his birth-assigned sex diverges from his gender identity constitutes differential treatment “on the basis of sex” under Title IX. Although federal courts initially construed prohibitions on sex discrimination narrowly—as prohibiting only discrimination

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based on one’s biological status as male or female, see, e.g., Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084-1085 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985)—the Supreme Court “eviscerated” that approach in Price Waterhouse. Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004). There, the Court held that an accounting firm violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., when it denied a female senior manager partnership because she was considered “macho,” “aggressive,” and not “feminine[]” enough. Price Waterhouse, 490 U.S. at 235 (plurality) (citations omitted). In doing so, Price Waterhouse rejected the notion that “sex” discrimination occurs only in situations in which an employer prefers a man over a woman (or vice versa); rather, a prohibition on sex discrimination encompasses any differential treatment based on a consideration “related to the sex of” the individual.2 Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000).
A transgender person’s transgender status is unquestionably related to his sex: indeed, the very definition of being “transgender” is that one’s gender identity does not match one’s “biological” or birth-assigned sex. See Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (recognizing “a congruence between

2 Although Price Waterhouse arose under Title VII, this court and others “look to case law interpreting Title VII * * * for guidance in evaluating a claim brought under Title IX.” Jennings v. University of N.C., 482 F.3d 686, 695 (4th Cir.), cert. denied, 552 U.S. 887 (2007); see also JA146.

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discriminating against transgender * * * individuals and discrimination on the basis of gender-based behavioral norms”); see also Finkle v. Howard Cnty., 12 F. Supp. 3d 780, 788 (D. Md. 2014); Rumble v. Fairview Health Servs., No. 14-CV2037, 2015 WL 1197415, at *2 (D. Minn. Mar. 16, 2015). Thus, discrimination against a transgender person based on the divergence between his gender identity and birth-assigned sex denies that person an opportunity or benefit based on a consideration “related to” sex. Schwenk, 204 F.3d at 1202.
Whether viewed as discrimination based on the divergence between G.G.’s gender identity and “biological” sex or discrimination due to gender transition, GCSB’s policy “literally discriminat[es] ‘because of . . . sex.’” Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008). As the Schroer court explained, firing an employee because she converts from Christianity to Judaism “would be a clear case of discrimination ‘because of religion,’” even if the employer “harbors no bias toward either Christians or Jews but only ‘converts,’” because “[n]o court would take seriously the notion that ‘converts’ are not covered by the statute.” Id. at 306. By the same logic, the court concluded, discrimination against a person because he has “changed” his sex, i.e., he is presenting as a different sex from the one he was assigned at birth, would be “a clear case” of discrimination because of sex. Ibid.

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Following the reasoning of Price Waterhouse, Glenn, and Schroer, the Equal Employment Opportunity Commission (EEOC) has concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex’” in violation of Title VII. Macy v. Department of Justice, No. 0120120821, 2012 WL 1435995, at *11 (EEOC Apr. 20, 2012). Although Macy involved an employer’s refusal to hire a transgender individual, in Lusardi, the EEOC applied Macy’s holding to a claim involving a restriction on a transgender employee’s restroom access akin to the restriction GCSB placed on G.G. As here, it was undisputed that Lusardi’s transgender status “was the motivation for [the employer’s] decision to prevent [her] from using the common women’s restroom.” Lusardi v. Department of the Army, No. 0120133395, 2015 WL 1607756, at *7 (EEOC Apr. 1, 2015). Thus, the EEOC held, because discrimination against a person because she is transgender “is, by definition, discrimination ‘based on . . . sex,’” ibid., the employer violated Title VII when it barred Lusardi from using the women’s restroom—a resource “that other persons of her gender were freely permitted to use,” id. at *9—because she is transgender.
To be sure, a few courts have held, largely based on assumptions about what Congress must have intended when it enacted Title VII in 1964, that the prohibition against sex discrimination does not apply to discrimination against

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transgender individuals. See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221-1222 (10th Cir. 2007) (relying on Ulane, 742 F.2d at 1084-1087). But as Schroer observed, those decisions “represent an elevation of ‘judge-supposed legislative intent over clear statutory text.’” 577 F. Supp. 2d at 307 (quoting Zuni Pub. Sch. Dist. No. 89 v. Department of Educ., 550 U.S. 81, 108 (2007) (Scalia, J., dissenting)). It may well be that the Congresses that enacted Title VII in 1964 and Title IX in 1972 did not have transgender individuals in mind. But the same can be said for other conduct that is now recognized as prohibited sex discrimination under those statutes. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). As the Supreme Court explained in Oncale, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” Id. at 79. Nonetheless, the Court emphasized that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Ibid. Excluding from the statute’s purview conduct that falls within its plain text simply because Congress may not have contemplated it “is no longer a tenable approach to statutory construction.” Schroer, 577 F. Supp. 2d at 307.
In the wake of Oncale and Price Waterhouse, numerous courts now recognize that prohibitions against sex discrimination protect transgender

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individuals from discrimination. See, e.g., Glenn, 663 F.3d at 1317; Smith, 378 F.3d at 573; Schwenk, 204 F.3d at 1201; Finkle, 12 F. Supp. 3d at 788; Lewis v. High Point Reg’l Health Sys., 79 F. Supp. 3d 588, 589-590 (E.D.N.C. 2015); Schroer, 577 F. Supp. 2d at 308; United States v. Southeastern Okla. State Univ., No. 5:15-CV-324, 2015 WL 4606079, at *2 (W.D. Okla. July 10, 2015); Rumble, 2015 WL 1197415, at *2. This Court should too. Treating a student adversely because the sex assigned to him at birth does not match his gender identity is literally discrimination “on the basis of sex.” 20 U.S.C. 1681.
2. Where A School Provides Sex-Segregated Restrooms, Denying A Student Access To The Restrooms Consistent With His Or Her Gender Identity Denies That Student Equal Educational Opportunity
Just as “[e]qual access to restrooms is a significant, basic condition of employment,” Lusardi, 2015 WL 1607756, at *9, so too is it a basic condition of full and equal participation in a school’s educational programs and activities. See 20 U.S.C. 1687(2)(B) (defining “program[s] or activit[ies]” to mean “all of the operations” of a school). Prohibiting a transgender male student from using boys’ restrooms, when other non-transgender male students face no such restriction, deprives him not only of equal educational opportunity but also “of equal status, respect, and dignity.” Lusardi, 2015 WL 1607756, at *10.
Under GCSB’s policy, G.G. may only use either the girls’ restroom or a separate “unisex” restroom. That other students may choose to use the unisex

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restroom does not change the fact that this policy, which was directed at G.G., not only denies G.G.’s “very identity” as a boy, Lusardi, 2015 WL 1607756, at *10, but also singles him out in a way that is humiliating and stigmatizing. For example, even when there is a boys’ restroom next to his classroom or locker, G.G. must seek out a unisex restroom in a different part of the school. See JA32. In placing this restriction on G.G., GCSB essentially labels him as “other.”
The only other “option” made available to G.G.—using the girls’ restroom —is illusory. It is unrealistic to suggest that a student like G.G., who identifies and presents as a boy and whom the school treats as a boy in every other respect, could walk into a girls’ restroom without creating a situation that is disruptive to his female classmates and humiliating to him.3 Not surprisingly, students put in such an untenable position often try to avoid using the restroom all day—putting them at risk for urinary tract infections and other health problems (see JA33)—rather than use a facility that either conflicts with their gender identity or physically and symbolically marks them “as some type of ‘other.’” JA32. In other words, denying a transgender boy access to the boys’ restroom is often much more than a

3 Indeed, even before he began masculinizing hormone treatment, G.G.’s female classmates, perceiving him to be a boy, reacted negatively to his presence in the girls’ restroom. JA32.

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mere inconvenience or limitation on his ability to use the restroom—it can be an effective denial of a restroom altogether.
As a result of such a policy, transgender students like G.G. are denied the ability to participate fully in and take advantage of their school’s educational programs. No one could reasonably expect a student to make it through an entire school day without access to a restroom; any student who attempted to do so would likely experience discomfort and anxiety affecting his ability to concentrate during class, further diminishing his educational experience. See JA32-33. And even if a student could avoid using the restroom during regular school hours, such a restriction would still limit his ability to participate in after-school extracurricular activities that are important to a child’s intellectual, social, and emotional development.4
Just as an employee is denied equal employment opportunity if he is denied access to an on-site restroom that co-workers of his same gender may use, see

4 And even if a transgender student were willing to use a unisex restroom, the number and location of such restroom(s) may be such that a transgender student at a large school would have difficulty reaching the “authorized” restroom in the allotted time between classes. See, e.g., JA32 (G.G.’s affidavit stating that only one of the unisex restrooms is “located anywhere near the restrooms used by other students” and that none of the unisex restrooms is “located near [his] classes”). A student in such situation may feel as though he needed to limit his movement over the course of the day to ensure proximity to an “authorized” restroom, to avoid being late to class or, even worse, having an accident that would humiliate and stigmatize him further.

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Lusardi, 2015 WL 1607756, at *9,5 so too is a student denied equal educational

opportunity when restrictions of these kinds are placed on his ability to use the

restroom. It is for this reason that the Department of Education—the agency with

primary enforcement authority over Title IX—has concluded that, although

recipients may provide separate restrooms for boys and girls, when a school does

so, it must treat transgender students consistent with their gender identity. Doing

so is the only way to ensure that the school’s provision of sex-segregated restrooms

complies with Title IX’s mandate not to subject any student to discrimination on the basis of sex.6

5 The Department of Labor’s Occupational Safety and Health Administration (OSHA) guidelines require agencies to provide employees access to adequate sanitary facilities. See Memorandum to Regional Administrators and State Designees from John B. Miles, Jr., Director of Compliance Programs, Regarding OSHA’s Interpretation of 29 C.F.R. 1910.141(c)(1)(i): Toilet Facilities (Apr. 6, 1998), https://www.osha.gov/pls/oshaweb/owadisp.show_document? p_table =INTERPRETATIONS&p_id=22932. To that end, OSHA has issued guidance clarifying that employees “should be permitted to use the facilities that correspond with their gender identity” and that “[t]he employee,” not the employer, “should determine the most appropriate and safest option for him- or herself.” OSHA, A Guide to Restroom Access for Transgender Workers, at 2 (June 1, 2015) (OSHA Transgender Guidance), http://www.osha.gov/Publications/OSHA3795.pdf.
6 ED’s view is consistent with that of numerous other federal agencies, including the EEOC, the Department of Housing and Urban Development (HUD), the Office of Personnel Management (OPM), and OSHA, which have all concluded that, in situations in which a distinction based on sex is permissible under the law, a transgender person’s “sex” must be determined by his or her
(continued…)

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3. General Invocations Of Privacy And Safety Do Not Override Title IX’s Prohibition Against Sex Discrimination
Although GCSB claims that its policy “seeks to provide a safe learning environment for all students and to protect the privacy of all students” (JA142), such asserted concerns do not justify barring G.G. from accessing the restrooms consistent with his gender identity. While a school certainly may take steps designed to ensure the safety of its students, general invocations of “safety” provide no basis for denying a student access to the gender-identity appropriate restroom. To the extent GCSB claims to be concerned about other students’ safety, it has not provided any factual basis for concluding that G.G.’s use of the boys’ restroom poses a safety risk to any student. A school cannot deny a transgender boy educational opportunities based on a blanket and unfounded

(…continued) gender identity, not by the sex assigned at birth. See Lusardi, 2015 WL 1607756, at *8; HUD, Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities, at 3 (Feb. 20, 2015), https://www.hudexchange.info/resources/documents/Notice-CPD-15-02Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-EmergencyShelters-and-Other-Facilities.pdf; OPM, Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, http://www.opm.gov/policydata-oversight/diversity-and-inclusion/reference-materials/gender-identityguidance (last visited Oct. 27, 2015); OSHA Transgender Guidance, supra note 5; cf. DOJ, Office for Civil Rights, Office of Justice Programs, FAQ: Nondiscrimination Grant Condition in the Violence Against Women Reauthorization Act of 2013, at 8-9 (Apr. 9, 2014), www.justice.gov/ovw/docs/faqs-ngc-vawa.pdf.

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assumption that all transgender boys pose a danger to other boys in the restroom just by virtue of being transgender.
To the extent GCSB claims to be concerned about transgender students’ safety, such a claim is belied by the fact that the policy it enacted makes it more likely that transgender students will be subject to harassment (or worse). In many cases, a transgender student’s classmates do not even know he is transgender; requiring him to use either a restroom contrary to his gender identity or a separate unisex restroom thus functions to “out” him, putting the student at increased risk of harm. See NCTE Survey at 154, p. 4, supra (noting that “outing” a person as transgender “presents the possibility for disrespect, harassment, discrimination or violence”). Where the student is already “out” publicly—as G.G. was here, largely due to the public hearings putting his transgender status front-and-center—the school can, and should, monitor other students’ treatment of him and put measures in place to ensure that he not suffer sex-based harassment in the restroom or anywhere else. See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999) (school violates Title IX when it is deliberately indifferent to known student-onstudent sexual harassment). The appropriate solution, in other words, is to monitor, prevent, and punish the students doing the harassing, not to deny the

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vulnerable student an equal educational opportunity in the name of protecting him.7
Likewise, however commendable an interest in student privacy may be in the abstract, general appeals to “privacy” cannot justify denying transgender students the right to use gender-identity appropriate restrooms. With regard to its existing restrooms, a school can take—and, in fact, Gloucester High School has taken—measures to enhance privacy, such as “adding or expanding partitions between urinals in male restrooms,” and “adding privacy strips to the doors of stalls in all restrooms.” JA17. If a school wishes to accommodate students who are particularly modest, it may create—and, in fact, Gloucester High School has created—additional single-user restroom options. JA19. What it cannot do in the name of “privacy” is exclude a male student from the boys’ restroom and require him to use a separate restroom because he was assigned a different sex at birth than other boys. The desire to accommodate other students’ (or their parents’) discomfort cannot justify a policy that singles out and disadvantages one class of students on the basis of sex. Macy, 2012 WL 1435995, at *10 & n.15; cf. Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981, 983-984 (8th Cir. 2002) (dismissing

7 It goes without saying that if a student is being harassed in the restroom because of his religion or his disability, the appropriate solution is to restrict and punish the harasser, not to single out the victim of harassment and require him to use a separate bathroom.

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female employee’s claim alleging that transgender female co-worker’s use of women’s restroom created hostile work environment).
GCSB’s claim that it has “had a long-standing practice” of restricting restroom use by “biological sex” to “respect the safety and privacy of all students” (Doc. 32, at 6 (brief in support of motion to dismiss); see also Doc. 46, at 3 (reply to appellant’s response to motion to dismiss)), is belied by the fact that it needed to enact a formal policy establishing such a restriction. Indeed, the reality is that, in the context of restrooms outside the home, people generally use the facilities that are appropriate for them based on their gender identity and expression; nobody is stationed at the door asking for a birth certificate or the results of a chromosome test, or checking to see what genitals the people entering the facility have. It is only in response to transgender people gaining more visibility that schools and other entities have begun to depart from that practice and demand that restroom access be based on “birth” or “biological” sex. And even then, as this case suggests, employers and educational institutions appear to enforce such bathroom policies predicated on “birth” or “biological” sex against only those individuals who have self-identified as transgender or been outed by others.
In short, although promoting safety and privacy are legitimate goals in the abstract, neither of these rationales can justify a policy that denies G.G.—and other

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students like him—not just access to the gender-appropriate restroom but, more fundamentally, an equal opportunity at an education. B. The Department Of Education’s Title IX Regulations Do Not Permit Schools
To Enact Discriminatory Restroom Policies Like GCSB’s Contrary to the district court’s conclusion, ED’s Title IX regulations do not “preclude[]” G.G.’s Title IX claim. JA149. The regulation in question states only that a school “may provide separate toilet * * * facilities on the basis of sex” under Title IX, as long as the “facilities provided for students of one sex” are “comparable to such facilities provided for students of the other sex.” 34 C.F.R. 106.33. It is silent on the question at issue here: whether, once a school has provided separate boys’ and girls’ restrooms pursuant to Section 106.33, it may prohibit a male student from accessing the boys’ restrooms because he is transgender.8 The district court’s conclusion that Section 106.33 “clearly” permits GCSB’s restroom policy (JA152) directly contradicts the interpretation of the Department of Education—the agency that promulgated the regulation. ED

8 G.G. does not challenge the existence of male and female restrooms, Appellant’s Br. 31, and for good reason. ED has concluded that the mere act of providing separate restroom facilities for males and females does not violate Title IX (as long as the facilities are comparable), see 34 C.F.R. 106.33, which is reasonable because such segregation does not disadvantage or stigmatize any student but simply comports with a historical practice when using multi-user restroom facilities outside the home. See also Appellant’s Br. 36-37.

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interprets Section 106.33 to mean that recipients may provide separate restrooms for boys and girls. Section 106.33 does not, in ED’s view, give schools the authority to decide that only those males who were assigned the male sex at birth can use the boys’ restroom. To the contrary, ED has stated explicitly that although “[t]he Department’s Title IX regulations permit schools to provide sex-segregated restrooms,” when a school elects to do so, it “generally must treat transgender students consistent with their gender identity” so as not to violate Title IX. JA55 (Letter from James A. Ferg-Cadima, OCR Acting Deputy Assistant Secretary of Policy (Jan. 7, 2015)); see also OCR Single-Sex Q&A at 25 (same guidance for classes and activities).9
That interpretation is consistent with how ED has enforced Title IX in this context. ED has reached voluntary resolution with two school districts that had imposed restrictions on transgender students’ restroom access similar to GCSB’s policy; the agreements provide that those districts will treat transgender students consistent with their gender identity in all aspects of their education, including

9 ED’s guidance does not limit a school’s ability to accommodate a transitioning student’s voluntary request to phase in his access to restrooms of his new gender, as was done here. Absent such a request, however, schools must treat a transitioning student consistent with his gender identity.

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their restroom access.10 ED has also, in conjunction with DOJ’s Civil Rights

Division, filed two Statements of Interest and the instant amicus brief asserting

that, although recipients may provide separate boys’ and girls’ restrooms pursuant

to Section 106.33, a recipient violates Title IX when it prohibits transgender

students from using restrooms consistent with their gender identity. See Doc. 38;

Statement of Interest of the United States, Tooley v. Van Buren Pub. Sch., No.

2:14-CV-13466 (E.D. Mich. Feb. 20, 2015). Thus, ED plainly does not interpret

Section 106.33 to permit schools to enact policies like GCSB’s.

Where there is dispute about the meaning of a regulation, the agency’s

interpretation is “controlling unless plainly erroneous or inconsistent with the

regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (citation and internal

quotation marks omitted). That “deferential standard,” ibid., is certainly met here.11 ED interprets its regulation as clarifying that schools may provide separate

10 Resolution Agreement Between the United States and Downey Unified School District (Oct. 8, 2014), http://www2.ed.gov/documents/pressreleases/downey-school-district-agreement.pdf; Resolution Agreement Between the United States and Arcadia Unified School District (July 24, 2013), http://www.justice.gov/crt/about/edu/documents/arcadiaagree.pdf.
11 Auer deference is owed to agency interpretations expressed in amicus briefs and Statements of Interest filed pursuant to 28 U.S.C. 517, see Auer, 519 U.S. at 462 (amicus brief); M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir. 2011) (Statement of Interest), as well as those issued “through an informal process” like
(continued…)

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restrooms for boys and girls without running afoul of Title IX. That is the most natural reading of the regulatory language. See 34 C.F.R. 106.33 (“A recipient may provide separate toilet * * * 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.”) (emphasis added). Because the regulation is silent on what the phrases “students of one sex” and “students of the other sex” mean in the context of transgender students, ED has provided guidance on that question. ED interprets the regulation as requiring schools to treat students consistent with their gender identity because doing so ensures that transgender students are not denied equal educational opportunity for the reasons described above. ED’s interpretation is a reasonable one, and is thus entitled to deference. See Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 207 (2011) (where regulation is silent as to the “crucial interpretive question,” court must look to the agency’s “own interpretation of the regulation”); Humanoids Group v. Rogan, 375 F.3d 301, 306 (4th Cir. 2004) (deferring to agency interpretation of how its trademark regulation should apply in situation not explicitly addressed by regulation’s language).

(…continued) an “opinion letter,” D.L. v. Baltimore City Bd. of Sch. Comm’rs, 706 F.3d 256, 259 (4th Cir. 2013).

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Section 106.33 is comparable to a Maine statute requiring that restrooms in school buildings be “[s]eparated according to sex.” Me. Rev. Stat. Ann. Tit. 20-a, § 6501 (2013). In Doe v. Regional School Unit 26, 86 A.3d 600 (Me. 2014), the Maine Supreme Court concluded that this statute “does not mandate, or even suggest, the manner in which transgender students should be permitted to use sexseparated facilities.” Id. at 605-606. Thus, the court concluded, an elementary school could not rely on the statute to justify its decision to bar a transgender girl from the girls’ restroom. Id. at 606. As the court explained, although the statute requires schools to provide “separate bathrooms for each sex,” it “does not—and school officials cannot—dictate the use of the bathrooms in a way that discriminates against students in violation of” the State’s nondiscrimination law. Ibid. ED reasonably reached the same conclusion with regard to 34 C.F.R. 106.33.
The district court’s conclusion that Section 106.33’s plain language supports only the court’s interpretation and therefore “is not ambiguous” (JA152), does not withstand scrutiny.12 The district court’s strained reading—that by using the term “on the basis of sex,” Section 106.33 authorizes schools to use whatever sex-based criterion they wish to determine who qualifies as a boy or girl for restroom use— divorces the phrase from the context in which it appears. In contrast to Title IX’s

12 Whether a regulation is ambiguous is a legal question that this Court determines de novo. Humanoids, 375 F.3d at 306.

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statutory language banning sex-based discrimination, the phrase “on the basis of sex” in the context of Section 106.33 most naturally refers to the commonplace, and long-accepted, practice of providing separate male and female restrooms. It would be incongruous for the Department of Education, in a regulation implementing Title IX’s antidiscrimination provision, to have given schools free rein to use whatever sex-based criterion they want in determining who gets to use each restroom. 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 boys’ restroom, or that only students who wear dresses, have long hair, and act sufficiently feminine may use the girls’ restroom. To do so would engage in precisely the sort of sex stereotyping that Price Waterhouse forbids. Yet, the district court’s interpretation of Section 106.33 would seem to allow just that. That is not a sensible reading.
But even if the district court’s interpretation of Section 106.33 were plausible, that does not render ED’s reading incorrect; at most it would mean that the regulation is ambiguous. This is not a case like Christensen v. Harris County, which involved a regulation whose plain language precluded the agency’s interpretation. 529 U.S. 576, 587-588 (2000) (regulation’s use of “may” instead of “must” made regulation permissive, thus foreclosing agency’s interpretation setting forth a mandatory requirement). Here, Section 106.33’s language does not “clearly

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preclude[]” ED’s interpretation; indeed, as explained, ED’s interpretation is the best reading of its own regulation. Humanoids, 375 F.3d at 306. But to the extent there is any ambiguity, this Court must give “binding deference” to ED’s reasonable interpretation of its own regulation. Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 439 (4th Cir. 2003).
The district court’s suggestion that ED arrived at its interpretation “for the purposes of litigation” is inaccurate. JA153. ED is “not a party to this case”; it advances its interpretation of Section 106.33, both below and on appeal, as an amicus curiae, just as the Department of Labor did in Auer. Chase Bank, 562 U.S. at 209. Thus, its position “is in no sense a ‘post hoc rationalizatio[n]’ advanced by an agency seeking to defend past agency action against attack.” Auer, 519 U.S. at 462 (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988)). To the contrary, the interpretation of Section 106.33 that ED advances here “is entirely consistent with its past views,” as expressed in the agreements it has reached with school districts, in its guidance on single-sex activities, in OCR’s 2014 letter, and in its Statement of Interest in Tooley. Chase Bank, 562 U.S. at 210.
The district court’s characterization of ED’s interpretation as “newfound” (JA153) is also misplaced. Section 106.33’s application to the context of transgender students’ restroom access “did not arise until recently.” Talk Am., Inc. v. Michigan Bell Tel. Co., 131 S. Ct. 2254, 2263 (2011) (according Auer deference

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to agency’s new interpretation of its “longstanding” regulations). For most of its existence, there was no dispute about Section 106.33’s meaning; it was understood simply to mean what it says, i.e., that Title IX recipients can provide separate boys’ and girls’ facilities. It is only in recent years, as schools have confronted the reality that some students’ gender identities do not align with their birth-assigned sex, that schools have begun citing Section 106.33 as justification for enacting new policies restricting transgender students to facilities based on their “birth” or “biological” sex. It is to those “newfound” policies that ED’s interpretation of the regulation responds. Providing guidance on how its regulations apply in new contexts is precisely the role of a federal agency.
ED has reasonably concluded that, although Section 106.33 permits schools to provide separate boys’ and girls’ restrooms, when a school elects to do so, it must permit students to use the restrooms that are consistent with their gender identity. Because ED’s interpretation of its own regulation controls, the district court erred in dismissing G.G.’s Title IX claim on the ground that Section 106.33 authorizes GCSB’s restroom policy.

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CONCLUSION GCSB’s restroom policy singles G.G. out and treats him differently from all other students because the sex he was assigned at birth does not align with his gender identity. Because that policy is “literally discrimination ‘because of . . . sex,’” Schroer, 577 F. Supp. 2d at 308, G.G. established a likelihood of success on his Title IX claim, and the district court thus erred in dismissing it.

JAMES COLE, JR. General Counsel
FRANCISCO LOPEZ VANESSA SANTOS MICHELLE TUCKER Attorneys
U.S. Department of Education Office of the General Counsel

Respectfully submitted,
GREGORY B. FRIEL Deputy Assistant Attorney General
s/ Christine A. Monta DIANA K. FLYNN SHARON M. MCGOWAN CHRISTINE A. MONTA Attorneys
U.S. Department of Justice Civil Rights Division Appellate Section – RFK 3730 Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 353-9035

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CERTIFICATE OF COMPLIANCE I certify, pursuant to Federal Rule of Appellate Procedure, that the attached BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFF-APPELLANT AND URGING REVERSAL: (1) complies with Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(B) because it contains 6727 words; and (2) complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007, in 14-point Times New Roman font.

Dated: October 28, 2015

s/ Christine A. Monta CHRISTINE A. MONTA Attorney

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CERTIFICATE OF SERVICE I certify that on October 28, 2015, I electronically filed the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFFAPPELLANT AND URGING REVERSAL with the Clerk of the Court using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. I further certify that eight paper copies of the electronically-filed brief were sent to the Clerk of the Court by first class mail.

s/ Christine A. Monta CHRISTINE A. MONTA Attorney

 
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LESBIAN GAY BISEXUAL TRANSGENDER AND AIDS PROJECT AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD ST., 18TH FL. NEW YORK, NY 10004 T/21 2.549.2600 WWW.ACLU.ORG/LGBT

To Whom it May Concern:
We write to file a complaint against Gloucester County Public Schools (“GCPS”) on behalf of Gavin Grimm. On December 9, 2014, the Gloucester County Public School Board (the “School Board”) adopted a policy stating that the use of boys’ and girls’ restroom and locker rooms “shall be limited to the corresponding biological genders, and students with sincere gender identity issues shall be provided an alternative private facility.” Gavin, who is a tenth-grade student at Gloucester High School and a transgender boy, had been using the boys’ restroom facilities at school without any complaints from peers, prior to the adoption of this policy. GCPS adopted its “biological gender” policy in direct response to Gavin in order to prevent him from continuing to use boys’ facilities. The “biological gender” policy on its face and as applied to Gavin discriminates against Gavin on the basis of his sex in violation of Title DC of the
Educational Amendments of 1972, 20 U.S.C. § 168 1(a) (“Title IX”).
If the Educational Opportunities Section declines to pursue this complaint, we respectfully request that this complaint be referred to the Department of Education, Office of Civil Rights.
I. Contact Information for the Parties
Gavin Grimm and his mother, Deirdre Grimm, may be contacted through undersigned counsel.
This complaint is against Gloucester County Public Schools, 6099 T.C. Walker Road, Gloucester, VA 23061. It is represented by Edwin Wilmot, County Attorney.
II. Facts
Gavin is a sophomore at Gloucester High School. He is also a transgender boy with a diagnosis of gender dysphoria. Consistent with recognized standards of care for teens with gender dysphoria, Gavin’s medical and mental health providers have determined that living in accordance with his gender identity in every possible respect, including using the appropriate restroom, is essential for his treatment for gender dysphoria.

Educational Opportunities Section U.S. Department of Justice Civil Rights Division
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Since the beginning of this school year, Gavin has been open about his gender identity with Gloucester High School’s administration, teachers, and students. At first, Gavin exclusively used unisex restroom facilities in the nurse’s office, but found that experience to be stigmatizing and isolating. Beginning on approximately October 20, 2014, Gavin has been allowed to use the boys’ restrooms on campus. Gavin’s use of the restroom appropriate to his gender identity has caused no disruption of any kind at the school during the ensuing month. To our knowledge, not a single student complained to school officials or expressed discomfort with Gavin using the boys’ restrooms on campus.
In response to complaints from parents, GCPS adopted the following policy at a School Board meeting on December 9, 2014:
Whereas the GCPS recognizes that some students question their gender identities, and Whereas the GCPS encourages such students to seek support and advice 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 sincere gender identity issues shall be provided an alternative private facility.
According to news reports, at least one student at Gloucester High School, a freshman boy who is not transgender, said that some students are uncomfortable using the same restroom as a transgender boy but did not report any concerns to the administration for fear of being labeled as bullies or intolerant.1 Some parents expressed concern that “transgender students would be looking at other people’s private parts, especially in boys’ bathrooms.”2 During the School Board meeting, Gavin was referred to by some speakers as “a girl” and as “a freak.”3
The School Board adopted the policy by a vote of 6-1, despite the objections of the dissenting school board member that the proposed policy violated Title IX and exposed GCPS to the risk of losing federal funding.
According to news reports, GCPS stated in a news release that it plans to increase privacy in restrooms by “adding or expanding partitions between urinals in male restrooms, and
‘Frances Hubbard, Gloucester School Board OKs policy restricting transgender students from using boys’ restroom, The Daily Press, Dec. 9, 2014, http://www.dailypress.comlnews/gloucester-countv/dp-nws-mid transgender-policy-decision-2014 1209-storv.html. 2Dominic Holden, Virginia School Board Bans Trans Students from Using Restrooms Based On Gender Identity, Buzfeed, Dec. 10, 2014, http://www.huzzfeed.comldominicholden/virginia-school-hoard-bans trans-students-from-bathrooms-of. 3Barbara I. King, In Transgender Teen’s fight, Echos of Others, NPR: 13.7: Cosmos & Culture, http://www.npr.orgThlogs/ 1 3.7/2014/12/1 1 /370042635/in-transgender-teens-fight-echoes-of-others

Educational Opportunities Section U.S. Department of Justice Civil Rights Division
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adding privacy strips to the doors of stalls in all restrooms.” The news release also stated that”[tJhe district also plans to designate single-stall, unisex restrooms, similar to what’s in many other public spaces, to give all students the option for even greater privacy.”
The “biological gender” restroom and locker room policy, and the experience of having his use of the bathroom be the subject of public debate, has made school an unwelcoming place for Gavin. Beginning on December 10, 2014, school officials have prevented Gavin from using the boys’ restroom and required him to travel to a unisex restroom in the nurse’s office instead. As a result, Gavin is once again stigmatized and isolated from his peers whenever he has to use the restroom. The additional unisex restrooms mentioned in the GCPS news release have not yet been installed. Gavin has a history of depression and anxiety, which have been exacerbated by the new policy. Even if more unisex bathrooms were installed in convenient locations at school, Gavin finds the restroom exclusion, which singles out transgender students by requiring them to use separate facilities, to be inherently stigmatizing and demeaning.
III. Legal Discussion
The “biological gender” restroom policy adopted by GCPS violates the rights of Gavin and other transgender students under Title IX, which provides that no student “on the basis of sex may “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. § 16$ 1(a).
Federal courts have made clear that the protections in Title IX from discrimination based on “sex” include discrimination based on gender identity or transgender status. See, e.g., Pratt v. Indian River Cent.Sch.Dist., $03 F. Supp. 2d 135, 150-52 (N.D.N.Y. 201 1); Doe v. Brimfield Grade Sch., 552 F. Supp. 2d 816, 823 (C.D. 111. 2008); Montgomery v. Independent Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1090 (D. Minn. 2000); cf Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011). The Department of Justice and the Department of Education have similarly made clear that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity.”4 Indeed, discrimination based on a person’s transgender status is per se discrimination based on that person’s “sex.” Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995, at *8 (E.E.O.C. Apr. 20, 2012).
Courts and administrative tribunals have held that preventing a transgender person from using the restroom in accordance with that person’s gender identity may constitute
4Dep’t of Educ., Office of Civil Rights, Questions & Answers on Title IX & Sexual Violence, at 5 (Apr. 29, 2014), http://www2.ed.gov/abouUoftlces/Iist/ocr/docs/ga-20 1404-title-ix.pclf.See also Letter of Resolution, Arcadia Unified School District, DOJ Case No. DI 169-12C-70, OCR Case No. 09-12-10 120, at 2 (July 24, 2013) (“All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX.”). Cf Dep’t of Educ., Office of Civil Rights Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014), http://www2.ed.gov/about/offices!listJocr/docs/faqs-title-ix-sinde-sex-2014 1 2.pdf (“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.”)

Educational Opportunities Section U.S. Department of Justice Civil Rights Division
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discrimination based on “sex.” See Hart v. Lew, 973 F.Supp.2d 561(D. Md. 2013) (evidence of sex discrimination under Title VII included allegation that “supervisors repeatedly denied her access to the women’s restroom, and in doing so referred to her ‘male genitalia”); Mathis v. Fountain Fort Carson Sch. Dist. 8, No. P20130034X (Cob. Div. of Civil Rights June 17, 2013) available online at http://www.transgender1egal.org/media1up1oads/doc_529.pdf (treating transgender girl differently than other girls by excluding her from using girls’ restroom violates Colorado law against sex discrimination in education). The Department of Justice and the Department of Education have also entered into binding settlement agreements requiring school districts to allow transgender students to use restrooms and other sex-segregated facilities that correspond to their gender identity instead of unisex restrooms.5
The “biological gender” policy at GCPS singles out transgender students for disparate treatment based on their transgender status. Every other boy is free to choose whether to use the boys’ restroom or a unisex restroom. Every other girl is free to choose whether to use the girls’ restroom or a unisex restroom. But transgender students — and only transgender students — are banned from using the same restrooms as their peers and instead are limited to separate unisex facilities.
As a practical matter, the “biological gender” policy at GCPS significantly interferes with the ability of Gavin and other transgender students to fully participate in daily school activities because it singles out transgender students for different treatment and forces them to travel to separate facilities — which are often further away and inconveniently located — whenever they have to use the restroom. As the Colorado Civil Rights Division explained in a decision finding that such restrictions constitute sex discrimination:
The evidence suggests that the restroom restriction also created an exclusionary environment, which tended to ostracize the [Student], in effect producing an environment in which the [Student] was forced to disengage from her group of friends. . . . An additional problematic issue with this solution is the possibility that the [Student] may be in an area where she does not have easy access to approved restrooms. As a result.
the [Student] is tasked with the burden of having to plan her restroom visits to ensure that she has sufficient time to get to one of the approved restrooms.
Mathis, No. P20130034X at 1 1l2.6
GCPS has stated that it intends to install more convenient unisex restroom facilities at some point in the future but even more conveniently located unisex restrooms would not
5Resolution Agreement, Downey Unified School District, OCR Case No. 09-12-1095, at 1 (Nov. 8, 2014), http://www2.ed.gov/documents/press-releases/dow ney-school-district-agreement.pdf (requiring that transgender student be allowed to use the sex-segregated facilities consistent with student’s gender identity); Resolution Agreement,Arcadia Unified School District, DOJ Case No. DI 169-12C-70, OCR Case No. 09-12-10120, at 2 (July 24, 2013), http://www.nc1righls.org/wp contenUup1oads/20 13/09/Arcadia_Resolution agreement 07.24.201 3.pdf (same) 6Available online at http://www.transgender1eaLorg/mediaJuploads/doc 529.pdf

Educational Opportunities Section U.S. Department of Justice Civil Rights Division
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change the stigmatizing and harmful effects of its policy. Indeed, the stigmatizing policy breeds or fosters gender-stereotype-based hostility toward Gavin from his peers, which GCPS has an obligation to protect him from instead of encouraging. See Pratt, 803 F. Supp. 2d at 15 1-52. Forcing Gavin to use a separate bathroom from his peers “overtly demonstrate[sJh[is] separateness from the other students” and fosters “an environment rife with harassment and inapposite to a nurturing school atmosphere.” Mathis, No. P20130034X at 11. The real potential for such harassment is reflected in some of the public comments at the School Board meeting labeling Gavin as a “girl” and a “freak.”
The GCPS school board apparently adopted the policy in order to protect the privacy rights of boys who are not transgender and guard against the possibility that transgender boys would look at other boys’ “private parts.” If any student — whether transgender or not — violates another student’s privacy in the restroom GCPS can and should take appropriate action. But there has not been any complaint that Gavin has engaged in any’ misconduct, and stated privacy concerns appear to be nothing more than irrational prejudice or stigma against transgender people. Cf Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”). Indeed, when similar concerns were raised about students sharing restrooms and locker rooms with lesbian, gay, and bisexual peers, those arguments were rightly rejected. See, e.g., Massey v. Banning Unified Sch. Dist., 256 F.Supp.2d 1090 (C.D. Cal. 2003). The School Board’s “assertions of emotional discomfort about sharing facilities with transgender individuals are no different than similar claims of discomfort in the presence of [other] minority group[s].” Dep ‘t of Fair Employment & Housing vs. Am. Pac. Corp. No. 4-2013-015153-CU-CR-GDS, at 4 (Cal. Super. Ct. Mar. 13, 2014), available online at http://www.dfeh.ca. gov/res/docs/Announcements/Lozano%20final%20order.pdf.
GCPS can take appropriate measures to respect all students’ privacy, but it cannot do so by singling out transgender students for different treatment. The concerns of any students who do not want to use a communal restroom — because the restroom is shared with transgender students or for any other reason — can be addressed by the GCPS plans to install more dividers in boys’ restrooms and to make unisex restrooms available. The burden, however, may not be discriminatorily placed on transgender students to use separate restroom facilities to address other students’ alleged discomfort. Cf Cruzan v. Special Sch. Dist, No. 1, 294 F.3d 981, 984 (8th Cir. 2002) (noting that non-transgender employee who did not want to use the same restroom as a transgender employee was free to use unisex restroom instead); Doe v. Regional Sch. Unit 26, 86 A.3d 600 (Me. 2014) (holding that transgender girls could not be banned from using girls’ restroom based on complaints from other students’ parents).

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IV. Conclusion

For all these reasons, as a result of the new “biological gender” restroom and locker room policy adopted by GCPS, Gavin has been “excluded from participation in,”denied the benefits of,” and “subjected to discrimination” because of his sex in an education
program receiving funding, in violation of Title IX. 20 U.S.C. § 168 1(a).

Respectfully submitted,

A o5

Jo/)

Joshua A. Block Staff Attorney LGBT and ADS Project American Civil Liberties Union 125 Broad St., New York, NY 10004 (212) 549-2593 jjjQck@ aclu.org

Rebecca K. Glenberg Legal Director ACLU of Virginia 701 E. Franklin St., Ste. 1412 Richmond, VA 23219 (804) 523-2152 rglenberg @ acluva.org

 
 10/31/2015

ACLU Files Federal Discrimination Complaint against Va. School Board for Bathroom Policy
Published on American Civil Liberties Union (https://www.aclu.org)

ACLU Files Federal Discrimination Complaint against Va. School Board for Bathroom Policy [1]

FOR IMMEDIATE RELEASE CONTACT: 212­549­2666, media@aclu.org [2]
RICHMOND, Va. – The American Civil Liberties Union and the ACLU of Virginia filed an administrative complaint with the Department of Justice and Department of Education against Gloucester County Public Schools (GCPS) for adopting a bathroom policy that segregates transgender students from using the same restrooms and locker rooms as their peers. The school board adopted the policy by a vote of 6­1 on December 9, 2014, despite warnings from the ACLU and the ACLU of Virginia that the policy violates federal law prohibiting sex discrimination by schools.

The complaint was filed on behalf of ACLU client Gavin Grimm, a tenth­grade boy who is transgender and diagnosed with gender dysphoria. Grimm had been using the boys’ restrooms at Gloucester High School since October 2014 without any complaints from his peers prior to the adoption of the policy.

"Now that the board has passed this policy, school no longer feels as safe and welcoming as it did before," said Grimm. "Being singled out is a glaring reminder of my differences and causes me significant discomfort every time I have to use the restroom."

The policy requires transgender students to use facilities that are either inconsistent with their gender identity or to use an "alternative private facility." According to the complaint, the policy discriminates against Grimm on the basis of his sex in violation of Title IX of the U.S. Education Amendments of 1972.

"These policies inflict real harm on real students. By adopting this new 'biological gender' policy solely to prevent Gavin from using the same bathroom as other boys, Gloucester Public Schools sends an incredibly stigmatizing message that segregates Gavin and other transgender students from their peers," said Joshua Block, attorney in the ACLU Lesbian, Gay, Bisexual and Transgender Project. "Schools can address privacy concerns by making unisex bathrooms more widely available for any student who is not comfortable using a communal restroom facility, but they cannot discriminatorily require transgender students – and only transgender students – to use unisex bathrooms."

Since the beginning of the school year, Grimm had been open about his gender identity with Gloucester High School’s administration, teachers and students. Prior to October, he exclusively used unisex restroom facilities in the nurse’s office, but found that experience to be stigmatizing and isolating.

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10/31/2015

ACLU Files Federal Discrimination Complaint against Va. School Board for Bathroom Policy

"Courts have repeatedly found that gender identity discrimination is sex discrimination," said ACLU of Virginia legal director Rebecca Glenberg. "Consigning transgender students to segregated bathrooms prevents them from participating in school activities on an equal basis and causes exclusion and ostracism."
© 2015 ACLU

Source URL: https://www.aclu.org/news/aclu­files­federal­discrimination­complaint­against­va­school­board­ bathroom­policy#comment­0
Links [1] https://www.aclu.org/news/aclu­files­federal­discrimination­complaint­against­va­school­board­bathroom­ policy [2] mailto:media@aclu.org

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 No.

In the Supreme Court of the United States
_____________

GLOUCESTER COUNTY SCHOOL BOARD, PETITIONER
v.
G.G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM _____________

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_____________

PETITION FOR A WRIT OF CERTIORARI _____________

JONATHAN F. MITCHELL D. JOHN SAUER JAMES OTIS LAW GROUP, LLC 12977 North Forty Drive Suite 214 St. Louis, MO 63141 (314) 682-6067
DAVID P. CORRIGAN JEREMY D. CAPPS M. SCOTT FISHER JR. HARMAN, CLAYTOR, CORRIGAN & WELLMAN Post Office Box 70280 Richmond, VA 23255 (804) 747-5200

S. KYLE DUNCAN Counsel of Record
GENE C. SCHAERR SCHAERR|DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006  (202) 714-9492 KDuncan@SchaerrDuncan.com
Counsel for Petitioner

QUESTIONS PRESENTED
Title IX prohibits discrimination “on the basis of sex,” 20 U.S.C. § 1681(a), while its implementing regulation permits “separate toilet, locker rooms, and shower facilities on the basis of sex,” if the facilities are “comparable” for students of both sexes, 34 C.F.R. § 106.33. In this case, a Department of Education official opined in an unpublished letter that Title IX’s prohibition of “sex” discrimination “include[s] gender identity,” and that a funding recipient providing sex-separated facilities under the regulation “must generally treat transgender students consistent with their gender identity.” App. 128a, 100a. The Fourth Circuit afforded this letter “controlling” deference under the doctrine of Auer v. Robbins, 519 U.S. 452 (1997). On remand the district court entered a preliminary injunction requiring the petitioner school board to allow respondent — who was born a girl but identifies as a boy — to use the boys’ restrooms at school.
The questions presented are: 1. Should this Court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled? 2. If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? 3. With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

ii
PARTIES TO THE PROCEEDING
Petitioner Gloucester County School Board was Defendant-Appellee in the court of appeals in No. 15-2056, and Defendant-Appellant in the court of appeals in No. 16-1733.
Respondent G.G., by his next friend and mother, Deirdre Grimm, was Plaintiff-Appellant in the court of appeals in No. 15-2056 and Plaintiff-Appellee in the court of appeals in No. 16-1733.

iii
TABLE OF CONTENTS QUESTIONS PRESENTED ............................................. i PARTIES TO THE PROCEEDING................................ ii TABLE OF AUTHORITIES............................................ vi INTRODUCTION ............................................................... 1 OPINIONS BELOW ........................................................... 3 JURISDICTION ................................................................. 4 STATUTORY PROVISIONS INVOLVED..................... 4 STATEMENT ...................................................................... 5
A. Facts ...........................................................................5 B. District Court Proceedings ..................................... 9 C. Appeal To The Fourth Circuit
In No. 15-2056..........................................................11 D. The “Dear Colleague” Letter
Of May 13, 2016 .......................................................14 E. The Proceedings After Remand,
Including No. 16-1733 ............................................ 16 REASONS FOR GRANTING THE PETITION ......... 18
I. The Court Should Grant Certiorari To Reconsider The Doctrine Of Auer Deference ................................................................ 18

iv
II. The Court Should Grant Certiorari To Resolve Disagreements Among The Lower Courts Over When The Auer-Deference Framework, If It Survives, Should Be Applied..................................................................... 25
A. The Fourth Circuit’s Decision To Extend Auer Deference To The Ferg-Cadima Letter Conflicts With Rulings From The First, Seventh, And Eleventh Circuits.......... 26
B. The Fourth Circuit’s Decision To Extend Auer Deference To The Ferg-Cadima Letter Is In Substantial Tension With Decisions In The Ninth And Federal Circuits .............................................................. 30
C. The Nationwide Federal Injunction Decision From Texas Also Conflicts With The Fourth Circuit’s Approach ............ 31
III.The Court Should Grant Certiorari To Consider Whether The Department’s Interpretation Of Title IX And 34 C.F.R. § 106.33 Is Binding ................................................. 33
CONCLUSION ...................................................................38

v
APPENDIX Court of appeals opinion (Apr. 19, 2016) .........................1a Court of appeals order denying rehearing en banc
(May 31, 2016) .............................................................61a Court of appeals order denying stay of mandate
(June 9, 2016) ..............................................................67a District court order entering preliminary injunction
(June 23, 2016) ............................................................71a District court order denying stay pending appeal
(July 6, 2016) ...............................................................73a Court of appeals order denying stay pending appeal
(July 12, 2016) .............................................................76a District court order denying G.G.’s motion for prelimi-
nary injunction (Sept. 4, 2014) ...................................82a District court opinion denying G.G.’s motion for prelimi-
nary injunction (Sept. 17, 2014) .................................84a E-mail from Emily T. Prince to Massie Ritsch,
Dep’t of Education (Dec. 14, 2014) .........................118a Letter from James A. Ferg-Cadima,
(Jan. 5, 2015) .............................................................121a “Dear Colleague” Letter from Catherine E.
Lhamon and Vanita Gupta (May 13, 2016) ............126a Declaration of Troy M. Andersen
(July 7, 2015) .............................................................143a Corrected Declaration of G.G. (June 3, 2015) .............146a Minutes of School Board Meeting (June 9, 2016) .......153a United States’ Statement of Interest
(June 29, 2015) ..........................................................160a Preliminary-Injunction Order in Texas v. United
States, No. 7:16-cv-00054-O (Aug. 21, 2016)...........183a

vi
TABLE OF AUTHORITIES
Cases Arlington Cent. Sch. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) ......................................................... 36
Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002) ...................................... 28
Auer v. Robbins, 519 U.S. 452 (1997) ................................................. passim
Barnhart v. Walton, 535 U.S. 212 (2002) ......................................................... 24
Bassiri v. Xerox Corp., 463 F.3d 927 (9th Cir. 2006) .......................................... 29
Bennett v. Ky. Dep’t of Educ., 470 U.S. 656 (1985) ......................................................... 37
Bible ex rel. Proposed Class v. United Student Aid Funds, Inc., 799 F.3d 633 (7th Cir. 2015) .......................................... 30
Biodiversity Conservation All. v. Jiron, 762 F.3d 1036 (10th Cir. 2014) ...................................... 30
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) ................................. 18, 20, 22, 23, 29
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ................................................. passim
Christensen v. Harris Cnty., 529 U.S. 576 (2000) ................................................. passim

vii
Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199 (2nd Cir. 2009) ......................................... 29
Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326 (2013) ............................................... 19, 20
Encarnacion ex. rel George v. Astrue, 568 F.3d 72 (2nd Cir. 2009) ........................................... 29
Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) ...................................... 34
Foster v. Vilsack, 820 F.3d 330 (8th Cir. 2016) .......................................... 19
Gloucester Cnty. Sch. Bd. v. G.G., 136 S. Ct. 2442 (2016) (per curiam) .............................. 17
Gonzales v. Oregon, 546 U.S. 243 (2006) ......................................................... 31
Hively v. Ivy Tech Cmty. Coll., __ F.3d __, 2016 U.S. App. LEXIS 13746 (7th Cir. July 28, 2016)................................................... 34
Intracomm, Inc. v. Bajaj, 492 F.3d 285 (4th Cir. 2007) .......................................... 30
Johnston v. Univ. of Pittsburgh, 97 F.Supp.3d 657 (W.D. Pa. 2015) .......................... 34, 36
Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003) .................................... 27, 28
Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 1354 (Fed. Cir. 2015) ...................................... 31

viii
NFIB v. Sebelius, 132 S. Ct. 2566 (2012) ..................................................... 36
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) ............................................................. 36
Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015) ............................................... 19, 20
Polycarpe v. E&S Landscaping Serv. Inc., 616 F.3d 1217 (11th Cir. 2010) ...................................... 30
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ................................................... 35, 36
Rust v. Sullivan, 500 U.S. 173 (1991) ......................................................... 36
Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) ...................................... 29
Nebraska v. United States of America, No. 4:16-cv-03117 (D. Neb. July 8, 2016)..................... 16
Texas v. United States of America, No. 7:16-cv-00054 (N.D. Tex. May 25, 2016) ... 15–16, 32
Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268 (1969) ......................................................... 23
Udall v. Tallman, 380 U.S. 1 (1965) ............................................................. 23
Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) ........................................ 35
United States v. Lachman, 387 F.3d 42 (1st Cir. 2004)............................................. 26

ix United States v. Mead Corp.,
533 U.S. 218 (2001). .......................... 23, 24, 25, 26, 27, 29
United States v. Virginia, 518 U.S. 515 (1996) ..................................................... 1, 35
Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) ......................................................... 22
Vietnam Veterans of Am. v. CIA, 811 F.3d 1068 (9th Cir. 2015) ........................................ 31
Woudenberg v. U.S. Dep’t of Agric., 794 F.3d 595 (6th Cir. 2015) .......................................... 30
Statutes 5 U.S.C. § 706 ................................................................ 21, 22 20 U.S.C. § 1681 .......................................................... passim
20 U.S.C. § 1686 .................................................................. 35 28 U.S.C. § 1254(1) ............................................................... 4 28 U.S.C. § 2101(c)................................................................ 4 42 U.S.C. § 13925 ................................................................ 33 42 U.S.C. § 3796gg.............................................................. 33 Legislative Materials H.R. 1397 (112th Cong. 2011)............................................ 33 H.R. 1755 (113th Cong. 2013)............................................ 33 H.R. 2015 (110th Cong. 2007)............................................ 33
H.R. 3017 (111th Cong. 2009)............................................ 33 S. 1584 (111th Cong. 2009) ................................................ 33

x
S. 811 (112th Cong. 2011) .................................................. 33
S. 815 (113th Cong. 2013) .................................................. 33
Administrative Materials 34 C.F.R. § 106.32............................................................... 35
34 C.F.R. § 106.33....................................................... passim
34 C.F.R. § 106.34............................................................... 35
Other Authorities Anthony, Robert A.,
The Supreme Court and the APA: Sometimes They Just Don’t Get It, 10 Admin. L.J. Am. U. 1 (1996)..................................... 19
Breyer, Stephen, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363 (1986) ........................................ 23
Manning, John F., Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996) .................................. 19, 20
Sunstein, Cass R., Chevron Step Zero, 92 Va. L. Rev. 187 (2006) ............................................... 23
United States Department of Education, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014) .................... 9

INTRODUCTION
As petitioner Gloucester County School Board (the Board) pointed out in the stay application that the Court granted on August 3, 2016, this case presents an extreme example of judicial deference to an administrative agency’s purported interpretation of its own regulation. For that and several other reasons, this case provides the perfect vehicle for revisiting the deference doctrine articulated in Auer v. Robbins, 519 U.S. 452 (1997), and subsequently criticized by several Justices of this Court.
The statute at the heart of the administrative interpretation here is Title IX of the Education Amendments of 1972. Enacted over forty years ago, Title IX and its implementing regulation have always allowed schools to provide “separate toilet, locker rooms, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. No one ever thought this was discriminatory or illegal. And for decades our Nation’s schools have structured their facilities and programs around the idea that in certain intimate settings men and women may be separated “to afford members of each sex privacy from the other sex.” United States v. Virginia, 518 U.S. 515, 550 n.19 (1996).
The Fourth Circuit’s decision turns that longstanding expectation upside down. Deferring to the views of a relatively low-level official in the Department of Education (Department), the court reasoned that for purposes of Title IX the term “sex” does not simply mean physiological males and females, which is what Congress and the Department (and everyone else) thought the term meant when the regulation was promulgated. Instead, the Department and the Fourth Circuit now tell us that “sex” is ambiguous as applied to persons whose subjective gen-

2
der identity diverges from their physiological sex. App. 17a–20a. According to the Fourth Circuit, this means a physiologically female student who self-identifies as a male — as does the plaintiff here — must be allowed under Title IX to use the boys’ restroom.
The Fourth Circuit reached this conclusion, not by interpreting the text of Title IX or its implementing regulation (neither of which refers to gender identity), but by deferring to an agency opinion letter written just last year by James Ferg-Cadima, the Acting Deputy Assistant Secretary for Policy for the Department of Education’s Office of Civil Rights. App. 121a. The letter is unpublished; its advice has never been subject to notice and comment; and it was generated in direct response to an inquiry about the Board’s restroom policy in this very case. Nonetheless, the Fourth Circuit concluded — over Judge Niemeyer’s dissent — that the letter was due “controlling” deference under Auer. App. 25a. On that basis, the district court immediately entered a preliminary injunction allowing the plaintiff to use the boys’ restroom.
Shortly after the Fourth Circuit’s decision, the Department (along with the Department of Justice) issued a “Dear Colleague” letter seeking to impose that same requirement on every Title IX-covered educational institution in the Nation. But just last week, the Departments’ effort was halted by a nationwide injunction issued by a federal district judge in Texas.
These recent developments highlight the urgent need for this Court to grant this petition and resolve the is-

3
sues presented by the Fourth Circuit’s decision. As explained in more detail below, the Court should grant the petition for three reasons. First, this case provides an excellent vehicle for reconsidering — and abolishing or refining — the Auer doctrine. Second, if the Court decides to retain Auer in some form, this case provides an excellent vehicle for resolving important disagreements among the lower courts about Auer’s proper application. Third, this case provides an excellent vehicle for determining whether the Department’s understanding of Title IX reflected in the Ferg-Cadima and “Dear Colleague” letters must be given effect — thereby resolving once and for all the current nationwide controversy generated by these directives.
OPINIONS BELOW
This petition seeks review of two related cases in the court of appeals, Nos. 15-2056 and 16-1733. No. 15-2056 is G.G’s appeal of the district court’s order denying his request for a preliminary injunction. The opinion of the court of appeals in that case is available at 822 F.3d 709 (4th Cir. 2016). App. 1a–60a. The district court’s opinion in that case is available at 132 F.Supp.3d 736 (E.D. Va. 2015). App. 84a–117a.
No. 16-1733 is the Board’s appeal of the district court’s order granting a preliminary injunction after the remand in No. 15-2056. The district court’s opinion in that case is available at 2016 U.S. Dist. LEXIS 93164. App. 71a–72a.

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JURISDICTION
In No. 15-2056, the court of appeals entered its judgment on April 19, 2016. App. 3a. It denied the Board’s petition for rehearing en banc on May 31, 2016. App. 61a. No. 16-1733 remains pending in the court of appeals. The Board timely filed this petition for a writ of certiorari on August 29, 2016. See 28 U.S.C. § 2101(c). This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Title IX of the Education Amendments of 1972 provides, in relevant part:
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. § 1681(a).
34 C.F.R. § 106.33 provides:
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.

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STATEMENT
A. Facts
G.G. is a 17-year-old student at Gloucester High School. G.G. is biologically female, meaning that G.G. was born a girl and recorded as a girl on the birth certificate. “However, at a very young age, G.G. did not feel like a girl,” and around age twelve began identifying as a boy. App. 85a. In July 2014, between G.G.’s freshman and sophomore years, G.G. changed his first name to a boy’s name and began referring to himself with male pronouns.1 He has also started hormone therapy, but has not had a sex-change operation.
In August 2014, before the start of G.G.’s sophomore year, G.G. and his mother met with the principal and guidance counselor to discuss G.G.’s situation. The school officials were supportive of G.G. and promised a welcoming environment. School records were changed to reflect G.G.’s new name, and the guidance counselor helped G.G. e-mail his teachers asking them to address G.G. using his male name and male pronouns. App. 87a–88a. As G.G. admits, teachers and staff have honored these requests. Id. at 148a.
Neither G.G. nor school officials, however, thought that G.G. should start using the boys’ restrooms, locker
1 This petition uses “he,” “him,” and “his” to respect G.G.’s desire to be referred to with male pronouns. That choice does not concede anything on the legal question of what G.G.’s “sex” is for purposes of Title IX and its implementing regulation.

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rooms, or shower facilities. Instead, G.G. and his mother suggested G.G. use a separate restroom in the nurse’s office rather than the boys’ room, and the school agreed. App. 149a. G.G. claims he accepted this arrangement because he was “unsure how other students would react to [his] transition.” Id. But four weeks into the school year G.G. changed his mind and sought permission to use the boys’ restroom. The principal granted G.G.’s request on October 20, 2014. G.G. says he asked for access to the boys’ restroom because he found it “stigmatizing” to use the restroom in the nurse’s office. Id.
Immediately after G.G. started using the boys’ restrooms, the Board began receiving complaints from parents and students who regarded G.G.’s presence in the boys’ room as an invasion of student privacy. App. 144a. Parents also expressed general concerns that allowing students into restrooms and locker rooms of the opposite biological sex could enable voyeurism or sexual assault. The Board held public meetings on November 11 and December 9, 2014, to consider the issue, and citizens on both sides expressed their views in thoughtful and respectful terms.2 At the December 9 meeting, the Board
2 The Fourth Circuit’s opinion tries to depict the citizens who opposed G.G’s presence in the boys’ room as largely “hostil[e]” to G.G., selectively quoting the few intemperate statements and subtly implying they represented the whole. App. 10a. The video of the meetings, however, shows that the overwhelming majority of those expressing concern did so with courtesy and decency, not “hostility.” See http://bit.ly/2bsVO6h (Dec. 9, 2014 meeting); http://www.gloucesterva.info/channels47and48 (containing link to Nov. 11, 2014 meeting video).

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adopted a resolution recognizing “that some students question their gender identities,” and encouraging “such students to seek support, advice, and guidance from parents, professionals and other trusted adults.” The resolution then concluded:
Whereas the [Board] 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 [Board] 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.
Id. at 144a.
Before the Board adopted this resolution, the high school announced it would install three single-stall unisex bathrooms throughout the building — regardless of whether the Board approved the December 9 resolution. These unisex restrooms would be open to all students who, for whatever reason, desire greater privacy. They opened for use shortly after the Board adopted the resolution. G.G., however, refuses to use these unisex bathrooms because, he says, they “make me feel even more stigmatized and isolated than when I use the restroom in the nurse’s office.” App. 151a.

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A few days after the Board’s decision, a lawyer named Emily T. Prince3 sent an e-mail about the Board’s resolution to the Department, asking whether it had any “guidance or rules” relevant to the Board’s decision. App. 118a–120a. In response, on January 7, 2015, James A. Ferg-Cadima, an Acting Deputy Assistant Secretary for Policy in the Department’s Office of Civil Rights sent a letter stating that “Title IX . . . prohibits recipients of Federal financial assistance from discriminating on the basis of sex, including gender identity,” and further opining that:
The Department’s 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 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.
App. 121a, 123a (emphasis added).
The Ferg-Cadima letter cites no document requiring schools to treat transgender students “consistent with their gender identity” regarding restroom, locker room, or shower access. It instead cites a Q&A sheet on the
3 Ms. Prince describes herself as the “Sworn Knight of the Transsexual Empire.” See https://twitter.com/emily_esque?lang= en. Her name appears in the signature of the e-mail that DOJ filed in the district court, when the file is opened in Preview for Mac.

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Department website, which says only that schools must treat transgender students consistent with their gender identity when holding single-sex classes. See United States Department of Education, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014), http://bit.ly/1HRS6yI (emphasis added) (last visited Aug. 29, 2016) (Q&A #31) (opining “[h]ow . . . the Title IX requirements on single-sex classes apply to transgender students) (emphasis added).
B. District Court Proceedings
G.G. filed suit against the Board on June 11, 2015 — two days after the end of the 2014–15 school year. His complaint alleged that the Board’s resolution violated Title IX and the Equal Protection Clause, and sought declaratory and injunctive relief, damages, and attorneys fees.
On June 29, 2015, the Department of Justice (“DOJ”) filed a “statement of interest” accusing the Board of violating Title IX. See App. 160a–183a. The statement did not even cite 34 C.F.R. § 106.33, let alone explain how the Board’s policy could be unlawful under the regulation’s text. Instead, DOJ trumpeted the Ferg-Cadima letter as the “controlling” interpretation of Title IX and the regulation, even though DOJ acknowledged that the letter had never been “publicly issued.” See id. at 171.4 DOJ
4 DOJ cited two other documents issued by the Department of Education, but neither addresses whether schools must allow transgender students into restrooms or locker rooms that corre(continued…)

10
also asserted that “an individual’s gender identity is one aspect of an individual’s sex,” id. at 169a, but failed to cite any statute or regulation adopting or supporting that view.
Without ruling on G.G.’s equal-protection claim, the district court dismissed G.G.’s Title IX claim and denied a preliminary injunction. See App. 82a–83a (order); 84a– 117a (opinion). It held that G.G.’s Title IX claim was foreclosed by 34 C.F.R. § 106.33, the regulation allowing comparable separate restrooms and other facilities “on the basis of sex.” App. 97a–98a.
The district court assumed, for the sake of argument, that the phrase “on the basis of sex” includes distinctions based on both gender identity as well as biological sex. App. 99a, 102a. Yet even under this broad reading of “sex,” it would remain permissible under section 106.33 to separate restrooms by biological sex or gender identity. Consequently, as the district court pointed out, section 106.33 would forbid the Board’s policy only if “sex” refers solely to distinctions based on gender identity, and excludes those based on biological sex. Id. at 99a. The district court held that this would be an absurd construction, however. Indeed, if applied to the Title IX statute, it would permit discrimination against men or women, so long as the recipient discriminates on account of gender identity rather than biological sex. Id. at 102a.
spond with their gender identity. See ECF No. 28 at 9; see also, supra, at 7–8.

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Consequently, the district court refused to give controlling weight to the interpretation of Title IX and 34 C.F.R. § 106.33 in the Ferg-Cadima letter. First, the district court observed that letters of this sort lack the force of law under Christensen v. Harris County, 529 U.S. 576, 587 (2000), and cannot receive Chevron deference when interpreting Title IX. App. 101a. The Court also held that the letter should not receive deference under Auer v. Robbins, 519 U.S. 452 (1997), because it contradicts the unambiguous language of 34 C.F.R. § 106.33, which allows schools to establish separate restrooms “on the basis of sex” — even if one assumes that “on the basis of sex” refers to both gender identity and biological sex. Thus, the district court regarded the Ferg-Cadima letter as an attempted amendment to, rather than an interpretation of, 34 C.F.R. § 106.33, and held that to be binding any such amendment must go through notice-andcomment rulemaking. App. 102a–103a.
C. Appeal to the Fourth Circuit in No. 152056
Over Judge Niemeyer’s dissent, the Fourth Circuit reversed the district court’s dismissal of G.G.’s Title IX claim, and held that the district court should have enforced the Ferg-Cadima letter as the authoritative construction of Title IX and 34 C.F.R. § 106.33 under Auer. App. 13a–25a.
First, the panel held that section 106.33 was “ambiguous” as applied to “whether a transgender individual is a male or a female for the purpose of access to sexsegregated restrooms,” and that the Ferg-Cadima letter

12
“resolve[d]” this ambiguity by determining sex solely by reference to “gender identity.” Id. at 19a, 18a.
Second, the panel held that the letter’s interpretation — “although perhaps not the intuitive one,” id. at 23a — was not, in the words of Auer, “plainly erroneous or inconsistent with the regulation or the statute.” Id. at 20a. In the panel’s view, the term “sex” does not necessarily suggest “a hard-and-fast binary division [of males and females] on the basis of reproductive organs.” Id. at 22a.
Third, the panel found that the letter’s interpretation was a result of the agency’s “fair and considered judgment,” because the agency had consistently enforced this position “since 2014” — that is, for the previous several months — and it was “in line with” other federal agency guidance. Id. at 24a. While conceding that the FergCadima interpretation was “novel,” given that “there was no interpretation of how section 106.33 applied to transgender individuals before January 2015,” the panel nonetheless thought this novelty was no reason to deny Auer deference. Id. at 23a.
The panel, however, did not address the district court’s reason for rejecting the agency interpretation — namely, that it would make the phrase “on the basis of sex” exclude biological sex and refer only to gender identity, a construction that would absurdly mean that Title IX no longer protects men or women from discrimination on the basis of biological sex. App. 99a, 102a. Nor did the panel acknowledge that the agency was expressly interpreting the Title IX statute, not merely the regula-

13
tion. See App. 121a (stating that “Title IX . . . prohibits [funding] recipients . . . from discriminating on the basis of sex, including gender identity . . . .”) (emphases added). The panel thus did not address the district court’s conclusion that giving the letter controlling deference would permit agencies to “avoid the process of formal rulemaking by announcing regulations through simple question and answer publications.” App. 103a
Judge Niemeyer dissented from the panel’s decision to give controlling effect to the Ferg-Cadima letter, for many of the reasons given by the district court. App. 40a–60a. Judge Niemeyer explained that the premise for applying Auer was absent, because “Title IX and its implementing regulations are not ambiguous” in allowing separate restrooms and other facilities on the basis of “sex.” Id. at 43a. To the contrary, those provisions “employ[ ] the term ‘sex’ as was generally understood at the time of enactment,” as referring to “the physiological distinctions between males and females, particularly with respect to their reproductive functions.” Id. at 53a– 55a. He also explained that the DOJ’s conflation of “sex” in Title IX with “gender identity” would produce “unworkable and illogical result[s],” undermining the privacy and safety concerns that motivated the allowance of sex-separated facilities in the first place. Id. at 42a–43a.
Judge Niemeyer also noted that the Fourth Circuit’s endorsement of the Ferg-Cadima letter will require schools to allow students with gender-identity issues not only into the restrooms but also into the locker rooms and showers reserved for the opposite biological sex. In Judge Niemeyer’s view, this would violate other stu-

14
dents’ “legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex.” Id. at 50a.
The Board moved for rehearing en banc, which the panel denied on May 31, 2016. Id. at 61a–66a. Judge Niemeyer dissented but declined to call for an en banc poll, stating that “the momentous nature of the issue deserves an open road to the Supreme Court.” Id. at 65a. The Board then asked for a stay of the Fourth Circuit’s mandate pending the filing of a certiorari petition. This, too, was denied, again over Judge Niemeyer’s dissent. Id. at 67a–70a. The mandate in No. 15-2056 issued on June 17, 2016.
D. The “Dear Colleague” Letter Of May 13, 2016
After the Fourth Circuit’s ruling, two federal officials, the Department’s Catherine E. Lhamon and DOJ’s Vanita Gupta, quickly issued a “Dear Colleague” letter to every Title IX recipient in the country. Id. at 126a–142a. This document expands on the Ferg-Cadima letter by imposing detailed requirements on how schools must accommodate students with gender-identity issues, including the following edicts:
• Every student claiming to be transgender must be allowed to access restrooms, locker rooms, shower facilities, and athletic teams consistent with his or her gender identity. The Ferg-Cadima letter had hedged this requirement by including the word “generally.” App.

15
123a. The “Dear Colleague” letter removes the hedge and allows for no exceptions. Id. at 134a.
• A school must allow a student access to the restrooms, locker rooms, and showers of the opposite biological sex after the “student or the student’s parent or guardian, as appropriate” merely notifies the school that the student will assert a gender identity different from his or her biological sex. App. 130a (emphasis added). No medical or psychological diagnosis or evidence of professional treatment need be provided. Id.
• Non-transgender students who are unwilling to use restrooms, locker rooms, or showers at the same time as a classmate of the opposite biological sex may be relegated to a separate, individual-user facility. App. 134a. But a school cannot require the transgender student to use that separate, individual-user facility, no matter how many non-transgender students object to the presence of a student of the opposite biological sex in restrooms, locker rooms, or showers. Id.
The letter went out on May 13, 2016, only 24 days after the Fourth Circuit’s decision. Needless to say, it did not go through notice-and-comment rulemaking.
The Dear Colleague letter has been challenged by over twenty States in two federal lawsuits. See Texas v. United States of America, No. 7:16-cv-00054 (N.D. Tex.

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May 25, 2016); Nebraska v. United States of America, No. 4:16-cv-03117 (D. Neb. July 8, 2016). On August 21, 2016, a federal district court in Texas issued a nationwide preliminary injunction against enforcement of the regulatory interpretation contained in the Dear Colleague letter and in similar guidance documents. See Texas, supra, ECF No. 58; Pet. App. 183a–229a.

E. The Proceedings After Including No. 16-1733

Remand,

Meanwhile, on remand from the Fourth Circuit, the district court promptly entered a preliminary injunction without giving the Board any notice or opportunity to submit additional briefing or evidence. App. 71–72a. The injunction orders the Board to permit G.G. to use the boys’ restroom at Gloucester High School “until further order of this Court.” Id. at 72a. It does not enjoin the Board from enforcing its policy with respect to locker rooms and showers — even though the Ferg-Cadima letter, which the Fourth Circuit endorsed as “controlling” authority, generally requires schools to allow transgender students to access locker rooms, shower facilities, housing, and athletic teams that accord with their gender identity. App. 123a.

The Board appealed this preliminary-injunction order, which created a second case in the Fourth Circuit, No. 16-1733. The district court denied the Board’s request to stay its injunction pending appeal. App. 73a– 75a. The Board’s request that the Fourth Circuit stay the injunction pending appeal was also denied, again over Judge Niemeyer’s dissent. App. 76a–81a.

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Finally, the Board asked this Court to recall and stay the Fourth Circuit’s mandate in No. 15-2056, and to stay the district court’s preliminary injunction, pending this certiorari petition. This Court granted the Board’s request on August 3, 2016. Gloucester Cnty. Sch. Bd. v. G.G., 136 S. Ct. 2442 (2016) (per curiam). In this combined petition, the Board seeks a writ of certiorari as to No. 15-2056, and a writ of certiorari before judgment at to No. 16-1733. See S. Ct. R. 12.4.

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REASONS FOR GRANTING THE PETITION

The Court should grant the petition for three reasons. First, this case provides an excellent vehicle for reconsidering — and abolishing or refining — the doctrine of Auer deference that has recently been questioned by several Justices. Second, if the Court decides to retain Auer, this case provides an excellent vehicle for resolving important disagreements among the lower courts about Auer’s proper application. Third, this case provides an excellent vehicle for determining whether the Department’s understanding of Title IX and section 106.33 — an understanding it has recently sought to impose upon educational institutions throughout the Nation — is controlling.

I. THE

COURT

SHOULD

GRANT

CERTIORARI TO RECONSIDER THE

DOCTRINE OF AUER DEFERENCE.

As to the first reason: The Fourth Circuit did not even attempt to show that the Ferg-Cadima letter reflects the most plausible construction of 34 C.F.R. § 106.33. Instead, its ruling hinged entirely on Auer deference — a doctrine that requires courts to enforce an agency’s interpretation of its own regulations unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461 (citation omitted); see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). Several members of this Court have expressed interest in revisiting the doctrine of Auer defer-

19
ence, which gives agencies enormous power over policy issues of interest across the political spectrum.5 This case presents an ideal vehicle for doing so, because the issue is fully preserved and because the Fourth Circuit discussed the Auer framework extensively and regarded it as outcome-determinative. App. 15a–24a.6
The problems with Auer deference have been well rehearsed. See, e.g., Decker, 133 S. Ct. at 1339–42 (Scalia, J., concurring in part and dissenting in part); Perez, 135 S. Ct. at 1213–25 (Thomas, J., concurring in the judgment); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996); Robert A. Anthony, The Supreme Court and the APA: Sometimes They Just Don’t Get It, 10 Admin. L.J. Am. U. 1, 4–12 (1996). Four of the most important reasons for this Court to abandon or limit the scope of the Auer-deference regime are as follows:
5 See, e.g., Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1338– 39 (2013) (Roberts, C.J., concurring); id. at 1339–42 (Scalia, J., concurring in part and dissenting in part); Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1210–11 (2015) (Alito, J., concurring in part and concurring in the judgment); id. at 1211–13 (Scalia, J., concurring in the judgment); id. at 1213–25 (Thomas, J., concurring in the judgment).
6 By contrast, in Foster v. Vilsack, 820 F.3d 330 (8th Cir. 2016) (petition for certiorari pending), the Eighth Circuit’s opinion does not cite or discuss Auer or any Auer-related rulings from this Court. It simply declares, without analysis, that the agency’s “reasonable interpretation” is “owe[d] deference.” Id. at 335.

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First, as this case illustrates, Auer deference effectively gives an agency the power to invade the province of both Congress and the courts in determining federal law on all kinds of issues of interest to all kinds of constituencies. See, e.g., Decker, 133 S. Ct. at 1342 (Scalia, J., dissenting) (Auer “contravenes one of the great rules of separation of powers [that he] who writes a law must not adjudge its violation.”); Perez, 135 S. Ct. at 1217 (Thomas, J., concurring in the judgment) (Auer is an unconstitutional “transfer of judicial power to the Executive branch,” and “an erosion of the judicial obligation to serve as a ‘check’ on the political branches.”); id. at 1210–11 (Alito, J., concurring in part and concurring in the judgment) (noting that “the opinions of Justice Scalia and Justice Thomas offer substantial reasons why the Seminole Rock doctrine may be incorrect”).
Here, in purporting to interpret section 106.33, the Department effectively changed the meaning of the statutory term “sex” in Title IX. To be sure, it did so in a manner that furthered the views of the present Administration. But that same strategy could easily be adopted by a future administration with radically different views. Indeed, it could be deployed to effectively amend in a different direction, and without any meaningful judicial review, not only Title IX, but also other federal statutes dealing with matters such as health care, the environment, labor relations, and financial-services regulation. For those reasons, the type of Auer deference applied by the Fourth Circuit here raises serious separation-ofpowers problems. See, e.g., Manning, supra, at 631–54.

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Second, the Auer doctrine is poorly formulated. It instructs courts to enforce an agency’s interpretation of its own regulations unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461 (emphasis added). But that disjunctive formulation leaves substantial ambiguity: The phrase “inconsistent with the regulation” implies de novo rather than deferential review. And it is not apparent how the “plainly erroneous” prong of the Auer deference test will ever do any work: Every “plainly erroneous” interpretation of a regulation will also be “inconsistent with the regulation,” and the disjunctive “or” means that a litigant challenging the interpretation need only show that the agency’s interpretation fails under the less deferential half of this test. This petition presents a prime opportunity for the Court to resolve this ambiguity — even if a majority of the Court wishes to retain some form of Auer deference.
The third problem for the Auer doctrine is the text of the Administrative Procedure Act, which plainly states that:
[T]he reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.
5 U.S.C. § 706 (emphases added). How can this statutory command be reconciled with a regime that requires the judiciary to defer to an agency’s interpretation of its regulations, rather than “determine the meaning” of

22
those agency rules for itself? No one thinks the APA’s command to “interpret constitutional . . . provisions” requires courts to defer to an agency’s beliefs on what the Constitution means. So why do matters suddenly become different when an agency purports to “determine the meaning” of one of its rules?
To be sure, some APA provisions require courts to defer to some forms of agency decisionmaking, but those provisions do so in unmistakable language. See, e.g., 5 U.S.C. § 706(2)(E) (authorizing courts to set aside agency factfinding only when “unsupported by substantial evidence”); Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (holding that section 706(2)(E) requires deferential judicial review of agency factfinding). In contrast to those provisions, the APA’s straightforward instruction that courts “decide all relevant questions of law” and “determine the meaning . . . of an agency action” leaves the Auer doctrine in a precarious position. The APA tells the courts to “determine the meaning” of an agency’s rules, but Auer tells the agency to “determine the meaning” of its rules so long as it stays within the boundaries of reasonableness.
The opinion in Seminole Rock said nothing about how its ostensible deference regime might be reconciled with the text of the APA, see 325 U.S. 410, but it had good reason for that omission: the APA had not been enacted yet. So the Seminole Rock Court can be forgiven for failing to explain how its deference concept can co-exist with section 706 of the APA. It is harder to justify the postSeminole Rock decisions that reflexively followed this pre-APA decision without acknowledging the intervening

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statute or attempting to explain how Seminole Rock could survive the APA.7
Nor can Auer be defended on the ground that Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), likewise ignored section 706 of the APA. This Court eventually supplied a rationale for Chevron that comports with the APA: Influenced heavily by Justice Breyer’s scholarship,8 the Court held in United States v. Mead Corp. that Chevron can apply only when Congress affirmatively intends to delegate interpretive or gap-filling authority to an agency. See 533 U.S. 218, 229–34 (2001). After Mead, a court that applies Chevron is not “deferring” to an agency’s interpretation of a statute. Rather, it is interpreting the statute de novo, and asking whether Congress intended to authorize the agency to act within certain statutory boundaries. If the answer is “yes,” the statute means that the agency gets to decide and that reviewing courts must respect the agency’s decision. Mead enables Chevron to co-exist with
7 See, e.g., Udall v. Tallman, 380 U.S. 1, 16–17 (1965); Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268, 276 (1969).
8 See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363 (1986); id. at 373 (criticizing notion that Chevron should apply to all agency interpretations of law as “seriously overbroad, counterproductive and sometimes senseless.”); Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187 (2006) (explaining how Justice Breyer’s views influenced this Court’s rulings in Christensen, Mead and Barnhart v. Walton, 535 U.S. 212 (2002)).

24
section 706 of the APA. No such rationale has ever been provided for Auer.
This leads to the fourth problem with Auer deference: It cannot be sustained in its current form after this Court’s decisions in Christensen, Mead, and Barnhart v. Walton, 535 U.S. 212 (2002). In pre-Mead days, when the Chevron framework established a blanket presumption that agencies rather than courts would fill gaps and resolve ambiguities in statutory language, Auer deference could be defended as Chevron’s logical corollary. If an agency’s interpretive rules or informal correspondence would receive Chevron deference when courts interpret federal statutes, it was reasonable to accord those documents equal weight when interpreting agency regulations — which, after all, have the same force and effect as a federal statute.
Auer became much harder to defend after Mead, which withholds Chevron deference from interpretive rules and other agency correspondence that never went through notice-and-comment rulemaking. For example, how can a document like the Ferg-Cadima letter receive nothing more than Skidmore deference when interpreting a statute,9 but trigger much higher deference as soon as it purports to interpret an agency regulation? And if the Ferg-Cadima letter is entitled to Chevron-like deference when it purports to interpret 34 C.F.R. § 106.33, why doesn’t that make it into a substantive rule that car-
9 See Mead, 533 U.S. at 229–34; Christensen, 529 U.S. at 587.

25
ries the force of law and therefore must go through notice and comment? See 5 U.S.C. § 553.
In short, Mead established symmetry between the Chevron–Skidmore divide and the distinction between substantive and interpretive rules. “Interpretive rules” need not go through notice and comment because they lack the force of law, but for this reason cannot receive Chevron deference. To confer Chevron deference upon such interpretive rules would give them the force of law, thereby triggering section 553’s notice-and-comment requirements. But Auer deference throws a wrench into this perfectly crafted arrangement, by allowing such things as the Ferg-Cadima letter to receive the force of law even though they never went through notice and comment. If nothing else, the Court should grant certiorari to align the Auer-deference regime with the postMead Chevron regime. That alone would require reversing the Fourth Circuit’s decision.
II. THE COURT SHOULD GRANT CERTIORARI TO RESOLVE DISAGREEMENTS AMONG THE LOWER COURTS OVER WHEN THE AUER-DEFERENCE FRAMEWORK, IF IT SURVIVES, SHOULD BE APPLIED.
Assuming Auer survives, this case also presents an opportunity for the Court to resolve serious disagreements among the lower courts on the proper application of Auer deference. As explained below, there currently exists a serious circuit conflict on the question whether Auer deference can apply at all to informal agency pronouncements. There is also deep disagreement among

26
the circuits about whether Auer deference can apply to agency positions that — like the Ferg-Cadima letter — are developed in the context of the very dispute in which deference is sought. And the Texas district court’s recent decision to enjoin the Department’s efforts to impose its interpretation on schools throughout the Nation both exacerbates the conflict and illustrates the urgent need for this Court to resolve the questions presented here.
A. The Fourth Circuit’s Decision To Extend Auer Deference To The Ferg-Cadima Letter Conflicts With Rulings From The First, Seventh, And Eleventh Circuits.
As noted, the Ferg-Cadima letter did not go through notice and comment, and it is about as informal an agency document as one can imagine. The letter was not publicized; there is no evidence it was approved by the head of an agency; and it was signed only by a relatively lowlevel federal functionary, an Acting Deputy Assistant Secretary for Policy. The Fourth Circuit did not think any of this mattered; it was enough that the Department was willing to stand by the letter in the federal amicus brief. App. 16a–17a. But a letter such as this would not have received Auer deference in the First, Seventh or Eleventh Circuits.
For example, the First Circuit’s ruling in United States v. Lachman, 387 F.3d 42, 54 (1st Cir. 2004), refused to extend Auer deference to non-public or informal agency interpretations — and it linked Auer deference to the same formality requirements that trigger Chevron deference under Mead:

27
[A]gency interpretations are only relevant if they are reflected in public documents. . . . [U]nder Chevron, the Supreme Court has made clear that informal agency interpretations of statutes, even if public, are not entitled to deference. See generally United States v. Mead Corp., 533 U.S. 218 (2001). While this is not a situation involving the interpretation of a statute, the same requirements of public accessibility and formality are applicable in the context of agency interpretations of regulations. . . . The non-public or informal understandings of agency officials concerning the meaning of a regulation are thus not relevant.
387 F.3d at 54 (emphasis added).
The Seventh Circuit has likewise held that it will not extend Auer deference to informal agency pronouncements such as the Ferg-Cadima letter. In Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003), that court explained that Christensen and Mead have curtailed the scope of Auer deference, limiting it to agency pronouncements that carry the “force of law” and that would qualify for deference under Chevron if they were purporting to interpret statutes:
Auer . . . gave full Chevron deference to an agency’s amicus curiae brief; yet in the Christensen case the Supreme Court stated flatly that “interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforce-

28
ment guidelines, all of which lack the force of law — do not warrant Chevron-style deference.” . . . Briefs certainly don’t have “the force of law.” . . .
Probably there is little left of Auer. The theory of Chevron is that Congress delegates to agencies the power to make law to fill gaps in statutes. See, e.g., United States v. Mead Corp., supra, 533 U.S. at 226–27. . . . It is odd to think of agencies as making law by means of statements made in briefs, since agency briefs, at least below the Supreme Court level, normally are not reviewed by the members of the agency itself; and it is odd to think of Congress delegating lawmaking power to unreviewed staff decisions.
347 F.3d at 993–94 (Posner, J.). And in U.S. Freightways Corp. v. Commissioner, 270 F.3d 1137 (7th Cir. 2001), the Seventh Circuit applied Skidmore rather than Auer to the IRS Commissioner’s interpretation of his regulations, because “the interpretive methodologies he has used have been informal.” Id. at 1141–42.
Likewise, the Eleventh Circuit’s decision in Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1238 (11th Cir. 2002), applied Skidmore rather than Auer to agency opinion letters that purport to interpret the agency’s regulations.
Against the First, Seventh, and Eleventh Circuits stand the Fourth Circuit as well as other courts of appeals that have found the lack of procedural formality

29
irrelevant to whether the Auer-deference framework should apply — even after this Court’s decisions in Christensen and Mead. See, e.g., Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 207–08 (2nd Cir. 2009) (holding that “agency interpretations that lack the force of law,” while not warranting deference when interpreting ambiguous statutes, “do normally warrant deference when they interpret ambiguous regulations”); Encarnacion ex. rel George v. Astrue, 568 F.3d 72, 78 (2nd Cir. 2009) (holding agency’s interpretation is entitled to Auer deference “regardless of the formality of the procedures used to formulate it”) (quotation omitted); Bassiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006) (granting Auer deference to agency interpretation “even if [adopted] through an informal process” that “is not reached through the normal notice-and-comment procedure” and that “does not have the force of law”); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affording Seminole Rock deference “even when [the agency’s interpretation] is offered in informal rulings such as in a litigating document”).
It appears the circuits are currently divided 4-3 on whether an agency’s regulatory interpretation produced through informal processes can qualify for Auer deference after Christensen and Mead. The Fourth Circuit’s decision here directly implicates this circuit split, and it is ripe for this Court’s review.

30
B. The Fourth Circuit’s Decision To Extend Auer Deference To The Ferg-Cadima Letter Is In Substantial Tension With Decisions In The Ninth And Federal Circuits.
Another relevant feature of the Ferg-Cadima letter is that it was issued solely in response to G.G.’s dispute with the Board. Days after the Board passed its resolution of December 9, 2014, a transgender activist e-mailed the Department and solicited the letter, specifically with respect to the Board’s policy. App. 118a–120a. But this fact was of no moment to the Fourth Circuit, which held that Auer deference should apply even if the agency had never before expressed these views apart from G.G.’s dispute with Board. App. 17a. The Fourth Circuit had company in reaching this conclusion: At least four other courts of appeals agree that Auer deference should apply even when the agency adopts its interpretation solely in the context of the dispute before the court.10
10 Intracomm, Inc. v. Bajaj, 492 F.3d 285, 293 & n.6 (4th Cir. 2007) (deferring to Secretary’s interpretation advanced in case under review); Woudenberg v. U.S. Dep’t of Agric., 794 F.3d 595, 599, 601 (6th Cir. 2015) (deferring to agency ruling in the case under review); Bible ex rel. Proposed Class v. United Student Aid Funds, Inc., 799 F.3d 633, 639, 651 (7th Cir. 2015) (deferring to agency’s interpretation advanced in amicus briefs), cert. denied, 136 S. Ct. 1607 (2016); Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1062–68 (10th Cir. 2014) (deferring to agency interpretation advanced during administrative appeal); Polycarpe v. E&S Landscaping Serv. Inc., 616 F.3d 1217, 1225 (11th Cir. 2010) (deferring to agency interpretation advanced in amicus brief).

31
But opinions from the Ninth Circuit and the Federal Circuit have refused to extend Auer deference in similar situations. In Vietnam Veterans of America v. CIA, 811 F.3d 1068 (9th Cir. 2015), the Ninth Circuit refused to apply Auer deference to an interpretation of agency rules that was “ ‘developed . . . only in the context of this litigation.’ ” Id. at 1078. And in Massachusetts Mutual Life Insurance Co. v. United States, 782 F.3d 1354 (Fed. Cir. 2015), the Federal Circuit refused to apply the Auer framework to an IRS interpretation that was “advanced for the first time in litigation.” Id. at 1369–70. So the Fourth Circuit’s ruling implicates yet another division among the courts of appeals, and the Court should grant certiorari to resolve it.11
C. The Nationwide Federal Injunction Decision From Texas Also Conflicts With The Fourth Circuit’s Approach.
The lower courts are also divided over whether Auer deference should extend to the specific agency interpretations at issue in this case. Eight days ago, on August 21, 2016, a federal district court in Texas refused to ex-
11 To be sure, the Fourth Circuit’s decision to invoke Auer deference in the circumstances presented here was also wrong for a host of other reasons, see Application for Stay, No. 16A52, at 18–29, including this Court’s reminder in Gonzales v. Oregon, 546 U.S. 243 (2006), that Auer deference is inappropriate where that pronouncement “cannot be considered an interpretation of the regulation” as opposed to the underlying statute. Id. at 247. As discussed, the Ferg-Cadima letter offered an interpretation of Title IX itself, and not merely the regulation. See supra at 11.

32
tend Auer deference to the Department’s bathroom, locker room and shower edicts, finding that 34 C.F.R. § 106.33 unambiguously allows Title IX recipients to establish separate facilities on the basis of biological sex. See Texas v. United States of America, Case No. 7:16-cv00054, ECF No. 58; Pet. App. 183a–229a. That decision is significant here for two distinct reasons.
First, as a practical matter, it exacerbates the existing conflicts and disagreements over the proper application of Auer deference and Title IX to transgender individuals. Indeed, given that decision, and based on competing views of Auer, schools in one section of the Nation — states within the Fourth Circuit — are now bound by the Department’s view of Title IX, while at the same time the Department is currently prohibited from even attempting to impose that same view on schools in the rest of the Nation.
Second, the Texas decision highlights the urgent, nationwide importance of the issues presented in this petition. Every recipient of Title IX funds throughout the Nation — ranging from universities to elementary schools — is now being substantially affected by the disagreement among the lower courts about the proper application of Auer deference. That is an additional reason for this court’s review, especially given the deep disagreements that already exist over whether Auer deference should extend to agency documents such as the Ferg-Cadima letter.

33
III. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER THE DEPARTMENT’S INTERPRETATION OF TITLE IX AND 34 C.F.R. § 106.33 IS BINDING.
Finally, granting this petition will give the Court an excellent opportunity to determine whether the Department’s specific interpretation of Title IX is binding. In fact, that interpretation is flatly wrong and therefore, under any reasonable view of Auer, is not legally binding on anyone.
1. Nothing in Title IX’s text or structure supports the foundational premise of the Ferg-Cadima letter — namely, that the proscription of discrimination “on the basis of sex . . . includ[es] gender identity.” App. 121a. The term “gender identity” is nowhere in Title IX. Congress knows how to legislate protection against gender identity discrimination: it has done so elsewhere, but not in Title IX.12 Conversely, numerous bills have attempted to introduce the concept of gender identity into federal laws, but failed.13 The interpretive alchemy of deeming
12 See, e.g., 42 U.S.C. § 13925(b)(13)(A) (prohibiting discrimination based on “sex, gender identity …, sexual orientation, or disability”); 42 U.S.C. § 3796gg (assisting victims “whose ability to access traditional services and responses is affected by their … gender identity”).
13 See, e.g., H.R. 2015 (110th Cong. 2007); H.R. 3017 (111th Cong. 2009); S. 1584 (111th Cong. 2009); H.R. 1397 (112th Cong. 2011); S. 811 (112th Cong. 2011); H.R. 1755 (113th Cong. 2013); S. 815 (113th Cong. 2013) (unenacted versions of Employment Non(continued…)

34
“sex” to include “gender identity” would revise those legislative defeats into victories. That is not how statutory interpretation works. See, e.g., Hively v. Ivy Tech Cmty. Coll., __ F.3d __, 2016 U.S. App. LEXIS 13746, at *7 & n.2 (7th Cir. July 28, 2016) (noting, “despite multiple efforts, Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation”).
To the contrary, when federal law deploys the term “sex” in anti-discrimination statutes, it prohibits discrimination based on “nothing more than male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex.” Johnston v. Univ. of Pittsburgh, 97 F.Supp.3d 657, 676 (W.D. Pa. 2015) (citing Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007). As Judge Niemeyer’s dissent explained, during the period when Title IX was enacted and its regulations promulgated, “virtually every dictionary definition of ‘sex’ referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions.” App. 54a (collecting definitions). In other words, the prohibition on “sex” discrimination in laws like Title IX and Title VII “do[es] not outlaw discrimination against . . . a person born with a male body who believes himself to be a female, or a person born with a female body who believes herself to be a male.”
Discrimination Act, which would have prohibited gender identity discrimination).

35
Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984).
2. Moreover, reading “sex” to include “gender identity” would make a hash of Title IX’s scheme allowing facilities and programs to be separated by “sex.”14 If “sex” signifies, not biology, but rather one’s “internal” sense of maleness or femaleness, the whole concept of permissible sex-separation collapses. What sense could there be in allowing “separate living facilities for the different sexes,” 20 U.S.C. § 1686, if a biological male could legally qualify as a woman based merely on his subjective perception of being one? The answer is none. Cf. United States v. Virginia, 518 U.S. 515, 550 n. 19 (1996) (admitting women to VMI “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements”).
3. Nor is the Ferg-Cadima interpretation supported by the theory of sex-stereotyping discrimination in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Cf. App. 122a n.2 (relying on Price Waterhouse). A Price Waterhouse claim is “based on behaviors, mannerisms, and appearances,” such as when a male employee is fired because he “wear[s] jewelry . . . considered too effeminate,
14 See, e.g., 20 U.S.C. § 1686 (allowing “separate living facilities for the different sexes”); 34 C.F.R. § 106.32 (allowing “separate housing on the basis of sex,” provided facilities are “[p]roportionate in quantity” and “comparable in quality and cost”); 34 C.F.R. § 106.34 (allowing “separation of students by sex” within physical education classes and certain sports “the purpose or major activity of which involves bodily contact”).

36
carr[ies] a serving tray too gracefully, or tak[es] too active a role in child rearing.” Johnston, 97 F.Supp.3d at 680 (internal quotations and citation omitted). But Price Waterhouse does not require “employers to allow biological males to use women’s restrooms,” because “[u]se of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.” Etsitty, 502 F.3d at 1224. If anything, the Board’s policy is the opposite of sex stereotyping: it designates male and female restrooms based solely on biology, regardless of whether a man or a woman satisfies some stereotypical notion of masculinity or femininity. See, e.g., Johnston, 97 F.Supp.3d at 680–81 (rejecting sex stereotyping claim on this basis).
4. Furthermore, an interpretation of Title IX according to the Ferg-Cadima view would render the statute unconstitutional, and must be avoided for that reason alone. See, e.g., Rust v. Sullivan, 500 U.S. 173, 190 (1991) (describing constitutional avoidance canon). For instance, it would cause Title IX to violate the Spending Clause by failing to give “clear notice” of conditions attached to federal funding.15 No funding recipient could have had “clear notice” of the novel interpretation of Title IX in
15 Arlington Cent. Sch. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006) (clear notice absent where text “does not even hint” fees due to prevailing party); NFIB v. Sebelius, 132 S. Ct. 2566, 2606 (2012) (Congress’s spending clause power “does not include surprising participating States with post-acceptance or retroactive conditions” (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 25 (1981)).

37
this case. Indeed, the G.G. majority confirmed as much by finding the Title IX regulation was ambiguous as applied to transgender individuals. App. 18a. Cf. Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 666 (1985) (no “clear notice” violation where there was “no ambiguity with respect to” funding condition).
5. Finally, taking the Ferg-Cadima letter’s construction of “sex” seriously would turn Title IX against itself. As the district court pointed out, the relevant regulation would bar the Board’s policy only if “sex” means solely “gender identity” and excludes any notion of “biological sex.” App. 99a–102a. As applied to Title IX, that preposterous construction would legalize just the kind of biologically based discrimination against men and women that Title IX was enacted to prevent. For instance, schools could exclude biological women from taking science classes or joining the chess team, so long as they allowed biological men who identify as females to do so. Only transgendered people would be protected under this Title IX regime; men and women who identify with their biological sex would receive no protection at all.
Indeed, if “sex” means only “gender identity,” the Board’s policy would not implicate Title IX at all because it addresses only “biological sex” and excludes consideration of gender identity. But that is absurd: everyone agrees that the Title IX regulation squarely addresses — and expressly allows — sex-separated restrooms, exactly like the ones provided by the Board’s policy.

38
CONCLUSION
Some regard transgender restroom access as one of the great civil-rights issues of our time. But that makes it all the more important to insist that federal officials follow the procedures for lawmaking prescribed in the Constitution and the Administrative Procedure Act. To condone the agency behavior displayed in this case is to condone future use of these maneuvers by other agency officials, and in support of other causes — without any way of ensuring that the Executive Branch will always be controlled by people who share one’s most deeply held beliefs.
At bottom, then, this case is not really about whether G.G. should be allowed to access the boys’ restrooms, nor even primarily about whether Title IX can be interpreted to require recipients to allow transgender students into the restrooms and locker rooms that accord with their gender identity. Fundamentally, this case is about whether an agency employee can impose that policy in a piece of private correspondence. If the Court looks the other way, then the agency officials in this case — and in a host of others to come — will have become a law unto themselves.

39
The petition for a writ of certiorari should be granted.
Respectfully submitted.

JONATHAN F. MITCHELL D. JOHN SAUER JAMES OTIS LAW GROUP, LLC 12977 North Forty Drive Suite 214 St. Louis, MO 63141 (314) 682-6067
DAVID P. CORRIGAN JEREMY D. CAPPS M. SCOTT FISHER JR. HARMAN, CLAYTOR, CORRIGAN & WELLMAN Post Office Box 70280 Richmond, VA 23255 (804) 747-5200

S. KYLE DUNCAN Counsel of Record
GENE C. SCHAERR SCHAERR|DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006  (202) 714-9492 KDuncan@SchaerrDuncan.com

August 29, 2016

APPENDIX

TABLE OF CONTENTS Page
Court of appeals opinion (Apr. 19, 2016) .........................1a
Court of appeals order denying rehearing en banc (May 31, 2016) .............................................................61a
Court of appeals order denying stay of mandate (June 9, 2016) ..............................................................67a
District court order entering preliminary injunction (June 23, 2016) ............................................................71a
District court order denying stay pending appeal (July 6, 2016) ...............................................................73a
Court of appeals order denying stay pending appeal (July 12, 2016) .............................................................76a
District court order denying G.G.’s motion for preliminary injunction (Sept. 4, 2014) ......................82a
District court opinion denying G.G.’s motion for preliminary injunction (Sept. 17, 2014) ....................84a
E-mail from Emily T. Prince to Massie Ritsch, Dep’t of Education (Dec. 14, 2014) .........................118a
Letter from James A. Ferg-Cadima, (Jan. 5, 2015) .............................................................121a
“Dear Colleague” Letter from Catherine E. Lhamon and Vanita Gupta (May 13, 2016) ............126a
Declaration of Troy M. Andersen (July 7, 2015) .............................................................143a
Corrected Declaration of G.G. (June 3, 2015) .............146a
Minutes of School Board Meeting (June 9, 2016) .......153a
United States’ Statement of Interest (June 29, 2015) ..........................................................160a
Preliminary-Injunction Order in Texas v. United States, No. 7:16-cv-00054-O (Aug. 21, 2016)...........183a

1a 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;

2a
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; WHITMAN-WALKER CLINIC, INC., d/b/a Whitman-Walker Health; GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; TRANSGENDER LAW & POLICY INSTITUTE; GENDER BENDERS; GAY, LESBIAN & 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,

3a
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. _____________

4a
Reversed in part, vacated in part, and remanded by published opinion. Judge Floyd wrote the opinion, in which Senior Judge Davis joined. Senior Judge Davis wrote a separate concurring opinion. Judge Niemeyer wrote a separate opinion concurring in part and dissenting in part.
_____________
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 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 O’Reilly, Lisa Love, Dylan Pauly, and Sherie Hohs. Suzanne B. Goldberg, Sexuality and

5a
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 Women’s Law Center, Legal Momentum, The Association of Title IX Administrators, Equal Rights Advocates, Gender Justice, The Women’s Law Project, Legal Voice, Legal Aid Society-Employment Law Center, Southwest Women’s Law Center, and California Women’s 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 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., 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, Of-

6a
fice 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 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

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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, Washing-

ton, D.C., for Amicus Eagle Forum Education and Legal

Defense Fund.

_____________

FLOYD, Circuit Judge:

G.G., a transgender boy, seeks to use the boys’ restrooms at his high school. After G.G. began to use the boys’ restrooms with the approval of the school administration, the local school board passed a policy banning G.G. from the boys’ 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. The district court dismissed G.G.’s Title IX claim and denied his request for a preliminary injunction. This appeal followed. Because we conclude the district court did not accord appropriate deference to the relevant Department of Education regulations, we reverse its dismissal of G.G.’s Title IX claim. Because we conclude that the district court used the wrong evidentiary standard in assessing G.G.’s motion for a preliminary injunction, we vacate its denial and remand for consideration under the correct standard. We therefore reverse in part, vacate in part, and remand the case for further proceedings consistent with this opinion.

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I. At the heart of this appeal is whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity. Title IX provides: “[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 education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The Department of Education’s (the Department) regulations implementing Title IX permit the provision of “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 for students of the other sex.” 34 C.F.R. § 106.33. In an opinion letter dated January 7, 2015, the Department’s Office for Civil Rights (OCR) interpreted how this regulation should apply to transgender individuals: “When 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.” J.A. 55. Because this case comes to us after dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), the facts below are generally as stated in G.G.’s complaint.
A. G.G. is a transgender boy now in his junior year at Gloucester High School. G.G.’s birth-assigned sex, or socalled “biological sex,” is female, but G.G.’s gender identity is male. G.G. has been diagnosed with gender dysphoria, a medical condition characterized by clinically significant distress caused by an incongruence between a person’s gender identity and the person’s birth-assigned

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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. G.G. lives all aspects of his life as a boy. 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. Later, at G.G.’s request, school officials allowed G.G. to use the boys’ restroom.2 G.G. used this restroom without incident for about seven weeks. G.G.’s use of the boys’ restroom, however, excited the interest of others in the community, some of whom contacted the Gloucester County School Board (the Board) seeking to bar G.G. from continuing to use the boys’ restroom.
Board Member Carla B. Hook (Hook) added an item to the agenda for the November 11, 2014 board meeting titled “Discussion of Use of Restrooms/Locker Room Facilities.” J.A. 15. Hook proposed the following resolution (hereinafter the “transgender restroom policy” or “the policy”):
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 school’s physical education programs. He does not seek here, and never has sought, use of the boys’ locker room. Only restroom use is at issue in this case.

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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 Citizens’ Comment Period, a majority of whom supported Hook’s proposed resolution. Many of the speakers displayed hostility to G.G., including by referring pointedly to him as a “young lady.” J.A. 16. Others claimed that permitting G.G. to use the boys’ 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 girls’ restrooms. G.G. and his parents spoke against the proposed policy. Ultimately, the Board postponed a vote on the policy until its next meeting on December 9, 2014.

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At the December 9 meeting, approximately thirtyseven people spoke during the Citizens’ 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 “girl” or “young lady.” J.A. 18. One speaker called G.G. a “freak” and compared him to a person who thinks he is a “dog” 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 boys’ restroom at school.
G.G. alleges that he cannot use the girls’ restroom because women and girls in those facilities “react[] negatively because they perceive[] G.G. to be a boy.” Id. Further, using the girls’ restroom would “cause severe psychological distress” to G.G. and would be incompatible with his treatment for gender dysphoria. J.A. 19. As a corollary to the policy, the Board announced a series of updates to the school’s 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 single-stall unisex restrooms available to all students. G.G. alleges that he cannot use these new unisex restrooms because they “make 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 ‘different.’ ” Id. G.G. further alleges that, because of this stigma and exclusion, his social transition is undermined and he experiences “severe and persistent emotional and social harms.” Id. G.G. avoids using the restroom while at

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school and has, as a 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 boys’ 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. On July 27, 2015, the district court held a hearing on G.G.’s motion for a preliminary injunction and on the Board’s motion to dismiss G.G.’s lawsuit. At the hearing, the district court orally dismissed G.G.’s Title IX claim and denied his request for a preliminary injunction, but withheld ruling on the motion to dismiss G.G.’s 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.’s 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.’s 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.’s request for an injunction, the district court found that G.G. had not made the

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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 burdensome and would result in less hardship than requiring other students made uncomfortable by G.G.’s presence in the boys’ restroom to themselves use the unisex restrooms.
This appeal followed. G.G. asks us to reverse the district court’s 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. The Board, on the other hand, asks us to affirm the district court’s rulings and also asks us to dismiss G.G.’s equal protection claim — on which the district court has yet to rule — as without merit. The United States, as it did below, has filed an amicus brief supporting G.G.’s Title IX claim in order to defend the government’s 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 court’s dismissal of G.G.’s Title IX claim.3 We review de novo the district court’s
3 We decline the Board’s invitation to preemptively dismiss G.G.’s equal protection claim before it has been fully considered by the district court. “[W]e are a court of review, not of first view.” 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.’s equal protection claim on appeal without the benefit of the district court’s prior consideration.

14a
grant of a motion to dismiss. Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir. 2014). “To 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotations omitted).
As noted earlier, Title IX provides: “[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 education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). To 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 See Preston v. Virginia ex rel. New
4 The Board suggests that a restroom may not be educational in nature and thus is not an educational program covered by Title IX. Appellee’s Br. 35 (quoting Johnston v. Univ. of Pittsburgh, 97 F. Supp. 3d 657, 682 (W.D. Pa. 2015)). The Department’s regulation pertaining to “Education programs or activities” provides:
Except as provided in this subpart, in providing any aid, benefit, or service to a 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, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
Continued …

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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 separate living facilities on the basis of sex: “nothing contained [in Title IX] shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” 20 U.S.C. § 1686. The Department’s regulations implementing Title IX permit the provision of “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. § 106.33. The Department recently delineated how this regulation should be applied to transgender individuals. In an opinion letter dated January 7, 2015, the Department’s Office for Civil Rights (OCR) wrote: “When a school elects to separate or treat students differently on
. . .
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
34 C.F.R. § 106.31(b). We have little difficulty concluding that access to a restroom at a school, under this regulation, can be considered either an “aid, benefit, or service” or a “right, privilege, advantage, or opportunity,” which, when offered by a recipient institution, falls within the meaning of “educational program” as used in Title IX and defined by the Department’s implementing regulations.

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the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.”5 J.A. 55.
G.G., and the United States as amicus curiae, ask us to give the Department’s interpretation of its own regulation controlling weight pursuant to Auer v. Robbins, 519 U.S. 452 (1997). Auer requires that an agency’s in-

5 The opinion letter cites to OCR’s December 2014 “Questions and

Answers on Title IX and Single-Sex Elementary and Secondary

Classes and Extracurricular Activities.” This document, denoted a

“significant guidance document” per Office of Management and

Budget regulations, states: “All 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, implementa-

tion, enrollment, operation, and evaluation of single-sex classes.”

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) 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 OCR’s opinion letter in which the agency “also 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,” as the Board did here. Post at 66. However, because G.G. does want to use shared sexsegregated facilities, the agency’s suggestion regarding students who do not want to use such shared sex-segregated facilities is immaterial to the resolution of G.G.’s claim. Nothing in today’s opinion restricts any school’s ability to provide individual-user facilities.

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terpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute. Id. at 461. Agency interpretations need not be wellsettled or long-standing to be entitled to deference. They must, however, “reflect the agency’s fair and considered judgment on the matter in question.” Id. at 462. An interpretation may not be the result of the agency’s 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 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 to the Department’s interpretation of 34 C.F.R. § 106.33. The district court found the regulation to be unambiguous because “[i]t clearly allows the School Board to limit bathroom access ‘on the basis of sex,’ including birth or biological sex.” G.G. v. Gloucester Cty. Sch. Bd., No. 4:15cv54, 2015 WL 5560190, at *8 (E.D. Va. Sept. 17, 2015). The district court also found, alternatively, that the interpretation advanced by the Department was clearly erroneous and inconsistent with the regulation. The district court reasoned that, because “on the basis of sex” 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 “without running afoul of Title IX.” Br. for the United States as Amicus Curiae 24–25 (hereinafter “U.S. Br.”).

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However, the Department also considers § 106.33 itself to be ambiguous as to transgender students because “the regulation is silent on what the phrases ‘students of one sex’ and ‘students of the other sex’ mean in the context of transgender students.” Id. at 25. The United States contends that the interpretation contained in OCR’s January 7, 2015 letter resolves the ambiguity in § 106.33 as that regulation applies to transgender individuals.
B. We will not accord an agency’s interpretation of an unambiguous regulation Auer deference. Thus, our analysis begins with a determination of whether 34 C.F.R. § 106.33 contains an ambiguity. Section 106.33 permits schools to 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. § 106.33. “[D]etermining whether a regulation or statute is ambiguous presents a legal question, which we determine de novo.” Humanoids Grp. v. Rogan, 375 F.3d 301, 306 (4th Cir. 2004). We determine ambiguity by analyzing the language under the three-part framework set forth in Robinson v. Shell Oil Co., 519 U.S. 337 (1997). The plainness or ambiguity of language is determined by reference to (1) the language itself, (2) the specific context in which that language is used, and (3) the broader context of the statute or regulation as a whole. Id. at 341. First, we have little difficulty concluding that the language itself — “of one sex” and “of the other sex” — refers to male and female students. Second, in the specific context of § 106.33, the plain meaning of the regulatory

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language is best stated by the United States: “the mere act of providing separate restroom facilities for males and females does not violate Title IX . . . .” U.S. Br. 22 n.8. Third, the language “of one sex” and “of the other sex” appears repeatedly in the broader context of 34 C.F.R. § 106 Subpart D, titled “Discrimination on the Basis of Sex in Education Programs or Activities Prohibited.”6 This repeated formulation indicates two sexes (“one sex” and “the other sex”), and the only reasonable reading of the language used throughout the relevant regulatory section is that it references male and female. Read plainly then, § 106.33 permits schools to provide separate toilet, locker room, and shower facilities for its male and female students. By implication, the regulation also permits schools to exclude males from the female facilities and vice-versa.
Our inquiry is not ended, however, by this straightforward conclusion. Although the regulation may refer unambiguously to males and 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
6 For example, § 106.32(b)(2) provides that “[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 student”; § 106.37(a)(3) provides that an institution generally cannot “[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 status”; and § 106.41(b) provides that “where [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 . . . .”

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sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading — determining maleness or femaleness with reference exclusively to genitalia — and the Department’s interpretation — determining maleness or femaleness with reference to gender identity. Cf. Dickenson-Russell Coal Co. v. Sec’y of Labor, 747 F.3d 251, 258 (4th Cir. 2014) (refusing to afford Auer deference where the language of the regulation at issue was “not susceptible to more than one plausible reading” (citation and quotation marks omitted)). It is not clear to us how the regulation would apply in a number of situations — even under the Board’s own “biological gender” formulation. For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.
C. Because we conclude that the regulation is ambiguous as applied to transgender individuals, the Department’s interpretation is entitled to Auer deference unless the Board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute. Auer, 519 U.S. at 461. “Our review of the agency’s interpretation in this context is therefore highly def-

21a
erential.” Dickenson-Russell Coal, 747 F.3d at 257 (citation and quotation marks omitted). “It is well established that an agency’s interpretation need not be the only possible reading of a regulation — or even the best one — to prevail.” Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013). An agency’s view need only be reasonable to warrant deference. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991) (“[I]t is axiomatic that the [agency’s] interpretation need not be the best or most natural one by grammatical or other standards. Rather, the [agency’s] view need be only reasonable to warrant deference.”).
Title IX regulations were promulgated by the Department of Health, Education, and Welfare in 1975 and were adopted unchanged by the Department in 1980. 45 Fed. Reg. 30802, 30955 (May 9, 1980). Two dictionaries from the drafting era inform our analysis of how the term “sex” was understood at that time. The first defines “sex” as “the character of being either male or female” or “the sum of those anatomical and physiological differences with reference to which the male and female are distinguished . . . .” American College Dictionary 1109 (1970). The second defines “sex” 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 . . . .

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Webster’s Third New International Dictionary 2081 (1971).
Although these definitions suggest that the word “sex” 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 “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs — although useful in most cases — was not universally descriptive.7 The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” 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 “character of being either male or female” where those indicators diverge. We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the
7 Modern definitions of “sex” also implicitly recognize the limitations of a nonmalleable, binary conception of sex. For example, Black’s Law Dictionary defines “sex” as “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; gender.” Black’s Law Dictionary 1583 (10th ed. 2014). The American Heritage Dictionary includes in the definition of “sex” “[o]ne’s identity as either female or male.” American Heritage Dictionary 1605 (5th ed. 2011).

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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 Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects — or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities” — included in the term “sex.”
D. Finally, we consider whether the Department’s interpretation of § 106.33 is the result of the agency’s fair and considered judgment. Even a valid interpretation will not be accorded Auer deference where it conflicts with a prior interpretation, where it appears that the interpretation is no more than a convenient litigating position, or where the interpretation is a post hoc rationalization. Christopher, 132 S. Ct. at 2166 (citations omitted). Although the Department’s interpretation is novel because there was no interpretation as to how § 106.33 applied to transgender individuals before January 2015, “novelty alone is no reason to refuse deference” 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 “did not arise until recently,” see id., because schools have only recently begun citing § 106.33 as justification for enacting new policies restricting transgender students’ access to restroom facilities. The Department contends that “[i]t is to those ‘newfound’ policies that [the Department’s] interpretation of the regulation responds.” U.S. Br. 29. We see no

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reason to doubt this explanation. See Talk Am., Inc., 131 S. Ct. at 2264.
Nor is the interpretation merely a convenient litigating position. The Department has consistently enforced this position since 2014. 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 agencies — all 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 Urban Development, and the Office of Personnel Management). None of the Christopher grounds for withholding Auer deference are present in this case.
8 We disagree with the dissent’s suggestion that the result we reach today renders the enforcement of separate restroom facilities impossible because it “would require schools to assume gender identity based on appearances, social expectations, or explicit declarations of identity.” Post at 65. Accepting the Board’s position would equally require the school to assume “biological sex” based on “appearances, social expectations, or explicit declarations of [biological sex].” Certainly, no one is suggesting mandatory verification of the “correct” genitalia before admittance to a restroom. The Department’s vision of sex-segregated restrooms which takes account of gender identity presents no greater “impossibility of enforcement” problem than does the Board’s “biological gender” vision of sex-segregated restrooms.

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E. We conclude that the Department’s interpretation of its own regulation, § 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 court’s contrary conclusion and its resultant dismissal of G.G.’s Title IX claim.
F. In many respects, we are in agreement with the dissent. We agree that “sex” 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 restrooms, locker rooms, and shower facilities on the basis of sex. We agree that “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” are not involuntarily exposed.10 Post at 56. It is not ap-
9 The Board urges us to reach a contrary conclusion regarding the validity of the Department’s 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 Department’s interpretation of § 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.
10 We doubt that G.G.’s 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.’s use — or for that matter any individual’s appropriate use — of a restroom will not involve the type Continued …

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parent to us, however, that the truth of these propositions undermines the conclusion we reach regarding the level of deference due to the Department’s interpretation of its own regulations.
The Supreme Court commands the use of particular analytical frameworks when courts review the actions of the executive agencies. G.G. claims that he is entitled to use the boys’ restroom pursuant to the Department’s interpretation of its regulations implementing Title IX. We have carefully followed the Supreme Court’s guidance in Chevron, Auer, and Christopher and have determined that the interpretation contained in the OCR letter is to be accorded controlling weight. In a case such as this, where there is no constitutional challenge to the regulation or agency interpretation, the weighing of privacy interests or safety concerns11— fundamentally questions
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).
11 The dissent accepts the Board’s invocation of amorphous safety concerns as a reason for refusing deference to the Department’s interpretation. We note that the record is devoid of any evidence tending to show that G.G.’s use of the boys’ 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 has — whether it fears that it cannot ensure G.G.’s 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 “sexual responses prompted by students’ exposure to the private Continued …

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of policy — is a task committed to the agency, not to the courts.
The Supreme Court’s 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 policy-making 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 choices — resolving the competing interests 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 ad-
body parts of students of the other biological sex.” Post at 58. The same safety concern would seem to require segregated restrooms for gay boys and girls who would, under the dissent’s formulation, present a safety risk because of the “sexual responses prompted” by their exposure to the private body parts of other students of the same sex in sex-segregated restrooms.

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ministration 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 court’s denial of the preliminary injunction he sought which would have allowed him to use the boys’ restroom during the pendency of this lawsuit. “To 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.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (citation omitted). We review a district court’s denial of a preliminary injunction for abuse of discretion. Id. at 235. “A district court has abused its discretion if its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006) (citation and quotations omitted). “We do not ask whether we would have come to the same conclusion as the district court if we were examining the matter de novo.” Id. (citation omitted). Instead, “we 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 conclu-

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sion it reached upon a weighing of the relevant factors.” Id. (citations and quotations omitted).
The district court analyzed G.G.’s request only with reference to the third factor — the balance of hardships — and found that the balance of hardships did not weigh in G.G.’s 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 boys’ restroom. The district court refused to consider this evidence because it was “replete with inadmissible evidence including thoughts of others, hearsay, and suppositions.” G.G., 2015 WL 5560190, at *11.
The district court misstated the evidentiary standard governing preliminary injunction hearings. The district court stated: “The complaint is no longer the deciding factor, admissible evidence is the deciding factor. Evidence therefore must conform to the rules of evidence.” Id. at *9. Preliminary injunctions, however, are governed by less 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) (taking as true the “well-pleaded allegations of respondents’ complaint and uncontroverted affidavits filed in support

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of the motion for a preliminary injunction”); compare Fed. R. Civ. P. 56 (requiring affidavits supporting summary judgment to be “made 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 injunction context). Thus, although admissible evidence may be more persuasive than inadmissible evidence in the preliminary injunction context, it was error for the district court to summarily reject G.G.’s proffered evidence because it may have been inadmissible at a subsequent trial.
Additionally, the district court completely excluded some of G.G.’s proffered evidence on hearsay grounds. The seven of our sister circuits to have considered the admissibility of hearsay in preliminary injunction proceedings have decided that the nature of evidence as hearsay goes to “weight, not preclusion” and have permitted district courts to “rely on hearsay evidence for the limited purpose of determining whether to award a preliminary injunction.” 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 Int’l Trading, Inc., 51 F.3d 982, 985 (11th Cir. 1995) (“At the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is appropriate given the character and objectives of the injunctive proceeding.” (citation and internal quotations omitted)); Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir. 1993) (“[A]t the preliminary injunction stage, the procedures in the district court are

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less formal, and the district court may rely on otherwise inadmissible evidence, including hearsay evidence.”); Asseo v. 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. Because preliminary injunction proceedings are informal ones designed to prevent irreparable harm before a later trial governed by the full rigor of usual evidentiary standards, district courts may look to, and indeed in appropriate circumstances rely on, hearsay or other inadmissible evidence when deciding whether a preliminary injunction is warranted.
Because the district court evaluated G.G.’s proffered evidence against a stricter evidentiary standard 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 “guided by erroneous legal principles.” We therefore conclude that the district court abused its discretion when it denied G.G.’s request for a preliminary injunction without considering G.G.’s proffered evidence. We vacate the district court’s denial of G.G.’s motion for a preliminary injunction and remand the case to the district court for consideration of G.G.’s evidence in light of the evidentiary standards set forth herein.
IV. Finally, G.G. requests that we reassign this case to a different district judge on remand. G.G. does not explicitly claim that the district judge is biased. Absent such a claim, reassignment is only appropriate in “unusual circumstances where both for the judge’s sake and the ap-

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pearance of justice an assignment to a different judge is salutary and in the public interest, especially as it minimizes even a suspicion of partiality.” 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 to any gain in preserving the appearance of fairness. Id. (citation omitted).
G.G. argues that both the first and second Guglielmi factors are satisfied. 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 “gender and sexuality in particular.” Appellant’s Br. 53. For example, the court accepted the Board’s concern by noting:
There are only two instincts — two. Everything else is acquired — everything. That is, the brain only has two instincts. One is called selfpreservation, 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.

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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 “mental disorder” 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.’s representation of what it meant to be transgender, repeatedly noting that G.G. “wants” to be a boy and not a girl, but that “he is biologically a female.” J.A. 103–04; see also J.A. 104 (“It’s his mind. It’s not physical that causes that, it’s what he believes.”). The district court’s memorandum opinion, however, included none of the extraneous remarks or suppositions that marred the hearing.
Reassignment is an unusual step at this early stage of litigation. Although the district court did express opinions about medical facts and skepticism of G.G.’s 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 court’s 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.’s request for reassignment to a different district judge on remand.
V. For the foregoing reasons, the judgment of the district court is

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REVERSED IN PART, VACATED IN PART, AND REMANDED.
DAVIS, Senior Circuit Judge, concurring: I concur in Judge Floyd’s fine opinion. I write sepa-
rately, 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.’s 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 Board’s restroom policy discriminates against him “on the basis of sex” in violation of Title IX. In light of the weight of circuit authority concluding that discrimination against transgender individuals constitutes discrimination “on the basis of sex” in the context of analogous statutes and our holding here that the Department’s interpretation of

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34 C.F.R. § 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, 250–51 (1989); see also Glenn v. Brumby, 663 F.3d 1312, 1316–19 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566, 573–75 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (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 single-stall restrooms or the restroom in the nurse’s office. See J.A. 32–33. His affidavit also indicates that he has “repeatedly developed painful urinary tract infections” as a result of holding his urine in order to avoid using the restroom at school. Id. 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.’s 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 “inconsistent with evidence-based medical practice and detrimental to the health and well-being of the child” and explains why access to a restroom appropriate to one’s 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 Board’s restroom policy “is currently causing emotional distress to an extremely vulnerable youth and placing G.G. at risk for accruing life-

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long psychological harm.” J.A. 41. In particular, Dr. Ettner opines that
[a]s a result of the School Board’s restroom policy, . . . G.G. is put in the humiliating position of having to use a separate facility, thereby accentuating his ‘otherness,’ 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 as-
sertions concerning irreparable harm in G.G.’s or Dr. Ettner’s affidavits. Instead, its arguments focus on what is purportedly lacking from G.G.’s presentation in support of his claim of irreparable harm, such as “evidence that [his feelings of dysphoria, anxiety, and distress] would be lessened by using the boy[s’] restroom,” evidence from his treating psychologist, medical evidence, and an opinion from Dr. Ettner “differentiating between the distress that G.G. may suffer by not using the boy[s’] bathroom during the course of this litigation and the distress that he has apparently been living with since age 12.” Br. Appellee 42–43. As to the alleged deficiency concerning Dr. Ettner’s opinion, the Board’s argument is belied by Dr. Ettner’s affidavit itself, which, as quoted above, provides her opinion about the psychological harm that G.G. is experiencing “[a]s a result of the School Board’s restroom policy.” J.A. 42. With respect to the other purported inadequacies, the absence of such

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evidence does nothing to undermine the uncontroverted statements concerning the daily psychological harm G.G. experiences as a result of the Board’s policy or Dr. Ettner’s unchallenged opinion concerning the significant long-term consequences of that harm. Moreover, the Board offers no argument to counter G.G.’s 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 Board’s 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 Board’s 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 will suffer irreparable harm in the absence of an injunction.
C. Turning to the balance of the hardships, G.G. has shown that he will suffer irreparable harm without the requested injunction. On the other end of the scale, the Board contends that other students’ constitutional right to privacy will be imperiled by G.G.’s presence in the boys’ restroom. As the majority opinion points out, G.G.’s use of the restroom does not implicate the unconstitutional actions involved in the cases cited by the dissent. Moreover, students’ unintentional exposure of their genitals to others using the restroom has already been largely, if not entirely, remedied by the alterations to the school’s restrooms already undertaken by the Board. To the extent

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that a student simply objects to using the restroom in the presence of a transgender student even where there is no possibility that either student’s 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.’s presence in the communal restroom thus does not tip the scale in the Board’s favor. The balance of hardships weighs heavily toward G.G.
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.’s rights under Title IX for the pendency of this case. Enforcing G.G.’s 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 lan-

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guage of federal civil rights statutes, as interpreted by the Supreme Court. 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.
II. Based on the evidence presented to the district court, G.G. has satisfied all four prongs of the preliminary injunction inquiry. When the record before us supports entry of a preliminary injunction — as it amply does here — we have 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 “because the record clearly establishes the plaintiff’s right to an injunction and [an evidentiary] hearing would not have altered the result”). 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 Floyd’s thoughtful and thorough opinion for the panel.
NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
I concur in Part IV of the court’s opinion. With respect to whether G.G. stated a claim under Title IX and whether the district court abused its discretion in denying G.G’s motion for a preliminary injunction, I would affirm the ruling of the district court dismissing G.G.’s Title IX claim and denying his motion for a preliminary injunction. I therefore dissent from the majority’s 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 school’s policy for assigning students to restrooms and locker rooms based on biological sex. The school’s policy provides: (1) that the girls’ restrooms and locker rooms are designated for use by students who are biologically female; (2) that the boys’ 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 school’s three single-stall 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 girls’ restrooms and locker rooms and the unisex restrooms. He contends, however, that the policy discriminates against him because it denies him, as one who identifies as male, the use of the boys’ restrooms,

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and he seeks an injunction compelling the high school to allow him to use the boys’ restrooms.
The district court dismissed G.G.’s Title IX claim, explaining that the school complied with Title IX and its regulations, which permit schools to provide separate living facilities, restrooms, locker rooms, and shower facilities “on the basis of sex,” so long as the facilities are “comparable.” 20 U.S.C. § 1686; 34 C.F.R. §§ 106.32(b), 106.33.
Strikingly, the majority now reverses the district court’s 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 statute’s and regulations’ use of the term “sex” means a person’s gender identity, not the person’s biological status as male or female. To accomplish its goal, the majority relies entirely on a 2015 letter sent by the Department of Education’s Office for Civil Rights to G.G., in which the Office for Civil Rights stated, “When a school elects to separate or treat students differently on the basis of sex [when providing restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes], a school generally must treat transgender students consistent with their gender identity.” (Emphasis added). Accepting that new definition of the statutory term “sex,” the majority’s opinion, for the first time ever, holds that a public high school may not provide separate restrooms and locker rooms on the basis of biological sex. Rather, it must now allow a biological male student who identifies as female to use the girls’ restrooms and locker rooms and, likewise, must allow a biological female student who identifies as male to use the boys’ restrooms and locker

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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 girls’ restrooms because of the “severe psychological distress” it would inflict on him and because female students had “reacted negatively” to his presence in girls’ restrooms. Surely biological males who identify as females would encounter similar reactions in the girls’ restroom, just as students physically exposed to students of the opposite biological sex would be likely to experience psychological distress. As a 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 nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And 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 states that, to accommodate transgender students, schools are encouraged “to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities [as permitted by Title IX’s regulations].” This appears to approve the course that G.G.’s school followed when it created unisex restrooms in addition to the boys’ and girls’ restrooms it already had.

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Title IX and its implementing regulations are not ambiguous. In recognition of physiological privacy and safety concerns, they allow schools to provide “separate living facilities for the different sexes,” 20 U.S.C. § 1686, provided that the facilities are “proportionate” and “comparable,” 34 C.F.R. § 106.32(b), and to provide “separate toilet, locker room, and shower facilities on the basis of sex,” again provided that the facilities are “comparable,” 34 C.F.R. § 106.33. Because the school’s policy that G.G. challenges in this action comports with Title IX and its regulations, I would affirm the district court’s dismissal of G.G.’s 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 “did not feel like a girl” 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 himself to be transgender, and shortly thereafter, at his request, he began therapy with a psychologist, who diagnosed him with gender dysphoria, a condition of distress brought about by the incongruence of one’s 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 School to discuss his need, as part of his treatment, to socially transition at school. The school accommodated all of his requests. Officials changed school records to reflect G.G.’s new male name; the guidance counselor supported G.G.’s sending

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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 education requirement through a home-bound program, as he preferred not to use the school’s locker rooms; and the school allowed G.G. to use a restroom in the nurse’s office “because [he] was unsure how other students would react to [his] transition.” G.G. was grateful for the school’s “welcoming environment.” As he stated, “no teachers, administrators, or staff at Gloucester High School expressed any resistance to calling [him] by [his] legal name or referring to [him] using male pronouns.” And he was “pleased to discover that [his] teachers and the vast majority of [his] peers respected the fact that [he is] a boy.”
As the school year began, however, G.G. found it “stigmatizing” to continue using the nurse’s restroom, and he requested to use the boys’ restrooms. The principal also accommodated this request. But the very next day, the School Board began receiving “numerous complaints from parents and students about [G.G.’s] use of the boys’ restrooms.” The School Board thus faced a dilemma. It recognized G.G.’s feelings, as he expressed them, that “[u]sing the girls’ restroom[s] [was] not possible” because of the “severe psychological distress” it would inflict on him and because female students had previously “reacted negatively” to his presence in the girls’ restrooms. It now also had to recognize that boys had similar feelings caused by G.G.’s use of the boys’ restrooms, although G.G. stated that he continued using the boys’ restrooms for some seven weeks without personally receiving complaints from fellow students.

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The Gloucester County School Board considered the problem and, after two public meetings, adopted a compromise policy, as follows:
Whereas the GCPS 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.
Gloucester High School promptly implemented the policy and created three single-stall unisex restrooms for use by 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 Education’s Office for Civil Rights, and on January 15, 2015, the Office responded, stating, as relevant here:
The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain

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circumstances. When 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 sex-segregated facilities.
G.G. commenced this action in June 2015, alleging that the Gloucester County School Board’s policy was discriminatory, in violation of the U.S. Constitution’s Equal Protection Clause and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. He sought declaratory relief, injunctive relief, and damages. With his complaint, G.G. also filed a motion for a preliminary injunction “requiring the School Board to allow [him] to use the boys’ restrooms at school.”
The district court dismissed G.G.’s Title IX claim because Title IX’s implementing regulations permit schools to provide separate restrooms “on the basis of sex.” The court also denied G.G.’s 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 “will hear evidence” and “get a date set” for trial to better assess the claim.
From the district court’s order denying G.G.’s motion for a preliminary injunction, G.G. filed this appeal, in which he also challenges the district court’s Title IX ruling as inextricably intertwined with the district court’s denial of the motion for a preliminary injunction.

47a
II G.G. recognizes that persons who are born biologically female “typically” identify psychologically as female, and likewise, that persons who are born biologically male “typically” identify as male. Because G.G. was born biologically female but identifies as male, he characterizes himself as a transgender male. He contends that because he is transgender, the School Board singled him out for “different and unequal treatment,” “discriminat[ing] against him based on sex [by denying him use of the boys’ restrooms], in violation of Title IX.” He argues, “discrimination 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.” He concludes that the School Board’s 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 “prevent[ed] . . . from using the same restrooms as other students and relegat[ed] . . . to separate, single-stall facilities.” As noted, the School Board’s policy designates the use of restrooms and locker rooms based on the student’s biological sex — biological females are assigned to the girls’ restrooms and unisex restrooms; biological males are assigned to the boys’ restrooms and unisex restrooms. G.G. is thus assigned to the girls’ restrooms and the unisex restrooms, but is denied the use of the boys’ restrooms. He asserts, however, that because neither he nor the girls would accept his use of the girls’ restroom, he is relegated to the unisex restrooms, which is stigmatizing.

48a
The School Board contends that it is treating all students the same way, as it explains:
The School Board’s 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 singlestall bathrooms for any student to use regardless of his or her biological sex. Under the School Board’s 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.
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

49a
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. § 1681(a) (emphasis added). The Act, however, provides, “Notwithstanding 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 separate living facilities for the different sexes.” Id. § 1686 (emphasis added); see also 34 C.F.R. § 106.32(b) (permitting schools to provide “separate housing on the basis of sex” as long as the housing is “proportionate” and “comparable” (emphasis added)). 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. § 106.33 (emphasis added). Thus, although Title IX and its regulations provide generally that a school receiving federal funds may not discriminate on the basis of sex, they also specify that a school does not violate the Act by providing, on the basis of sex, separate living facilities, restrooms, locker rooms, and shower facilities.
While G.G. only challenges the definition and application of the term “sex” with respect to separate restrooms, acceptance of his argument would necessarily change the definition of “sex” for purposes of assigning

50a
separate living facilities, locker rooms, and shower facilities as well. All are based on “sex,” a term that must be construed uniformly throughout Title IX and its implementing regulations. See Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (“[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 meaning” (internal quotation marks and citations omitted)); In re Total Realty Mgmt., LLC, 706 F.3d 245, 251 (4th Cir. 2013) (“Canons 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 consistent” (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) (“[B]ecause a regulation must be consistent with the statute it implements, any interpretation of a regulation naturally must accord with the statute as well” (quoting John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 627 n.78 (1996))).
Across societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females. 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 are not exposed to persons of the op-

51a
posite biological sex. Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind. See, e.g., Doe v. Luzerne Cnty., 660 F.3d 169, 176–77 (3d Cir. 2011) (recognizing that an individual has “a constitutionally protected privacy interest in his or her partially clothed body” and that this “reasonable expectation of privacy” exists “particularly while in the presence of members of the opposite sex”); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008) (explaining that “the constitutional right to privacy . . . includes the right to shield one’s body from exposure to viewing by the opposite sex”); Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (“Students of course have a significant privacy interest in their unclothed bodies”); Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992) (explaining that “[t]he right to bodily privacy is fundamental” and that “common sense, decency, and [state] regulations” require recognizing it in a parolee’s right not to be observed by an officer of the opposite sex while producing a urine sample); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1989) (recognizing that, even though inmates in prison “surrender many rights of privacy,” their “special sense of privacy in their genitals” should not be violated through exposure unless “reasonably necessary” and explaining that the “involuntary exposure of [genitals] in the presence of people of the other sex may be especially demeaning and humiliating”).
Moreover, we have explained that separating restrooms based on “acknowledged differences” between the biological sexes serves to protect this important privacy interest. See Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (noting “society’s undisputed approval of sepa-

52a
rate public rest rooms for men and women based on privacy concerns”). Indeed, the Supreme Court recognized, when ordering an all-male Virginia college to admit female students, that such a remedy “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex.” United States v. Virginia, 518 U.S. 515, 550 n.19 (1996). Such privacy was and remains necessary because of the inherent “[p]hysical differences between men and women,” which, as the Supreme Court explained, are “enduring” and render “the two sexes . . . not fungible,” id. at 533 (distinguishing sex from race and national origin), not because of “one’s sense of oneself as belonging to a particular gender,” as G.G. and the government as amicus contend.
Thus, Title IX’s 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. This privacy concern is also linked to safety concerns that could arise from sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex. Indeed, the School Board cited these very reasons for its adoption of the policy, explaining that it separates restrooms and locker rooms to promote the privacy and safety of minor children, pursuant to its “responsibility 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. [That the school has this responsibility] is particularly true in an environment where children are still developing, both emotionally and physically.”

53a
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 “sex” were to encompass only a person’s gender identity. Indeed, separation on this basis would function nonsensically. A biological male identifying as female could hardly live in a girls’ dorm or shower in a girls’ shower without invading physiological privacy needs, and the same would hold true for a biological female identifying as male in a boys’ dorm or shower. G.G.’s answer, of course, is that he is not challenging the 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. This effort to limit the scope of the issue apparently sways the majority, as it cabins its entire discussion to “restroom access by transgender individuals.” Ante at 26. But this effort to restrict the effect of G.G.’s argument hardly matters when the term “sex” would have to be applied uniformly throughout the statute and regulations, as noted above and, indeed, as agreed to by the majority. See ante at 26.
The realities underpinning Title IX’s recognition of separate living facilities, restrooms, locker rooms, and shower facilities are reflected in the plain language of the statute and regulations, which is not ambiguous. The text of Title IX and its regulations allowing for separation of each facility “on the basis of sex” employs the term “sex” as was generally understood at the time of enactment. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (explaining that courts should not defer to an agency’s interpretation of its own regulation if an “alternative reading is compelled by the regulation’s plain language or by other indications of the Secre-

54a
tary’s intent at the time of the regulation’s promulgation” (emphasis added) (internal quotation marks and citation omitted)); see also Auer v. Robbins, 519 U.S. 452, 461 (1997) (discussing dictionary definitions of the regulation’s “critical phrase” to help determine whether the agency’s interpretation was “plainly erroneous or inconsistent with the regulation” (internal quotation marks and citation omitted)). 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 of “sex” referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions. See, e.g., The Random House College Dictionary 1206 (rev. ed. 1980) (“either the male or female division of a species, esp. as differentiated with reference to the reproductive functions”); Webster’s New Collegiate Dictionary 1054 (1979) (“the sum of the structural, functional, and behavioral characteristics of living beings that subserve reproduction by two interacting parents and that distinguish males and females”); American Heritage Dictionary 1187 (1976) (“The property or quality by which organisms are classified according to their reproductive functions”); Webster’s Third New International Dictionary 2081 (1971) (“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 . . .”); The American College Dictionary 1109 (1970) (“the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished . . . ”). Indeed, although the contemporaneous meaning controls our analy-

55a
sis, it is notable that, even today, the term “sex” continues to be defined based on the physiological distinctions between males and females. See, e.g., Webster’s New World College Dictionary 1331 (5th ed. 2014) (“either of the two divisions, male or female, into which persons, animals, or plants are divided, with reference to their reproductive functions”); The American Heritage Dictionary 1605 (5th ed. 2011) (“Either of the two divisions, designated female and male, by which most organisms are classified on the basis of their reproductive organs and functions”); Merriam-Webster’s Collegiate Dictionary 1140 (11th ed. 2011) (“either 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 structures”). Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.
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 regulations.
Despite the fact that the majority offers no case to support the definition of “sex” as advanced by G.G. and supported by the government as amicus, the majority nonetheless accepts that the meaning of the term “sex” in Title IX and its regulations refers to a person’s “gender identity” simply to accommodate G.G.’s wish to use the boys’ restrooms. But, it is not immediately apparent whether G.G., the government, and the majority contend that the term “sex” as used in Title IX and its regulations refers (1) to both biological sex and gender identity;

56a
(2) to either biological sex or gender identity; or (3) to only “gender identity.” In his brief, G.G. seems to take the position that the term “sex” at least includes a reference to gender identity. This is the position taken in his complaint when he alleges, “Under Title IX, discrimination ‘on the basis of sex’ encompasses both discrimination based on biological differences between men and women and discrimination based on gender nonconformity.” The government seems to be taking the same position, contending that the term “sex” “encompasses both sex — that is, the biological differences between men and women — and gender [identity].” (Emphasis in original). The majority, however, seems to suggest that the term “sex” refers only to gender identity, as it relies solely on the statement in the Office for Civil Rights’ letter of January 7, 2015, which said, “When 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.” (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 “sex” as used in the statute and regulations refers to both biological sex and gender identity, then, while the School Board’s policy is in compliance with respect to most students, whose biological sex aligns with their gender identity, for students whose biological sex and gender identity do not align, no restroom or locker room separation could ever be accomplished

57a
consistent with the regulation because a transgender student’s use of a boys’ or girls’ restroom or locker room could not satisfy the conjunctive criteria. Given that G.G. and the government do not challenge schools’ ability to separate restrooms and locker rooms for male and female students, surely they cannot be advocating an interpretation that places schools in an impossible position. Moreover, such an interpretation would deny G.G. the right to use either the boys’ or girls’ restrooms, a position that G.G. does not advocate.
If the position of G.G., the government, and the majority is that the term “sex” means either biological sex or gender identity, then the School Board’s 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 boys’ restrooms and locker rooms as consistent with his gender identity, G.G., the government, and the majority must be arguing that “sex” 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. Biological males and females whose 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 “on the basis of sex,” and privacy concerns would be left unaddressed.
Moreover, enforcement of any separation would be virtually impossible. Basing restroom access on gender

58a
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 boys’ restroom, or that only students who wear dresses, have long hair, and act sufficiently feminine may use the girls’ restroom.
Yet, by interpreting Title IX and the regulations as “requiring schools to treat students consistent with their gender identity,” and by disallowing schools from treating students based on their biological sex, the government’s 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 girls’ restrooms, G.G. states that “it makes no sense to place a transgender boy in the girls’ restroom in the name of protecting student privacy” because “girls objected to his presence in the girls’ restrooms because they perceived him as male.” But the same argument applies to his use of the boys’ 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

59a
rooms, and shower facilities “on the basis of sex” if “sex” means gender identity.
The Office for Civil Rights letter, on which the majority exclusively relies, hardly provides an answer. In one sentence it states that schools “generally must treat transgender students consistent with their gender identity,” whatever that means, and in the next sentence, it encourages schools to provide “gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.” While the first sentence might be impossible to enforce without destroying all privacy-serving separation, the second sentence encourages schools, such as Gloucester High School, to provide unisex 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 to separate, on the basis of sex, living facilities, restrooms, locker rooms, and shower 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.’s gender transition, accommodating virtually every wish that he had. Indeed, he initially requested and was granted the use of the nurse’s restroom. And, after both girls and boys objected to his using the girls’ and boys’ 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

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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 court’s decision dismissing G.G.’s Title IX claim and therefore dissent.
I also dissent from the majority’s decision to vacate the district court’s denial of G.G.’s motion for a preliminary injunction. As the Supreme Court has consistently explained, “[a] preliminary injunction is an extraordinary remedy” that “may only be awarded upon a clear showing that the plaintiff is entitled to such relief,” and “‘[i]n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy.’” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22–24 (2008) (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). Given the facts that the district court fully and fairly summarized in its opinion, including the hardships expressed both by G.G. and by other students, I cannot conclude that we can “form a definite and firm conviction that the court below committed a clear error of judgment,” Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006) (quotation marks and citation omitted), particularly when we are only now expressing as binding law an evidentiary standard that the majority asserts the district court violated.
As noted, however, I concur in Part IV of the court’s opinion.

61a PUBLISHED
FILED: May 31, 2016
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 15-2056 (4:15-cv-0054-RGD-DEM)
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;

62a
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; WHITMAN-WALKER CLINIC, INC., d/b/a Whitman-Walker Health; GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; TRANSGENDER LAW & POLICY INSTITUTE; GENDER BENDERS; GAY, LESBIAN & 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.,

63a
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.
_____________
ORDER _____________
Appellee’s petition for rehearing en banc and filings relating to the petition were circulated to the full court.
No judge having requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc, the petition is denied.

64a
Judge Niemeyer wrote an opinion dissenting from the denial of the petition for rehearing.
Entered at the direction of Judge Floyd.
For the Court
/s/ Patricia S. Connor, Clerk
NIEMEYER, Circuit Judge, dissenting from the denial of the petition for rehearing:
Bodily privacy is historically one of the most basic elements of human dignity and individual freedom. And forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends this dignity and freedom. Have we not universally condemned as inhumane such forced exposure throughout history as it occurred in various contexts, such as in prisons? And do parents not universally find it offensive to think of having their children’s bodies exposed to persons of the opposite biological sex?
Somehow, all of this is lost in the current Administration’s service of the politically correct acceptance of gender identification as the meaning of “sex” — indeed, even when the statutory text of Title IX provides no basis for the position. The Department of Education and the Justice Department, in a circular maneuver, now rely on the majority’s opinion to mandate application of their position across the country, while the majority’s opinion had relied solely on the Department of Education’s earlier unprecedented position. The majority and the Administration — novelly and without congressional authorization — conclude that despite Congress’s unambiguous

65a
authorization in Title IX to provide for the separation of restrooms, showers, locker rooms, and dorms on the basis of sex, see 20 U.S.C. § 1686; 34 C.F.R. §§ 106.32, 106.33, they can override these provisions by redefining sex to mean how any given person identifies himself or herself at any given time, thereby, of necessity, denying all affected persons the dignity and freedom of bodily privacy. Virtually every civilization’s norms on this issue stand in protest.
These longstanding norms are not a protest against persons who identify with a gender different from their biological sex. To the contrary, schools and the courts must, with care, seek to understand their condition and address it in permissible ways that are as helpful as possible in the circumstances. But that is not to say that, to do so, we must bring down all protections of bodily privacy that are inherent in individual human dignity and freedom. Nor must we reject separation-of-powers principles designed to safeguard Congress’s policymaking role and the States’ traditional powers.
While I could call for a poll of the court in an effort to require counsel to reargue their positions before an en banc court, the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application. And the facts of this case, in particular, are especially “clean,” such as to enable the Court to address the issue without the distraction of subservient issues. For this reason only and not because the issue is not sufficiently weighty for our en banc court, I am not requesting a poll on the petition for rehearing en banc. I do, however, vote to grant panel rehearing, which I recognize can only be symbolic in view of the majority’s ap-

66a
proach, which deferred to the Administration’s novel position with a questionable application of Auer v. Robbins, 519 U.S. 452 (1997). Time is of the essence, and I can only urge the parties to seek Supreme Court review.

67a FILED: June 9, 2016
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _____________
No. 15-2056 (4:15-cv-0054-RGD-DEM)
_____________
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 Ad-

68a

ministrator New York; LISA LOVE, School Administra-

tor Washington; DYLAN PAULY, School Administrator

Wisconsin; SHERIE HOHS, School Administrator Wis-

consin; 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; WHITMAN-WALKER CLINIC,

INC., d/b/a Whitman-Walker Health; GLMA: HEALTH

PROFESSIONALS ADVANCING LGBT EQUALITY;

TRANSGENDER LAW & POLICY INSTITUTE;

GENDER BENDERS; GAY, LESBIAN & 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.,

69a
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,
CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; PUBLIC ADVOCATE OF THE UNITED STATES; STATE OF KANSAS; STATE OF NEBRASKA; STATE OF TEXAS; STATE OF UTAH; 50 GLOUCESTER STUDENTS, PARENTS, GRANDPARENTS, AND COMMUNITY MEMBERS; UNITED STATES JUSTICE FOUNDATION,
Amici Supporting Rehearing Petition.

70a _____________
ORDER _____________
Upon consideration of the motion to stay mandate pending filing of petition for writ of certiorari, the court denies the motion.
Judge Floyd and Senior Judge Davis voted to deny the motion. Judge Niemeyer voted to grant the motion.
For the Court
/s/ Patricia S. Connor, Clerk

71a
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION

FILED June 23, 2016
Clerk, US District Court Norfolk, VA
G.G., by his next friend and mother, DEIRDRE GRIMM,

Plaintiff

v.

CIVIL NO. 4:15cv54

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

ORDER

This matter is before the Court on Plaintiff G.G.’s Motion for Preliminary Injunction. ECF No. 11. On September 4, 2015, this Court denied the Motion. ECF No. 53. On appeal, the Court of Appeals vacated this denial and remanded the case for reevaluation of the Motion under a different evidentiary standard. Op. of USCA, ECF No. 62 at 33. The Court of Appeals also reversed this Court’s dismissal of G.G.’s claim under Title IX. Id. at 26. In a concurrence, Judge Davis explained why the Preliminary Injunction should issue in light of the Court

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of Appeals’ analysis of Title IX. Id. at 37–44. It appears to the Court from the unrebutted declarations submitted by the parties that the plaintiff is entitled to use the boys’ restroom. Therefore, for the reasons set forth in the aforesaid concurrence and based on the declarations submitted by the parties, the Court finds that the plaintiff is entitled to a preliminary injunction.
As noted in the Opinion of the Court of Appeals, this case is only about G.G.’s access to the boys’ restrooms; G.G. has not requested access to the boys’ locker rooms. Id. at 7 n. 2 (“G.G. does not participate in the school’s physical education programs. He does not seek here, and never has sought, use of the boys’ locker room. Only restroom use is at issue in this case.”). Accordingly, this injunction is limited to restroom access and does not cover access to any other facilities.
Based on the evidence submitted through declarations previously proffered for the purpose of the hearing on the Preliminary Injunction, this Court, pursuant to Title IX, hereby ORDERS that Gloucester County School Board permit the plaintiff, G.G., to use the boys’ restroom at Gloucester High School until further order of this Court.
The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.
IT IS SO ORDERED.
/s/ Robert G. Doumar Robert G. Doumar Senior United States District Judge
Newport News, VA June 23, 2016

73a
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION

FILED July 6, 2016
Clerk, US District Court Norfolk, VA
G.G., by his next friend and mother, DEIRDRE GRIMM,

Plaintiff

v.

CIVIL NO. 4:15cv54

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

ORDER

This matter is before the Court on Defendant’s Motion for Stay Pending Appeal. ECF No. 71. With this Motion the defendant, Gloucester County School Board (“Defendant”), asks this Court to stay the Preliminary Injunction issued by the Court on June 23, 2016 pending Defendant’s appeal of that Order. Id.
On June 11, 2015, the plaintiff in this case, G.G. (“Plaintiff’), filed a Motion for Preliminary Injunction. ECF No. 11. On September 4, 2015, this Court denied the Motion. ECF No. 53. On appeal, the Court of Ap-

74a
peals vacated this denial and remanded the case for reevalualion of the Motion under a different evidentiary standard. Op. of USCA, ECF No. 62 at 33. The Court of Appeals also reversed this Court’s dismissal of G.G.’s claim under Title IX. Id. at 26. In a concurrence, Judge Davis explained why the Preliminary Injunction should issue in light of the Court of Appeals’ analysis of Title IX. Id. at 37–44.
The Court of Appeals denied Defendant’s motion for a rehearing en banc. Order of USCA, ECF No. 65, and its motion to stay the mandate pending the filing of a writ of certiorari, Order of USCA, ECF No. 67. On June 17, 2016, the Court of Appeals issued its mandate. ECF No. 68.
Based on the opinion of the Fourth Circuit and the evidence submitted by declaration, the Court granted the Preliminary Injunction on June 23, 2016. Order, ECF No. 69. Defendant filed a notice of appeal on June 27, 2016. ECF No. 70. On June 28, 2016, Defendant filed the instant Motion to Stay along with a Memorandum in Support. ECF Nos. 71–72. Plaintiff responded to the Motion on July 1, 2016. ECF No. 75.
This Court is bound by the Judgment of the Court of Appeals. The Court of Appeals’ actions in denying a rehearing en banc and a stay of its mandate indicate that it desires that its Judgment take effect immediately. The Court of Appeals itself is bound by its own prior precedents. Although Defendant has filed an appeal of the Preliminary Injunction, the Court of Appeals’ prior opinion in this case will control in that appeal. This Court believes that based on the law as laid out in that opinion and the evidence submitted by declarations in this case, the Preliminary Injunction was warranted. There are no

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grounds for a stay. Accordingly, the Court DENIES the Motion for Stay Pending Appeal. ECF No. 71.
The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.
IT IS SO ORDERED.
/s/ Robert G. Doumar Robert G. Doumar Senior United States District Judge
Newport News, VA July 6, 2016

76a UNPUBLISHED
FILED: July 12, 2016
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 16-1733 (4:15-cv-0054-RGD-DEM)
G. G., by his next friend and mother, Deirdre Grimm,
Plaintiff - Appellee,
v.
GLOUCESTER COUNTY SCHOOL BOARD,
Defendant - Appellant.
_____________
ORDER _____________
Upon consideration of submissions relative to the motion of appellant for stay pending appeal, the court denies the motion.
Entered at the direction of Judge Floyd. Senior Judge Davis wrote an opinion concurring in the denial of a stay pending the filing of, and action on, a petition for certiorari. Judge Niemeyer wrote an opinion dissenting from the denial of a stay pending appeal.

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For the Court
/s/ Patricia S. Connor, Clerk
DAVIS, Senior Circuit Judge, concurring in the denial of a stay pending the filing of, and action on, a petition for certiorari:
I vote to deny the motion for stay. In Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989), plaintiff Ann Hopkins received comments from partners describing her as “macho,” suggesting that she “overcompensated for being a woman,” and “advis[ing] her to take a course at charm school” during her bid for partnership. Price Waterhouse, 490 U.S. 228, 235 (1989) (citations omitted). Hopkins was told that to improve her chances of attaining partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. (citation omitted). Rejecting Price Waterhouse’s insinuation that acting in reliance on sex stereotyping was not prohibited by Title VII, the Supreme Court unequivocally stated otherwise:
[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

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Id. at 251 (second alteration in original) (quoting Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, n.13 (1978)). The Supreme Court has expressly recognized that claims based on an individual’s failure to conform to societal expectations based on that person’s gender constitute discrimination “because of sex” under Title VII. Id. at 250–51 (plurality); Price Waterhouse, 490 U.S. at 272–73 (O’Connor, J., concurring); Price Waterhouse, 490 U.S. at 260–61 (White, J., concurring).
The First, Sixth, Ninth, and Eleventh Circuits have all recognized that discrimination against a transgender individual based on that person’s transgender status is discrimination because of sex under federal civil rights statutes and the Equal Protection Clause of the Constitution. See Glenn v. Brumby, 663 F.3d 1312, 1316–19 (11th Cir. 2011) (holding that terminating an employee because she is transgender violates the prohibition on sex-based discrimination under the Equal Protection Clause following the reasoning of Price Waterhouse); Smith v. City of Salem, Ohio, 378 F.3d 566, 573–75 (6th Cir. 2004) (holding that transgender employee had stated a claim under Title VII based on the reasoning of Price Waterhouse); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000) (holding that a transgender individual could state a claim for sex discrimination under the Equal Credit Opportunity Act based on Price Waterhouse); Schwenk v. Hartford, 204 F.3d 1187, 1201–03 (9th Cir. 2000) (holding that a transgender individual could state a claim under the Gender Motivated Violence Act under the reasoning of Price Waterhouse).
On this long-settled jurisprudential foundation, our friend’s assertion that the majority opinion issued when

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this case was previously before us is “unprecedented” misses the mark. In any event, as regards the standards for a stay, the dissent contains its own rebuttal. Contrary to the dissent’s assertion that “the School Board has constructed three unisex bathrooms to accommodate any person who feels uncomfortable using facilities separated on the basis of sex,” the three unisex bathrooms are in fact available to “any student” at the school. Mot. for Stay at 5.
In short, there is no reason to disturb the district court’s exercise of discretion in denying the motion to stay its preliminary injunction.
NIEMEYER, Circuit Judge, dissenting from the denial of a stay pending appeal:
I would grant Gloucester County School Board’s motion for a stay pending appeal. See Long v. Robinson, 432 F.2d 977 (4th Cir. 1970); cf. Winter v. National Resources Defense Council, Inc., 555 U.S. 7 (2008). Facially, the district court conducted no analysis required by Winter for the entry of a preliminary injunction, relying only on our earlier decision in this case. And under the balancing analysis prescribed by Long, I conclude that a stay is appropriate, based on the following:
1. The earlier groundbreaking decision of this court is, as I have noted previously, unprecedented. Indeed, it appears to violate the clear, unambiguous language of Title IX, which explicitly authorizes the provision of various separate facilities “on the basis of sex.” Moreover, the court’s decision applying deference under Auer v. Robins, 519 U.S. 452 (1997), is questionable, and, even if deference were appropriate, it relies solely on a letter

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from the U.S. Department of Education, imposing an entirely new interpretation of “sex” in Title IX without the support of any law. In view of this, it is difficult to understand how the decision is sustainable.
2. By enforcing the injunction now, male students at Gloucester High School will be denied the separate facilities provided by the School Board on the basis of sex, as authorized by Congress, and thus will be denied bodily privacy when using the facilities, to the dismay of the students and their parents. These consequences are likely to cause disruption both in the school and among the parents.
3. While I recognize the sensitivities of G.G.’s gender transition, I nonetheless conclude that he is unlikely to suffer substantial injury from a stay of the district court’s injunction, particularly because the School Board has constructed three unisex bathrooms to accommodate any person who feels uncomfortable using facilities separated on the basis of sex.
4. The public interest in a final and orderly resolution of G.G.’s claims before enforcement of this court’s decision is served by a stay pending appeal. The changes that this injunction would require — and that the Department of Justice and Department of Education now seek to impose nationwide on the basis of our earlier decision — mark a dramatic departure from the responsibilities local school boards have heretofore understood and the authorizations that Congress has long provided. These school boards and the communities they serve would benefit from the thoughtful and final disposition of G.G.’s claims, and from ultimate guidance from the Supreme Court or Congress, before having to undertake these sweeping reforms.

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In short, I conclude that the Gloucester County School Board has adequately made its case for a stay pending appeal, and I would grant its motion for such a stay.

82a
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION

FILED September 4, 2015
Clerk, US District Court Norfolk, VA
G.G., by his next friend and mother, DEIRDRE GRIMM,

Plaintiff

v.

CIVIL NO. 4:15cv54

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

ORDER

This matter is before the Court on Plaintiff G.G.’s challenge to a recent resolution (the “Resolution”) passed by the Gloucester County School Board (the “School Board”) on December 9, 2014. This Resolution addresses the restroom and locker room policy for all students in Gloucester County Public Schools. Specifically, G.G. brings claims under both the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972, seeking to contest the School Board’s restroom policy under the Resolution.

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On June 11, 2015, G.G. filed a Motion for Preliminary Injunction. ECF No. 11. A hearing on this motion was held on July 27, 2015. ECF No. 47. No testimony was elicited at this hearing. Id. The Court hereby DENIES the Plaintiff’s Motion for Preliminary Injunction. A memorandum opinion detailing the reasons for the denial will be forthcoming shortly.
The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.
IT IS SO ORDERED.
/s/ Robert G. Doumar Robert G. Doumar Senior United States District Judge
Newport News, VA September 4, 2015

84a
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION

FILED September 17, 2015
Clerk, US District Court Norfolk, VA
G.G., by his next friend and mother, DEIRDRE GRIMM,

Plaintiff

v.

CIVIL NO. 4:15cv54

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

MEMORANDUM OPINION

This matter is before the Court on Plaintiff G.G.’s challenge to a recent resolution (the “Resolution”) passed by the Gloucester County School Board (the “School Board) on December 9, 2014. This Resolution addresses the restroom and locker room policy for all students in Gloucester County Public Schools. Specifically, G.G. brings claims under both the Equal Protection Clause of the Fourteenth Amendment (the “Equal Protection Clause”) and Title IX of the Education Amend-

85a
ments of 1972 (“Title IX”), seeking to contest the School Board’s restroom policy under the Resolution.
On June 11, 2015, G.G. filed a Motion for Preliminary Injunction, ECF No. 11, and on July 7, 2015, the School Board filed a Motion to Dismiss, ECF No. 31. On July 27, 2015, the parties appeared before the Court and argued their respective positions as to both motions. ECF No. 47. At that hearing, the Court took both motions under advisement. From the bench, the Court GRANTED the Motion to Dismiss as to Count II, G.G.’s claim under Title IX. On September 4, 2015, the Court DENIED the Motion for Preliminary Injunction. ECF No. 53. This opinion memorializes the reasons for these orders.
I. FACTUAL AND PROCEDURAL HISTORY
The following summary is taken from the factual allegations contained in Plaintiff’s Complaint, which, for purposes of ruling on the Motion to Dismiss as to Count II, the Court accepts as true. Nemet Chevrolet, Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250. 253 (4th Cir. 2009).
This case arises from a student’s challenge to a recent restroom policy passed by the School Board. Plaintiff G.G. was born in Gloucester County on [redacted], 1999 and designated female.1 Compl. ¶¶ 12, 14. However, at a very young age, G.G. did not feel like a girl. Id. at 16. Before age six, Plaintiff “refused to wear girl clothes.”
1 For the sake of brevity occasionally in this opinion the term “birth sex” may be used to describe the sex assigned to individuals at their birth. “Natal female” will be used to describe the gender assigned to G.G. at birth.

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Id. ¶ 17. Starting at approximately age twelve, “G.G acknowledged his male gender identity to himself.”2 Id. ¶ 18. In 2013–14, during G.G.’s freshman year of high school, most of his friends were aware that he identified as male. Id. ¶¶ 18–19. Furthermore, away from home and school, G.G. presented himself as a male. Id. ¶ 19.
During G.G.’s freshman year of high school, which began in September 2013, he experienced severe depression and anxiety related to the stress of concealing his gender identity from his family. Id. ¶ 20. This is the reason he alleges that he did not attend school during the spring semester of his freshman year, from January 2014 to June 2014, and instead took classes through a home-bound program. Id. In April 2014, G.G. first informed his parents that he is transgender, that is, he believed that he was a man.3 Id. ¶ 21. Sometime after informing his parents that he is transgender in April 2014, G.G., at his own request, began to see a psychologist,
2 The American Psychiatric Association (“APA”) defines “gender identity” as “an individual’s identification as male, female, or, occasionally, some category other than male or female.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013) (“DSM”). The DSM is “a classification of mental disorders with associated criteria designed to facilitate more reliable diagnoses of these disorders.” Id. at xli. Although the DSM was included in G.G.’s briefs, it was not alleged in the Complaint and will consequently not be considered for the purpose of the Motion to Dismiss. However, the Court finds it instructive for definitional purposes.
3 The APA defines “transgender” as “the broad spectrum of individuals who transiently or persistently identify with a gender different from their natal gender.” Id.

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who subsequently diagnosed him with Gender Dysphoria.4 Id. ¶ 21. As part of G.G.’s treatment, his psychologist recommended that G.G. begin living in accordance with his male gender identity in all respects. Id. ¶ 23. The psychologist provided G.G. with a “Treatment Documentation Letter” that confirmed that “he was receiving treatment for Gender Dysphoria and that, as part of that treatment, he should be treated as a boy in all respects, including with respect to his use of the restroom.” Id. The psychologist also recommended that G.G. “see an endocrinologist and begin hormone treatment.” Id. ¶ 26.
Subsequently, G.G. sought to implement his psychologist’s recommendation. Id. ¶ 25. In July 2014, G.G. petitioned the Circuit Court of Gloucester County to change his legal name to his present masculine name and, the court granted his petition. Id. At his own request, G.G.’s new name is used for all purposes, and his friends and family refer to him using male pronouns. Id. Additionally, when out in public, G.G. uses the boys’ restroom. Id.
G.G. also sought to implement his lifestyle transition at school. In August 2014, G.G. and his mother notified officials at Gloucester High School that G.G. is transgender and that he had changed his name. Id. ¶ 27. Consequently, officials changed school records to reflect G.G.’s new masculine name. Id. Furthermore, before the beginning of the 2014–15 school year, G.G. and his mother met with the school principal and guidance counselor to discuss his social transition. Id. ¶ 28. The school rep-
4 The APA defines “gender dysphoria” as “the distress that may accompany the incongruence between one’s experienced and expressed gender and one’s assigned gender.” Id.

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resentatives allowed G.G. to email teachers and inform them that he preferred to be addressed using his new name and male pronouns. Id. Being unsure how students would react to his transition, G.G. initially agreed to use a separate bathroom in the nurse’s office. Id. ¶ 30. G.G. was also permitted to continue his physical education requirement through his home school program. Id. ¶ 29. Consequently, G.G. “has not and does not intend to use a locker room at school.” Id.
However, after 2014–15 school year began, G.G. found it stigmatizing to use a separate restroom. Id. ¶ 31. G.G. requested to use the male restroom. Id. On or around October 20, 2014, the school principal agreed to G.G.’s request. Id. ¶ 32. For the next seven weeks, G.G. used the boys’ restroom. Id.
Some members of the community disapproved of G.G.’s use of the men’s bathroom when they learned of it. Id. ¶ 33. Some of these individuals contacted members of the School Board and asked that G.G. be prohibited from using the men’s restroom. Id. Shortly before the School Board’s meeting on November 11, 2014, one of its members added an item to the agenda, titled “Discussion of Use of Restrooms/Locker Room Facilities,” along with a proposed resolution. Id. ¶ 34. This proposed resolution stated as follows:
Whereas the [Gloucester County Public Schools] recognizes that some students question their gender identities, and
Whereas the [Gloucester County Public Schools] encourages such students to seek support, advice, and guidance from parents, professionals and other trusted adults, and

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Whereas the [Gloucester County Public Schools] 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 [Gloucester County Public Schools] 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.
Id. ¶ 34. At the meeting, a majority of the twenty-seven people who spoke were in favor of the proposal. Id. ¶ 37. Some proponents argued that transgender students’ use of the restrooms would violate the privacy of other students and might “lead to sexual assault in the bathrooms.” Id. It was suggested that a non-transgender boy could come to the school in a dress and demand to use the girls’ restroom. Id. G.G. addressed the group and spoke against the proposed resolution and thus identified himself to the entire community. Id. ¶ 38. At the end of the meeting, the School Board voted 4-3 to defer a vote on the policy until its meeting on December 9, 2014. Id. ¶ 39.
On December 3, 2014, the School Board issued a news release stating that regardless of the outcome, it intended to take measures to increase privacy for all students using school restrooms, including “expanding partitions between urinals in male restrooms”; “adding privacy strips to the doors of stalls in all restrooms”; and “designat[ing] single-stall, unisex restrooms, similar to

90a
what’s in many other public spaces.” Id. ¶ 41. On December 9, 2014, the School Board held a meeting to vote on the proposed resolution. Id. Before the vote was conducted, a Citizens’ Comments Period was held to allow a discussion on the proposed resolution. Id. Again, a majority of the speakers supported the resolution. Id. ¶ 42. Speakers again raised concerns about the privacy of other students. Id. After thirty-seven people spoke during the Citizens’ Comment Period, the School Board voted 61 to pass the Resolution. Id. ¶ 43.
On December 10, 2015, the day after the School Board passed the Resolution, the school principal informed G.G. that he could no longer use the boys’ restroom and would be disciplined if he did. Id. ¶ 45.
Since the adoption of the restroom policy, certain physical improvements have been made to the school restrooms at Gloucester High School. The school has installed three unisex single-stall restrooms. Id. ¶ 47. The school has also raised the doors and walls around the bathroom stalls so that students cannot see into an adjoining stall. Id. Additionally, partitions were installed between the urinals in the boys’ restrooms. Id.
Sometime after the actions of the School Board, G.G. began receiving hormone treatment in December 2014. Id. ¶ 26. These treatments have deepened his voice, increased the growth of his facial hair, and given him a more masculine appearance. Id.
It is alleged that “[u]sing the girls’ restroom is not possible for G.G.” Id. ¶ 46. G.G. alleges that prior to his treatment for Gender Dysphoria, girls and women who encountered G.G. in female restrooms would react negatively because of his masculine appearance; that in eighth and ninth grade, the period from September 2012

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to June 2014, girls at school would ask him to leave the female restroom; and that use of the girls’ restroom would also cause G.G. “severe psychological stress” and would be “incompatible with his medically necessary treatment for Gender Dysphoria.” Id.
G.G. further alleges that he refuses to use the separate single-stall restrooms installed by the school because the use of them would stigmatize and isolate him; that the use of these restrooms would serve as a reminder that the school views him as “different”; and that the school community knows that the restrooms were installed for him. Id.
From these alleged facts, on June 11, 2015, G.G. brought the present challenge to the School Board’s restroom policy under the Equal Protection Clause and Title IX. ECF No. 8. On that same day, G.G. filed the instant Motion for Preliminary Injunction, requesting that the Court issue an injunction allowing G.G. to use the boys’ bathroom at Gloucester High School until this case is decided at trial. ECF No. 11. On June 29, 2015, the United States (“the Government”), through the Department of Justice, filed a Statement of Interest, asserting that the School Board’s bathroom policy violated Title IX. ECF No. 28. The School Board filed an Opposition to the Motion for Preliminary Injunction on July 7, 2015, ECF No. 30, along with a Motion to Dismiss, ECF No. 31. On July 27, 2015, the parties appeared before the Court and argued their respective positions as to both motions. ECF No. 47. At that hearing, the Court took both motions under advisement. From the bench, the Court granted the Motion to Dismiss as to Count II, G.G.’s claim under Title IX. On September 4, 2015, the Court denied the Motion for Preliminary Injunction.

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ECF No. 53. This opinion memorializes the reasons for these orders.
II. MOTION TO DISMISS
A. STANDARD OF REVIEW
The function of a motion to dismiss under Rule 12(b)(6) is to test “the sufficiency of a complaint.” Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). “[I]mportantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). “To survive such a motion, the complaint must allege facts sufficient ‘to raise a right to relief above the speculative level’ and ‘state a claim to relief that is plausible on its face.’ ” Haley, 738 F.3d at 116. When reviewing the legal sufficiency of a complaint, the Court must accept “all well-pleaded allegations in the plaintiffs complaint as true” and draw “all reasonable factual inferences from those facts in the plaintiffs favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Legal conclusions, on the other hand, are not entitled to the assumption of truth if they are not supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, a motion to dismiss should be granted only in “very limited circumstances.” Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989).

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B. COUNT II - TITLE IX
G.G. also alleges that the School Board’s bathroom policy violates Title IX. Under Title IX, “[n]o 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 . . . .” 20 U.S.C. § 1681(a). “Under Title IX, a prima facie case is established by a plaintiff showing (1) that [he or] she was excluded from participation in (or denied the benefits of, or subjected to discrimination in) an educational program; (2) that the program receives federal assistance; and (3) that the exclusion was on the basis of sex.” Manolov v. Borough of Manhattan Comm. Coll., 952 F. Supp. 2d 522, 532 (S.D.N.Y. 2013) (quoting Murray v. N.Y. Univ. Coll. of Dentistry, No. 93 Civ. 8771, 1994 WL 533411, at *5 (S.D.N.Y. Sept. 29, 1994)); Bougher v. Univ. of Pittsburgh, 713 F. Supp. 139, 143–44 (W.D. Pa. 1989), aff’d, 882 F.2d 74 (3d Cir. 1989)).
The School Board Resolution expressly differentiates between students who have a gender identity congruent with their birth sex and those who do not. Compl. ¶ 34. G.G. alleges that this exclusion from the boys’ bathroom based on his gender identity constitutes sex discrimination under Title IX. Compl. ¶¶ 64, 65.
1. Arguments
The parties contest whether discrimination based on gender identity is barred under Title IX. To support their respective contentions, both parties cite to cases interpreting Title VII, upon which courts have routinely relied in determining the breadth of Title IX. See Jen-

94a
nings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (“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.”).
The School Board argues that sex discrimination does not include discrimination based on gender identity. For support, the School Board cites Johnston v. University of Pittsburgh of Commonwealth System of Higher Education, --- F. Supp. 3d ----, 2015 WL 1497753 (W.D. Pa. Mar. 31, 2015). In Johnston, the Western District of Pennsylvania found that a policy separating the bathrooms by birth sex at the University of Pittsburgh did not violate Title IX because sex discrimination does not include discrimination against transgender individuals. 2015 WL 1497753, at *12–19. The School Board asserts that Johnston establishes that Title IX does not incorporate discrimination based on gender or transgender status.
In response, G.G. maintains that sex discrimination includes discrimination based on gender. G.G. cites to a number of Title VII cases in which courts have found sex discrimination to include gender discrimination. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566, 574–75 (6th Cir. 2004); Finkle v. Howard Cnty., Md., 12 F. Supp. 3d 780, 788 (D. Md. 2014); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008); see also Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000) (“ ‘[S]ex’ under Title VII encompasses both sex — that is, the biological differences between men and women — and gender.”).

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In addition, G.G. contends that the cases Johnston cited to support its proposition, Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), and, Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982), cert. denied, 471 U.S. 1017 (1985),5 are no longer good law. In both Ulane and Sommers, the courts refused to extend sex discrimination to include discrimination against transgender individuals or those with nonconforming gender types. However, G.G. asserts that Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), overruled these cases. In Price Waterhouse, the Supreme Court considered a Title VII claim based on allegations that an employee at Price Waterhouse was denied partnership because she was considered “macho” and “overcompensated for being a woman.” 490 U.S. at 235. She had been advised to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. The Court found that such comments were indicative of gender stereotyping, which Title VII prohibited as sex discrimination. The Court explained that
we are beyond the day when an employer could evaluate employees by assuming or insisting
5 The more recent case Johnston cites is a Tenth Circuit case, in which the court avoided deciding the issue. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007) (“This court need not decide whether discrimination based on an employee’s failure to conform to sex stereotypes always constitutes discrimination ‘because of sex’ and we need not decide whether such a claim may extend Title VII protection to transsexuals who act and appear as a member of the opposite sex.”).

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that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’
Id. at 251 (quoting L.A. Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). Accordingly, the Court found that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be” has acted on the basis of sex. Id. at 251.
Other courts have found that Price Waterhouse overruled the cases cited in Johnston. “[S]ince the decision in Price Waterhouse, federal courts have recognized with near-total uniformity that ‘the approach in . . . Sommers, and Ulane . . . has been eviscerated’ by Price Waterhouse’s holding.” Glenn, 663 F.3d at 1318 n.5 (quoting City of Salem, 378 F.3d at 573)); see also Schwenk, 204 F.3d at 1201 (“The initial judicial approach taken in cases such as Hollowav has been overruled by the logic and language of Price Waterhouse.”); Lopez, 542 F. Supp. 2d at 660. Based on Price Waterhouse and its progeny, G.G. claims that discrimination against transgender individuals or other nonconforming gender types is now prohibited as a form of sex discrimination. Accordingly, G.G. asserts that the Resolution’s differentiation between students who have a gender identity congruent with their birth sex, and those who do not, amounts to sex discrimination under Title IX.

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2. Analysis
Although the primary contention between the parties is whether gender discrimination fits within the definition of sex discrimination under Title IX, G.G.’s claim does not rest on this distinction. Rather, the Court concludes that G.G.’s Title IX claim is precluded by Department of Education regulations. As noted above, Title IX provides that “[n]o 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. § 1681. However, this prohibition on sex-based decision making is not without exceptions. Among the exceptions listed in Title IX is a provision stating that “nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” 20 U.S.C. § 1686. Although the statute does not expressly state that educational institutions may maintain separate bathrooms for the different sexes, Department of Education regulations stipulate:
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. § 106.33. This regulation (hereinafter, “Section 106.33”) expressly allows schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable. When Congress delegates authority to any agency to “elucidate a specific provision of

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the statute by regulation, any ensuing regulation is binding on the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.” United States v. Mead Corp., 533 U.S. 218, 227 (2001). The Department of Education’s regulation is not “arbitrary, capricious, or manifestly contrary to the statute.”6 Rather, Section 106.33 seems to effectuate Title IX’s provision allowing separate living facilities based on sex.7 Therefore, Section 106.33 is given controlling weight.
In light of Section 106.33, G.G. fails to state a valid claim under Title IX. G.G. alleges that the School Board violated Title IX by preventing him from using the boys’ restrooms despite the fact that his gender identity is male. Compl. ¶¶ 64, 65. According to G.G., the School Board’s determination was based on the belief that Plaintiff is biologically female, not biologically male.8 Id.
6 It is significant that neither party raised, nor even hinted at raising, a challenge to the validity of Section 106.33 under Title IX.
7 The term “living facilities” in 20 U.S.C. § 1686 is ambiguous, and legislative history of Title IX does not provide clear guidance as to its meaning. This term could be narrowly interpreted to mean living quarters, such as dormitories, or it could be broadly interpreted to include other facilities, such as bathrooms. See Implementing Title IX: The New Regulations, 124 U. Pa. L. Rev. 806, 811 (1976). Because the Department of Education’s inclusion of bathrooms within “living facilities” is reasonable, the Court defers to its interpretation. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984).
8 The Court is sensitive to the fact the G.G. disapproves of the School Board’s term “biological gender.” See Compl. ¶ 66 (placing biological in dismissive quotation marks). G.G. may also take issue with the Court’s phrase biological sex. The Court is guided in its usage by the APA “Definition of Terms: Sex, Gender, Gender IdenContinued …

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¶ 65. However, Section 106.33 specifically allows schools to maintain separate bathrooms based on sex as long as the bathrooms for each sex are comparable. Therefore, the School Board did not run afoul of Title IX by limiting G.G. to the bathrooms assigned to his birth sex.
In fact, the only way to square G.G.’s allegations with Section 106.33 is to interpret the use of the term “sex” in Section 106.33 to mean only “gender identity.” Under this interpretation, Section 106.33 would permit the use of separate bathrooms on the basis of gender identity and not on the basis of birth or biological sex. However, under any fair reading, “sex” in Section 106.33 clearly includes biological sex. Because the School Board’s policy of providing separate bathrooms on the basis of biological sex is permissible under the regulation, the Court need not decide whether “sex” in the Section 106.33 also includes “gender identity.”
Instead, the Court need only decide whether the School Board’s bathroom policy satisfies Section 106.33. Section 106.33 states that sex-segregated bathrooms are permissible unless such facilities are not comparable. G.G. fails to allege that the bathrooms to which he is allowed access by the School Board — the girls’ restrooms and the single-stall restrooms — are incomparable to those provided for individuals who are biologically male. In fact, none of the allegations in the Complaint even
tity, Sexual Orientation” from 2011, which the School Board submitted with its Brief in Opposition to Motion for Preliminary Injunction. Ex. 3, ECF No. 30. The APA defines “sex” as “a person’s biological status,” and identifies “a number of indicators of biological sex.” Id.

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mention or imply that the facilities in the bathrooms are not comparable. Consequently, G.G. fails to state a claim under Title IX.
Nonetheless, despite Section 106.33, the Government urges the Court to defer to the Department of Education’s interpretation of Title IX, which maintains that a policy that segregates bathrooms based on biological sex and without regard for students’ gender identities violates Title IX. In support of its position, the Government attaches a letter (the “Letter”), dated January 7, 2015, issued by the Department of Education, through the Office for Civil Rights, apparently clarifying its stance on the treatment of transgender students with regard to sex-segregated restrooms. Statement of Interest 9, ECF No. 28; id. Ex. B, at 2, ECF No. 28-2. In the Letter, the Acting Deputy Assistant Secretary for Policy for the Department of Education’s Office of Civil Rights, writes:
The Department’s 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 a school elects to separate or treat students differently on the basis of sex in those situations, a school must treat transgender students consistent with their gender identity.
Id. at 9–10, Ex. B, at 2. The Letter cites a Department of Education significant guidance document (the “Guidance Document”) published in 2014 in support of this interpretation. According to the Guidance Document:
Under Title IX, a recipient must generally treat transgender students consistent with

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their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.
See Department of Education, Office for Civil Rights, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities 25 (Dec. 1, 2014). Despite the fact that Section 106.33 has been in effect since 1975,9 the Department of Education does not cite any documents published before 2014 to support the interpretation it now adopts.
The Department of Education’s interpretation does not stand up to scrutiny. Unlike regulations, interpretations in opinion letters, policy statements, agency manuals, and enforcement guidelines “do not warrant Chevron-style deference” with regard to statutes. Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Therefore, the interpretations in the Letter and the Guidance Document cannot supplant Section 106.33. Nonetheless, these documents can inform the meaning of Section 106.33. An agency’s interpretation of its own regulation, even one contained in an opinion letter or a guidance document, is given controlling weight if (1) the regulation is ambiguous and (2) the interpretation is not plainly erroneous or inconsistent with the regulation. Id. at 588 (“Auer deference is warranted only when the language of the regulation is ambiguous.”); Auer v. Robbins, 519
9 Title IX regulations were promulgated by the Department of Health, Education, and Welfare in 1975 and adopted by the Department of Education upon its establishment in 1980. 45 Fed. Reg. 30802, 30955 (May, 9, 1980) (codified at 34 C.F.R. §§ 106.1–.71).

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U.S. 452, 461 (1997) (“[The agency’s] interpretation of [its own regulation] is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation.”).
Upon review, the Department of Education’s interpretation should not be given controlling weight. To begin with, Section 106.33 is not ambiguous. It clearly allows the School Board to limit bathroom access “on the basis of sex,” including birth or biological sex. Furthermore, the Department of Education’s interpretation of Section 106.33 is plainly erroneous and inconsistent with the regulation. Even under the most liberal reading, “on the basis of sex” in Section 106.33 means both “on the basis of gender” and “on the basis of biological sex.” It does not mean “only on the basis of gender.” Indeed, the Government itself states that “under Price Waterhouse, ‘sex’ . . . encompasses both sex — that is, the biological differences between men and women — and gender.” Statement of Interest 6–7, ECF No. 28. Thus, at most, Section 106.33 allows the separation of bathroom facilities on the basis of gender. It does not, however, require that sex-segregated bathrooms be separated on the basis of gender, rather than on the basis of birth or biological sex. Gender discrimination did not suddenly supplant sex discrimination as a result of Price Waterhouse; it supplemented it.
To defer to the Department of Education’s newfound interpretation would be nothing less than to allow the Department of Education to “create de facto a new regulation” through the use of a mere letter and guidance document. See Christensen, 529 U.S. at 588. If the Department of Education wishes to amend its regulations, it is of course entitled to do so. However, it must go

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through notice and comment rulemaking, as required by the Administrative Procedure Act. See 5 U.S.C. § 553. It will not be permitted to disinterpret its own regulations for the purposes of litigation. As the Court noted throughout the hearing, it is concerned about the implications of such rulings. Mot. to Dismiss & Prelim. Inj. Hr’g at Tr. 65:23–66:19; 73:6–74:7. Allowing the Department of Education’s Letter to control here would set a precedent that agencies could avoid the process of formal rulemaking by announcing regulations through simple question and answer publications. Such a precedent would be dangerous and could open the door to allow further attempts to circumvent the rule of law — further degrading our well-designed system of checks and balances.
In light of Section 106.33, the Court cannot find that the School Board’s bathroom policy violates Title IX.
III. MOTION FOR PRELIMINARY INJUNCTION
The Motion for Preliminary Injunction is entirely different. The complaint is no longer the deciding factor, admissible evidence is the deciding factor. Evidence therefore must conform to the rules of evidence. G.G. has sought a preliminary injunction. This Motion requests that the Court issue an injunction allowing G.G. to resume using the boys’ restrooms at Gloucester High School until there is a final judgment on the merits.10
10 G.G. claims that he does not intend to use the locker room at school. Mem. in Supp. of Mot. for Prelim. Inj., 8 n.2, ECF No. 18 (“Prelim. Inj.”). However, the requested injunction allowing him to use the male restrooms would apply to the male restroom in the Continued …

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ECF No. 11. In support of his motion for a preliminary injunction, G.G. has submitted two declarations: one from G.G. and another from an expert in the field of Gender Dysphoria. Decl. of G.G, ECF No. 9 (“G.G. Decl.”); The Expert Declaration of Randi Ettner, Ph.D, ECF No. 10 (“Ettner Decl.”). The School Board contests the injunction and attaches single a declaration to its Opposition to the Motion for Preliminary Injunction from Troy Andersen, a member of the School Board and the 2014–15 Gloucester Point District Representative for the Gloucester County School Board. Decl. of Troy Andersen, ECF No. 30-1 (“Andersen Decl.”). On July 27, 2015, the parties appeared before the Court to argue this Motion, and both parties were given the opportunity to introduce evidence supporting their respective positions. ECF No. 47. At the hearing, neither G.G. nor the School Board introduced additional evidence for support. Id.
As the Court has granted the School Board’s motion to dismiss as to Count II, G.G.’s claim under Title IX, it need not discuss reasons for denying the Motion for Preliminary Injunction on this Count. While the Court has not yet ruled on whether G.G. has stated a claim under the Equal Protection Clause, the Court finds that, even if he has stated a claim, G.G. has not submitted enough evidence to establish that the balance of hardships weigh in his favor. Accordingly, the issuance of a preliminary injunction is not warranted.
locker room.

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A. STANDARD OF REVIEW
“The grant of preliminary injunctions [is] . . . an extraordinary remedy involving the exercise of a very farreaching power, which is to be applied ‘only in the limited circumstances’ which clearly demand it.” Direx Israel. Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1992) (quoting Instant Air Freight Co. v. C.F. Air Freight. Inc., 882 F.2d 797, 800 (3d Cir. 1989)). A plaintiff must overcome the “uphill battle” of satisfying each of the four factors necessary to obtain a preliminary injunction. Real Truth About Obama. Inc. v. FEC, 575 F.3d 342, 347 (4th Cir. 2009) (stating that the four factors must be “satisfied as articulated”), vacated on other grounds, 559 U.S. 1089 (2010). To obtain a preliminary injunction, “[p]laintiffs 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.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (citing Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008)). The failure to make a clear showing of any one of these four factors requires the Court to deny the preliminary injunction.”11 Real Truth About Obama, Inc., 575 F.3d at 346.
11 The parties dispute whether the injunction sought is mandatory or prohibitory in nature. “Whereas mandatory injunctions alter the status quo, prohibitory injunctions ‘aim to maintain the status quo and prevent irreparable harm while a lawsuit remains pending.’ ” League of Women Voters of N.C., 769 F.3d at 236 (quoting Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013)). There is a heightened standard for mandatory injunctions. Taylor v. Freemanm 34 F.3d Continued …

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A plaintiff seeking a preliminary injunction does not benefit from the presumption that the facts contained in the complaint are true. A plaintiff must introduce evidence in support of a Motion for Preliminary Injunction. While oral testimony is not strictly necessary, this Court has never granted a Preliminary Injunction without first hearing oral testimony. Declarations are frequently drafted by lawyers, and the evidence presented within them is not subject to the rigors of cross examination. A plaintiff relying solely on such weak evidence is unlikely to make the clear showing required for the issuance of a preliminary injunction. Additionally, this Court will not consider evidence that would be inadmissible at trial, such as hearsay, that is contained within affidavits.
B. ARGUMENTS OF THE PARTIES AND FACTS IN EVIDENCE
G.G. characterizes the question of competing hardships as “not a close question.” Mem. in Supp. of Mot. for Prelim. Inj., 40, ECF No. 18 (“Prelim. Inj.”). He argues that this Court must weigh “the severe, documented, and scientifically supported harms” that the restroom policy continues to inflict upon G.G, who has been diagnosed with Gender Dysphoria, against the “School Board’s unfounded speculation about harms that might occur to
266, 270 n.2 (4th Cir. 1994) (“Mandatory preliminary injunctive relief in any circumstance is disfavored, and warranted only in the most extraordinary circumstances.”). Because the Court finds that G.G. fails to show that a preliminary injunction is warranted even if the injunction sought is prohibitory, the Court does not decide the issue.

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others at some future date.” Id. The School Board by contrast implores this Court to consider the safety and privacy interests of all its students. Br. in Opp’n to Mot. for Prelim. Inj., 18, ECF No. 30. It emphasizes that while litigation is ongoing, G.G. may use the “girls’ restroom, the three single-stall restrooms, or the restroom in the nurse’s office.” Id.
1. Facts and Arguments Concerning the Hardship to G.G.
G.G. relies on two declarations to establish the hardships he would suffer should this Court deny his Motion for Preliminary Injunction. ECF Nos. 9, 10. G.G.’s Declaration largely repeats the material in his complaint. Compare ECF Nos. 8 and 9. The Court recounts only those assertions that concern the effect that G.G.’s Gender Dysphoria has had on his schooling. G.G. alleges other harms he has suffered, such as being humiliated and forced to speak at the School Board hearing, G.G. Decl. ¶ 23, but these harms are not relevant to the issuance of an injunction allowing G.G. to use the male restroom during this litigation. Here the declaration of G.G. is a recital of the allegations in the complaint and is replete with inadmissible evidence including thoughts of others, hearsay, and suppositions. The Court recounts these allegations before analyzing their credibility.
G.G. claims that during his freshman year, which began in September 2013, he “experienced severe depression and anxiety related to his untreated Gender Dysphoria.” Id. ¶ 9. The depression and anxiety were so severe that G.G. did not attend school during the spring semester which began in January 2014. Id. There is

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nothing to corroborate that his “untreated Gender Dysphoria” was the reason for his absence. In April of 2014, weeks before his fifteenth birthday, G.G. first informed his parents that he is transgender. Id. ¶ 10. After his parents learned of his gender identity, G.G. began “therapy with a psychologist who had experience with working with transgender patients.” Id. He claims that this psychologist diagnosed him with Gender Dysphoria and recommended that he begin to live as a boy in all respects, including in his use of the restroom. Id. ¶ 11. There is no report or declaration from this psychologist. In August 2014, G.G. and his mother informed officials at Gloucester High School of his gender identity. Id. ¶ 15. At the start of the school year, G.G. agreed to use a separate restroom in the nurse’s office. Id. ¶ 19. G.G. then determined that it “was not necessary to continue to use the nurse’s restroom.” Id. He claims that he “found it stigmatizing to use a separate restroom.” Id.
On December 9, 2014, the School Board adopted the restroom policy. Id. ¶ 22. With the new transgender restroom policy, G.G. feels like he has been “stripped of [his] privacy and dignity.” Id. ¶ 23. He is unwilling to use the girls’ restroom because, he claims, girls and women object to his presence there. Id. ¶ 25. Additionally, use of the girls’ restroom would be incompatible with his treatment for Gender Dysphoria. Id. He claims that the new unisex restrooms are not located near his classes and that only one of these restrooms is located near where the single-sex restrooms are located. Id. ¶ 26. He refuses to use these restrooms because “they make him feel even more stigmatized and isolated than when [he] use[d] the restroom in the nurse’s office.” Id. ¶ 27. He claims that everyone knows that the restrooms were in-

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stalled for him. Id. Because G.G. refuses to use any of the restrooms permitted for his use, he has held his urine and developed urinary tract infections. Id. ¶ 28.
The Expert Declaration of Randi Ettner, Ph.D, adds little to these factual claims. Ettner is not the psychologist who analyzed G.G. after he first told his parents he was transgender; rather, he was retained by G.G.’s counsel in preparation for this litigation. See Ettner Decl. ¶¶ 1, 7, 9. Ettner met G.G. once before preparing his report. Id. ¶ 7. The bulk of his declaration describes the diagnosis and treatment of Gender Dysphoria. It defines Gender Dysphoria as the feeling of incongruence between one’s gender identity and the sex assigned one at birth. Id. ¶ 11–12. It notes that Gender Dysphoria is “codified in the Diagnostic and Statistical [M]anual of Mental Disorders (DSM-V) (American Psychiatric Association) and the International Classifications of Diseases10 (World Health Organization).” Id. ¶ 12. It describes the studies that have looked at transgender youth who could not use restrooms corresponding to their gender identity. Id. ¶¶ 18–27. However, beyond confirming that G.G. has a “severe degree of Gender Dysphoria,” id. ¶ 29, there are no facts particular to G.G. in the report. See id. ¶¶ 28–30.
The School Board, supported by the declaration of Troy Andersen, emphasizes that any student may use the three unisex restrooms that were installed and open for use by December 16, 2014. Andersen Decl. ¶ 7; Br. in Opp’n to Mot. for Prelim. Inj., 18, ECF No. 30. Any student may also use the restroom in the nurse’s office. Andersen Decl. ¶ 7. Moreover, the School Board contends that G.G. may use the female restrooms and locker rooms, Br. in Opp’n to Mot. for Prelim. Inj., 18, ECF No.

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30, and G.G. has made no showing that he is not permitted to use them.
2. Facts and Arguments Concerning Student Privacy
The School Board contends that granting the preliminary injunction and allowing G.G. to use the male restroom would endanger the safety and privacy of other students. Br. in Opp’n to Mot. for Prelim. Inj., 18, ECF No. 30. G.G. argues in response, without any independent factual support, that his presence in the male restroom would not infringe upon the privacy rights of his fellow students. He claims that the student body itself is comfortable with his presence in the restroom because during the seven weeks in which he used the male restroom, he “never encountered any problems from other students.” G.G. Decl. ¶ 20. The Andersen Declaration describes a different reaction to G.G.’s use of the male restroom. Andersen Decl. ¶ 4. According to Andersen, the School Board “began receiving numerous complaints from parents and students” the day after G.G. was granted permission to use the boys’ bathroom. Id.
G.G. also contends that the improvements that the School Board made to the restrooms alleviated any concerns that parents or students may have had about “nudity involving students of different sexes.” Prelim. Inj. at 33. His complaint describes these improvements, which include raising the doors and walls around the bathroom stalls so that students cannot see into an adjoining stall, and adding three unisex, single-stall restrooms. Compl. ¶¶ 47, 52. The School Board disputes the extent to which the improvements have increased privacy and claims

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that the restrooms, “and specifically the urinals,” are “not completely private,” although it also does not submit any evidence in support of this contention. Br. in Opp’n to Mot. for Prelim. Inj., 18 n.17, ECF No. 30.
Finally, G.G. argues that any student uncomfortable with his presence in the male restrooms may use the new unisex restrooms. Prelim. Inj. at 35, 39.
C. ANALYSIS
G.G.’s Motion for Preliminary Injunction asks this Court to allow him, a natal female, to use the male restroom at Gloucester High School. Mot. for Prelim. Inj., ECF No. 11. Restrooms and locker rooms are designed differently because of the biological differences between the sexes. See Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (“differences between the genders demand a facility for each gender that is different”). Male restrooms, for instance, contain urinals, while female restrooms do not. Men tend to prefer urinals because of the convenience. Furthermore, society demands that male and female restrooms be separate because of privacy concerns. Id.; see also Virginia v. United States, 518 U.S. 515, 550 n.16 (1996) (“[admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements”). The Court must consider G.G.’s claims of stigma and distress against the privacy interests of the other students protected by separate restrooms.
In protecting the privacy of the other students, the School Board is protecting a constitutional right. The Fourth Circuit has recognized that prisoners have a con-

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stitutional right to bodily privacy. Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981). Although the Fourth Circuit has never held that the right to bodily privacy applies to all individuals, it would be perverse to suppose that prisoners, who forfeit so many privacy rights, nevertheless gained a constitutional right to bodily privacy. In recognizing the right of prisoners to bodily privacy the court spoke in universal terms: “Most people . . . have a special sense of privacy in their own genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating.” Id.
Several circuits have recognized the right to bodily privacy outside the context of prisoner litigation. Doe v. Luzerne County, 660 F.3d 169, 177 (3d Cir. 2011) (holding that bodily exposure may meet “the lofty constitutional standard” and constitute a violation of one’s reasonable expectation of privacy); Brannum v. Overton County School Bd., 516 F.3d 489, 494 (6th Cir. 2008) (holding that a student’s “constitutionally protected right to privacy encompasses the right not to be videotaped while dressing and undressing in school athletic locker rooms”); Poe v. Leonard. 282 F.3d 123, 138–39 (2d Cir. 2002) (“there is a right to privacy in one’s unclothed or partially unclothed body”); York v. Story, 324 F.2d 450, 455 (9th Cir. 1963) (“We cannot conceive of a more basic subject of privacy than the naked body.”). In these circuits, violations of the right to bodily privacy are most acute when one’s body is exposed to a member of the opposite sex. See Doe, 660 F.3d at 177 (considering whether “Doe’s body parts were exposed to members of the opposite sex” in deciding whether her reasonable expectation of privacy was violated); Brannum, 516 F.3d at 494 (“the

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constitutional right to privacy . . . includes the right to shield one’s body from exposure to viewing by the opposite sex”); York, 324 F.2d at 455 (highlighting that the exposed plaintiff was female and the viewing defendant male); Poe, 282 F.3d at 138 (citing with approval the Ninth Circuit’s emphasis on the different genders of defendant and plaintiff in York).
Not only is bodily privacy a constitutional right, the need for privacy is even more pronounced in the state educational system. The students are almost all minors, and public school education is a protective environment. Furthermore, the School Board is tasked with providing safe and appropriate facilities for these students. Linnon v. Commonwealth, 752 S.E.2d 822, 826 (Va. 2014) (finding that “school administrators have a responsibility ‘to supervise and ensure that students could have an education in an atmosphere conducive to learning, free of disruption, and threat to person.’ ” (quoting Burns v. Gagnon, 727 S.E.2d 634, 643 (Va. 2012)).
G.G.’s unsupported claims, which are mostly inadmissible hearsay, fail to show that his presence in the male restroom would not infringe upon the privacy of other students. G.G.’s claim that he “never encountered any problems from other students,” G.G. Decl. ¶ 20, is directly contradicted by the Andersen Declaration. Andersen Decl. ¶ 4. Moreover, even if the Court accepted G.G.’s self-serving assertion, it would still not find that there was no discomfort among the students. It would not be surprising if students, rather than confronting G.G. himself, expressed their discomfort to their parents who then went to the School Board.
G.G. further contends that the improvements that the School Board made to the restrooms minimize any priva-

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cy concerns. Prelim. Inj. at 33. However, G.G. does not introduce any evidence that would help the Court understand the extent of the improvements. He fails to recognize that no amount of improvements to the urinals can make them completely private because people sometimes turn while closing their pants. He does not submit any evidence that would show that other students would be comfortable with his presence in the male restroom because of the improvements. Finally, he fails to recognize that the School Board’s interests go beyond preventing most exposures of genitalia. The mere presence of a member of the opposite sex in the restroom may embarrass many students and be felt a violation of their privacy. Accordingly, the privacy concerns of the School Board do not diminish in proportion to the size of the stall doors.
G.G.’s argument that other students may use the unisex restrooms if they are uncomfortable with his presence in the male restroom unintentionally reveals the hardship that the injunction he seeks would impose on other students. It does not occur to G.G. that other students may experience feelings of exclusion when they can no longer use the restrooms they were accustomed to using because they feel that G.G.’s presence in the male restroom violates their privacy. He would have any number of students use the unisex restrooms rather than use them himself while this Court resolves his novel constitutional challenge.
G.G.’s dismissal of the School Board’s privacy concerns only makes sense if assumes that there are fewer or no privacy concerns when a student shares a restroom with another student of different birth sex but the same gender identity. If there were no privacy concerns in this

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situation, there would be no hardship if G.G. used the male restroom while this litigation proceeds. Of course, this litigation is proof that not everyone — certainly not the Gloucester County School Board — shares in this belief. The Court gives great weight to the concerns of the School Board — which represents the students and parents in the community — on the question of the privacy concerns of students, especially at this early stage of litigation and in the complete absence of credible evidence to the contrary.
Against the School Board’s strong interest in protecting student privacy, the Court must consider G.G.’s largely unsubstantiated claims of hardship. G.G. acknowledges that he may use the unisex restrooms or the nurse’s restroom. His declaration fails to articulate the specific harms that would occur to him if he uses those restrooms while this litigation proceeds; it simply says that using these restrooms would cause him distress and make him feel stigmatized. It is telling to the Court that his declaration mirrors his complaint, a sign that it was drafted by his lawyers and not by him. G.G. attempts to support his claims of distress by describing the diagnosis of the first psychologist who saw him, but these allegations are hearsay and will not be considered.
Similarly, G.G. makes several claims about the thoughts and feelings of other students for which he has not submitted any admissible evidence or corroboration. He has nothing to substantiate his claims that other students view the unisex restrooms as designed solely for him. Nor has he submitted a layout of the school that would confirm his claim that the unisex restrooms are inconvenient for him to use.

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The declaration of Dr. Ettner is almost completely devoid of facts specific to G.G. Dr. Ettner is not the psychologist who allegedly first diagnosed G.G. with Gender Dysphoria. Rather, he has been retained for this litigation. Having met G.G. only once, he has little to say about the harm that would occur to G.G. specifically if G.G. is not allowed to use the male restrooms during this litigation.
G.G. has been given an option of using a restroom in addition to the female restroom that corresponds to his biological sex. He has not described his hardship in concrete terms and has supported his claims with nothing more than his own declaration and that of a psychologist who met him only once, for the purpose of litigation and not for treatment. The School Board seeks to protect an interest in bodily privacy that the Fourth Circuit has recognized as a constitutional right while G.G. seeks to overturn a long tradition of segregating bathrooms based on biological differences between the sexes. Because G.G. has failed to show that the balance of hardships weighs in his favor, an injunction is not warranted while the Court considers this claim.
Having found that G.G. has not shown that the balance of the hardships are in his favor, the Court docs not need to consider the other showings required for a preliminary injunction. However, the Court notes that just as G.G. has failed to provide adequate proof of the hardship that would occur if the injunction is not granted, he has also failed to make a clear showing of irreparable injury.

117a IV. CONCLUSION
For the foregoing reasons, the Court GRANTED the Motion to Dismiss as to Count II, Plaintiff’s claim under Title IX, and DENIED the Plaintiffs Motion for a Preliminary Injunction. The Clerk is DIRECTED to forward a copy of this Opinion to all Counsel of Record.
IT IS SO ORDERED.
/s/ Robert G. Doumar Robert G. Doumar Senior United States District Judge
Newport News, VA September 17, 2015

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Ms. Massie Ritsch Acting Assistant Secretary Office of Communications and Outreach U.S. Department of Education 400 Maryland Avenue, SW Washington, D.C. 20202
Transmitted via e-mail
Dear Ms. Ritsch:
Last week, numerous reporters wrote stories regarding the actions of a school board in Gloucester County, Virginia. In response to the presence of a transgender student in the local high school, the school board passed the following proposal, establishing it as official policy for Gloucester County Public Schools:
Whereas the GCPS (Gloucester County Public Schools) recognizes that some students question their gender identities, and
Whereas the GCPS encourages such students to seek support and advice 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 sincere gender identity issues shall be provided an alternative private facility.

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The U.S. Department of Education has recently received praise from the transgender community for noting in several guidance documents that Title IX’s ban on discrimination on the basis of sex includes, consistent with the Equal Employment Opportunity Commission’s decision in Macy v. Holder, discrimination on the basis of gender identity. It is my sincere hope that the Department will continue to provide such guidance, particularly on this issue that so frequently erupts whenever states or localities consider prohibiting discrimination on the basis of gender identity.
While I understand that the Department is unable to comment on any matters that may be under investigation, this story does raise a question: does the Department have any guidance or rules for what is or is not acceptable for a school to do when establishing policies for transgender students to access restrooms and other similar sex-segregated facilities? Specifically, the articles lead the reader to a number of questions:
• Does the Department have guidance or rules on whether a transgender student may be required to use a different restroom than other students, such as a restroom in a nurse’s office or a restroom designated for school employees?
• Does the Department have guidance or rules on whether an organization  such as a school, a school district, or a university may limit access to facilities to only those whose gender identity is consistent with their sex assigned at birth (i.e., cisgender individuals)?

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• Has the Department communicated any guidance or rules on these questions to organizations such as schools, school districts, or universities to eliminate unnecessary confusion over proper implementation of Title IX?
I have copied one of the writers, Ms. Barbara King, a contributor to NPR and Chancellor Professor of Anthropology at the College of William and Mary, who wrote about the topic in an NPR blog post on December 11, 2014. I will gladly share your response with the authors of the other news stories I have seen on this issue, such as Dominic Holden of BuzzFeed and John Riley of Metro Weekly.
I look forward to working with your office to answer these questions.
Sincerely,
/s/ Emily T. Prince Emily T. Prince, Esq.
cc: Barbara J. King, Chancellor Professor of Anthropology, College of William and Mary. 

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UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS

REDACTED - PII

January 7, 2015

Dear REDACTED - PII
I write in response to your letter, sent via email to the U.S. Department of Education (the Department) on December 14, 2014, regarding transgender students’ access to facilities such as restrooms. In your letter, you mentioned statements in recent guidance documents issued by the Department concerning the application of Title IX of the Education Amendments of 1972 (Title IX) to gender identity discrimination. In addition, you identified a particular school district’s policy about access to restrooms and asked about the existence and distribution of any guidance by the Department about policies or practices regarding transgender students’ access to restrooms. Your letter has been referred to the Department’s Office for Civil Rights (OCR), and I am happy to respond.
As you know, OCR’s mission includes enforcing Title IX, which prohibits recipients of Federal financial assistance from discriminating on the basis of sex, including gender identity and failure to conform to stereotypical notions of masculinity or femininity.1 OCR enforces and
1 See OCR’s April 2014 Questions and Answers on Title IX and Sexual Violence at B-2, http://www2.ed.gov/about/officcs/list/ocr/ docs/qa-201404-title-ix.pdf.

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interprets Title IX consistent with case law,2 and with the adjudications and guidance documents of other Federal agencies.3
2 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (holding that Title VII of the Civil Rights Act of 1964’s (Title VII) prohibition on sex discrimination bars discrimination based on gender stereotyping, that is “insisting that [individuals] matched the stereotype associated with their group”); Barnes v. City of Cincinnati, 401 F.3d 729, 736–39 (6th Cir. 2005) (holding that demotion of transgender police officer because he did not “conform to sex stereotypes concerning how a man should look and behave” stated a claim of sex discrimination under Title VII); Smith v. City of Salem, 378 F.3d 566, 574–75 (6th Cir. 2004) (“[Discrimination against a plaintiff who is a transsexual — and therefore fails to act and/or identify with his or her gender — is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.”); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (applying Price Waterhouse to conclude, under the Equal Credit Opportunity Act, that plaintiff states a claim for sex discrimination if bank’s refusal to provide a loan application was because plaintiff’s “traditionally feminine attire. . . . did not accord with his male gender”); Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000) (holding that discrimination against transgender females — i.e., “as anatomical males whose outward behavior and inward identity [do] not meet social definitions of masculinity” — is actionable discrimination “because of sex” under the Gender Motivated Violence Act”).
3 See, e.g., U.S. Dept. of Justice, Memorandum from the Attorney General regarding the Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 2014) (stating that the protection of Title VII extends to claims of discrimination based on an individual’s gender identity, including transgender status), http://www.justice.gov/sites/ default/files/opa/press-releases/attachments/2014/12/18/title_vii_ memo.pdf; see also Macy v. Holder, Appeal No. 012012082 (U.S. Equal Emp’t Opportunity Comm’n Apr. 20, 2012) (holding that gender identity and transgender status did not need to be specifically Continued …

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The Department’s 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 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.4 OCR also 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.
addressed in Title VII in order to be prohibited bases of discrimination, as they are simply part of the protected category of “sex”), http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOT% 20ATF.txt; U.S. Dept. of Health & Human Services, Office for Civil Rights, Letter to Maya Rupert, Esq., Transaction No. 12-0008000 (July 12, 2012) (stating that Section 1557 of the Affordable Care Act, which incorporates Title IX’s prohibition on sex discrimination, “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity”), http://www.scribd.com/doc/101981113/Response-on-LGBT-Peoplein-Sec-1557-in-the-Affordable-Care-Act-from-the-U-S-Dept-ofHealth-and-Human-Services; U.S. Dep’t of Labor, Office of Federal Contract Compliance Programs, Gender Identity and Sex Discrimination, Directive 2014-02 (Aug. 14, 2014) (directing that for purposes of Executive Order 11246, which prohibits employment discrimination on the basis of sex by federal contractors and subcontractors, “discrimination based on gender identity or transgender status . . . is discrimination based on sex”), http://www.dol.gov/ofccp/ regs/compliance/directives/dir2014_02.html.
4 See, e.g., OCR’s December 2014 Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, at Q. 31, http://www2.ed.gov/about/offices/list/ocr/ docs/faQs-title-ix-single-sex-201412.pdf.

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OCR refrains from offering opinions about specific facts, circumstances, or compliance with federal civil rights laws without first conducting an investigation, and does not release information about its pending investigations. Nevertheless, it may be useful to be aware that in response to OCR’s recent investigations of two complaints of gender identity discrimination, recipients have agreed to revise policies to make clear that transgender students should be treated consistent with their gender identity for purposes of restroom access. For examples of how OCR enforces Title IX in this area, please review the following resolutions of OCR investigations involving transgender students: Arcadia Unified School District;5 and Downey Unified School District.6
OCR is committed to helping all students thrive at school and ensuring that schools take action to prevent and respond promptly and effectively to all forms of discrimination, including gender-identity discrimination. OCR staff is also available to offer schools technical assistance on how to comply with Title IX and ensure all students, including transgender students, have equal access to safe learning environments.
5 OCR Case No. 09-12-1020 (July 24, 2013), http://www.justice.gov/ crt/about/edu/documents/arcadialetter.pdf (resolution letter); and http://www.justice.gov/crt/about/edu/documents/arcadiaagree.pdf (resolution agreement).
6 OCR Case No. 09-12-1095 (October 14, 2014), http://www2.ed.gov/ documents/press-releases/downev-school-district-letter.pdf (resolution letter); and http://www2.ed.gov/documents/pressreleases/downey-school-district-agreement.pdf (resolution agreement).

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If you have questions, want additional information or technical assistance, or believe that a school is engaging in discrimination based on gender identity or another basis protected by the laws enforced by OCR, you may visit OCR’s website at www.ed.gov/ocr or contact OCR at (800) 421-3481 (TDD: 800-877-8339) or at ocr@ed.gov. You may also fill out a complaint form online at www.ed.gov/ocr/complaintintro.html.
I hope that this information is helpful and thank you for contacting the Department.
Sincerely,
/s/ James A. Ferg-Cadima James A. Ferg-Cadima Acting Deputy Assistant Secretary for Policy Office for Civil Rights

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U.S. Department of Justice Civil Rights Division
U.S. Department of Education Office for Civil Rights
May 13, 2016
Dear Colleague:
Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students. Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance.1 This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. This letter summarizes a school’s Title IX obligations regarding transgender students and explains how the U.S. Department of Educa-
1 20 U.S.C. §§ 1681–1688; 34 C.F.R. Pt. 106; 28 C.F.R. Pt. 54. In this letter, the term schools refers to recipients of Federal financial assistance at all educational levels, including school districts, colleges, and universities. An educational institution that is controlled by a religious organization is exempt from Title IX to the extent that compliance would not be consistent with the religious tenets of such organization. 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12(a).

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tion (ED) and the U.S. Department of Justice (DOJ) evaluate a school’s compliance with these obligations.
ED and DOJ (the Departments) have determined that this letter is significant guidance.2 This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations. If you have questions or are interested in commenting on this guidance, please contact ED at ocr@ed.gov or 800-4213481 (TDD 800-877-8339); or DOJ at education@usdoj.gov or 877-292-3804 (TTY: 800-514-0383).
Accompanying this letter is a separate document from ED’s Office of Elementary and Secondary Education, Examples of Policies and Emerging Practices for Supporting Transgender Students. The examples in that document are taken from policies that school districts, state education agencies, and high school athletics associations around the country have adopted to help ensure that transgender students enjoy a supportive and nondiscriminatory school environment. Schools are encouraged to consult that document for practical ways to meet Title IX’s requirements.3
2 Office of Management and Budget, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_goo d_guidance.pdf.
3 ED, Examples of Policies and Emerging Practices for Supporting Transgender Students (May 13, 2016), www.ed.gov/oese/oshs/ emergingpractices.pdf. OCR also posts many of its resolution agreements in cases involving transgender students online at www.ed.gov/ocr/lgbt.html. While these agreements address factspecific cases, and therefore do not state general policy, they identiContinued …

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Terminology
• Gender identity refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth. 
• Sex assigned at birth refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth. 
• Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth. 
• Gender transition refers to the process in which transgender individuals begin asserting the sex that corresponds to their gender identity instead of the sex they were assigned at birth. During gender transition, individuals begin to live and identify as the sex consistent with their gender identity and may dress differently, adopt a new name, and use pronouns consistent with their gender identity. Transgender individuals may un-
fy examples of ways OCR and recipients have resolved some issues addressed in this guidance.

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dergo gender transition at any stage of their lives, and gender transition can happen swiftly or over a long duration of time.
Compliance with Title IX
As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations.4 The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.5
4 34 C.F.R. §§ 106.4, 106.31(a). For simplicity, this letter cites only to ED’s Title IX regulations. DOJ has also promulgated Title IX regulations. See 28 C.F.R. Pt. 54. For purposes of how the Title IX regulations at issue in this guidance apply to transgender individuals, DOJ interprets its regulations similarly to ED. State and local rules cannot limit or override the requirements of Federal laws. See 34 C.F.R. § 106.6(b).
5 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 79 (1998); G.G. v. Gloucester Cnty. Sch. Bd., No. 15-2056, 2016 WL 1567467, at *8 (4th Cir. Apr. 19, 2016); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566, 572–75 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000); Schroer v. Billington, 577 F. Supp. 2d 293, 306–08 (D.D.C. 2008); Continued …

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The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.6 Because transgender students often are
Macy v. Dep’t of Justice, Appeal No. 012012082 (U.S. Equal Emp’t Opportunity Comm’n Apr. 20, 2012). See also U.S. Dep’t of Labor (USDOL), Training and Employment Guidance Letter No. 37-14, Update on Complying with Nondiscrimination Requirements: Discrimination Based on Gender Identity, Gender Expression and Sex Stereotyping are Prohibited Forms of Sex Discrimination in the Workforce Development System (2015), wdr.doleta.gov/directives/ attach/TEGL/TEGL_37- 14.pdf; USDOL, Job Corps, Directive: Job Corps Program Instruction Notice No. 14-31, Ensuring Equal Access for Transgender Applicants and Students to the Job Corps Program (May 1, 2015), https://supportservices.jobcorps.gov/ Program%20Instruction%20Notices/pi_14_31.pdf; DOJ, Memorandum from the Attorney General, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (2014), www.justice.gov/sites/default/files/opa/ press-releases/attachments/2014/12/18/title_vii_memo.pdf; USDOL, Office of Federal Contract Compliance Programs, Directive 2014-02, Gender Identity and Sex Discrimination (2014), www.dol.gov/ofccp/ regs/compliance/directives/dir2014_02.html.
6 See Lusardi v. Dep’t of the Army, Appeal No. 0120133395 at 9 (U.S. Equal Emp’t Opportunity Comm’n Apr. 1, 2015) (“An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.”).

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unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence),7 requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.
A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.8
7 See G.G., 2016 WL 1567467, at *1 n.1 (noting that medical authorities “do not permit sex reassignment surgery for persons who are under the legal age of majority”).
8 34 C.F.R. § 106.31(b)(4); see G.G., 2016 WL 1567467, at *8 & n.10 (affirming that individuals have legitimate and important privacy interests and noting that these interests do not inherently conflict with nondiscrimination principles); Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981, 984 (8th Cir. 2002) (rejecting claim that allowing a transgender woman “merely [to be] present in the women’s faculty restroom” created a hostile environment); Glenn, 663 F.3d at 1321 (defendant’s proffered justification that “other women might object to [the plaintiff]’s restroom use” was “wholly irrelevant”). See also Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (recognizing that “mere negative attitudes, or fear . . . are not permissible bases for” government action).

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1. Safe and Nondiscriminatory Environment
Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. Harassment that targets a student based on gender identity, transgender status, or gender transition is harassment based on sex, and the Departments enforce Title IX accordingly.9 If sex-based harassment creates a hostile environment, the school must take prompt and effective steps to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects. A school’s failure to treat students consistent with their gender identity may create or contrib-
9 See, e.g., Resolution Agreement, In re Downey Unified Sch. Dist., CA, OCR Case No. 09-12-1095, (Oct. 8, 2014), www.ed.gov/documents/press-releases/downey-school-districtagreement.pdf (agreement to address harassment of transgender student, including allegations that peers continued to call her by her former name, shared pictures of her prior to her transition, and frequently asked questions about her anatomy and sexuality); Consent Decree, Doe v. Anoka-Hennepin Sch. Dist. No. 11, MN (D. Minn. Mar. 1, 2012), www.ed.gov/ocr/docs/investigations/05115901-d.pdf (consent decree to address sex-based harassment, including based on nonconformity with gender stereotypes); Resolution Agreement, In re Tehachapi Unified Sch. Dist., CA, OCR Case No. 09-11-1031 (June 30, 2011), www.ed.gov/ocr/docs/investigations/09111031-b.pdf (agreement to address sexual and gender-based harassment, including harassment based on nonconformity with gender stereotypes). See also Lusardi, Appeal No. 0120133395, at *15 (“Persistent failure to use the employee’s correct name and pronoun may constitute unlawful, sex-based harassment if such conduct is either severe or pervasive enough to create a hostile work environment”).

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ute to a hostile environment in violation of Title IX. For a more detailed discussion of Title IX requirements related to sex-based harassment, see guidance documents from ED’s Office for Civil Rights (OCR) that are specific to this topic.10
2. Identification Documents, Names, and Pronouns
Under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex. The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.11
10 See, e.g., OCR, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001), www.ed.gov/ocr/docs/shguide.pdf; OCR, Dear Colleague Letter: Harassment and Bullying (Oct. 26, 2010), www.ed.gov/ocr/letters/colleague-201010.pdf; OCR, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), www.ed.gov/ocr/letters/ colleague-201104.pdf; OCR, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014), www.ed.gov/ocr/docs/qa-201404title-ix.pdf. 11 See, e.g., Resolution Agreement, In re Cent. Piedmont Cmty. Coll., NC, OCR Case No. 11-14-2265 (Aug. 13, 2015), www.ed.gov/ocr/docs/ investigations/more/11142265-b.pdf (agreement to use a transgender student’s preferred name and gender and change the student’s official record to reflect a name change).

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3. Sex-Segregated Activities and Facilities
Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.12 When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.13
• Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.14 A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.15
12 34 C.F.R. §§ 106.32, 106.33, 106.34, 106.41(b).
13 See 34 C.F.R. § 106.31.
14 34 C.F.R. § 106.33.
15 See, e.g., Resolution Agreement, In re Township High Sch. Dist. 211, IL, OCR Case No. 05-14-1055 (Dec. 2, 2015), www.ed.gov/ocr/docs/investigations/more/05141055-b.pdf (agreement to provide any student who requests additional privacy “access to a reasonable alternative, such as assignment of a student locker in near proximity to the office of a teacher or coach; use of another private area (such as a restroom stall) within the public area; use of a Continued …

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• Athletics. Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport.16 A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.17 Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.18
nearby private area (such as a single-use facility); or a separate schedule of use.”).
16 34 C.F.R. § 106.41(b). Nothing in Title IX prohibits schools from offering coeducational athletic opportunities.
17 34 C.F.R. § 106.6(b), (c). An interscholastic athletic association is subject to Title IX if (1) the association receives Federal financial assistance or (2) its members are recipients of Federal financial assistance and have ceded controlling authority over portions of their athletic program to the association. Where an athletic association is covered by Title IX, a school’s obligations regarding transgender athletes apply with equal force to the association.
18 The National Collegiate Athletic Association (NCAA), for example, reported that in developing its policy for participation by transgender students in college athletics, it consulted with medical experts, athletics officials, affected students, and a consensus report entitled On the Team: Equal Opportunity for Transgender Student Continued …

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• Single-Sex Classes. Although separating students by sex in classes and activities is generally prohibited, nonvocational elementary and secondary schools may offer nonvocational single-sex classes and extracurricular activities under certain circumstances.19 When offering such classes and activities, a school must allow transgender students to participate consistent with their gender identity. 
• Single-Sex Schools. Title IX does not apply to the admissions policies of certain educational institutions, including nonvocational elementary and secondary schools, and private undergraduate colleges.20 Those schools are therefore permit-
Athletes (2010) by Dr. Pat Griffin & Helen J. Carroll (On the Team), https://www.ncaa.org/sites/default/files/NCLR_TransStudentAthlet e%2B(2).pdf. See NCAA Office of Inclusion, NCAA Inclusion of Transgender Student-Athletes 2, 30–31 (2011), https://www.ncaa. org/sites/default/files/Transgender_Handbook_2011_Final.pdf (citing On the Team). The On the Team report noted that policies that may be appropriate at the college level may “be unfair and too complicated for [the high school] level of competition.” On the Team at 26. After engaging in similar processes, some state interscholastic athletics associations have adopted policies for participation by transgender students in high school athletics that they determined were age-appropriate.
19 34 C.F.R. § 106.34(a), (b). Schools may also separate students by sex in physical education classes during participation in contact sports. Id. § 106.34(a)(1).
20 20 U.S.C. § 1681(a)(1); 34 C.F.R. § 106.15(d); 34 C.F.R. § 106.34(c) (a recipient may offer a single-sex public nonvocational elementary and secondary school so long as it provides students of the excluded Continued …

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ted under Title IX to set their own sex-based admissions policies. Nothing in Title IX prohibits a private undergraduate women’s college from admitting transgender women if it so chooses.
• Social Fraternities and Sororities. Title IX does not apply to the membership practices of social fraternities and sororities.21 Those organizations are therefore permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members. Nothing in Title IX prohibits a fraternity from admitting transgender men or a sorority from admitting transgender women if it so chooses.
• Housing and Overnight Accommodations. Title IX allows a school to provide separate housing on the basis of sex.22 But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students. Nothing in Title IX prohibits a school from honoring a student’s voluntary request for singleoccupancy accommodations if it so chooses.23
sex a “substantially equal single-sex school or coeducational school”).
21 20 U.S.C. § 1681(a)(6)(A); 34 C.F.R. § 106.14(a).
22 20 U.S.C. § 1686; 34 C.F.R. § 106.32.
23 See, e.g., Resolution Agreement, In re Arcadia Unified. Sch. Dist., Continued …

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• Other Sex-Specific Activities and Rules. Unless expressly authorized by Title IX or its implementing regulations, a school may not segregate or otherwise distinguish students on the basis of their sex, including gender identity, in any school activities or the application of any school rule. Likewise, a school may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity (e.g., in yearbook photographs, at school dances, or at graduation ceremonies).24
4. Privacy and Education Records
Protecting transgender students’ privacy is critical to ensuring they are treated consistent with their gender identity. The Departments may find a Title IX violation when a school limits students’ educational rights or opportunities by failing to take reasonable steps to protect students’ privacy related to their transgender status, in-

CA, OCR Case No. 09-12-1020, DOJ Case No. 169-12C-70, (July 24,

2013),

www.justice.gov/sites/default/files/crt/legacy/2013/07/26/

arcadiaagree.pdf (agreement to provide access to single-sex over-

night events consistent with students’ gender identity, but allowing

students to request access to private facilities).

24 See 34 C.F.R. §§ 106.31(a), 106.31(b)(4). See also, In re Downey Unified Sch. Dist., CA, supra n. 9; In re Cent. Piedmont Cmty. Coll., NC, supra n. 11.

139a
cluding their birth name or sex assigned at birth.25 Nonconsensual disclosure of personally identifiable information (PII), such as a student’s birth name or sex assigned at birth, could be harmful to or invade the privacy of transgender students and may also violate the Family Educational Rights and Privacy Act (FERPA).26 A school may maintain records with this information, but such records should be kept confidential.
• Disclosure of Personally Identifiable Information from Education Records. FERPA generally prevents the nonconsensual disclosure of PII from a student’s education records; one exception is that records may be disclosed to individual school personnel who have been determined to have a legitimate educational interest in the information.27 Even when a student has disclosed the student’s transgender status to some members of the school community, schools may not rely on this FERPA exception to disclose PII from education records to other school personnel who do not have a legitimate educational interest in the information. Inappropriately disclosing (or requiring students or their parents to disclose) PII from education records to the school community may violate FERPA and interfere with
25 34 C.F.R. § 106.31(b)(7).
26 20 U.S.C. § 1232g; 34 C.F.R. Part 99. FERPA is administered by ED’s Family Policy Compliance Office (FPCO). Additional information about FERPA and FPCO is available at www.ed.gov/fpco.
27 20 U.S.C. § 1232g(b)(1)(A); 34 C.F.R. § 99.31(a)(1).

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transgender students’ right under Title IX to be treated consistent with their gender identity.
• Disclosure of Directory Information. Under FERPA’s implementing regulations, a school may disclose appropriately designated directory information from a student’s education record if disclosure would not generally be considered harmful or an invasion of privacy.28 Directory information may include a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance.29 School officials may not designate students’ sex, including transgender status, as directory information because doing so could be harmful or an invasion of privacy.30 A school also must allow eligible students (i.e., students who have reached 18 years of age or are attending a postsecondary institution) or parents, as appropriate, a reasonable amount of time to request that the school not disclose a student’s directory information.31
• Amendment or Correction of Education Records. A school may receive requests to correct a student’s education records to make them con-

28 34 C.F.R. §§ 99.3, 99.31(a)(11), 99.37.

29 20 U.S.C. § 1232g(a)(5)(A); 34 C.F.R. § 99.3.

30 Letter from FPCO to Institutions of Postsecondary Education 3

(Sept.

2009),

www.ed.gov/policy/gen/guid/fpco/doc/

censuslettertohighered091609.pdf.

31 20 U.S.C. § 1232g(a)(5)(B); 34 C.F.R. §§ 99.3, 99.37(a)(3).

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sistent with the student’s gender identity. Updating a transgender student’s education records to reflect the student’s gender identity and new name will help protect privacy and ensure personnel consistently use appropriate names and pronouns.
§ Under FERPA, a school must consider the request of an eligible student or parent to amend information in the student’s education records that is inaccurate, misleading, or in violation of the student’s privacy rights.32 If the school does not amend the record, it must inform the requestor of its decision and of the right to a hearing. If, after the hearing, the school does not amend the record, it must inform the requestor of the right to insert a statement in the record with the requestor’s comments on the contested information, a statement that the requestor disagrees with the hearing decision, or both. That statement must be disclosed whenever the record to which the statement relates is disclosed.33
§ Under Title IX, a school must respond to a request to amend information related to a student’s transgender status consistent with its general practices for amending other students’ records.34 If a student or parent complains
32 34 C.F.R. § 99.20.
33 34 C.F.R. §§ 99.20–99.22.
34 See 34 C.F.R. § 106.31(b)(4).

142a about the school’s handling of such a request, the school must promptly and equitably resolve the complaint under the school’s Title IX grievance procedures.35
* * *
We appreciate the work that many schools, state agencies, and other organizations have undertaken to make educational programs and activities welcoming, safe, and inclusive for all students.
Sincerely,
/s/ Catherine E. Lhamon Assistant Secretary for Civil Rights U.S. Department of Education
/s/ Vanita Gupta Principal Deputy Assistant Attorney General for Civil Rights U.S. Department of Justice
35 34 C.F.R. § 106.8(b).

143a
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division

G.G.,

Plaintiff,

v.

Case No. 4:15-cv-00054-RGD-TEM

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

DECLARATION OF TROY M. ANDERSEN

On this 7th day of July 2015, I, Troy M. Andersen, make the following declaration pursuant to 28 U.S.C. § 1746:
1. I am over the age of eighteen, suffer no legal disabilities, have personal knowledge of the facts set forth below, and am competent to testify.
2. I am the Gloucester Point District Representative for the Gloucester County School Board (“the School Board” or “GCSB”), and I served in that capacity during the 2014–2015 school year. I am still a member of the School Board and currently serve as its chairman.
3. It has always been the practice of Gloucester County Schools to separate restrooms and locker rooms at school facilities on the basis of the students’ biological sex, and this practice has been in place the entire time

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that Plaintiff has been a student within the Gloucester County school system. It is my understanding that plaintiff enrolled as a freshman at Gloucester High School for the 2013–2014 school year as a female student.
4. While Plaintiff was granted permission at the school level to begin using the boys’ restrooms at Gloucester High School on October 20, 2014, no decision was made by the School Board until December 9, 2014. Beginning on October 21, 2014, the School Board began receiving numerous complaints from parents and students about Plaintiff’s use of the boys’ restrooms.
5. On December 9, 2014, the School Board adopted a restroom and locker room resolution that provided:
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.

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6. The restroom and locker room resolution reflects what has always been the practice of the schools. The resolution was developed to treat all students and situations the same.
7. The School Board had three single-stall unisex bathrooms constructed at Gloucester High School. All three restrooms were open for use by December 16, 2014. Any student can use these unisex bathrooms, regardless of their biological sex, if they are uncomfortable using a communal bathroom, or for any other privacy reason. Students may also use a restroom located in the nurse’s office.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing statements are true and correct.

Executed on 7/7/15 (date)

/s/ Troy M. Andersen Troy M. Andersen

146a
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Newport News Division

G.G., by his next friend and mother, DEIRDRE GRIMM,

Plaintiffs,

v.

Civil No. 4:15-cv-00054-RGD-DEM

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

CORRECTED DECLARATION OF G.G.

1. I am the plaintiff in the above-captioned action. I have actual knowledge of the matters stated in this declaration.
2. My name is G.G.  3. Several photographs of me taken over the past year are attached to this declaration as Exhibit A. 4. I was born in Gloucester County on May 4, 1999, and have lived in Gloucester County my entire life. 5. I am a student at Gloucester High School. I will begin my junior year of high school in September 2015. 6. Although my sex assigned at birth was female, I was aware at a very young age that I did not feel like a girl. I have always felt uncomfortable wearing “girl” clothes, and by the age of six, I adamantly refused to do

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so. I insisted upon buying all of my clothes in the boys’ department.
7. At approximately age twelve, I acknowledged my male gender identity to myself. I gradually began disclosing this fact to close friends. Since the reactions of my friends were generally positive and supportive, I disclosed my gender identity to more friends.
8. In approximately ninth grade, most of my friends were aware of my gender identity, and I lived openly as a boy when socializing with friends away from home and school.
9. During my freshman year, I experienced severe depression and anxiety related to my untreated Gender Dysphoria and the stress of concealing my gender identity from my family. The depression and anxiety was so severe that I could not attend school during the spring semester of my freshman year. Instead, I took classes through a home-bound program that follows the public high school curriculum.
10. In April 2014, I told my parents that I am transgender. At my request, I began therapy with a psychologist who had experience with working with transgender patients.
11. The psychologist diagnosed me with Gender Dysphoria. The psychologist recommended that I immediately begin living as a boy in all respects. That included using a male name and pronouns and using boys’ restrooms. The psychologist gave me a “Treatment Documentation Letter” confirming that I am receiving treatment for Gender Dysphoria and that, as part of that treatment, I should be treated as a boy in all respects, including with respect to my use of the restroom. In addition, the psychologist recommended that I see an en-

148a
docrinologist to begin hormone treatment for Gender Dysphoria.
12. In July 2014, I petitioned the Circuit Court of Gloucester County to change my legal name to G.G., and the court granted the petition. I now use that name for all purposes, and my friends and family refer to me using male pronouns.
13. I use the boys’ restrooms when out in public, e.g., at restaurants, libraries, shopping centers.
14. I have been receiving hormone treatment since December 2014. The hormone treatment has deepened my voice, increased my growth of facial hair, and given me a more masculine appearance.
15. In August 2014, my mother and I informed officials at Gloucester High School that I am transgender and that I changed my legal name. The high school agreed to change my name in my official school records.
16. Before the beginning of my sophomore year, my mother and I met with Gloucester High School Principal T. Nathan Collins and guidance counselor Tiffany Durr to discuss my treatment for Gender Dysphoria and the need for me to socially transition at school as part of my medical treatment. Mr. Collins and Ms. Durr both expressed support for me and a willingness to ensure a welcoming environment for me at school.
17. Ms. Durr and I agreed that I would send an email to teachers explaining that I was to be addressed using the name G.G. and to be referred to using male pronouns. To the best of my knowledge, no teachers, administrators, or staff at Gloucester High School expressed any resistance to calling me by my legal name or referring to me using male pronouns.

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18. I requested, and was permitted, to continue with the home-bound program only for my physical education requirement while returning to school for the rest of my classes. For this reason, I do not intend to use a locker room at school.
19. I initially agreed to use a separate restroom in the nurse’s office because I was unsure how other students would react to my transition. When the 2014–15 school year began, I was pleased to discover that my teachers and the vast majority of my peers respected the fact that I am a boy. I quickly determined that it was not necessary for me to continue to use the nurse’s restroom, and I found it stigmatizing to use a separate restroom. The nurse’s bathroom was also very inconvenient to reach from my classrooms, making it difficult for me to use the restroom between classes. For these reasons, I asked Mr. Collins to be allowed to use the boys’ restrooms.
20. On or about October 20, 2014, Mr. Collins agreed that I could use the boys’ restrooms. For approximately the next seven weeks, I used the boys’ restrooms at school. When I used the boys’ restrooms, I never encountered any problems from other students.
21. On November 10, 2014, I learned that the School Board would be voting on a proposal at its meeting on November 11, 2014, to adopt a transgender restroom policy that would prohibit me from continuing to use the boys’ restroom. My parents and I attended the meeting to speak against the policy. In doing so, I was forced to identify myself to the entire community, including local press covering the meeting, as the transgender student whose restroom use was at issue.

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22. I also attended the School Board’s meeting on December 9, 2014, when it adopted the transgender restroom policy.
23. As a result of the School Board meetings and the new transgender restroom policy, I feel like I have been stripped of my privacy and dignity. Having the entire community discuss my genitals and my medical condition in a public setting has made me feel like a walking freak show. This personal information about my medical status, and about my very anatomy, has become a public spectacle. My entire community can now identify me as “the transgender student who wants to use the boys’ room,” which makes me incredibly anxious and fearful.
24. The day after the school board meeting, Mr. Collins told me that I would no longer be allowed to use the boys’ restrooms and that there would be disciplinary consequences if I tried to do so.
25. Using the girls’ restroom is not a possibility for me. Even before I began receiving treatment for Gender Dysphoria, girls and women who encountered me in female restrooms reacted negatively because they perceived me to be a boy. For example, when I used the girls’ restroom in eighth and ninth grade, girls would tell me “this is the girls’ room” and ask me to leave. My appearance now is even more masculine. In addition, using the girls’ room would cause me to experience severe psychological distress and would be incompatible with my treatment for Gender Dysphoria.
26. To the best of my knowledge, there are now three single-stall unisex restrooms at Gloucester High School that I am permitted to use. Only one of the single-stall restrooms is located anywhere near the restrooms used by other students. Unlike some of the boys’ restrooms,

151a
none of the new single stall restrooms are located near my classes. As far as I am aware, none of the other students uses the single-stall unisex restrooms.
27. I refuse to use the separate single-stall restrooms because they make me feel even more stigmatized and isolated than when I use the restroom in the nurse’s office. They designate me as some type of “other” or “third” sex that is treated differently than everyone else. Everyone knows that they were installed for me in particular so that other boys would not have to share the same restroom as me.
28. Instead of using the separate restrooms, I try to avoid using the restrooms entirely while at school, and, if that is not possible, I use the nurse’s restroom. I limit the amount of liquids I drink and try to “hold it” when I need to urinate during the school day. As a result of trying to avoid using the restroom, I have repeatedly developed painful urinary tract infections. “Holding it” is also uncomfortable and distracting when I am trying to focus in class.
29. Every time I use the restroom at school, I am reminded that nearly every person in my community now knows I am transgender and that I have now been publically identified as “different.” It also stark reminder that I was born in the wrong sex, which increases my feelings of dysphoria, anxiety, and distress.
30. It is embarrassing that, every time I use the restroom, everyone who sees me enter the nurse’s office knows exactly why I am in there. They know it is because I am transgender and I have been prohibited from using the same boys’ restrooms that the other boys use.
31. It also feels humiliating that, whenever I have to use the restroom, I am effectively reminding anyone who

152a
sees me go to the nurse’s office that, even though I am living and interacting with the world in accordance with my gender identity as a boy, my genitals look different.
32. I just want to live my life like any other boy. And I want to perform the basic human function of using the restroom without being made to feel alienated, humiliated, and different than everyone else.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on June 3, 2015.
By: [SIGNATURE FILED UNDER SEAL] G.G.

153a Agenda Item Details

Meeting

Jun 09, 2016 - Regular Meeting No. 21

Category

4. Action Items 8:45 p.m.

Subject

4.03 Student Rights and Responsibilities, Regulation 2601.30P

Type

Action

Recommended Action

That the School Board adopt Regulation 2601.30P, Student Rights and Responsibilities, as detailed in the agenda item.

Staff Contact: Jane H. Lipp, assistant superintendent, Department of Special Services

Meeting Category: June 9, 2016 Regular Meeting

Subject: Student Rights and Responsibilities, Regulation 2601.30P

School Board Action Required: Decision

Related To: Legal Requirement

Key Points:

Note: The cover sheet and attached Regulation 2601 posted on June 2, 2016 for consideration at the June 9, 2016 Board meeting, included a proposed change regard-

154a
ing Chapter 1, Section J. This proposal has been withdrawn.
A. In chapter I.I.2., changed “The principal’s decision on a complaint may be appealed by the student or parent to the regional assistant superintendent within two school days following receipt of the principal’s decision” to read “The principal’s decision on a complaint may be submitted for review by the student or parent to the regional assistant superintendent within two school days following receipt of the principal’s decision.” (page 9)
B. In chapter II.A.3.a.(1) footnote 8 deleted “High school students shall participate in the FCPS Tobacco Intervention Seminar. Elementary and middle schools students shall participate in an in-school intervention support program to be conducted by the Student Safety and Wellness Office” and added “to be conducted by the Student Safety and Wellness Office.” (page 16)
C. In chapter II,A.3.d.(2)(c), changed “Theft or attempted theft of a student’s prescription drug. A report shall be made to the police in accordance with the Code of Virginia” to read “Theft of a student’s prescription drug. A report shall be made to the police in accordance with the Code of Virginia.” (page 20)
D. In chapter II,A.4.b.(4), added “Attempted theft of another person’s prescription medication. A report shall be made to the police in accordance with the Code of Virginia where the attempted theft is of student medication(s).” (page 21)

155a
E. In chapter II,C.3.e., changed “Emergency Suspension” to read “Emergency Temporary Removal” and change “disruption may be summarily removed” to read “disruption may be removed.” (page 29)
F. In chapter II.C.6., removed “or the Restorative Behavior Intervention Seminar.” (page 32)
Proposed Board Amendments
1. I move that the Board's action regarding R2601 be postponed until the June 30 Board meeting. [Wilson]
2. I move to amend the motion by replacing the first sentence of Chapter I, Section J with the following: No student in FCPS shall, on the basis of age, race, color, sex, sexual orientation, gender identity, religion, national origin, marital status, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity. [McElveen]
3. I move to delay consideration of Mr. McElveen’s motion until the June 30 Board meeting to i) allow public notice of a significant, substantive change to R2601, (ii) give time for Board discussions with staff at a work session on issues related to Mr. McElveen’s proposed changes, and (iii) provide time for the Board to discuss proposed changes with each other and our communities. [Wilson]
4. I believe the numerous questions raised by Mr. McElveen’s amendment raise unique and complex ques-

156a
tions that require considerably more study and investigation than is possible tonight. Thus, I move to refer the proposed new language to a special committee to study and investigate with staff these questions. I propose that the committee be made up of several Board members, including, but not limited to, Mr. McElveen, Mrs. Hough, Mrs. Corbett-Sanders and me. [Wilson]
Recommendation:
That the School Board adopt Regulation 2601.30P, Student Rights and Responsibilities, as detailed in the agenda item.
Attachment: R2601.30P – 6-9-16 Strikethrough copy FY2016-17 R2601.30P – 6-9-16 Clean copy FY2016-17
6-9-16 R2601.30P Aug 2016 StrikeThroughCopy.pdf (692 KB)
6-9-16 R2601.30P Aug 2016 CleanCopy.pdf (566 KB)
Motion & Voting
I believe the numerous questions raised by Mr. McElveen’s amendment raise unique and complex questions that require considerably more study and investigation than is possible tonight. Thus I move to postpone the vote on Mr. McElveen’s amendment for an indefinite period of time so that we may refer the proposed new language to a special committee to study and investigate with staff these questions. I propose that the committee

157a
be made up of several Board members, including, but not limited to, Mr. McElveen, Mrs. Hough. Mrs. Corbett Sanders and me.
Motion by Tom Wilson, second by Elizabeth Schultz. Final Resolution: Motion Fails Yes: Jeanette Hough, Tom Wilson, Elizabeth Schultz No: Tamara D Kaufax, Ryan McElveen, Jane K Strauss, Karen Corbett Sanders, Sandra S Evans - Vice Chairman, Patricia Hynes - Chairman, Ilryong Moon, Megan McLaughlin, Dalia Palchik
I move to delay consideration of Mr. McElveen’s motion until the June 30 Board meeting to i) allow public notice of a significant, substantive change to R2601, (ii) give time for Board discussions with staff at a work session on issues related to Mr. McElveen’s proposed changes, and (iii) provide time for the Board to discuss proposed changes with each other and our communities.
Motion by Tom Wilson, second by Megan McLaughlin. Final Resolution: Motion Fails Yes: Jeanette Hough, Tom Wilson, Megan McLaughlin, Elizabeth Schultz No: Tamara D Kaufax, Ryan McElveen, Jane K Strauss, Sandra S Evans - Vice Chairman, Patricia Hynes Chairman, Ilryong Moon, Dalia Palchik Abstain: Karen Corbett Sanders
I move to amend the motion by replacing the first sentence of Chapter I, Section J with the following: No student in FCPS shall, on the basis of age, race, color, sex, sexual orientation, gender identity, religion, national

158a
origin, marital status, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity.
Motion by Ryan McElveen, second by Ilryong Moon. Final Resolution: Motion Carries Yes: Tamara D Kaufax, Ryan McElveen, Jane K Strauss, Karen Corbett Sanders, Sandra S Evans - Vice Chairman, Patricia Hynes - Chairman, Ilryong Moon, Megan McLaughlin, Dalia Palchik No: Jeanette Hough, Tom Wilson, Elizabeth Schultz
I move that the Board’s action regarding R2601 be postponed until the June 30 Board meeting.
Motion by Tom Wilson, second by Elizabeth Schultz. Final Resolution: Motion Fails Yes: Jeanette Hough, Tom Wilson, Elizabeth Schultz No: Tamara D Kaufax, Ryan McElveen, Jane K Strauss, Karen Corbett Sanders, Sandra S Evans - Vice Chairman, Patricia Hynes - Chairman, Ilryong Moon, Dalia Palchik Abstain: Megan McLaughlin
That the School Board adopt Regulation 2601.30P, Student Rights and Responsibilities, as amended and as detailed in the agenda item.
Motion by Sandra S Evans - Vice Chairman, second by Tamara D Kaufax. Final Resolution: Motion Carries

159a
Yes: Tamara D Kaufax, Ryan McElveen, Jane K Strauss, Karen Corbett Sanders, Sandra S Evans - Vice Chairman, Patricia Hynes - Chairman, Ilryong Moon, Megan McLaughlin, Dalia Palchik No: Jeanette Hough, Tom Wilson, Elizabeth Schultz

160a

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NEWPORT NEWS DIVISION
FILED June 29, 2015
Clerk, US District Court Norfolk, VA

G.G., by his next friend and mother, DEIRDRE GRIMM,

Plaintiff,

Civil No. 4:15cv54

v.

Judge Robert G. Doumar

Magistrate Judge Tommy E.

Miller

GLOUCESTER COUNTY SCHOOL BOARD,

Defendant.

STATEMENT OF INTEREST OF THE UNITED STATES

[Tables of contents and authorities omitted]

INTRODUCTION
Plaintiff G.G. is a 16-year-old student who is enrolled at Gloucester High School in Gloucester Public School

161a
District (the “District”). Declaration of G.G. (“G.G. Decl.”) ¶¶ 4–5. Defendant Gloucester County School Board is an elected body responsible for the operation of the District. See Plaintiffs Complaint (“Compl.”) at ¶ 11. G.G. is a transgender boy.1 See G.G. Decl. at ¶ 10. He was assigned the female sex at birth, but his gender identity is male and he presents as a boy in all aspects of his life. See id. at ¶¶ 6, 11. GG alleges that the District denied him equal treatment and benefits and subjected him to discrimination based on sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, when it passed a policy banning his continued use of the boys’ restrooms because the School Board did deem him to be “ ‘biologically’ male,” despite his use of those facilities without incident for seven weeks. Compl. ¶¶ 6, 65; see also G.G. Decl. at ¶¶ 20, 22–23. G.G. has moved for a preliminary injunction requiring the District to allow him to resume using the boys’ restrooms at Gloucester High School when he returns for the first day of classes on September 8, 2015. Plaintiff’s Memorandum In Support of Motion for Preliminary Injunction at 1 (“Plaintiff Memo”).
The United States files this Statement of Interest to assist the Court in evaluating G.G.’s request for a preliminary injunction, specifically, in determining whether G.G. has established a likelihood of success on the merits and whether an injunction is in the public interest.2 Un-
1 A transgender person has a gender identity (i.e., one’s internal sense of gender) that is different from the individual’s assigned sex at birth (i.e., the gender designation listed on one’s original birth certificate).
2 The United States does not address the factors of irreparable harm Continued …

162a
der Title IX, discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity to sex stereotypes constitutes discrimination based on sex. As such, prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination.
INTEREST OF THE UNITED STATES
The United States has authority to file this Statement of Interest pursuant to 28 U.S.C§ 517, which permits the Attorney General to attend to the interests of the United States in any case pending in a federal court. The United States has a significant interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination and that the proper legal standards are applied to claims under Title IX.3 The United States De-
or the balance of hardships that are also used to establish the need for a preliminary injunction. See infra p. 4.
3 The United States has furthered its significant interests noted above by intervening or submitting briefs in lawsuits involving claims of sex discrimination based on sex stereotyping and genderbased harassment against students under Title IX. See, e.g., United States’ Amicus Curiae Brief Supporting Plaintiffs-Appellants and Urging Reversal in Carmichael v. Galbraith, No. 12-11074 (5th Cir. Apr. 1, 2013) (explaining that the prohibitions against sex discrimination under Title IX prohibit sex-based harassment predicated on sex stereotyping), available at http://www.justice.gov/crt/about/app/ briefs/carmichaelbrf.pdf; United States’ Complaint-in- Intervention, Doe v. Anoka-Hennepin Sch. Dist. No. 11, No. 0:11-cv-01999 (D. Continued …

163a
partments of Justice and Education enforce Title IX and its implementing regulations in the education context. See 20 U.S.C. §§ 1681–1688 (2006); 34 C.F.R. Part 106 (2010); 28 C.F.R. Part 54 (2000).4
The United States thus respectfully submits this Statement of Interest to provide the correct legal standards governing sex discrimination claims under Title IX. Applying these standards, there is a strong likelihood of success on the merits of G.G.’s allegation of discrimination based on sex because the District has adopted and is enforcing a policy that discriminates based on sex (e.g., one’s gender identity, including one’s transgender status) and there is a strong public interest in eliminating discrimination based on sex in public schools.
Minn. Mar. 6, 2012) (explaining that the prohibitions against sex discrimination under Title IX and the Equal Protection Clause prohibit sex-based harassment because of gender non-conformity), available at http://www.justice.gov/crt/about/edu/documents/ anokacompint.pdf; and United States’ Mem. as Amicus Curiae in Response to Defs. Mot. to Dismiss/Mot. for Summary Judgment, Pratt v. Indian River Cent. Sch. Dist., No. 7:09-cv-00411 (N.D.N.Y. Jan. 3, 2011) (same), available at http://www.justice.gov/ crt/about/edu/documents/prattamicus.pdf.
4 The Departments of Justice and Education have also enforced Title IX in matters involving claims of sex discrimination against transgender students. See, e.g., Resolution Agreement between United States & Arcadia Unified Sch. Dist., July 24, 2013, available at http://www.justice.gOv/crt/about/edu/documents/casesummary. php#arcadia; Resolution Agreement between U.S. Dep’t of Educ. Office for Civil Rights (“OCR”) & Downey Unified Sch. Dist. (Oct. 8, 2014), available at http://www2.ed.gov/documents/press-releases/ downey-school-district-agreement.pdf.

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I. BACKGROUND
The United States recites the following facts drawn from Plaintiff’s Complaint and Declaration. Elrod v. Burns, 427 U.S. 347, 350 n.1 (1976) (“[U]ncontroverted affidavits filed in support of the motion for a preliminary injunction are taken as true.”). Gloucester County Public Schools and Gloucester High School are education programs receiving Federal financial assistance. Compl. ¶ 63. G.G. is a transgender student who completed his sophomore year at Gloucester High School. See G.G. Decl. at ¶¶ 5, 10. G.G. alleges that the District denied him the treatment and benefits afforded to other male students and that he was subjected to discrimination in violation of Title IX. See Plaintiff Memo; G.G. Decl. at ¶¶ 23, 32. Specifically, G.G. alleges that, although the school had allowed him to use the boys’ restroom for approximately seven weeks without incident, the school board passed a policy limiting the use of restroom facilities to students with “corresponding biological genders” and required students with “gender identity issues” to use an alternative private facility. Plaintiff Memo at 17. By passing this policy, the school board prohibited G.G. from continuing his use of the boys’ restrooms. G.G. Decl. at ¶ 24. G.G. seeks a preliminary injunction to reinstate his access to the boys’ restrooms, the status quo prior to the District’s approval of the policy in question. G.G. Decl. at ¶ 20. G.G. asks this Court to order that injunction before the first day of classes on September 8, 2015. Plaintiff Memo at 15.

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II. ARGUMENT
A. Preliminary Injunction Standard
To obtain 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.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Doe v. Wood Cnty.Bd. of Educ., 888 F. Supp. 2d 771, 773 (S.D. W. Va. 2012) (granting preliminary injunction in case alleging Title IX violations, relying on U.S. Department of Education regulations). To demonstrate that a plaintiff is likely to succeed on the merits, a plaintiff must make a “clear showing” that he is likely to succeed at trial, but “need not show a certainty of success.” Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013). The Supreme Court has also instructed courts to “pay particular regard” to public interest considerations. Winter, 555 U.S. at 24.
B. G.G. Has Established a Likelihood of Success on the Merits Because Title IX Prohibits Discrimination Based on Sex, Including Gender Identity, Transgender Status, and Nonconformity to Sex Stereotypes.
In considering G.G.’s request for a preliminary injunction, this Court must consider G.G.’s likelihood of success on the merits — that is, whether either Title IX prohibits a school district from passing, and then enforcing, a policy that prohibits a student from using the restroom that matches his gender identity. See League of

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Women, 769 F.3d at 236. For the reasons set forth below, Title IX prohibits such a policy as unlawful sex discrimination. Therefore, G.G. is likely to succeed on the merits.
1. Discrimination Based on Gender Identity, Including Transgender Status, is Discrimination Based on Sex.
G.G. is likely to succeed on the merits under Title IX. Under Title IX, “[n]o 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. § 1681(a); see also 34 C.F.R. § 106.31(a); 28 C.F.R. § 54.400(a).5 The plain language of the statute thus affirms that Title IX protects all persons, including transgender students, from sex discrimination. Title IX’s implementing regulations specifically prohibit recipients from engaging in differential or adverse treatment on the basis of sex, including, inter alia,
• “[t]reat[ing] any one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;”
5 The District’s restroom policy is part of its “educational program or activity.” See 20 U.S.C. § 1687(2)(b) (defining “program or activity” to mean “all the operations” of a “local education agency . . . any part of which is extended Federal financial assistance”).

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• “[p]rovid[ing] different aid, benefits, or services or provid[ing] aid, benefits, or services in a different manner;”
• “[d]eny[ing] any person any such aid, benefit, or service;”
• “[s]ubject[ing] any person to separate or different rules of behavior, sanctions, or other treatment”
• “[o]therwise limit[ing] any person in the enjoyment of any right, privilege, advantage, or opportunity.
34 C.F.R § 106.31(b); 28 C.F.R. § 54.400(b). Therefore, any student, including a transgender student, may state a valid claim under Title IX by alleging that the defendant denied or limited the student’s ability to participate in or benefit from the school’s programs or activities on the basis of sex.6
The term “sex” as it is used in Title IX is broad and encompasses gender identity, including transgender status. “There is no doubt that ‘if we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.’ ” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982) (brackets omitted). In Price Waterhouse v. Hopkins, the Supreme Court flatly rejected the notion that “sex” encompasses only one’s biological status as male or female, concluding, instead,
6 See OCR, Questions and Answers on Title IX and Sexual Violence (Apr. 29,2014), available at http://www2.ed.gov/about/offices/list/ocr/ docs/qa-201404-title-ix.pdf (“OCR Sexual Violence Q&A”), at 5 (“[T]he actual or perceived sexual orientation or gender identity of the parties does not change a school’s [Title IX] obligations.”).

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that sex discrimination also encompasses differential treatment based on one’s failure to conform to sociallyconstructed gender expectations.7 490 U.S. 228, 250 (1989) (plurality opinion). Thus, “under Price Waterhouse, ‘sex’ under Title VII encompasses both sex — that is, the biological differences between men and women — and gender.” Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (court’s italics); see also Macy v. Holder, 2012 WL 1435995, at *6 (EEOC Apr. 20, 2012).8 This is
7 All the cases cited in this paragraph except for North Haven interpret Title VII of the Civil Rights Act (“Title VII”). Federal courts routinely rely on Title VII’s analogous prohibition of sex discrimination in employment when construing the meaning of Title IX’s antidiscrimination provisions. See, e.g., Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75 (1992) (applying Supreme Court’s interpretation of sex discrimination under Title VII to Title IX); Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (“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.”); Preston v. Virginia ex rel New River Comm. Coll., 31 F.3d 203, 207–08 (4th Cir. 1994) (holding that Title IX discrimination claim should be interpreted in accordance with principles governing Title VII).
8 In Johnston v. Univ. of Pittsburgh, No. 13-213, 2015 WL 1497753 (W.D. Pa. Mar. 31, 2015), appeal docketed No. 15-2022 (3d Cir. Apr. 22, 2015), the district court adopted a “narrow view of the meaning of the statutory term ‘sex’ ” in concluding that Title IX does not prohibit discrimination based on gender identity or transgender status. Id. at*14. Under that narrow view, the court interpreted the term to mean “nothing more than male or female, under the traditional binary conception of sex consistent with one’s birth or biological sex.” Id. at *13. The district court’s reasoning in that case was faulty and should not be followed. As several courts have recognized, the decades-old Title VII case law the court cited for this sex-gender distinction has been “eviscerated” by the Supreme Court’s decision in Price Waterhouse. See Smith, 378 F.3d at 573; see also Schwenk, 204 F.3d at 1202 (noting that the judge-made distinction between Continued …

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because an individual’s gender identity is one aspect of an individual’s sex. See, e.g., Smith v. City of Salem, 378 F.3d 566,575 (6th Cir. 2004); Schroer v. Billington, 424 F. Supp. 2d 203,211 (D.D.C 2006) (“scientific observation may well confirm . . . that sex is not a cut-and-dried matter of chromosomes”) (internal citations omitted). Consequently, discrimination on the basis of gender identity is “literally” discrimination on the basis of sex. Schroer v. Billington, 577 F. Supp. 2d 293, 306–07 (D.D.C. 2008).9
Furthermore, Title IX prohibits sex discrimination based on the perception that an individual has undergone, or is undergoing a gender transition. In Schroer, the court offered the following analogy to help explain how discrimination against an individual because he or she has undertaken, or is undertaking, a gender transition10 is sex discrimination:
sex and gender “has been overruled by the logic and language of Price Waterhouse”). Ultimately, the district court in Johnston attempted to discern the state of mind of the legislators when Congress prohibited sex discrimination in 1972, but that was not the proper inquiry. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 79 (1998) (explaining that “[s]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”); accord Macy, 2012 WL 1435995, at *9–10 and n.10.
9 This is so even though the words gender identity or transgender are not explicitly used in Title IX. The statute’s literal language “demonstrates breadth” and may not be judicially narrowed even if it results in the statute being “applied in situations not expressly anticipated by Congress.” PA Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985)).
10 A gender transition is the process in which transgender individuContinued …

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Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.
577 F. Supp. 2d at 306 (emphasis in original). Denying Title IX’s protections to a student because he has changed or is changing his sex would be “blind . . . to the statutory language itself.” Id. at 307; see also Lusardi v. McHugh, Appeal No. 0120133395, 2015 WL 1607756, at *7–8 (EEOC Apr. 1, 2015) (concluding that federal agency violated Title VII where the complainant’s “transgender status was the motivation” for the agency to bar her from using the common women’s restrooms); Macy, 2012 WL 1435995, at *11 (concluding that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII”).
This conclusion is reinforced, for purposes of Title IX, by the enforcing agencies’ interpretation of that
als assert the sex that corresponds to their gender identity instead of their sex assigned at birth. A gender transition includes a “social transition,” during which an individual begins to live and identify as the sex consistent with the individual’s gender identity.

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statute and its regulations, which is controlling unless it is “plainly erroneous or inconsistent with the regulation.” D.L. ex rel K.L. v. Balt. Bd. of Sch. Comm’rs, 706 F.3d 256, 259 (4th Cir. 2013) (deferring to agency opinion letter) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997) (deferring to federal government amicus brief)); see, e.g., Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 647– 48 (1999) (applying OCR’s Title IX guidance when evaluating Title IX’s application to student-on-student harassment); Biediger v. Quinnipiac Univ., 691 F.3d 85, 97 (2d Cir. 2012) (holding that OCR’s guidance is entitled to “substantial deference” in interpreting Title IX). The United States Department of Education (“ED”) through its Office for Civil Rights (“OCR”) has issued guidance recognizing that Title IX protects transgender students against discrimination based on their gender identity. See OCR, Questions and Answers on Title IX and Sexual Violence (April 29, 2014), available at http://www2.ed. gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf, at 5 (clarifying that Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity).
ED has also explained, in other guidance, how its interpretation of Title IX applies when a school is permitted by Title IX to offer sex-segregated programs. Specifically, in the context of single-sex classes, “[u]nder Title IX, a [school district] generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation.” OCR, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014), available at http://www.ed.gov/ocr/docs/faqs-title-ix-

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single-sex-201412.pdfCOCRSingle-Sex Classes and Activities Q&A”), at 25. And, in the context of Title IX’s application to gender identity discrimination in sexsegregated facilities such as restrooms, OCR issued a letter in response to an inquiry specifically about a school district’s restroom policies.11 In its response, OCR clarified: “The Department’s Title IX regulations permit schools to provide sex-segregated restrooms . . . under certain circumstances. When 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.” Letter from James A. Ferg-Cadima, Acting Deputy Assistant Secretary of Policy, Office for Civil Rights, U.S. Department of Education, January 7, 2015 (attached as Exhibit B).12
11 Although the Department did not publicly issue its response, the inquiry letter and the Department's response are attached respectively as Exhibit A and Exhibit B.
12 See also Kastl v. Maricopa Cnty. Cmty. Coll., 2004 WL 200895, at *3 (D. Ariz. June 3, 2004) (the fact that Title VII permits employers to “create restrooms for each sex” does not mean they can “require a woman to use the men’s restroom if she fails to conform to the employer’s expectations regarding a woman’s anatomy”); cf. Doe v. Reg’l Sch. Unit 26, 86 A.3d 600, 605 (Me. 2014) (holding that school district could not defend its decision to exclude a transgender girl from the girls’ restrooms based on a state statute requiring sexseparated bathrooms in public schools because that statute “does not purport to establish guidelines for the use of school bathrooms” nor “address how schools should monitor which students use which bathroom, and it certainly offers no guidance concerning how gender identity relates to the use of sex-separated facilities”).

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Thus, the expansive construction of “sex” as spelled out in Price Waterhouse and its progeny; and the consistent interpretation of that term by the relevant enforcing federal agencies, which is entitled to substantial deference, both confirm that Title IX and its regulations protect G.G. from discrimination on the basis of gender identity, including transgender status.
2. Discrimination Based on a Transgender Individual’s Nonconformity to Sex Stereotypes is Discrimination Based on Sex.
G.G. is also likely to succeed on the merits of his Title IX claim under an alternative sex stereotyping theory. The Supreme Court made clear in Price Waterhouse that discrimination based on an employee’s nonconformity to sex stereotypes is a form of sex discrimination. 490 U.S. at 239–40, 250–51; see also Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135, 151–52 (N.D.N.Y. 2011) (denying defendant’s motion to dismiss because harassment based on nonconformity to sex stereotypes is a legally cognizable claim under Title IX and the Equal Protection Clause). These protections have also been applied to students in the school context under Title IX.13
13 Federal courts have consistently held that plaintiffs alleging discrimination based on nonconformity to sex stereotypes may state an actionable claim of sex discrimination under Title IX. See Doe v. Brimfield Grade Sch., 552 F. Supp. 2d 816, 823 (C.D. Ill. 2008); Theno v. Tonganoxie Unified Sch. Dist., 377 F. Supp. 2d 952, 964–65 (D. Kan. 2005); Montgomery v. Indep Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1090–93 (D. Minn. 2000).

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Federal courts have recognized that discrimination based on stereotypes about how individuals express their gender identity, including generalizations about the relationship between one’s gender identity and anatomy, is an actionable form of sex discrimination under federal law.14 The district court in Kastl v. Maricopa Cnty. Cmty. Coll. Dist. denied a school’s motion to dismiss Title VII and Title IX sex discrimination claims by a transgender plaintiff who was denied access to restrooms consistent with his gender identity. No. Civ.021531PHX-SRB, 2004 WL 2008954 (D. Ariz. June 3, 2004). The court found that the nature of the discrimination prohibited by Price Waterhouse included differential treatment based stereotypes about an individual’s
14 See, e.g., EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 454 (5th Cir. 2013) (finding that sex stereotyping evidence may be used to establish a sex discrimination claim where there is a perception that a plaintiff does not “conform to traditional gender stereotypes”); Barnes v. City of Cincinnati, 401 F.3d 729, 735–39 (6th Cir. 2005) (transgender plaintiff stated claim for sex discrimination under Title VII and Equal Protection Clause based on failure to conform to sex stereotypes); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) ("discrimination against a plaintiff who is a transsexual — and therefore fails to act and/or identify with his or her gender — is no different from the discrimination directed against Ann Hopkins in Price Waterhouse”); Glenn, 663 F.3d at 1320–21 (finding “ample direct evidence” that plaintiff, a transgender woman, had been discriminated against because of sex where defendant testified that his decision to fire her was based “on his perception of [plaintiff] as ‘a man dressed as a woman and made up as a woman’ ”); Finkle v. Howard Cnty., 12 F. Supp. 3d 780, 788 (D. Md. 2014) (holding that plaintiff’s claim that she was discriminated against “because of her obvious transgendered status” is a cognizable claim of sex discrimination under Title VII).

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“behavior, appearance, or anatomical features.”15 Id. at *3. The Kastl court made clear that neither a “woman with male genitalia nor a man with stereotypically female anatomy” may be discriminated against “by reason of that nonconforming trait.” Id. at *2.16 ED has also issued
15 Some courts have limited the ability of transgender people to rely on the sex stereotyping theory when their claims of discrimination involve access to gender identity-appropriate restrooms. See, e.g., Michaels v. Akal Sec, Inc., No. 09-cv-01300-ZLW-CBS, 2010 WL 2573988 (D. Colo. June 24, 2010) (“Etsitty [v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007)] precludes such a claim [i.e., gender stereotyping under Price Waterhouse] based solely upon restrictions on Plaintiff’s usage of certain bathrooms.”) (emphasis added). But the Johnston court’s recent assertion that sex stereotyping claims can only be “based on behaviors, mannerisms, and appearances” and cannot be based on gender-nonconforming anatomy has no support in law or logic. Johnston, 2015 WL 1497753, at *16; see also Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007). Both cases are grounded in a flawed premise: namely, that the “sex” of the transgender plaintiff, for Title VII purposes, is the sex he was assigned at birth, not the gender with which he identifies. It is true that sex stereotyping claims brought by transgender plaintiffs often involve claims that the defendant discriminated against the plaintiff because the plaintiff’s gender presentation did not conform to the defendant’s belief about how a person of the plaintiff’s assigned birth sex should look, speak, or behave. However, nothing in Price Waterhouse or its progeny purported to limit the availability of the theory to only those forms of sex stereotyping. Indeed, sex-based stereotyping regarding anatomy (e.g., that women have breasts or that men have two testicles), is also prohibited discrimination based on sex.
16 On a subsequent summary judgment motion, the district court ruled that the Plaintiff failed to meet her burden of establishing a prima facie case of discrimination because she “failed to properly present evidence supporting her theory that there are other determinants of biological sex or which, if any, of those determinants apContinued …

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guidance stating that Title IX prohibits discrimination based on sex stereotypes, including when that discrimination is directed at transgender individuals. OCR Sexual Violence Q&A at 5–6 (“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.”).17
plies to Plaintiff.” Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 2006 WL 2460636, at *6 (D. Ariz. Aug. 22, 2006). In an unpublished decision, the Ninth Circuit affirmed the district court’s grant of summary judgment to the college on the ground that the transgender female plaintiff failed to show that the college’s asserted reason for barring her from the women’s restroom — namely, safety — was pretextual. Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 Fed. Appx. 492, 494 (9th Cir. 2009). Apart from the fact that there is no indication of a safety concern here — Gloucester school officials had readily allowed G.G. to use the boys’ restrooms for nearly two months without incident — the Ninth Circuit’s reliance on plaintiff’s failure to meet the standards under the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) was misplaced. “[A]n employee need not use the McDonnell Douglas framework when there is direct evidence that an adverse employment action has been taken on the basis of a sex-based consideration such as an employee’s transgender status.” Lusardi, EEOC Decision No. 0120133395 at n.6. For purposes of G.G.’s allegations, the critical point is that even the Ninth Circuit upheld the district court’s conclusion that the Kastl plaintiff alleged a valid prima facie sex stereotyping claim based on her nonconformity with the college’s stereotypes about what anatomy one must have to be female. See Kastl, 325 Fed. Appx. at 493.
17 See also OCR Single-Sex Classes and Activities Q&A, at 25; OCR, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001), available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide. pdf, at v.

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Here, the District adopted a policy to prevent G.G., who presents and identifies as male, from using male restroom facilities, despite the fact that he had been using those facilities without incident for seven weeks. That policy, and its application to G.G., is based on impermissible sex stereotypes about what it means to be a boy. For that reason, G.G. is likely to succeed on the merits of his Title IX claim under a sex stereotyping theory as well.
C. Granting a Preliminary Injunction is in the Public Interest.
Finally, granting the injunctive relief G.G. seeks would serve the public interest. Requiring public schools to comply with their Title IX obligation not to discriminate on the basis of sex serves the public interest. See Cohen v. Brown Univ., 991 F. 2d 888, 906 (1st Cir. 1993) (affirming district court’s conclusion “that the overriding public interest lay in the firm enforcement of Title IX”).
In the education context in particular, the public interest favors eliminating policies that single out a minority of public school students for different treatment on the basis of sex. When a State makes free public education available to the children in its jurisdiction (and, in fact, adopts compulsory attendance laws that presumptively require attendance), educational opportunity must “be made available to all on equal terms.” Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954). In the Gloucester Public School District, however, G.G. and any other transgender students like him are being singled out and denied access to restrooms consistent with their gender identity solely on that basis — a basic right that all other students enjoy. That singling out results in isolation and

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exclusion and perpetuates a sense that the student is not “worthy of equal treatment and respect.” Lusardi, EEOC Decision No. 0120133395 at 13; see also Brown, 374 U.S. at 494 (“A sense of inferiority affects the motivation of a child to learn.” (quoting state court)). Granting transgender students access to restrooms consistent with their gender identity will serve the public interest by ensuring that the District treats all students within its bounds with respect and dignity.
Singling out transgender students and subjecting them to differential treatment can also make them more vulnerable to bullying and harassment, a problem that transgender students already face. For example, during the 2008–2009 school year, “more than 90 percent of [lesbian, gay, bisexual, and transgender] students in grades 6 through 12 reported being verbally harassed — and almost half reported being physically harassed.” Dear Colleague Letter from Sec’y Duncan (June 14, 2011), available at http://www2.ed.gov/policy/elsec/guid/ secletter/110607.html. Allowing transgender students to use the restrooms consistent with their gender identity will help prevent stigma that results in bullying and harassment and will ensure that the District fosters a safe and supportive learning environment for all students, a result that is unquestionably in the public interest.18
18 It is well-established that academic excellence and student success depend on the school environment being both safe and supportive. See “Guiding Principles: A Resource Guide for Improving School Climate and Discipline,” ED (Jan. 2014), at 5; see also “School Climate,” ED, American Institute for Research, Safe Supportive Learning, available at http://safesupportivelearning.ed.gov/schoolclimate. By contrast, students who are bullied suffer from negative physical, social, and mental health issues. The White House and varContinued …

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Numerous jurisdictions around the country allow transgender students to use facilities corresponding to their gender identity.19 Likewise, the federal government has recognized the importance of establishing policies in the workplace that allow transgender employees to use facilities corresponding to their gender identity, see U.S. Office of Personnel Management (“OPM”), “Gender Identity Guidance” (stating that federal agencies “should allow access to restrooms and (if provided to other employees) locker room facilities consistent with [a transgender employee’s] gender identity”); see U.S. Dept. of Labor, Occupational Safety and Health Admin-
ious Federal agencies, including the Departments of Justice and Education, have worked, and continue to work, to prevent bullying and educate the public about the negative effects of bullying. See, e.g., www.stopbullying.gov (providing information from various government agencies on what bullying is, what cyberbullying is, who is at risk, and how one can prevent and respond to bullying); “Background on White House Conference on Bullying Prevention,” White House Press Release (Mar. 10, 2011), available at https://www. whitehouse.gov/the-press-office/2011/03/10/background-whitehouse-conference-bullying-prevention.
19 Cal. Ed. Code § 221.5(f) (permitting students to participate in sexsegregated school programs and activities, including athletic teams and competitions, and use facilities consistent with the student’s gender identity, irrespective of the gender listed on the student’s records); § 81.11, 3 Colo. Code Regs. (Dec. 2014) (allowing individuals the use of gender-segregated facilities consistent with their gender identity); Mass. Dep’t of Elem. & Sec. Educ., Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment: Nondiscrimination on the Basis of Gender Identity 9–10 (2013); Conn. Safe Schools Coalition, Guidelines for Connecticut Schools to Comply with Gender Identity and Expression Non- Discrimination Laws 12–13 (2012).

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istration, “A Guide to Restroom Access for Transgender Workers” (stating that, for employees of companies regulated by OSHA, “all employees should be permitted to use the facilities that correspond with their gender identity”).20 Such policies protect against the adverse impact brought on by discriminatory policies, discussed supra, and the public interest would be well served by providing the same protections to students in school as are provided to adults in the workplace.
Although certain parents and community members may object to students sharing a common use restroom with transgender students, any recognition of this discomfort as a basis for discriminating would undermine the public interest.21 It is axiomatic that a school district cannot justify sex discrimination by asserting that it acted upon a “desire to accommodate other people’s prejudices or discomfort.” Macy, 2012 WL 1435995, at *10 and n.15. As the EEOC stated in Lusardi, “[a]llowing the
20 The federal government has also established similar policies for participants in other federally funded education programs. See U.S. Dept. of Labor, Office of Job Corps, at 3-4, “Directive: Job Corps Program Instruction Notice No. 14-31” (stating that the overriding factor in assigning students to sex-specific facilities should be the student's gender identity).
21 Moreover, courts have rejected similar claims brought by individuals who have objected to sharing facilities with a transgender person. See, e.g., Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981, 983– 984 (8th Cir. 2002) (rejecting argument that being required to share restroom facilities with a transgender coworker constituted an “adverse employment action” under Title VII); Crosby v. Reynolds, 763 F. Supp. 666, 670 (D. Me. 1991) (rejecting claim that placing a transgender person in a jail cell with someone who was not transgender violated clearly established right to privacy).

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preferences of [others] to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices” the law prohibits. Lusardi, EEOC Decision No. 0120133395 at 10; see also “Directive: Job Corps Program Instruction Notice No. 14-31,” Dept. of Labor Job Corps at 4 (“[M]ost courts have concluded that an entity’s desire to cater to the perceived biases of its customers, employees, or other third parties is not a defense for unlawful discrimination. The same principle applies to discrimination against transgender persons.”); cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”); Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (“mere negative attitudes, or fear . . . are not permissible bases for” government action).
For all these reasons, it is the view of the United States that it is in the public interest to allow G.G., whose gender identity is male and who presents as male in all aspects of his life, to use the male restrooms at Gloucester High School.
CONCLUSION
The United States respectfully requests that this Court find that Plaintiffs Motion for a Preliminary Injunction has established a likelihood of success on the merits under Title IX, and that there is a strong public interest in requiring the District to treat G.G., a transgender male student, like all other male students, including allowing him to use the male restrooms at Gloucester High School.
Respectfully submitted,

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JAMES COLE, JR. General Counsel U.S. Department of Education
VANESSA SANTOS MICHELLE TUCKER Attorneys U.S. Department of Education

EVE HILL Deputy Assistant Attorney General
ANURIMA BHARGAVA WHITNEY PELLEGRINO VICTORIA LILL DWAYNE J. BENSING Educational Opportunities Section Civil Rights Division U.S. Department of Justice

DANA J. BOENTE United States Attorney

/s/ Clare P. Wuerker CLARE P. WUERKER Virginia Bar No. 79236 Assistant United States Attorney United States Attorney's Office 101 West Main Street, Suite 8000 Norfolk, VA 23510 Telephone: 757-441-6331 Facsimile: 757-441-6689 Email: Clare.Wuerker@usdoj.gov

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

STATE OF TEXAS et al., Plaintiffs, v.

Civil Action No. 7:16-cv-00054–O

UNITED STATES OF AMERICA, et al. Defendants.

PRELIMINARY INJUNCTION ORDER
Before the Court are Plaintiffs’ Application for Preliminary Injunction (ECF No. 11), filed July 6, 2016; Defendants’ Opposition to Plaintiffs Application for Preliminary Injunction (ECF No. 40), filed July 27, 2016; and Plaintiffs’ Reply (ECF No. 52), filed August 3, 2016. The Court held a preliminary injunction hearing on August 12, 2016, and counsel for the parties presented their arguments. See ECF No. 56.1

1 The Court also considers various amicus briefs filed by interested parties. See ECF Nos. 16, 28, 34, 36- 1, 38-1.

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This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school. The sensitivity to this matter is heightened because Defendants’ actions apply to the youngest child attending school and continues for every year throughout each child’s educational career. The resolution of this difficult policy issue is not, however, the subject of this Order. Instead, the Constitution assigns these policy choices to the appropriate elected and appointed officials, who must follow the proper legal procedure.
That being the case, the issues Plaintiffs present require this Court to first decide whether there is authority to hear this matter. If so, then the Court must determine whether Defendants failed to follow the proper legal procedures before issuing the Guidelines in dispute and, if they failed to do so, whether the Guidelines must be suspended until Congress acts or Defendants follow the proper legal procedure. For the following reasons, the Court concludes that jurisdiction is proper here and that Defendants failed to comply with the Administrative Procedures Act by: (1) foregoing the Administrative Procedures Act’s notice and comment requirements; and (2) issuing directives which contradict the existing legislative and regulatory texts. Accordingly, Plaintiffs’ Motion should be and is hereby GRANTED.
I. BACKGROUND
The following factual recitation is taken from Plaintiffs’ Application for Preliminary Injunction (ECF No. 11) unless stated otherwise. Plaintiffs are composed of 13

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states and agencies represented by various state leaders, as well as Harrold Independent School District of Texas and Heber-Overgaard Unified School District of Arizona.2 They have sued the U.S. Departments of Education (“DOE”), Justice (“DOJ”), Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and various agency officials (collectively “Defendants”), challenging Defendants’ assertions that Title VII and Title IX require that all persons must be afforded the opportunity to have access to restrooms, locker rooms, showers, and other intimate facilities which match their gender identity rather than their biological sex.3 Plaintiffs
2 Plaintiffs include: (1) the State of Texas; (2) Harrold Independent School District (TX); (3) the State of Alabama; (4) the State of Wisconsin; (5) the State of West Virginia; (6) the State of Tennessee; (7) Arizona Department of Education; (8) Heber-Overgaard Unified School District (Arizona); (9) Paul LePage, Governor of the State of Maine; (10) the State of Oklahoma; (11) the State of Louisiana; (12) the State of Utah; (13) the state of Georgia; (14) the State of Mississippi, by and through Governor Phil Bryant; (15) the Commonwealth of Kentucky, by and through Governor Matthew G. Bevin.
3 Plaintiffs refer to a person’s “biological sex” when discussing the differences between males and females, while Defendants refer to a person’s sex based on the sex assigned to them at birth and reflected on their birth certificate or based on “gender identity” which is “an individual’s internal sense of gender.” See Am. Compl. 12, ECF No. 6; Mot. Injunction 1, ECF No. 11; Am. Compl. Ex. C (Holder Transgender Title VII Memo) (“Holder Memo 2014”) App. 1 n.1, ECF No. 6-3 (“ ‘[G]ender identity’ [is defined] as an individual’s internal senses of being male or female.”); Id. at Ex. J. (DOJ/DOE Letter) 2, ECF No. 6-10. When referring to a transgendered person, Defendants’ Guidelines state “transgender individuals are people with a gender identity that is different from the sex assigned to them at birth . . . .” Am. Compl., Ex. C (Holder Memo 2014), App. 1 n.1, ECF No. 6-3. “For example, a transgender man may have been Continued …

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claim that on May 13, 2016, Defendants wrote to schools across the country in a Dear Colleague Letter on Transgender Students (the “DOJ/DOE Letter”) and told them that they must “immediately allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding.” Mot. Injunction 1, ECF No. 11. Plaintiffs also allege Defendants have asserted that employers who “refuse to permit employees to utilize the intimate areas of their choice face legal liability under Title VII.” Id. Plaintiffs complain that Defendants’ interpretation of the definition of “sex” in the various written directives (collectively “the Guidelines”)4 as applied to Title IX of the Education Amendments of 1972 (“Title IX”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) is unlawful and has placed them in legal jeopardy.
Plaintiffs contend that when Title IX was signed into law, neither Congress nor agency regulators and third parties “believed that the law opened all bathrooms and other intimate facilities to members of both sexes.” Mot. Injunction. 1, ECF No. 11. Instead, they argue one of
assigned female at birth and raised as a girl, but identify as a man.” Id. at Ex. D (OSHA Best Practices Guide to Restroom Access for Transgender Employees) (“OSHA Best Practice Guide”), App. 1, ECF No. 6-4. The Court attempts to use the parties’ descriptions throughout this Order for the sake of clarity.
4 The Guidelines refer to the documents attached to Plaintiffs’ Amended Complaint: (1) Ex. A (DOE Bullying Memo 2010), ECF No. 6-1; (2) Ex. B (DOE Questions and Answers on Title IX and Sexual Violence Memo) (“DOE Q&A Memo), ECF No. 6-2; (3) Ex. C (“Holder Memo 2014”), ECF No. 6-3, (4) Ex. D (OSHA Best Practice Guide), ECF No. 6-4; (5) Ex. H (EEOC Fact Sheet), ECF No. 68; and (6) Ex. J (DOJ/DOE Dear Colleague Letter), ECF No. 6-10.

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Title IX’s initial implementing regulations, 34 C.F.R. § 106.33 (“§ 106.33” or “Section 106.33”), expressly authorized separate restrooms on the basis of sex. Section 106.33 provides: “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. § 106.33. Plaintiffs assert the term sex in the pertinent statutes and regulations means the biological differences between a male and female. Mot. Injunction 2, ECF No. 11. Plaintiffs state that Defendants’ swift move to supplant the traditional, biological meaning of sex with a definition based on gender identity through the Guidelines, coupled with Defendants’ actions to enforce these new agency policies through investigations and compliance reviews, causes Plaintiffs to suffer irreparable harm for which a preliminary injunction is needed. Id. at 3–8; Pls.’ Reply 3–7, ECF No. 54.
Defendants contend that the Guidelines and recent enforcement actions are designed to prohibit sex discrimination on the basis of gender identity and are “[c]onsistent with the nondiscrimination mandate of [Title IX],” and that “these guidance documents . . . are merely expressions of the agencies’ views as to what the law requires.” Defs.’ Resp. 2–4, ECF No. 40. Defendants also contend that the Guidelines “are not legally binding, and they expose [P]laintiffs to no new liability or legal requirements” because DOE “has issued documents of this nature for decades, across multiple administrations, in order to notify schools and other recipients of federal funds about how the agency interprets the law and how

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it views new and emerging issues.” Id. at 4–5.5 Defendants also state that the “[g]uidance documents issued by [DOE] ‘do not create or confer any rights for or on any person and do not impose any requirements beyond those required under applicable law and regulations’ ” and these documents expressly state that they do not carry the force of law. Id. at 5 (citing Holder Memo 2, ECF No. 6-10, to clarify that “the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status,” but the memo “is not intended to otherwise prescribe the course of litigation or defenses that should be raised in any particular employment discrimination case”).
A. Title IX
Title IX, enacted in 1972, is the landmark legislation which prohibits discrimination among federal fund recipients by providing that no person “shall, on the basis of sex, . . . be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” 20 USC § 1681. The legislative history shows Congress hailed Title IX as an indelible step forward for women’s rights. Mot. Injunction at 2–4. After its passage, the DOE and its predecessor implemented a number of regulations which sought to enforce Title IX, chief among them, and at issue here, § 106.33. See G.G. ex rel
5 Defendants cited to U.S. Dep’t of Educ., Office for Civil Rights, Sex Discrimination Policy Guidance, http://www2.ed.gov/about/ offices/list/ocr/frontpage/faq/rr/policyguidance/sex.html (last visited August 5, 2016) (discussing the purpose of guidance documents and providing links to guidance documents).

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Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 721 (4th Cir. 2016) (stating that the Department of Health, Education, and Welfare (“HEW”) adopted its Title IX regulations in 1975 pursuant to 40 Fed. Reg. 24,128 (June 4, 1975), and DOE implemented its regulations in 1980 pursuant to 45 Fed. Reg. 30802, 30955 (May 9, 1980)). Section 106.33, as well as several other related regulations, permit educational institutions to separate students on the basis of sex, provided the separate accommodations are comparable.
II. LEGAL STANDARDS
A. The Administrative Procedure Act (the “APA”)
“The APA authorizes suit by ‘[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ ” Norton v. S. Utah Wilderness All., 542 U.S. 55, 61 (2004) (quoting 5 U.S.C. § 702). “Where no other statute provides a private right of action, the ‘agency action’ complained of must be final agency action.’ ” Id. at 61–62 (quoting 5 U.S.C. § 704).6 In the Fifth
6 Agency action is defined in 5 U.S.C. § 551(13) to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004) (quoting 5 U.S.C. § 551(13)). “All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: ‘an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy’ (rule); ‘a final disposition . . . in a matter other than rule making’ (order); a ‘permit . . . or other form of permission’ (license); a ‘prohibition . . . or . . . taking [of] other compulsory or restrictive action’ (sanction); or a ‘grant of money, assistance, license, authority,’ etc., or ‘recognition of a claim, right, immunity,’ etc., or Continued …

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Circuit, “final agency action” is a jurisdictional threshold, not a merits inquiry. Texas v. Equal Employment Opportunity Comm’n, No. 14-10949, 2016 WL 3524242 at *5 (5th Cir. June 27, 2016) (“EEOC”); see also Peoples Nat’l Bank v. Office of the Comptroller of the Currency of the United States, 362 F.3d 333, 336 (5th Cir. 2004) (“If there is no ‘final agency action,’ a federal court lacks subject matter jurisdiction.” (citing Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999))).
An administrative action is “final agency action” under the APA if: (1) the agency’s action is the “consummation of the agency’s decision making process;” and (2) “the action [is] one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’ ” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); and Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). “In evaluating whether a challenged agency action meets these two conditions, this court is guided by the Supreme Court’s interpretation of the APA’s finality requirement as ‘flexible’ and ‘pragmatic.’ ” EEOC, 2016 WL 3524242, at *5; Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149–50 (1967)). When final agency actions are presented for judicial review, the APA provides that reviewing courts should hold unlawful and set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise
‘taking of other action on the application or petition of, and beneficial to, a person’ (relief).” Id. (quoting § 551(4), (6), (8), (10), (11)).

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not in accordance with the law. Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 150– 151 (1991).
B. Preliminary Injunction
The Fifth Circuit set out the requirements for a preliminary injunction in Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). To prevail on a preliminary injunction, the movant must show: (1) a substantial likelihood that the movant will ultimately prevail on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that granting the injunction is not adverse to the public interest. Id.; see also Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).
To qualify for a preliminary injunction, the movant must clearly carry the burden of persuasion with respect to all four requirements. Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003). If the movant fails to establish any one of the four prerequisites to injunctive relief, relief will not be granted. Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001). A movant who obtains a preliminary injunction must post a bond to secure the non-movant against any wrongful damages it suffers as a result of the injunction. Fed. R. Civ. P. 65(c).
The decision to grant or deny preliminary injunctive relief is left to the sound discretion of the district court. Miss. Power & Light Co. v. United Gas Pipe Line Co.,

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760 F.2d 618, 621 (5th Cir. 1985) (citing Canal, 489 F.2d at 572). A preliminary injunction “is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)). Even when a movant satisfies each of the four Canal factors, the decision whether to grant or deny a preliminary injunction remains discretionary with the district court. Miss. Power & Light Co., 760 F.2d at 621. The decision to grant a preliminary injunction is to be treated as the exception rather than the rule. Id.
III. ANALYSIS
Plaintiffs argue that: (1) Defendants skirted the notice and comment process — a necessity for legislative rules; (2) the new mandates are incompatible with Title VII and Title IX and the agencies are not entitled to deference; (3) the mandates violate the clear notice and anticoercion requirements which the federal government may attach to spending programs; and (4) nationwide relief is necessary to prevent the irreparable harm Defendants will cause Plaintiffs. Mot. Injunction 2–3, ECF No. 11.
Defendants assert that Plaintiffs are not entitled to a preliminary injunction because: (1) Plaintiffs do not have standing to bring their claims; (2) this matter is not ripe for review; (3) Defendants’ Guidelines do not violate the APA; (4) Plaintiffs cannot demonstrate irreparable harm and they have an alternative remedy; (5) Defendants did not violate the Spending Clause; (6) and an injunction would harm Defendants and third parties. Defs.’ Resp.

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1–3, ECF No. 40. Defendants allege that should an injunction be granted, it should be implemented only to Plaintiffs in the Fifth Circuit. Id. The Court addresses these issues, beginning with Defendants’ jurisdictional arguments.7
A. Jurisdiction
1. Standing
Defendants allege that “[P]laintiffs’ suit fails the jurisdictional requirements of standing and ripeness . . . because they have not alleged a cognizable concrete or imminent injury.” Defs.’ Resp. 12, ECF No. 40 (citing Lopez v. City of Hous., 617 F.3d 336, 342 (5th Cir. 2015)). Defendants allege “a plaintiff must demonstrate that it has ‘suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.’ ” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Defendants contend that “[t]he
7 The parties have requested that the Court provide expedited consideration of the preliminary injunction. The briefing on this request was completed on August 3, 2016, and the matter was not ripe until after the hearing was completed on August 12, 2016. Because further legal issues concerning the basis for Plaintiffs’ Spending Clause claim were raised at the hearing and require further briefing, the Court will not await that briefing at this time. See Hr’g Tr. 35, 44, 52–53 (discussing new program requirements and whether a new program is the same as annual grants). Therefore, the Spending Clause issue is not addressed in this Order. See ECF Nos. 11–12. Finally, where referenced, Title VII is used to help explain the legislative intent and purpose of Title IX because the two statutes are commonly linked. N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 546 (1982).

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agencies have merely set forth their views as to what the law requires” regarding whether gender identity is included in the definition of sex, and “[a]t this stage, [P]laintiffs have alleged no more than an abstract disagreement with the agencies’ interpretation of the law,” since “[n]o concrete situation has emerged that would permit the Court to evaluate [P]laintiffs’ claims in terms of specific facts rather than abstract principles.” Id. at 13–14.
Defendants also allege that Plaintiffs “have [not] identified any enforcement action to which they are or are about to be subject in which a defendant agency is seeking to enforce its view of the law. As such, any injury alleged by plaintiffs is entirely speculative, as it depended on the initiation of some kind of enforcement action . . . which may never occur.” Defs.’ Resp. 14, ECF No. 40.
Plaintiffs state that Defendants are affirmatively using the Guidelines to force compliance as evidenced by various resolution agreements reached in enforcement cases across the country and from the litigation against the state of North Carolina, all of which is designed to force Plaintiffs to amend their policies to comply or place their federal funding in jeopardy. Hr’g Tr. at 78. Plaintiffs argue they are clearly the object of the Defendants’ Guidelines, and those directives run afoul of various state constitutional and statutory codes which permit Plaintiffs to exercise control of their education premises and facilities.8 Hr’g Tr. at 77. Plaintiffs contend all of this
8 Plaintiffs’ motion provides the following citations to their state laws which give them legal control over the management of the safety and security policies of educational buildings in their states and Continued …

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which the Guidelines will compel them to disregard. Texas cites to Tex. Const. art 7 § 1 (“[I]t shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”); Tex. Educ. Code §§ 4.001(b) (stating the objectives of public education, including Objective 8: “School campuses will maintain a safe and disciplined environment conducive to student learning.”); 11.051 (“An independent school district is governed by a board of trustees who, as a corporate body, shall: (1) oversee the management of the district; and (2) ensure the superintendent implements and monitors plans, procedures, programs, and systems to achieve appropriate, clearly defined, and desired results in the major areas of district operations.”); 11.201 (listing the duties of the superintendent including “assuming administrative responsibility and leadership for planning, organization, operation, supervision, and evaluation of the education programs, services, and facilities of the district . . . .”); and 46.008 (“The commissioner shall establish standards for adequacy of school facilities. The standards must include requirements related to space, educational adequacy, and construction quality.”); Pls.’ Reply Ex. (Belew Decl.) 4, ECF No. 52-1 (stating the Texas Education Agency (“TEA”) is responsible for “[t]he regulation and administration of physical buildings and facilities within Texas public schools” among other duties). Plaintiffs also provided an exhaustive list of similar state constitution citations, statutes, codes, and regulations that grant each Plaintiff the power to control the regulations that govern the administration of public education and public education facilities. See Mot. Injunction 9–11 n. 9-22, ECF No. 11 (quoting Ala. Code §§ 16-3-11, 16-3-12, 16-8-8–16-8-12 (“Alabama law authorizes state, county, and city boards of education to control school buildings and property.”); Wis. stat. chs. 115, 118 (“In Wisconsin, local school boards and officials govern public school operations and facilities . . . with the Legislature providing additional supervisory powers to a Department of Public Instruction.”); Wis. Stat. § 120.12(1) (“School boards and local officials are vested with the ‘possession, care, control and management of the property and affairs of the school district, and must regulate the use of school property and facilities.”); Wis. Stat. § 120.13(17) (“Wisconsin law also requires school boards to ‘[p]rovide and maintain enough suitable Continued …

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and separate toilets and other sanitary facilities for both sexes.’”); W. Va. Const. art. XII, § 2; W. Va. code § 18-5-1, 18-5-9(4) (“West Virginia law establishes state and local boards of education . . . and charges the latter to ensure the good order of the school grounds, buildings, and equipment.”); Tenn. Code Ann. §§ 49-12, 1-302, 49-1-201 (“In Tennessee, the state board of education sets statewide academic policies, . . . and the department of education is responsible for implementing those polices[, while] [e]ach local board of education has the duty to “[m]anage and control all public schools established or that may be established under its jurisdiction.”); Tenn. Code Ann. §§ 49-1-201(a)-(c)(5), 49-2-203(a)(2) (“The State Board is also responsible for “implementation of law” established by the General Assembly, . . . and ensuring that the ‘regulations of the state board of education are faithfully executed.’ ”); Ariz. Rev. Stat. §§ 15-203(A)(1), 15-341(A)(1), 15-341(A)(3) (“Arizona law establishes state and local boards of education, . . . and empowers local school districts to ‘[m]anage and control the school property within its district.’”); Me. Rev. Stat. tit. 20-A, §§ 201–406, 1001(2), 6501 (“Maine provides for state and local control over public education. While state education authorities supervise the public education system, control over management of all school property, including care of school buildings[,] . . . [a]nd Maine law provides requirements related to school restrooms.”); Okla. Const. art. XIII, §§ 5, 5-117 (“Oklahoma law establishes a state board of education to supervise public schools. Local school boards are authorized by the board to operate and maintain school facilities and buildings.”); La. Const. art VIII, § 3, LSA-R. Stat. § 17:100.6 (“In Louisiana, a state board of education oversees public schools, . . . while local school boards are charged with the management, administration, and control of buildings and facilities within their jurisdiction.”); Utah Code §§ 53A-1101, 53A-3-402(3) (“Utah law provides for state and local board of educations, . . . and authorizes the local boards to exercise control over school buildings and facilities.”); Ga. Code § 20-2-59, 520 (“Georgia places public schools under the control of a board of education, . . . and delegates control over local schools, including the management of school property, to county school boards govern local schools.”); Miss. Code Ann. § 37-7-301 (“In Mississippi, the state board of education oversees local school boards, which exercise conContinued …

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confers standing according to the Fifth Circuit’s opinion in Texas v. Equal Employment Opportunity Commission, No. 14-10940, 2016 WL 3524242 (5th Cir. June 27, 2016). Hr’g Tr. 78.
Defendants counter that EEOC was wrongly decided and, regardless, the facts here are distinguishable from that case.9 Id. Defendants primarily distinguish EEOC from this case based on the EEOC majority’s view that the “guidance [at issue] contained a ‘safe harbor’ [provision]” and “the [guidance at issue had] the immediate effect of altering the rights and obligations of the ‘regulated community’ . . . by offering them [] detailed and conclusive means to avoid an adverse EEOC finding.” Defs.’ Resp. 15, ECF No. 40. Defendants claim that the same kind of facts are not present here. Defendants contend further that “the [transgender] guidance documents do not provide ‘an exhaustive procedural framework,’ [or] . . . a safe harbor, but merely express[] the agencies’ opinion about the proper interpretation of Title VII and Title IX.” Id. Thus, they argue, the Court lacks jurisdic-
trol over local school property.”); Ky. Rev. Stat. §§ 156.070, 160.290 (“In Kentucky, the state board of education governs the state’s public school system, . . . while local boards of education control “all public school property” within their jurisdictions, . . . and can make and adopt rules applicable to such property.”).
9 Id. at 14 (“[T]he government respectfully disagrees with that decision for many of the reasons stated in Judge Higginbotham’s dissenting opinion, and . . . EEOC is distinguishable from this case in important respects.”); Hr’g Tr. 53 (“Let me say at the outset . . . the Government disagrees with that decision.”).

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tion and should decline to enter a preliminary injunction. Id.10
The Court finds that Plaintiffs have standing. “The doctrine of standing asks ‘whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.’ ” Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 473 (5th Cir. 2013) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)). Constitutional standing requires a plaintiff to establish that she has suffered an injury in fact traceable to the defendant’s actions that will be redressed by a favorable ruling. Lujan, 504 U.S. at 560–61. The injury in fact must be “concrete and particularized” and “actual or imminent,” as opposed to “conjectural” or “hypothetical.” Id. at 560. When “a plaintiff can establish that it is an ‘object’ of the agency regulation at issue, ‘there is ordinarily little question that the action or inaction has caused [the plaintiff] injury, and that a judgment preventing or requiring the action will redress it.’ ” EEOC, 2016 WL 3524242 at *2; Lujan, 504 U.S. at 561–62. The Fifth Circuit provided, “[w]hether someone is in fact an object of a regulation is a flexible inquiry rooted in common sense.” Id. at *6 (quoting Contender Farms LLP v. U.S. Dep’t of Agric., 779 F.3d 258, 265 (5th Cir. 2015)).
In EEOC, Texas sued the EEOC over employment guidance the EEOC issued to employers concerning their Title VII obligations. In response, the EEOC argued Texas lacked standing because the guidance was advisory only and imposed no affirmative obligation. The
10 The Court addresses Defendants’ claim that Plaintiffs have an adequate alternate remedy in Section III.A.4.

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Fifth Circuit held that Texas had standing to seek relief because it was an object of the EEOC’s guidance as the guidance applied to Texas as an employer. Id. at *4.
This case is analogous. Defendants’ Guidelines are clearly designed to target Plaintiffs’ conduct. At the hearing, Defendants conceded that using the definition in the Guidelines means Plaintiffs are not in compliance with their Title VII and Title IX obligations. Hr’g Tr. 74. Defendants argue that that this does not confer standing because the Guidelines are advisory only. Defs.’ Resp. 14, ECF No. 40. But this conflates standing with final agency action and the Fifth Circuit instructed district courts to address the two concepts separately. See EEOC, 2016 WL 3524242 at *3. Defendants’ Guidelines direct Plaintiffs to alter their policies concerning students’ access to single sex toilet, locker room, and shower facilities, forcing them to redefine who may enter apart from traditional biological considerations.11 Plaintiffs’ counsel argued the Guidelines will force Plaintiffs to consider ways to build or reconstruct restrooms, and how to accommodate students who may seek to use private single person facilities, as other school districts and employers who have been subjected to Defendants’ enforcement actions have had to do. Hr’g Tr. 80–81. That the Guidelines spur this added regulatory compliance
11 For example, Plaintiffs list Wisconsin’s state statutes regarding this matter, which state that school boards are required to “[p]rovide and maintain enough suitable and separate toilets and other sanitary facilities for both sexes.” Mot. Injunction 10 n.9, ECF No. 11 (citing Wis. Stat. s. 120.12(12)). Plaintiffs interpret this to mean that Wisconsin has the authority to maintain separate intimate facilities that correspond to a person’s biological sex. Id.

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analysis satisfies the injury in fact requirement. EEOC, 2016 WL 3524242 at *4 (“[T]he guidance does, at the very least, force Texas to undergo an analysis, agency by agency, regarding whether the certainty of EEOC investigations . . . overrides the State’s interest . . . . [T]hese injuries are sufficient to confer constitutional standing, especially when considering Texas’s unique position as a sovereign state . . . .”). That Plaintiffs have standing is strengthened by the fact that Texas and other Plaintiffs have a “stake in protecting [their] quasi-sovereign interests . . . [as] special solicitude[s].” Mass. v. E.P.A., 549 U.S. 497, 520 (2007) (“Congress has moreover recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious. § 7607(b)(1). Given that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.”).
Accordingly, Plaintiffs have standing to pursue this lawsuit.
2. Ripeness
Defendants also argue that this case is not ripe for review. According to Defendants, this Court should avoid premature adjudication to avoid entangling itself in abstract disagreements over administrative policies. Defs.’ Resp. 13, ECF No. 40 (citing Nat’l Park Hosp. Ass’n v. Dep.’t Interior, 538 U.S. 803, 807 (2003)). Defendants argue that more time should be given to allow the administrative process to run its course and develop more facts before the Court can address this case. Id. at 13 (citing Abbott Labs, 387 U.S. 136, 149 (1967)); Hr’g Tr. 62. Plaintiffs counter that, taking into account recent events where Defendants have investigated other entities that

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do not comply with the Guidelines, this case is ripe. Pls.’ Reply 4–7, ECF No. 52; Hr’g Tr. 79.
“A challenge to administrative regulations is fit for review if (1) the questions presented are ‘purely legal one[s],’ (2) the challenged regulations constitute ‘final agency action,’ and (3) further factual development would not ‘significantly advance [the court’s] ability to deal with the legal issues presented.’ ” Texas v. United States, 497 F.3d 491, 498–99 (5th Cir. 2007) (citing Nat’l Park Hosp. Ass’n, 538 U.S. at 812).
The Court finds that Plaintiffs’ case is ripe for review. Here, the parties agree that the questions at issue are purely legal. Hr’g Tr. 61. Defendants asserted at the hearing that Plaintiffs are not in compliance with their obligations under Title IX given their refusal to change their policies. Hr’g Tr. 74. Furthermore, for the reasons set out below, the Court finds that Defendants’ actions amount to final agency action under the APA.12 EEOC, 2016 WL 3524242 at *11 n.9 (“Having determined that the Guidance is ‘final agency action’ under the APA, it follows naturally that Texas’s APA claim is ripe for review. Texas’s challenge to the EEOC Guidance is a purely legal one, and as such it is unnecessary to wait for further factual development before rendering a decision.”) (Internal citations omitted).
Finally, the facts of this case have sufficiently developed to address the legal impact Defendants’ Guidelines have on Plaintiffs’ legal questions in this case. Texas, 497 F.3d at 498–99. The only other factual development that may occur, given Defendants’ conclusion Plaintiffs are
12 The Court further addresses this issue in section III.A.3.

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not in legal compliance, is whether Defendants actually seek to take action against Plaintiffs. But it is not clear how waiting for Defendants to actually take action would “significantly advance [the court’s] ability to deal with the legal issues presented.” Texas, 497 F.3d at 498–99. As previously stated, Defendants’ Guidelines clash with Plaintiffs’ state laws and policies in relation to public school facilities and Plaintiffs have called into question the legality of those Guidelines. Mot. Injunction 9–12, ECF No. 11. Therefore, “further factual development would not ‘significantly advance the courts ability to deal with the legal issues presented.’” Texas, 497 F.3d at 498−99. Accordingly, the Court finds that this case is ripe for review.
3. Final Agency Action under the APA
The Court now evaluates whether the Guidelines are final agency action meeting the jurisdictional threshold under the APA. EEOC, 2016 WL 3524242 at *5. Defendants argue that there has been no final agency action as the documents in question are merely “paradigmatic interpretive rules, exempt from the notice-and-comment requirements of the APA.” Defs.’ Resp. 18, ECF No. 40. Defendants also allege that the Guidelines are “[v]alid interpretations of the statutory and regulatory authorities on which they are premised” because although Title IX and § 106.33 provide that federal recipients may provide for separate, comparable facilities, the regulation and statute “do not address how they apply when a transgender student seeks to use those facilities . . . .” Id. at 20−21.
Plaintiffs allege that the agencies’ Guidelines are binding nationwide and the Defendants’ enforcement patterns in various states clearly demonstrate that legal

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actions against those that do not comply will follow. Mot. Injunction 9–12, ECF No. 11; Reply 2–8, ECF No. 52. Plaintiffs identify a number of similar cases where Defendants have investigated schools that refused to comply with the new Guidelines and where they sued North Carolina over its state law which, in part, made it legal to require a person to use the public restroom according to their biological sex. Reply 6, ECF No. 52.
An administrative action is “final agency action” under the APA if: (1) the agency’s action is the “consummation of the agency’s decision making process;” and (2) “the action [is] one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett, 520 U.S. at 177–78. “In evaluating whether a challenged agency action meets these two conditions, the court is guided by the Supreme Court’s interpretation of the APA’s finality requirement as ‘flexible’ and ‘pragmatic.’ ” EEOC, 2016 WL 3524242 at *5 (quoting Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011)).
The Court finds that the Guidelines are final agency action under the APA. Defendants do not dispute that the Guidelines are a “consummation” of the agencies’ decision-making process. Hr’g Tr. 61; Nat’l Pork Producers Council v. E.P.A., 635 F.3d 738, 755–56 (5th Cir. 2011) (citing Her Majesty the Queen in Right of Ontario v. Envtl. Prot. Agency, 912 F.2d 1525, 1532 (D.C. Cir. 1990) (deciding that EPA guidance letters constitute final agency actions as they “serve[d] to confirm a definitive position that has a direct and immediate impact on the parties . . . .”)).
The second consideration is also satisfied in this case because legal consequences flow from the Defendants’

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actions. Defendants argue no legal consequences flow to Plaintiffs because there has been no enforcement action, or threat of enforcement action. Hr’g Tr. 71. The Fifth Circuit held in EEOC however that “an agency action can create legal consequences even when the action, in itself, is disassociated with the filing of an enforcement proceeding, and is not authority for the imposition of civil or criminal penalties.” 2016 WL 3524242 at *8. According to the Fifth Circuit, “‘legal consequences’ are created whenever the challenged agency action has the effect of committing the agency itself to a view of the law that, in turn, forces the plaintiff either to alter its conduct, or expose itself to potential liability.” Id. (citing U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1814–15 (May 31, 2016) (holding that using the pragmatic approach, an agency action asserting that plaintiff’s land was subject to the Clean Water Act’s permitting process was a final agency action which carried legal consequences). The Fifth Circuit concluded that “[i]t is also sufficient that the Enforcement Guidance [at issue in EEOC] has the immediate effect of altering the rights and obligations of the ‘regulated community’ (i.e. virtually all state and private employers) by offering them a detailed and conclusive means to avoid an adverse EEOC finding . . . .” 2016 WL 3524242 at * 6.
In this case, although the Guidelines provide no safe harbor provision, the DOJ/DOE Letter provides not only must Plaintiffs permit individuals to use the restrooms, locker rooms, showers, and housing consistent with their gender identity, but that they find no safe harbor in providing transgender students individual-user facilities as an alternative accommodation. Indeed, the Guidelines provide that schools may, consistent with Title IX, make

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individual-user facilitates available for other students who “voluntarily seek additional privacy.” See DOJ/DOE Letter 3, ECF No. 6-10. Using a pragmatic and common sense approach, Defendants’ Guidelines and actions indicate that Plaintiffs jeopardize their federal education funding by choosing not to comply with Defendants’ Guidelines.13 EEOC, 2016 WL 3524242 at *8 (“Instead, ‘legal consequences’ are created whenever the challenged agency action has the effect of committing the agency itself to a view of the law that, in turn, forces the plaintiff either to alter its conduct, or expose itself to potential liability.”); Resident Council of Allen Parkway Vill. v. U.S. Dep’t of Hous. & Urban Dev., 980 F.2d 1043, 1056–57 (5th Cir. 1993) (stating that “[w]ere HUD to formally define the phrase [at issue] . . . [the plaintiffs] would undoubtedly have the right to review HUD’s final agency action under § 702 [of the APA]”); Frozen Foods Express v. United States, 351 U.S. 40, 44–45 (1956) (holding an order specifying which commodities the Interstate Commerce Commission believed were exempt was final agency action, even though the order simply gave notice of how it would interpret the statute and would apply only when an action was brought): compare with AT&T Co. v. E.E.O.C., 27 F.3d 973, 975–76 (D.C. Cir. 2001) (holding that the EEOC’s compliance manual was not a final agency action because the policy guidance did not intend
13 The Holder Memorandum concludes, “For these reasons, the [DOJ] will no longer assert that Title VII’s prohibition of discrimination based on sex does not encompass gender identity per se (including transgender discrimination).” Holder Memo 2, ECF No. 6-3. Other guidance from Defendants take similar actions. See also DOJ/DOE Letter 4–5, ECF No. 6-10.

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to bind EEOC staff in their official conduct, the manual simply expressed the agency’s view with respect to employers’ actions and compliance with Title VII).
Accordingly, the Court finds that Defendants’ Guidelines are final agency action such that the jurisdictional threshold is met. EEOC, 2016 WL 3524242 at *5.
4. Alternative Legal Remedy
Defendants also contend that district court review is precluded and Plaintiffs should not be allowed to avoid the administrative process by utilizing the APA at this time. Defs.’ Resp. 16, ECF No. 40. Defendants allege that “review by a court of appeals is an ‘adequate remedy’ within the meaning of the APA,” and “[s]ection 704 of the APA thus prevents plaintiffs from circumventing the administrative and judicial process Congress provided them.” Id. Defendants argue “Congress has precluded district court jurisdiction over pre-enforcement actions like this.” Id. at 17. Defendants cite several cases, including the Supreme Court’s opinions in Thunder Basin v. Reich, 510 U.S. 200 (1994) and Elgin v. Department of Treasury, 132 S. Ct. 2126 (2012), in support of this argument.14
14 Defendants also assert NAACP v. Meese supports this argument but the Court disagrees. In that case, the plaintiffs sought to enjoin the Attorney General from reopening or agreeing to reopen any consent decree in any civil rights action pending in any other court. The district court denied this request, holding such actions would violate principles of separation of powers and comity. 615 F. Supp. 200, 201–02 (D.D.C. 1985) (“Plaintiffs’ action must fail (1) under the principle of the separation of powers, and (2) because this Court lacks authority to interfere with or to seek to guide litigation in other district courts throughout the United States.”). The Meese court Continued …

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Defendants’ assertion that there is no jurisdiction to review Plaintiffs’ APA claims fails and their reliance on Thunder Basin, Elgin, and the other cited cases is misplaced. In Thunder Basin, the Supreme Court held that the Mine Act’s statutory review scheme precluded the district court from exercising subject-matter jurisdiction over a pre-enforcement challenge. To determine whether pre-enforcement challenges are prohibited courts look to whether this “intent is ‘fairly discernible in the statutory scheme.’ ” Thunder Basin, 510 U.S. at 207 (quoting Block v. Community Nutrition Institute, 467 U.S. 340, 351 (1984)). The Supreme Court held that “[w]hether a statute is intended to preclude initial judicial review is determined from the statute’s language, structure, and purpose, its legislative history . . . and whether the claims can be afforded meaningful review.” Id. (internal citation omitted).
Although the Mine Act was silent about preenforcement claims, the Supreme Court held that “its comprehensive enforcement structure demonstrate[d] that Congress intended to preclude challenges,” and the Mine Act “expressly authorize[d] district court jurisdiction in only two provisions . . . [which allowed] the Secretary [of Labor] to enjoin [] violations of health and safety standards and to coerce payment of civil penalties.” Id.
also concluded there was no final agency action to enjoin and, by definition, there would be an alternative legal remedy related to those cases where a consent decree existed because those decrees were already subject to a presiding judge. Id. at 203 n.9. Additionally, Defendants reliance on Dist. Adult Prob. Dep’t v. Dole, 948 F.2d 953 (5th Cir. 1991) does not apply because there was no final agency action in that case.

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at 209. Thus, plaintiffs had to “complain to the Commission and then to the court of appeals.” Id. (italics omitted).
Elgin reached a similar conclusion, holding that the Civil Service Reform Act (“CSRA”) was the exclusive avenue to judicial review for petitioners’ claims against the Treasury Department. 132 S. Ct. 2126, 2128 (“Just as the CSRA’s ‘elaborate’ framework [citation omitted] demonstrates Congress’ intent to entirely foreclose judicial review to employees to whom the CSRA denies statutory review, it similarly indicates that extrastatutory review is not available to those employees to whom the CSRA grants administrative and judicial review.”).
No similar elaborate statutory framework exists covering Plaintiffs’ claims. Neither Title VII nor Title IX presents statutory schemes that would preclude Plaintiffs from bringing these claims in federal district court. Indeed, the Supreme Court has held that Title IX’s enforcement provisions, codified at Title 20 U.S.C. §§ 1681– 1683, does not provide the exclusive statutory remedy for violations. See Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) (holding that Title IX did not preclude a private right of action for damages). Given Defendants lack of authority to the contrary, the presumption of reviewability for all agency actions applies. EEOC, 2016 WL 3524242 at *11 (citing Abbott Labs., 387 U.S. at 140) (“To wholly deny judicial review, however, would be to ignore the presumption of reviewability, and to disregard the Supreme Court’s instruction that courts should adopt a pragmatic approach for the purposes of determining reviewability under the APA.”).

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Having concluded that Plaintiffs claims are properly subject to judicial review, the Court next evaluates whether a preliminary injunction is appropriate.
B. Preliminary Injunction
1. Likelihood of Success on the Merits
The first consideration is whether Plaintiffs have shown a likelihood of success on the merits for their claims. Plaintiffs aver that they have shown a substantial likelihood that they will prevail on the merits because Defendants have violated the APA by (1) circumventing the notice and comment process and (2) by issuing final agency action that is contrary to law. Mot. Injunction 12– 16, ECF No. 11. Furthermore, Plaintiffs contend that Defendants’ new policies are not valid agency interpretations that should be granted deference because “[a]gencies do not receive deference where a new interpretation conflicts with a prior interpretation.” Pls.’ Reply 11, ECF No. 52 (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)).
Defendants contend that their actions do not violate the APA because the Guidelines are interpretive rules and are therefore exempt from the notice and comment requirements. Defs.’ Resp. 12–18, ECF No. 40. Defendants argue the Guidelines are exempt because they do not carry the force of law, even though “the agencies’ interpretations of the law are entitled to some deference.” Further, they argue because their interpretation is reasonable, this interpretation is entitled to deference.15 De-
15 Defendants argue the Court should be guided in this decision by the Fourth Circuit’s decision in G.G. ex rel Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) (“G.G.”). Defendants conContinued …

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fendants also assert they did not act contrary to law because the Guidelines are valid interpretations of Title IX as the statute and regulations “do not address how [the laws] apply when a transgender student seeks to use those facilities” or “how a school should determine a transgender student’s sex when providing access to sex-
tend the Fourth Circuit’s majority opinion in G.G. should be followed as it provides the proper analysis. The Supreme Court recalled the Fourth Circuit’s mandate and stayed the preliminary injunction entered by the district court in that case. See Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, No. 16-A-52, 2016 WL 4131636 at *1 (Aug. 3, 2016) (Breyer, J. concurring) (“In light of the facts that four Justices have voted to grant the application referred to the Court by THE CHIEF JUSTICE, that we are currently in recess, and that granting a stay will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court considers the forthcoming petition for certiorari, I vote to grant the application as a courtesy.”). The Supreme Court takes such actions only on the rarest of occasions. Bd. of Ed. of City School Dist. of City of New Rochelle v. Taylor, 82 S.Ct. 10, 10 (1961) (“On such an application, since the Court of Appeals refused the stay ‘* * * this court requires an extraordinary showing, before it will grant a stay of the decree below pending the application for a certiorari.”); Russo v. Byrne, 409 U.S. 1219, 1221 (1972) (“If the application presents frivolous questions it should be denied. If it tenders a ruling out of harmony with our prior decisions, or questions of transcending public importance, or issues which would likely induce this Court to grant certiorari, the stay should be granted.”). Because it is impossible to know the precise issue(s) that prompted the Supreme Court to grant the stay, it is difficult to conclude that G.G. would control the outcome here. See New Motor Vehicle Bd. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (declaring it is very difficult to predict anticipated Supreme Court decision). Nevertheless, the Court has reviewed the opinion and considers the well-expressed views of each member of the panel in reaching the decision in this case.

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segregated facilities.” Id. at 20–21. Thus, according to Defendants, this situation presents an ambiguity in the regulatory scheme and Defendants are allowed to provide guidelines to federal fund recipients on this matter. Id. at 21.16
In their Reply, Plaintiffs counter that DOE’s implementing regulation, § 106.33, is not “ambiguous[,] [a]s a physiologically-grounded regulation, it covers every human being and therefor all those within the reach of Title IX.” Reply 8, ECF No. 52. They contend further, “[t]o create legal room to undo what Congress (and preceding regulators) had done, Defendants manufacture an ambiguity, claiming that ‘these regulations do not address how they apply when a transgender student seeks to use those facilities . . . .’ ” Id. (citing Defs.’ Response 20–21, ECF No. 40). Plaintiffs continue, “[i]n enacting Title IX, Congress was concerned that women receive the same opportunities as men, [t]hus, Congress utilized ‘sex’ in an exclusively biological context[,] [and] “[t]he two sexes are not fungible.” Id. at 8–9 (quoting Ballard v. United States, 329 U.S. 187, 193 (1946). It is the biological differences between men and women, Plaintiffs allege, that led Congress in 1972 to “permit differential treatment by sex only[,]” provide a basis for DOE “to approve ‘separate toilet, locker rooms, and shower facilities on the basis of sex” in § 106.33, and led the Supreme Court “to conclude that educational institutions must ‘afford mem-
16 Defendants characterize their Guidelines as, “supply[ing] ‘crisper and more detailed lines’ than the statutes and regulations that they interpret,” without “alter[ing] the legal obligations of regulated entities.” Id. at 20 (citing Am. Mining Cong. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993)).

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bers of each sex privacy from the other sex.’” Id. at 9 (quoting 118 Cong. Rec. 5807 (1972)); United States v. Virginia, 518 U.S., 550 n.19 (1996)).
The Court finds that Plaintiffs have shown a likelihood of success on the merits because: (1) Defendants bypassed the notice and comment process required by the APA; (2) Title IX and § 106.33’s text is not ambiguous; and (3) Defendants are not entitled to agency deference under Auer v. Robbins, 519 U.S. 452 (1997).17
i. Notice and Comment under the APA
Defendants state that “[t]he APA does not require agencies to follow notice and comment procedures in all situations [, and the APA] specifically excludes interpretive rules and statements of agency policy from these procedures.” Defs.’ Resp. 17–18, ECF No. 40. Defendants allege “[t]he guidance documents are . . . paradigmatic interpretive rules, exempt from the notice-andcomment requirements of the APA.” Id. at 18. According to Defendants, “the interpretations themselves do not carry the force of law . . . .” Id. at 19. Defendants rely on G.G., 822 F.3d 709, 720 (4th Cir. 2016) to support their claim that DOE’s “interpretation of the single-sex facility regulation implementing Title IX is reasonable, and does not conflict with those regulations in any way.” Id.
Plaintiffs contend that Defendants’ rules are legislative because: “(1) they grant rights while also imposing significant obligations; (2) they amend prior legislative
17 Defendants’ counsel stated at the hearing that Defendants would not be entitled to Chevron deference for the Guidelines. See Hr’g Tr. 72. Thus, the Court addresses only Defendants’ claim that they are entitled to Auer deference when interpreting § 106.33.

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rules or longstanding agency practice; and (3) bind the agencies and regulated entities,” requiring them to go through the notice and comment process. Mot. Injunction 12, ECF No. 11.
The APA requires agency rules to be published in the Federal Register and that the public be given an opportunity to comment on them. 5 U.S.C. §§ 553(b)−(c). This is referred to as the notice and comment requirement. The purpose is to permit the agency to understand and perhaps adjust its rules based on the comments of affected individuals. Prof’ls and Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995). However, not every action an agency takes is required to go through the notice and comment process. “The APA divides agency action, as relevant here, into three boxes: legislative rules, interpretive rules, and general statements of policy.” Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014). “Legislative rules generally require notice and comment, but interpretive rules and general statements of policy do not.” Id. (citing 5 U.S.C. § 553). “In order for a regulation to have the ‘force and effect of law,’ it must have certain substantive characteristics and be the product of certain procedural requisites.” Chrysler Corp. v. Brown, 441 U.S. 281, 301–03, (1979).
The APA does not define a legislative or “substantive” rule, but in Morton v. Ruiz, 415 U.S. 199, 234 (1974), the Supreme Court held that a substantive rule or “a legislative-type rule,” is one that “affect[s] individual rights and obligations.” Id. at 232. The Supreme Court also held, “the promulgation of these regulations must conform with any procedural requirements imposed by Congress.” Chrysler Corp., 441 U.S. at 303. Thus, agency

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discretion is limited not only by substantive, statutory grants of authority, but also by the procedural requirements which “assure fairness and mature consideration of rules of general application.” Id. (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969)). If a rule is substantive, notice and comment requirements must be adhered to scrupulously. Prof’ls and Patients for Customized Care, 56 F.3d at 595.
“[L]egislative rules (and sometimes interpretive rules) may be subject to pre-enforcement review” because they subject a party to a binding obligation which can be the subject of an enforcement action. McCarthy, 758 F.3d at 251. (“An agency action that purports to impose legally binding obligations or prohibitions on regulated parties — and that would be the basis for an enforcement action for violations of those obligations or requirements — is a legislative rule . . . .”). The APA treats interpretive rules and general statements of policy differently. Id. (“As to interpretive rules, an agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties, is an interpretive rule.”).18
Courts have focused on several factors to evaluate whether rules are interpretative or legislative. Courts analyze the agency’s characterization of the guidance and post-guidance events to determine whether the
18 Catawba Cty. provides: “An agency action that merely explains how the agency will enforce a statute or regulation — in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule — is a general statement of policy.”).

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agency has applied the guidance as if it were binding on regulated parties. McCarthy, 758 F.3d at 252–53. However, “the most important factor concerns the actual legal effect (or lack thereof) of the agency action in question on regulated entities.” McCarthy, 758 F.3d at 252 (quoting Catawba Cty. v. EPA, 571 F.3d 20, 33–34; Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002)). “A touchstone of a substantive rule is that it establishes a binding norm.” Prof’ls and Patients for Customized Care, 56 F.3d at 596; see also Texas v. United States, 809 F.3d 134, 202 (5th Cir. 2015) (King, J., dissenting) (declaring that an agency action establishing binding norms which permit no discretion is a substantive rule requiring notice and comment). If agency action “draws a ‘line in the sand’ that, once crossed, removes all discretion from the agency” the rule is substantive. Id. at 601.
Here, the Court finds that Defendants rules are legislative and substantive. Although Defendants have characterized the Guidelines as interpretive, postguidance events and their actual legal effect prove that they are “compulsory in nature.” See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000);19 see also Prof’ls and Patients for Customized Care, 56 F.3d at 596 (the label an agency places on its exercise of ad-
19 In Appalachian Power, the D.C. Circuit held that an EPA guidance was a legislative rule despite the guidance document’s statement that it was advisory. The Court analyzed the document as a whole and found that “the entire Guidance, from beginning to end — except the last paragraph — reads like a ukase. It commands, it requires, it orders, it dictates.” 208 F.3d at 1022–23. Similarly, the DOJ/DOE Letter uses the words “must,” and various forms of the word “require” numerous times throughout the document. Am. Compl. Ex. J (DOJ/DOE Letter), ECF No. 6-10.

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ministrative power is not conclusive, rather it is what the agency does with that policy that determines the type of action). Defendants confirmed at the hearing that schools not acting in conformity with Defendants’ Guidelines are not in compliance with Title IX. Hr’g Tr. 71. Further, post-Guidelines events, where Defendants have moved to enforce the Guidelines as binding, buttress this conclusion. Id. at 7; Mot. Injunction 15–16, ECF No. 11; Reply 4–8, ECF No. 52. The information before the Court demonstrates Defendants have “drawn a line in the sand” in that they have concluded Plaintiffs must abide by the Guidelines, without exception, or they are in breach of their Title IX obligations. Thus, it would follow that the “actual legal effect” of the Guidelines is to force Plaintiffs to risk the consequences of noncompliance. McCarthy, 758 F.3d at 252; Catawba Cty., 571 F.3d at 33–34; Gen. Elec. Co., 290 F.3d at 382; see also Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005). Plaintiffs, therefore, are legally affected in a way they were not before Defendants issued the Guidelines. The Guidelines are, in practice, legislative rules — not just interpretations or policy statements because they set clear legal standards. Panhandle Producers and Royalty Owners Ass’n v. Econ. Regulatory Admin, 847 F.2d 1168, 1174 (5th Cir. 1988) (stating that a substantive rule is one that establishes standards of conduct that carry the force of law). As such, Defendants should have complied with the APA’s notice and comment requirement. 5 U.S.C. § 553; Nat’l Min. Ass’n, 758 F.3d at 251; Chrysler Corp., 441 U.S. at 301–03. Permitting the definition of sex to be defined in this way would allow Defendants to “create de facto new regulation” by agency action without complying with the proper procedures.

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Christensen v. Harris Cty., 529 U.S. 576, 586−88 (2000). This is not permitted.
Accordingly the Court finds that Plaintiffs would likely succeed on the merits that Defendants violated the notice and comment requirements of the APA.
ii. Agency Action Contrary to Law (5 U.S.C. § 553)
Plaintiffs contend that Defendants’ Guidelines are contrary to the statutory and regulatory text, Congressional intent, and the plain meaning of the term. Mot. Injunction 14, ECF No. 11. When an agency acts contrary to law, its action must be set aside. 5 U.S.C. § 706(2)(A). Plaintiffs argue that Defendants’ interpretation of the meaning of the term “sex” as set out in the Guidelines contradicts its meaning in Title VII, Title IX, and § 106.33. They assert “the meaning of the terms ‘sex,’ on the one hand, and ‘gender identity,’ on the other, both now and at the time Titles VII and IX were enacted, forecloses alternate constructions.” Mot. Injunction 16, ECF No. 11 (citing Thomas Jefferson Univ., 512 U.S. at 512. They also allege that the ordinary meaning of the term controls. Id. at 17 (citing Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)).
Defendants contend that Plaintiffs’ arguments for legislative history and intent at the time of passage are irrelevant. Hr’g Tr. 33 (“But it may very well be that Congress did not intend the law to protect transgender individuals. [But,] . . . as the Supreme Court has made it absolutely clear in Oncale, the fact that Congress may have understood the term sex to mean anatomical sex at birth is largely irrelevant.”) Defendants also allege that “Title IX and Title VII should be construed broadly” to

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protect any person, including transgendered persons, from discrimination. Hr’g Tr. 33–34.
The starting point to analyze this dispute begins with the actual text of the statute or regulation, where the words should be given their ordinary meaning. Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253– 54 (1992)). When the words are unambiguous, the “judicial inquiry is complete.” Id. (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). The pertinent statutory text at issue in this case 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. § 1681. Title IX expressly permits educational institutions to maintain separate living facilities for the different sexes. Id. at § 1686. The other language at issue comes from one of the DOE regulations promulgated to implement Title IX, which states: “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. § 106.33.
Defendants assert the Guidelines simply provide clarity to an ambiguity in this regulation, and that ambiguity is how to define the term sex when dealing with transgendered students. Defs.’ Resp. 20, ECF No. 40. Because they contend the regulation is ambiguous, Defendants argue “[f]oundational principles of administrative law instruct [the Court] to give controlling weight to [their] interpretations of their own ambiguous regulations unless [they are] plainly erroneous.” Id.

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Plaintiffs contend the text of both Title VII and Title IX is not ambiguous. Mot. Injunction 16–19, ECF No. 11. They argue when Congress passed both statutes it clearly intended sex to be defined based on the biological and anatomical differences between males and females. See id. at 17–18 (citing legislative history and common understanding of its meaning at the time of passage). Plaintiffs likewise assert § 106.33 is unambiguous, for the same reason, as it was designed to separate students based on their biological differences because they have a privacy right to avoid exhibiting their “nude or partially nude body, genitalia, and other private parts” before members of the opposite sex. Pls.’ Reply 8–9, ECF No. 52. Based on this, they argue Defendants have manufactured an ambiguity so they can then unilaterally change the law to suit their policy preferences. Id. at 8.
iii. Auer Deference
Because Defendants assert their regulation is ambiguous, the Court must determine whether their interpretation is entitled to deference. Defendants contend an agency may interpret its own regulation by issuing an opinion letter or other guidance which should be given controlling weight if: (1) the regulation is ambiguous; and (2) the interpretation is not plainly erroneous or inconsistent with the regulation. Defs.’ Resp. 21, ECF No. 40; Christensen, 529 U.S. at 588 (“Auer deference is warranted only when the language of the regulation is ambiguous.”); Auer v. Robbins, 519 U.S. 452, 461 (1997) (“[An agency’s] interpretation of [its regulation] is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’”) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)).

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This deference is only warranted however when the language of the regulation is ambiguous. Moore v. Hannon Food Services, Inc., 317 F.3d 489, 495 (5th Cir. 2003). Legislation is ambiguous if it is susceptible to more than one accepted meaning. Calix v. Lynch, 784 F.3d 1000, 1005 (5th Cir. 2015). “Multiple accepted meanings do not exist merely because a statute’s ‘authors did not have the forethought expressly to contradict any creative contortion that may later be constructed to expand or prune its scope.’ ” Id. (citing Moore, 317 F.3d at 497 and applying this rule of construction to regulations).
If a regulation is not ambiguous, the agency’s interpretation may be considered but only according to its persuasive power. Moore, 317 F.3d at 495. “Thus, a court must determine whether ‘all but one of the meanings is ordinarily eliminated by context.’ ” Calix, 784 F.3d at 1005 (quoting Deal v. United States, 508 U.S. 129, 132–33 (1993)). When a term is not defined, courts may generally give the words their common and ordinary meaning in accordance with legislative intent. D.C. Bd. of Elections & Ethics v. D.C., 866 A.2d 788, 798 n.18 (D.C. 2005) (“In finding the ordinary meaning, ‘the use of dictionary definitions is appropriate in interpreting undefined statutory terms.’”); 1618 Twenty–First St. Tenants Ass’n, Inc. v. Phillips Collection, 829 A.2d 201, 203 (D.C. 2003) (same). Furthermore, “an agency is not entitled to deference when it offers up an interpretation of [a regulation] that [courts] have already said to be unambiguously foreclosed by the regulatory text.” Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 399 (5th Cir. 2014) (citing Christensen, 529 U.S. at 588).

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Based on the foregoing authority, the Court concludes § 106.33 is not ambiguous. It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth. See 34 C.F.R. § 106.33; 45 Fed. Reg. 30955 (May 9, 1980); Thomas Jefferson Univ., 512 U.S. at 512 (holding that intent determined at the time the regulations are promulgated). It appears Defendants at least tacitly agree this distinction was the intent of the drafter. See Holder Memo 1, ECF No. 6-3 (“The federal government’s approach to this issue has also evolved over time.”); see also Hr’g Tr. 33 (“[I]t may very well be that Congress did not intend the law to protect transgender individuals.”).
Additionally, it cannot reasonably be disputed that DOE complied with Congressional intent when drawing the distinctions in § 106.33 based on the biological differences between male and female students. Pls.’ Mot. Injunction 17–18, ECF No. 11 (citing legislative history and common understanding of its meaning at the time of passage). As the support identified by Plaintiffs shows, this was the common understanding of the term when Title IX was enacted, and remained the understanding during the regulatory process that led to the promulgation of § 106.33. See Pls.’ Am. Compl. ¶¶ 8–13, ECF No. 6; see also G.G., 822 F.3d at 736 (Niemeyer, J., dissenting) (providing comprehensive list of various definitions from the 1970s which demonstrated “during that time period, virtually every dictionary definition of ‘sex’ referred to the physiological distinctions between males and females, particularly with respect to their reproduc-

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tive functions.”). This undoubtedly was permitted because the areas identified by the regulations are places where male and female students may have to expose their “nude or partially nude body, genitalia, and other private parts,” and separation from members of the opposite sex, those whose bodies possessed a different anatomical structure, was needed to ensure personal privacy. See G.G., 822 F.3d at 723.
This conclusion is also supported by the text and structure of the regulations. Section 106.33 specifically permits educational institutions to provide separate toilets, locker rooms, and showers based on sex, provided that the separate facilities are comparable. The sections immediately preceding and following § 106.33 likewise permit educational institutions to separate students on the basis of sex. For instance, § 106.32 permits educational institutions to provide separate housing for students on the basis of sex, again so long as the separate housing is comparable, and § 106.33 permits separate educational sessions for boys and girls when dealing with instruction concerning human sexuality. 34 C.F.R. §§ 106.32, 106.34. Without question, permitting educational institutions to provide separate housing to male and female students, and separate educational instruction concerning human sexuality, was to protect students’ personal privacy, or discussion of their personal privacy, while in the presence of members of the opposite biological sex. G.G., 822 F.3d at 723. Accordingly, this interpretation of § 106.33 is consistent with the structure and purpose of the regulations.
Based on the foregoing, the Court concludes § 106.33 is not ambiguous. Given this regulation is not ambiguous, Defendants’ definition is not entitled to Auer deference,

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meaning it does not receive controlling weight. Auer, 519 U.S. at 461. Instead, Defendants’ interpretation is entitled to respect, but only to the extent it has the power to persuade. Christensen, 529 U.S. at 587. In his dissent in G.G., Judge Niemeyer characterized Defendants’ definition as “illogical and unworkable.” G.G., 822 F.3d at 737. He outlined a number of scenarios, which need not be repeated here, where the Defendants’ interpretation only causes more confusion for educational institutions. Id. A definition that confuses instead of clarifies is unpersuasive. Additionally, since this definition alters the definition the agency has used since its enactment, its persuasive effect is decreased. See Morton, 415 U.S. at 237; see also Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168 (2012) (holding that an agency announcement of an interpretation preceded by a very lengthy period with no interpretation indicates agency considered prior practice lawful). Accordingly, the Court concludes Defendants’ interpretation is insufficient to overcome the regulation’s plain language and for the reasons stated above is contrary to law.
2. Threat of Irreparable Harm
The Court next addresses irreparable harm. Defendants allege that Plaintiffs have not identified any pending or imminent enforcement action, and the Guidelines “expose [P]laintiffs to no new liability or legal requirements.” Defs.’ Resp. 7, ECF No. 40 (citing Google v. Hood, 822 F.3d 212, 227 (5th Cir. 2016). Defendants argue that, “[a]lthough [P]laintiffs do identify a small number of specific ‘policies and practices’ that they claim are in conflict with [D]efendants’ interpretation of Title IX, they have identified no enforcement action being

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taken against them — now or in the future — as a result of these polices.” Defs.’ Resp. 8–9, ECF No. 40. They assert that even if DOE were “to decide to bring an administrative enforcement action against plaintiffs for noncompliance . . . at some point in the future, [P]laintiffs still would be unable to make a showing of irreparable harm because they would have an opportunity to challenge the interpretation in an administrative process prior to any loss of federal funds.” Id. at 9 (quoting Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir. 1975)).
Plaintiffs counter that “Defendants’ actions cause irreparable harm by forcing policy changes, imposing drastic financial consequences, and usurping [Plaintiffs’] legitimate authority.” Mot. Injunction 21, ECF No. 11. According to Plaintiffs, Defendants’ actions present “a Hobson’s choice between violating federal rules (labeled as regulations, guidance, and interpretations) on the one hand, and transgressing longstanding policies and practices, on the other.” Id. Thus, Plaintiffs characterize Defendants’ administrative letters and notices as “mandates” which effectively carry the force of law. Id. Plaintiffs also allege that Defendants’ rules are “irreconcilable with countless polices regarding restrooms, showers, and intimate facilities,” while threatening to override the practices of “countless schools,” which had previously been allowed to differentiate intimate facilities on the basis of biological sex consistent with Title IX, federal regulations, and laws protecting privacy and dignity. Id. (citing Mot. Injunction, Ex. P. (Thweatt Dec.) 5–7, ECF No. 11-2).
Defendants’ appear to concede the Guidelines conflict with Plaintiffs’ policies and practices, see Defs.’ Resp. 8– 9; ECF No. 40 (“[P]laintiffs do identify a small number

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of specific ‘policies and practices’ . . . .”); however, they argue that additional threats of enforcement are required before irreparable harm exists. Case law does not support this contention. Instead the authorities hold, “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” See Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (stating, whenever an enactment of a state’s people is enjoined, the state suffers irreparable injury); accord Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (“When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.”); Maryland v. King, 133 S. Ct. 1, 3 (2012) (citing New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”).
As Defendants have conceded the conflict between the Guidelines and Plaintiffs’ policies, and Plaintiffs have identified a number of statutes that conflict, the Court concludes Plaintiffs have sufficiently demonstrated a threat of irreparable harm.20
20 Defendants also contend the injunction should be denied because Plaintiffs delayed in seeking this relief. The DOJ/DOE Letter is dated May 13, 2016. This case was filed very soon after on May 25, 2016, and the parties reached an agreement on a briefing schedule to consider this request. The Court concludes Plaintiffs did not fail to act timely.

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3. Balance of Hardships and Public Interest21
The Court next considers whether the threatened injury to the Plaintiffs outweighs whatever damage the proposed injunction may cause Defendants and its impact on the public interest. Nichols, 532 F.3d at 372. Plaintiffs risk either running afoul of Defendants’ Guidelines or complying and violating various state statutes and, in some cases, their state constitutions. Mot. Injunction 21, ECF No. 11. Plaintiffs also state that they likely risk legal action from parents, students, and other members of their respective communities should they actually comply with Defendants’ Guidelines. Defendants argue these harms do not outweigh the damage that granting the injunction will cause because it will impede their ability to eliminate discrimination in the workplace and educational settings, prevent them from definitively explaining to the public the rights and obligations under these statutes, and it would have a deleterious effect on the transgendered.
The Court concludes Plaintiffs have established that the failure to grant an injunction will place them in the position of either maintaining their current policies in the face of the federal government’s view that they are violating the law, or changing them to comply with the Guidelines and cede their authority over this issue. See DOJ/DOE Letter, ECF No. 6-10 (“This letter summarizes a school’s Title IX obligations regarding transgender students and explains how [DOE and DOJ] evaluate a school’s compliance with these obligations.”).
21 The Parties address the third and fourth Canal factors together, therefore they are treated together in this Order as well.

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Plaintiffs’ harms in this regard outweigh those identified by Defendants, particularly since the Supreme Court stayed the Fourth Circuit’s decision supporting Defendants’ position, and a decision from the Supreme Court in the near future may obviate the issues in this lawsuit. As a result, Plaintiffs interests outweigh those identified by Defendants. Further, Defendants have not offered evidence that Plaintiffs are not accommodating students who request an alternative arrangement. Indeed, the school district at issue in G.G. provided its student an accommodation.
Accordingly, the Court finds that Plaintiffs have met their burden and these factors weigh in favor of granting the preliminary injunction.
C. Scope of the Injunction
Finally, the Court must determine the scope of the injunction. Plaintiffs seek to apply the injunction nationwide. Mot. Injunction 3, ECF No. 11; Pls.’ Reply 13, ECF No. 52. Defendants counter that the injunction should be narrowly tailored to Plaintiffs in the Fifth Circuit. Defs.’ Resp. 28, ECF No. 40.
“Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction.” Califano v. Yamasaki, 442 U.S. 682, 705 (1979). “[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Id. at 702 (permitting a nationwide injunction because the class action was proper and finding that a nationwide injunction was not more burdensome than necessary to redress plaintiffs’ complaints).

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The Court concludes this injunction should apply nationwide. As the separate facilities provision in § 106.33 is permissive, states that authorize schools to define sex to include gender identity for purposes of providing separate restroom, locker room, showers, and other intimate facilities will not be impacted by it. Those states who do not want to be covered by this injunction can easily avoid doing so by state law that recognizes the permissive nature § 106.33. It therefore only applies to those states whose laws direct separation. However, an injunction should not unnecessarily interfere with litigation currently pending before other federal courts on this subject regardless of the state law. As such, the parties should file a pleading describing those cases so the Court can appropriately narrow the scope if appropriate.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiffs’ application for a preliminary injunction (ECF No. 11) should be and is hereby GRANTED. See Fed. R. Civ. P. 65. It is FURTHER ORDERED that bond is set in the amount of one hundred dollars.22 See Fed. R. Civ. P. 65(c). Defendants are enjoined from enforcing the Guidelines against Plaintiffs and their respective schools, school boards, and other public, educationally-based institutions. Further, while this injunction remains in place, Defendants are enjoined from initiating, continuing, or concluding any investigation based on Defendants’ interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrim-
22 Neither party addressed the appropriate bond amount should an injunction be entered.

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ination on the basis of sex. Additionally, Defendants are enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of this Order. All parties to this cause of action must maintain the status quo as of the date of issuance of this Order and this preliminary injunction will remain in effect until the Court rules on the merits of this claim, or until further direction from the Fifth Circuit Court of Appeals. This preliminary injunction shall be binding on Defendants and any officers, agents, servants, employees, attorneys, or other persons in active concert or participation with Defendants, as provided in Federal Rule of Civil Procedure Rule 65(d)(2).
SO ORDERED on this 21st day of August, 2016.
/s/ Reed O’Connor Reed O’Connor UNITED STATES DISTRICT JUDGE

 
 No. 16-273
dIN THE
Supreme Court of the United States

GLOUCESTER COUNTY SCHOOL BOARD, — v.—

Petitioner,

G.G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

Gail M. Deady Rebecca K. Glenberg (of counsel) AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA FOUNDATION, INC. 701 E. Franklin Street, Suite 1412 Richmond, VA 23219

Joshua A. Block Counsel of Record
James D. Esseks Leslie Cooper Louise Melling Steven R. Shapiro AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 549-2500 jblock@aclu.org

QUESTIONS PRESENTED 1. Whether, in the absence of any “special justification,” this Court should depart from stare decisis and overturn long-standing principles of administrative law embodied in Auer v. Robbins, 519 U.S. 452 (1997), and similar precedent dating back to 1945? 2. Whether Auer deference applies to an agency’s interpretation of its own regulation when (a) that interpretation is articulated in an opinion letter, a statement of interest and an amicus brief, and (b) the interpretation is not a post hoc justification to defend an agency decision under attack? 3. Whether a school board policy that categorically prohibits transgender students from using restrooms consistent with their gender identity, effectively excluding them from using the common restrooms used by other students, violates Title IX and its implementing regulations?
i

TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................ i TABLE OF AUTHORITIES ...................................... iv INTRODUCTION ....................................................... 1 STATEMENT OF THE CASE.................................... 4 REASONS FOR DENYING THE PETITION ......... 16 I. THIS COURT HAS ADHERED TO AUER
FOR DECADES, AND THERE IS NO SPECIAL JUSTIFICATION FOR REVISITING THAT LONGSTANDING PRECEDENT NOW. ...................................... 16 II. THIS CASE DOES NOT IMPLICATE ANY ALLEGED CIRCUIT SPLIT REGARDING DEFERENCE TO INFORMAL AGENCY ACTION OR INTERPRETATIONS ANNOUNCED DURING LITIGATION........ 18 III. THIS CASE IS A POOR VEHICLE FOR RESOLVING TITLE IX’S APPLICATION TO TRANSGENDER STUDENTS’ USE OF RESTROOMS........................................... 21 A. No Other Court of Appeals Has
Considered the Question Presented ...... 21 B. The Petition Seeks Interlocutory
Review Without a Final Judgment ....... 23 C. This Case Involves Only Restrooms,
Not Locker Rooms .................................. 25 D. This Case Is Not a Vehicle for Evaluating
the Detailed Guidance Issued by the Department of Education ...................... 27
ii

E. This Case Is Not a Vehicle for Addressing Pennhurst Challenges ............................ 28
IV. THE JUDGMENT BELOW IS CORRECT ... 29 A. The Interpretation of 34 C.F.R. § 106.33 Adopted Below Is Correct, With or Without Auer Deference ........................ 29 B. The Department’s Reasonable Interpretation of its Own Regulation Is Worthy of Deference Under Any Standard ................................................. 34
CONCLUSION.......................................................... 37
iii

TABLE OF AUTHORITIES
CASES Aaron v. Cooper, 357 U.S. 566 (1958) ...................... 24 Arizona v. Evans, 514 U.S. 1 (1995)......................... 22 Arriaga v. Fla. Pac. Farms, L.L.C.,
305 F.3d 1228 (11th Cir. 2002) ............................. 20 Auer v. Robbins, 519 U.S. 452 (1997)................passim Bd. of Educ. of the Highland Local Sch. Dist. v.
United States Dep’t of Educ., No. 2:16-CV-524, 2016 WL 4269080 (S.D. Ohio Aug. 15, 2016) ....... 22 Bennett v. Ky. Dep’t of Educ., 470 U.S. 656 (1985) .. 29 Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012)..................................... 35 Bowers v. Hardwick, 478 U.S. 186 (1986)................ 27 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) ........................................... 2, 16 Califano v. Yamasaki, 442 U.S. 682 (1979) ....... 22, 23 Carcaño v. McCrory, No. 1:16CV236, 2016 WL 4508192 (M.D.N.C. Aug. 26, 2016) ................passim Chase Bank USA, N.A. v. McCoy, 562 U.S. 195 (2011) ......................................... 18, 19 City of Arlington, Tex. v. FCC, 133 S. Ct. 1863 (2013) ........................................... 36 Cruzan v. Special Sch. Dist, No. 1, 294 F.3d 981 (8th Cir. 2002) ................................. 25 Davis ex rel. LaShonda D., v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999)........................ 28, 29, 33
iv

DTD Enters., Inc. v. Wells, 130 S. Ct. 7 (2009) ........ 24 Elrod v. Burns, 427 U.S. 347 (1976) .......................... 4 Falken v. Glynn Cty., Ga.,
197 F.3d 1341 (11th Cir. 1999) ............................. 20 Fed. Exp. Corp. v. Holowecki, 552 U.S. 389 (2008) . 36 Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274 (1998) ............................................... 28 Gloucester Cty. Sch. Bd. v. G.G., No. 16A52,
2016 WL 4131636 (U.S. Aug. 3, 2016).................. 15 Gonzales v. Oregon, 546 U.S. 243 (2006) ................. 35 Halliburton Co. v. Erica P. John Fund, Inc.,
134 S. Ct. 2398 (2014) ........................................... 17 Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167 (2005) ................................... 28, 30, 34 Kahn v. Shevin, 416 U.S. 351 (1974) ....................... 30 Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003)....... 19 Lawrence v. Texas, 539 U.S. 557 (2003)................... 27 M.A.B. ex rel. L.A.B. & L.F.B. v. Bd. of Educ.,
1:16-cv-02622-GLR (D. Md. filed July 19, 2016) .. 22 Mass. Mutual Life Ins. Co. v. United States,
782 F.3d 1354 (Fed. Cir. 2015) ............................. 20 Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982) ............................................... 27 Mount Soledad Mem’l Ass’n v. Trunk,
132 S. Ct. 2535 (2012) ........................................... 24 Nebraska v. United States, 4:16-cv-03117-JMG-CRZ
(D. Ne. filed July 8, 2016) ..................................... 22
v

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ................................................. 24
Pennhurst State Sch. & Hospital v. Halderman, 451 U.S. 1 (1981) ......................................... 3, 28, 29
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015) ..................................... 16, 18
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).. 30 Schindler Elevator Corp. v. United States ex rel. Kirk,
563 U.S. 401 (2011) ................................................. 4 Skidmore v. Swift & Co., 323 U.S. 134 (1944)..passim Students & Parents for Privacy v. United States Dep’t
of Educ., No. 16 C 4945, 2016 WL 3269001 (N.D. Ill. June 15, 2016)........................................ 22 Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50 (2011) ................................................. 16 Texas v. United States, No. 7:16-CV-00054-O, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016) .... 22, 23, 28 U.S. Freightways Corp. v. Commissioner, 270 F.3d 1137 (7th Cir. 2001) ............................... 19 United States v. Lachman, 387 F.3d 42 (1st Cir. 2004).................................... 19 United States v. Mendoza, 464 U.S. 154 (1984)....... 22 United States v. Munsingwear, 340 U.S. 36 (1950) . 11 United Student Aid Funds, Inc. v. Bible, 136 S. Ct. 1607 (2016) ..................................... 16, 17 Va. Military Inst. v. United States, 508 U.S. 946 (1993) ............................................... 24
vi

Vietnam Veterans of Am. v. CIA, 811 F.3d 1068 (9th Cir. 2015) ............................... 20
Whitaker v. Kenosha Unified Sch. Dist., 2:16-cv00943 (E.D. Wis. filed July 19, 2016) ................... 22
CONSTITUTION & STATUTES U.S. Const. amend. XIV...................................... 10, 15 Title VII, Civil Rights Act of 1964,
52 U.S.C. § 2000e et seq.................................. 12, 35 Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681 et seq...................................passim 20 U.S.C. § 1681(a) ........................................... 1, 29 20 U.S.C. § 1682.................................................... 34 20 U.S.C. § 1686.................................................... 35
RULES 34 C.F.R. § 106.33 ..............................................passim Sup. Ct. R. 10(a)........................................................ 22 Sup. Ct. R. 11 ............................................................ 24
LEGISLATIVE MATERIALS 117 Cong. Rec. 30407 (1971)..................................... 35 118 Cong. Rec. 5807 (1972) ...................................... 35
OTHER AUTHORITIES Am. Psychiatric Ass’n, Gender Dysphoria
Fact Sheet (2013), http://www.dsm5.org/documents /gender%20dysphoria%20fact%20sheet.pdf ........... 5
vii

Am. Psychological Ass’n, Guidelines for Psychological Practice with Transgender and Gender Nonconforming People (December 2015), http://www.apa.org/practice/guidelines/transgender .pdf ........................................................................... 4
Aruna Saraswat, M.D., et. al., Evidence Supporting the Biologic Nature of Gender Identity, 21 Endocrine Practice 199 (2015) ........................... 4
Cass R. Sunstein & Adrian Vermeule, The Unbearable Rightness of Auer, Forthcoming U. Chi. L. Rev. (2016)................................................... 17, 18
Catherine Crocker, Ginsburg Explains Origins of Sex, Gender, Associated Press (Nov. 21, 1993) .... 30
Conor Clarke, The Uneasy Case Against Auer & Seminole Rock, 33 Yale L. & Pol’y Rev. 175 (2014) ..................................................................... 17
Gloucester County School Board Video Tr., Nov. 11, 2014, http://gloucester.granicus.com/MediaPlayer. php?view_id=10&clip_id=1065 ............................... 8
U.S. Dep’t of Educ. Office of Elementary & Secondary Educ., Examples of Policies and Emerging Practices for Supporting Transgender Students (May 2016), http://www2.ed.gov/about/offices/list/ oese/oshs/emergingpractices.pdf. ........ 14, 26, 33, 36
Va. Dep’t of Educ. Guidelines for Sch. Facilities in Va. Pub. Schs. 20 (2013), http://www.doe.virginia. gov/support/facility_construction/school_constructi on/regs_guidelines/guidelines.pdf......................... 26
viii

INTRODUCTION
This case involves a 17-year-old boy who is transgender. Although he was designated female at birth, G. has a male gender identity. He has a state ID identifying him as male, and, as a result of hormone therapy, has facial hair, a deep voice, and other male secondary sex characteristics. In every aspect of life outside school, G. is recognized as a boy. At school, however, G. is singled out from every other student and forced to use separate restrooms because his school board has concluded that G.’s mere presence in a restroom used by other boys is unacceptable.
Title IX protects everyone—including transgender students—from being “excluded from participation in” or “denied the benefits of” any education program or activity “on the basis of sex.” 20 U.S.C. § 1681(a). The central question in this case is whether 34 C.F.R. § 106.33, a regulation allowing schools to “provide separate toilet . . . facilities on the basis of sex,” implicitly authorizes schools to prohibit transgender boys and girls from using restrooms consistent with their gender identity, effectively excluding them from using the common restrooms used by other students.
When the regulation was drafted in 1975, few would have conceived that, as result of advances in treatment and support for transgender youth, a student like G. would be assigned a female sex at birth and yet have facial hair and other male secondary sex characteristics, have a male designation on his government ID card, and be able to live all aspects of life in accordance with his male gender identity. Faced with this reality, the
1

Department of Education (the “Department”) concluded that the only way to “provide separate toilet . . . facilities on the basis of sex” in a manner that does not deprive students of equal educational opportunity—and the only way to make common restrooms truly accessible—is to allow transgender students to use restrooms consistent with their gender identity.
In the decision below, the Fourth Circuit determined that the Department’s interpretation was neither clearly erroneous nor inconsistent with the statutory text, and therefore deferred to the Department’s reasonable interpretation of its own regulation under Auer v. Robbins, 519 U.S. 452 (1997). Petitioner now seeks a writ of certiorari to review three questions:
First, Petitioner asks this Court to overrule Auer. For decades this Court has adhered to the principle that an agency’s interpretation of its own regulations should generally be “controlling unless plainly erroneous or inconsistent with the regulation.” Id. at 461 (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (internal quotation marks omitted)). In the past five years, three sitting Justices have called for Auer to be overruled or reconsidered, but a majority of this Court has not expressed interest in doing so. There is no special justification for overturning this settled principle of administrative law now.
Second, Petitioner asks this Court to resolve a purported circuit split regarding whether Auer applies to unpublished opinion letters or interpretations announced in the context of an ongoing dispute. The first purported split is
2

questionable; the second one is nonexistent; and neither one is implicated by this case because the Department’s interpretation pre-dated the litigation and was articulated, not just in an opinion letter, but also in a statement of interest and amicus brief.
Third, Petitioner asks this Court to resolve the underlying question of whether Title IX and its regulations allow schools to effectively exclude transgender students from the common restrooms by prohibiting them from using restrooms consistent with their gender identity. That question may ultimately warrant this Court’s attention, but this is the wrong case at the wrong time. There is no circuit split and no final judgment; there are no claims involving locker rooms or the detailed guidance subsequently issued by the Department; and Petitioner has waived any argument based on Pennhurst State Sch. & Hospital v. Halderman, 451 U.S. 1 (1981). The Court should allow the issue to continue percolating in the lower courts until a more appropriate vehicle arrives.
Moreover, the decision below was correctly decided and does not call for the Court’s immediate review. The Department’s interpretation of its own regulation is the correct interpretation, and it is the interpretation that should prevail regardless of whether it receives Auer deference, Skidmore deference, or no deference at all. For all these reasons, the petition for a writ of certiorari should be denied.
3

STATEMENT OF THE CASE
A. Factual background.1
“Gender identity” is an established medical concept, referring to one’s sense of oneself as belonging to a particular gender. C.A. App. 36. It is an innate and immutable aspect of personality, with biological roots. See id.; Aruna Saraswat, M.D., et. al., Evidence Supporting the Biologic Nature of Gender Identity, 21 Endocrine Practice 199, 199202 (2015).2 Everyone has a gender identity. Transgender individuals, however, have a gender identity that is different than the sex assigned to them at birth, which is usually based on an examination of external anatomy.3
G. came out to his parents as a transgender boy during his freshman year of high school when the
1 On a motion to dismiss and motion for preliminary injunction, the facts alleged in the Complaint and uncontroverted declarations must be taken as true. See Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 404 n.2 (2011); Elrod v. Burns, 427 U.S. 347, 350 n.1 (1976).
2 Petitioner mischaracterizes gender identity as something “subjective” and impossible to verify or define. Pet. 1. There is no dispute that G. is a transgender boy and, as a result of hormone therapy, has objective physiological characteristics that differ from those of typical non-transgender girls.
3 Guidelines from the American Psychological Association no longer use the term “biological sex” when referring to sex assigned at birth. See Am. Psychological Ass’n, Guidelines for Psychological Practice with Transgender and Gender Nonconforming People, App. A (December 2015), http://www. apa.org/practice/guidelines/transgender.pdf. “Biological sex” is an inaccurate description of a person’s sex assigned at birth because gender identity also has biological roots.
4

stress of concealing his gender identity became so great he was unable to attend class. C.A. App. 12. G. began seeing a psychologist with experience counseling transgender youth, who diagnosed G. with gender dysphoria.4 G.’s psychologist gave him a “Treatment Documentation Letter” confirming that he was receiving treatment for gender dysphoria and stating that he should be treated as a boy in all respects, including when using the restroom. Id. at 13. Consistent with that medical advice, G. uses the boys’ restrooms in all public venues, such as restaurants, libraries, and shopping centers. Id. at 13-14.5
4 Gender dysphoria is the diagnostic term for the feeling of incongruence between an individual’s gender identity and an individual’s sex assigned at birth, and the resulting distress caused by that incongruence. Id. at 11-12. It is a serious medical condition codified in the Diagnostic and Statistical Manual of Mental Disorders and International Classification of Diseases. Id. at 37. “[G]ender nonconformity is not in itself a mental disorder. The critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.” Am. Psychiatric Ass’n, Gender Dysphoria Fact Sheet, at 1 (2013), http://www.dsm5.org/documents/gender %20dysphoria%20fact%20sheet.pdf. Treatment for gender dysphoria is thus designed to help transgender individuals live congruently with their gender identity and eliminate clinically significant distress. C.A. App. 37. The World Professional Association for Transgender Health (“WPATH”) has established international standards of care for gender dysphoria, which are recognized as authoritative by the leading medical and mental health organizations, including the American Medical Association, the Endocrine Society, and the American Psychological Association. Id.
5 G. continues to receive transition-related care in accordance with WPATH standards. In December 2014, G. began hormone therapy. Id. The WPATH standards do not permit genital
5

In August 2014, before beginning his sophomore year, G. and his mother met with the principal and guidance counselor to explain that G. is a transgender boy and would be attending school as a male student. Id. at 14. G. initially chose to use a restroom in the nurse’s office, but after a few weeks G. found that using a separate restroom was stigmatizing and that the inconvenient location interfered with his ability to attend class on time. Id. at 15.6
With the principal’s permission, G. began using the boys’ restroom on October 20, 2014, and continued doing so for seven weeks without incident. C.A. App. 15.7 Nevertheless, some adults in the community were upset to learn a transgender boy was using the boys’ restrooms at school. Id. Those adults contacted the Gloucester County School Board (the “Board”) demanding that the transgender student (who was not publicly identified until later) be barred from the boys’ restrooms. Id.
The Board took no action for several weeks until Board member Carla Hooks proposed a policy for public debate at the Board’s meeting on
surgery for minors, Pet. App. 9a, but in June 2016, G. had chest reconstruction surgery. Petitioner’s statement that G. has not “had a sex change operation,” Pet. 5, is no longer correct.
6 Petitioner’s assertion that “school officials” did not initially think G. should use the boys’ restroom, Pet. 5, lacks foundation in the Complaint or the preliminary injunction record.
7 G. asked to continue using a home-bound program for physical education. He therefore does not use the school locker rooms. Pet. App. 9a n.2.
6

November 11, 2014. Its operative language stated that:
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.
Id. at 15-16. G. and his parents attended the meeting to speak against the policy. Id. at 16.
When G. spoke, he told the Board:
I use the restroom, the men’s public restroom, in every public space in Gloucester County and others. I have never once had any sort of confrontation of any kind.
. . .
All I want to do is be a normal child and use the restroom in peace, and I have had no problems from students to do that—only from adults. The adults are the only people who have been trying to restrict my rights.
. . .
No one has given me any problem, and I have never been happier exercising my right to be who I am. I did not ask to be this way, and it’s one of the most difficult things anyone can face.
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. . .
I deserve the rights of every other human being. I am just a human. I am just a boy.
Gloucester County School Board Video Tr., Nov. 11, 2014, at 25:00 – 27:22.8 The Board deferred voting on the policy until its meeting on December 9, 2014. C.A. App. 17.
A week before the next meeting, the Board announced plans to increase privacy protections for all students by “adding or expanding partitions between urinals in male restrooms, and adding privacy strips to the doors of stalls in all restrooms.” Id. The Board also announced “plans to designate single stall, unisex restrooms . . . to give all students the option for even greater privacy.” Id.
Speakers at the December Board meeting nonetheless demanded that the Board exclude G. from the boys’ restroom without waiting for the privacy protections to be installed, and they threatened to vote Board members out of office if they refused. Id. at 18. One speaker called G. a “freak” and compared him to a person who thinks he is a dog and wants to urinate on fire hydrants. Id.
The Board voted 6-1 to pass the policy introduced the previous month prohibiting transgender students from using restrooms consistent with their gender identity. Id. It is a categorical rule prohibiting administrators from ever allowing transgender students to use facilities
8 Available at http://gloucester.granicus.com/MediaPlayer.php? view_id=10&clip_id=1065.
8

consistent with their gender identity regardless of the configuration of the bathroom or the individual circumstances of any student.
No one contends G. should use the girls’ restrooms. Even before G. transitioned, girls objected to his presence in the girls’ restrooms because they perceived him to be male. Id. at 18. The necessary and foreseen consequence of excluding G. from the boys’ restrooms is that he, and only he, will have to use an “alternative appropriate private facility.” Id. at 16.
The public debate about which restrooms he should use has been humiliating for G., who feels that the Board’s actions have turned him into “a public spectacle” before the entire community, “like a walking freak show.” Id. at 31. Being forced to use separate restrooms physically and symbolically marks G. as different, isolates G. from his peers, and brands him as unfit to share the same restrooms as others. Id. at 19. The policy is an official decree that G.’s mere presence in a restroom is unacceptable and that he should be treated differently than everyone else.
The Board subsequently converted a faculty restroom and two utility closets into single-stall restrooms. Although any student is allowed to use those restrooms, no one actually does so. Id. For G., the prospect of using the converted single-stall restrooms, which were created for the specific purpose of isolating him from his peers, is humiliating. Instead he tries to avoid using school restrooms entirely. Id. If that is not possible, he uses the nurse’s restroom, which still makes G. feel embarrassed and humiliated, knowing that
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everyone who sees him enter the nurse’s office knows he is there because he is transgender and has been barred from the restrooms other boys use. Id. at 33.
To avoid using the restroom, G. avoids drinking liquids and tries not to urinate during the school day. Id. at 19. As a result, G. has repeatedly developed painful urinary tract infections and felt distracted and uncomfortable in class. Id. A nationally recognized expert in the treatment of gender dysphoria in adolescents evaluated G. and concluded that the stigma he experiences every time he needs to use the restroom “is a devastating blow to [G.] and places him at extreme risk for immediate and long-term psychological harm.” Id. at 42.
B. Proceedings Below.
The day after the 2014-15 school year ended, G. filed a complaint and motion for preliminary injunction against the Board, arguing that the new policy discriminates against him on the basis of sex, in violation of Title IX and the Equal Protection Clause. C.A. App. 20-22. The Complaint seeks injunctive relief and damages for both claims. Id. at 23.
An implementing regulation for Title IX, 34 C.F.R. § 106.33, authorizes schools to provide separate restrooms for boys and girls, but does not specifically address which restrooms transgender boys and transgender girls should use. Since 2013, the Department of Education has advised schools that “[w]hen 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.” C.A. App. 55. On
10

January 7, 2015, The Department issued an opinion letter confirming that this principle applies in the context of restrooms. Id. at 54-56.9 The Department further elaborated on its interpretation with a statement of interest filed with the district court and an amicus brief submitted to the Fourth Circuit. Pet. App. 13a
The district court granted the Board’s crossmotion to dismiss the Title IX claim and denied G.’s motion for a preliminary injunction. Pet. App. 84a-117a. G. appealed the denial of a preliminary injunction and asked the Fourth Circuit to exercise pendant appellate jurisdiction over the dismissal of his Title IX claim. Pl’s C.A. Br. at 1.10
On April 19, 2016, the Fourth Circuit reversed the dismissal of the Title IX claim and vacated the denial of a preliminary injunction. Pet. App. 1-60a. With respect to G.’s Title IX claim, the Fourth Circuit held that the Department’s “interpretation of its own regulation, [34 C.F.R.] § 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.” Pet. App. 25a.
9 The record does not reflect the identity of the individual who requested the opinion letter because it was redacted in public filings. No. 4:15-cv-00054-RGD-TEM, ECF Nos. 28-1, 28-2 (E.D. Va. June 29, 2015). Despite the redaction, Petitioner states that it has identified the individual by opening the redacted document “in Preview for Mac.” Pet. 8 n.3.
10 Because the Fourth Circuit exercised jurisdiction over the motion to dismiss the Title IX claim, which includes a claim for damages, its decision would not be vacated under United States v. Munsingwear, 340 U.S. 36 (1950), even if the claims for injunctive relief were to become moot upon G.’s graduation.
11

The court methodically considered all the conditions for applying Auer. First, the court examined the text of the regulation to determine whether it unambiguously indicated which restroom a transgender student should use. Pet. App. 19-20a. It concluded that “[a]lthough the regulation may refer unambiguously to males and 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.” Id.
The court then examined whether the Department’s interpretation of 34 C.F.R. § 106.33 was plainly erroneous or inconsistent with the regulation’s text. Pet. App. 20-23a. Once again, the court independently reviewed the text and determined that dictionaries contemporaneous to the passage of Title VII and Title IX defined “sex” as “the character of being male or female” or “the sum of the morphological, physiological, and behavioral peculiarities . . . that is typically manifested as maleness or femaleness.” Pet. App. 21a. These dictionary definitions thus “shed[] little light on how exactly to determine the ‘character of being either male or female’ where those indicators diverge.” Pet. App. 22a. The court concluded that ED’s interpretation of the regulation was therefore consistent with the regulation’s text and not clearly erroneous. Pet. App. 21-23a.
Finally, the court determined that the Department’s interpretation reflected its fair and reasoned judgment and not a post-hoc litigating position. Pet. App. 23-24a. As the Fourth Circuit pointed out, the Department’s interpretation dated back to 2013 and was consistent with “the existing
12

guidance[] and regulations of a number of federal agencies—all of which provide that transgender individuals should be permitted access to the restroom that corresponds with their gender identities.” Pet. App. 24a.
In response to arguments that G.’s use of the boy’s restroom would infringe the constitutional privacy rights of other students, the court noted that the cases cited by the Board involved students who were videotaped naked in a locker room or indiscriminately strip searched. “G.G.’s use—or for that matter any individual’s appropriate use—of a restroom [does] not involve the [same] type of intrusion.” Pet. App. 25-26a n.10. That is especially true here because of the partitions between urinals and privacy strips for stall doors. All students who want greater privacy for any reason may also use one of the new single-stall restrooms. Pet App. 11a; accord Pet. App. 37-38a (Davis, J., concurring).
Senior Judge Davis concurred and emphasized that “[t]he uncontroverted facts before the district court demonstrate that as a result of the Board’s restroom policy, G.G. experiences daily psychological harm that puts him at risk for long-term psychological harm.” Pet. App. 37a. Judge Davis urged the district court on remand to take “prompt action” because “[b]y 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.” Pet. App. 39a.
Judge Niemeyer dissented. Pet. App. 40-60a. He did not identify any privacy concerns raised by the facts of this case and acknowledged that “the risks to privacy and safety are far reduced” in
13

the context of restrooms. Pet. App. 53a. Judge Niemeyer instead focused on transgender students’ use of locker rooms and potential exposure to “private body parts.” Pet. App. 52a. The dissent did not contend it would be appropriate for G. to use the girls’ restrooms. Pet. App. 59a.
After the Fourth Circuit’s ruling, the Department of Education issued comprehensive guidance to school districts on how to provide transgender students equal access to school resources consistent with Title IX. Pet. App. 126142a. The Department also provided examples of school policies from across the country.11
On May 31, 2016, the Fourth Circuit denied rehearing en banc. Pet. App. 60-61a. Judge Niemeyer dissented from denial of panel rehearing. Pet. App. 61-66a. The court subsequently denied the Board’s motion to stay the mandate pending disposition of a petition for certiorari, with Judge Niemeyer again dissenting. Pet. App. 67-70a.
On remand, the district court entered a preliminary injunction allowing G. to use the boys’ restroom at school. Pet. App. 71-72a. The court emphasized that the injunction applies only to G. and only to restrooms at the high school. Pet. App. 72a. The district court and the Fourth Circuit, over Judge Niemeyer’s dissent, denied the Board’s motions to stay the preliminary injunction pending
11 U.S. Dep’t of Educ. Office of Elementary & Secondary Educ., Examples of Policies and Emerging Practices for Supporting Transgender Students (“Examples of Policies”) at 12, 7-8 (May 2016), http://www2.ed.gov/about/offices/list/ oese/oshs/emergingpractices.pdf.
14

appeal. Pet. App. 73-75a, 76-81a. Judge Davis concurred, responding to the dissent’s assertion that the G.G. opinion was “unprecedented.” Pet. App. 79a. He noted that “[t]he First, Sixth, Ninth, and Eleventh Circuits have all recognized that discrimination against a transgender individual based on that person’s transgender status is discrimination because of sex under federal civil rights statutes and the Equal Protection Clause of the Constitution.” Pet. App. 78a. Judge Davis explained that the panel’s decision rested on “this long-settled jurisprudential foundation.” Id.
On August 3, 2016, this Court granted the Board’s application to stay and recall the mandate and stay the preliminary injunction pending disposition of the Board’s petition for certiorari. Gloucester Cty. Sch. Bd. v. G.G., No. 16A52, 2016 WL 4131636 (U.S. Aug. 3, 2016).
On August 29, 2016, the Board filed a combined petition for (a) an interlocutory writ of certiorari from the Fourth Circuit’s ruling on the motion to dismiss, and (b) a writ of certiorari before judgment from the district court’s preliminary injunction order. Pet 17.
15

REASONS FOR DENYING THE WRIT
I. THIS COURT HAS ADHERED TO AUER FOR DECADES, AND THERE IS NO SPECIAL JUSTIFICATION FOR REVISITING THAT LONGSTANDING PRECEDENT NOW.
Auer deference is a longstanding principle of administrative law, dating back to this Court’s decision in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). For decades this Court has adhered to the principle that an agency’s interpretation of its own regulations should generally be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Id. at 414. “Occasionally, Members of this Court have argued in separate writings that the Court failed appropriately to apply Seminole Rock deference, but in none of those cases did the majority opinions of the Court expressly refuse to do so.” Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1214 n.2 (2015) (Thomas, J., dissenting).
The first time any member of the Court called Auer deference into question was Justice Scalia’s concurring opinion in Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50, 67 (2011) (Scalia, J., concurring). Over the next five years, three other Justices have called for Auer to be overruled or reconsidered, but a majority of this Court has not expressed interest in doing so. See United Student Aid Funds, Inc. v. Bible, 136 S. Ct. 1607, 1608 (2016) (Thomas, J., dissenting from denial of certiorari) (collecting cases). Just last term, the Court declined to grant certiorari in a case calling for Auer to be
16

reconsidered and overruled. See Petition for Writ of Certiorari, United Student Aid Funds, Inc. v. Bible, 136 S. Ct. 1607 (No. 15-861).
In asking this Court to overturn longstanding precedent that has been woven into the fabric of administrative law, Petitioner bears a heavy burden. “Before overturning a long-settled precedent” this Court requires “‘special justification,’ not just an argument that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2407 (2014). As this Court has further recognized, “the principle of stare decisis has special force in respect to statutory interpretation because Congress remains free to alter what [the Court] ha[s] done.” Id. at 2411 (internal quotation marks omitted).
Here, Congress has not acted and Petitioner offers no special justification for overruling Auer other than disagreement with its holding. By contrast, the reliance interests of regulated communities that depend on agency guidance to reduce uncertainty about their legal obligations, and the clarity provided by a stable “background rule,” reinforce the appropriateness of adhering to stare decisis in this context. See Cass R. Sunstein & Adrian Vermeule, The Unbearable Rightness of Auer, Forthcoming U. Chi. L. Rev., at 22-34 (2016), http://ssrn.com/abstract=2716737; Conor Clarke, The Uneasy Case Against Auer & Seminole Rock, 33 Yale L. & Pol’y Rev. 175, 193 (2014).
Abandoning Auer would “have radical implications for delegation, the combination of functions in agencies, and other fundamental features of the modern administrative state.”
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Sunstein & Vermeule, supra, at 2. When an agency oversteps, this Court has tools at its disposal to withhold Auer deference. Perez, 135 S. Ct. at 1208 n.4. Dramatically altering foundational principles of administrative law is neither necessary nor appropriate.
II. THIS CASE DOES NOT IMPLICATE ANY ALLEGED CIRCUIT SPLIT REGARDING DEFERENCE TO INFORMAL AGENCY ACTION OR INTERPRETATIONS ANNOUNCED DURING LITIGATION.
Petitioner argues that this case provides a vehicle for resolving two purported circuit splits regarding the application of Auer. The first purported split is questionable; the second one is nonexistent; and neither one is implicated by this case.
First, Petitioner claims the circuits are split regarding the level of deference owed to unpublished agency opinion letters. Pet. 26-29. But if such a split exists, it is not relevant to this case. By focusing exclusively on the “Ferg-Cadima letter,” Petitioner attempts to portray the Fourth Circuit’s decision as an example of deference to “a piece of private correspondence” from “an agency employee.” Pet. 38. Even if that characterization were accurate, the Department’s interpretation of 34 C.F.R. § 106.33 was not limited to a single opinion letter. It was thoroughly explained in the statement of interest filed at the district court and in the amicus brief filed in the court of appeals. As this Court unanimously reaffirmed in Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 209 (2011), these briefs independently qualify for Auer deference. Whatever dispute exists
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among the courts of appeals regarding deference to an opinion letter from a low-ranking bureaucrat, that dispute has no bearing on this case.
Moreover, no circuit subscribes to Petitioner’s broad proposition that agency interpretations must appear in a format carrying the force of law to receive Auer deference. Pet. 27. Petitioner derives such a requirement from Judge Posner’s 13-year-old dicta in Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003). Auer, however, contains no such requirement, and the dicta cited by Petitioner reflects Judge Posner’s prediction at the time that “[p]robably there is little left of Auer.” Id. at 993. The past 13 years have proven that prediction wrong. Compare id. (“Briefs certainly don’t have ‘the force of law.’”), with Chase Bank, 562 U.S. at 209 (reaffirming that Auer applies to statements in amicus briefs).
If there is any split regarding the narrow issue of deference to informal opinion letters, the evidence of such disagreement is stale and inconclusive:
 The First Circuit decision cited by Petitioner concerned informal statements at a seminar, not an agency opinion letter. See United States v. Lachman, 387 F.3d 42, 54 (1st Cir. 2004).
 The other Seventh Circuit authority cited by Petitioner is a 15-year-old decision that applied Skidmore to an opinion letter without mentioning Auer at all, U.S. Freightways Corp. v. Commissioner, 270 F.3d 1137 (7th Cir. 2001).
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 The Eleventh Circuit has without explanation applied Skidmore deference to such letters, see Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1238 (11th Cir. 2002), but it has also without explanation applied Auer, see Falken v. Glynn Cty., Ga., 197 F.3d 1341, 1350 (11th Cir. 1999).
Even if the decision below had deferred only to an unpublished agency opinion, this haphazard collection of stale cases hardly constitutes a split ready for this Court’s review.
Second, Petitioner also alleges the circuits are split regarding deference to agency positions announced during litigation. Pet. 29-31. Once again, even if a split existed, it would not be implicated by this case because the Department’s interpretation of § 106.33 dates back to 2013, before this litigation arose. C.A. App. 55.
If Petitioner’s first purported split was questionable, the second one is nonexistent. In support of a split, Petitioner relies on decisions in which the government itself was a party defending its own actions. Vietnam Veterans of Am. v. CIA, 811 F.3d 1068 (9th Cir. 2015); Mass. Mutual Life Ins. Co. v. United States, 782 F.3d 1354 (Fed. Cir. 2015). Every circuit, including the Fourth Circuit, agrees that Auer deference is inappropriate when an interpretation is “a convenient litigating position.” Pet. App. 17a. That principle, however, applies to post hoc rationalizations “advanced by an agency seeking to defend past agency action against attack.” Auer, 519 U.S. at 462.
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When an agency is not itself a party, the fact that its interpretation is announced for the first time in an amicus brief does not “make it unworthy of deference.” Id. The Department of Education is not a party to this case, and the fact that the agency issued an opinion letter (which was consistent with prior agency guidance) in the context of this dispute is neither unusual nor inappropriate.
III. THIS CASE IS A POOR VEHICLE FOR RESOLVING TITLE IX’S APPLICATION TO TRANSGENDER STUDENTS’ USE OF RESTROOMS.
Petitioner’s third question presented asks this Court to decide the underlying question of whether Title IX and its implementing regulations allow schools to exclude transgender boys and girls from using restrooms consistent with their gender identity, effectively excluding them from the common restrooms entirely. That question may ultimately warrant this Court’s attention, but this is the wrong case at the wrong time. Consistent with its usual practices, the Court should allow the issue to continue percolating in the lower courts until a more appropriate vehicle arrives.
A. No Other Court of Appeals Has Considered the Question Presented.
The decision below is the first and only circuit court opinion to consider how Title IX applies to transgender students’ use of restrooms. There are other cases in the pipeline that will soon give other circuits a chance to consider the issue and give the Fourth Circuit opportunities to further refine its
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analysis.12 As other courts of appeals consider these cases, they will produce a consensus or a circuit split. In either event, the issue would benefit from further exploration in the lower courts.
This Court’s usual practice is to wait until a circuit split emerges before granting review to resolve important legal questions. See Sup. Ct. R. 10(a). Before this Court resolves a new legal question “[i]t often will be preferable to allow several courts to pass on a given . . . claim in order to gain the benefit of adjudication by different courts in different factual contexts.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). “[W]hen frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court.” Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting).
There is no reason for this Court to grant certiorari now, without “the benefit it receives from permitting several courts of appeals to explore a difficult question.” United States v. Mendoza, 464 U.S. 154, 160 (1984). Petitioner argues that certiorari
12 See Carcaño v. McCrory, No. 1:16CV236, 2016 WL 4508192 (M.D.N.C. Aug. 26, 2016); Texas v. United States, No. 7:16-CV00054-O, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., No. 2:16-CV-524, 2016 WL 4269080 (S.D. Ohio Aug. 15, 2016); Students & Parents for Privacy v. United States Dep’t of Educ., No. 16 C 4945, 2016 WL 3269001 (N.D. Ill. June 15, 2016); Whitaker v. Kenosha Unified Sch. Dist., 2:16-cv-00943 (E.D. Wis. filed July 19, 2016); M.A.B. ex rel. L.A.B. & L.F.B. v. Bd. Of Educ., 1:16-cv-02622-GLR (D. Md. filed July 19, 2016); Nebraska v. United States, 4:16-cv-03117-JMG-CRZ (D. Ne. filed July 8, 2016).
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is necessary to resolve the tension created between the Fourth Circuit’s decision and the nation-wide injunction issued by the district court in Texas v. United States, No. 7:16-CV-00054-O, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016), which also covers the government’s activities in jurisdictions within the Fourth Circuit. Pet. 31-32. Courts in the Fourth Circuit, however, have continued to adhere to their own circuit precedent without difficulty. See Carcaño v. McCrory, No. 1:16CV236, 2016 WL 4508192, at *13 (M.D.N.C. Aug. 26, 2016). To the extent that the injunction from the Northern District of Texas interferes with other circuits’ control of precedent in their geographic jurisdictions, that is a reason for the injunction to be narrowed or overturned on appeal as an abuse of the district court’s discretion. See Califano, 442 U.S. at 702. It is not a reason to allow a single district court to “foreclos[e] adjudication by a number of different courts and judges,” and increase “the pressures on this Court’s docket.” Id.13
B. The Petition Seeks Interlocutory Review Without a Final Judgment.
Petitioners seek a writ of certiorari on an interlocutory basis from the Fourth Circuit’s denial of a motion to dismiss and a writ of certiorari before judgment from the district court’s preliminary injunction order. This Court, however, usually waits to review final judgments instead of granting certiorari in an interlocutory posture. See Mount
13 Moreover, there are jurisdictional obstacles in the Texas case that may well result in dismissal without reaching the merits of the Title IX question. Pet. App. 192-209a.
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Soledad Mem’l Ass’n v. Trunk, 132 S. Ct. 2535, 2536 (2012) (Alito, J., concurring in denial of petition for certiorari); DTD Enters., Inc. v. Wells, 130 S. Ct. 7, 8 (2009) (Kennedy, J., joined by Roberts, C.J., and Sotomayor, J., concurring in denial of petition for certiorari); Va. Military Inst. v. United States, 508 U.S. 946, 946 (1993) (Scalia, J., concurring in denial of petition for certiorari). And this Court exercises its discretion to grant certiorari before judgment even more sparingly. Such a petition will be granted “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11; see Aaron v. Cooper, 357 U.S. 566, 567 (1958).
The Court should follow its normal practice and wait for final judgment in this case too. The basic facts of this dispute have not yet been settled. If the Board had petitioned for certiorari after final judgment, the Court would know the actual content and sources of the complaints the Board allegedly received; the Court would have testimony from administrators at Gloucester High School who opposed the Board’s unnecessary and humiliating policy; the Court would have evidence about the Board’s actual motivations for passing the new policy; and the Court would know the full extent of harm the Board’s policy has inflicted on G. during his junior year.
Title IX “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Before granting certiorari, the Court should
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ensure it has all the facts necessary to make that assessment.
C. This Case Involves Only Restrooms, Not Locker Rooms.
Although Petitioner and the dissent below argue that the Department’s interpretation of its own regulation would infringe upon privacy rights in the context of locker rooms, see Pet. 14, the facts of this case concern access to restrooms only. As the Fourth Circuit explained, “G.G.’s use—or for that matter any individual’s appropriate use—of a restroom will not involve the type of intrusion present” in cases involving nudity. Pet. App. 25a n.10. Even the dissent acknowledged that “the risks to privacy and safety are far reduced” in the context of restrooms. Id. at 53a (Niemeyer, J., dissenting). Cf. Cruzan v. Special Sch. Dist, No. 1, 294 F.3d 981, 984 (8th Cir. 2002) (rejecting claim that allowing transgender woman to use women’s restroom created hostile work environment for non-transgender woman in the absence of an allegation of “any inappropriate conduct other than merely being present”).
The proper vehicle for addressing speculation about locker rooms is an actual case and controversy involving locker rooms. Without any factual context, Petitioners ask this Court to adopt the dissent’s assertion—apparently as a matter of law—that single-sex locker rooms and dormitories would “function nonsensically” if transgender students are not excluded from those spaces. See Pet. 35; Pet. App. 53a (Niemeyer, J., dissenting). But that is an empirical claim, not a legal one, which should be informed by the facts from an actual dispute.
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A concrete factual context would dispel many of the untested assumptions underlying the dissent below.14 Most transgender students, who may feel deeply embarrassed about parts of their anatomy that are different, take great pains to ensure that anatomy is not exposed. With privacy curtains and other partitions, school districts across the country have addressed the privacy needs of all students in locker rooms in a non-stigmatizing manner based on the particular needs of the situation. See Carcaño, 2016 WL 4508192. at *15 (summarizing information from school administrators that public school changing rooms “today often contain partitions, dividers, and other mechanisms to protect privacy similar to bathrooms”); accord ED, Examples of Policies and Emerging Practices at 7-8. There are many ways to address privacy concerns on an individualized basis without a “blanket ban.” Carcaño, 2016 WL 4508192, at *15.15
When the government facially classifies students on the basis of sex, it is especially important for courts to base decisions on a factual record to ensure those classifications are evaluated “through reasoned analysis rather than through the
14 For example, despite the dissent’s repeated reference to showers, there are no functional showers in the Gloucester High School building. See Pl.’s C.A. Br. 41 n.13.
15 Guidelines from the Virginia Department of Education already require “private showers with enclosed dressing rooms” at public schools. Va. Dep’t of Educ. Guidelines for Sch. Facilities in Va. Pub. Schs. 20 (2013), http://www.doe. virginia.gov/support/facility_construction/school_construction/re gs_guidelines/guidelines.pdf.
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mechanical application of traditional, often inaccurate, assumptions.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 726 (1982). This is not the first time this Court has been asked to make sweeping conclusions about lesbian, gay, bisexual, and transgender people based on bare assertions about what is “inherent in human nature” or “universally accepted” “across societies and history.” Pet. App. 42a, 50a (Niemeyer, J., dissenting). Thirty years ago, the majority and concurring opinions in Bowers v. Hardwick, 478 U.S. 186 (1986), rested on similarly sweeping statements that, upon closer examination, proved to be “more complex” or “at the very least . . . overstated.” Lawrence v. Texas, 539 U.S. 557, 571 (2003). Faced with similar assertions about transgender individuals, this Court should wait for an actual case involving locker rooms to test those assertions appropriately.16
D. This Case Is Not a Vehicle for Evaluating the Detailed Guidance Issued by the Department of Education.
The only question before the Court is whether the Board’s categorical rule excluding transgender students from using restrooms consistent with their gender identity is authorized by Title IX and 34 C.F.R. § 106.33. This petition does not provide a vehicle to decide whether the detailed guidance issued by the Department of Education after the
16 As the panel majority noted, the dissent’s assertion about what “sexual responses” are “inherent in human nature” conspicuously ignores the existence of lesbian, gay, and bisexual students. Pet. App. 26a-27a n.11.
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Fourth Circuit’s decision is entitled to deference or should have been issued through notice-andcomment rulemaking. Cf. Texas, 2016 WL 4426495, at *11-*13.
Similarly, this case is not a vehicle for addressing Petitioner’s criticisms about various aspects of the guidance. Pet. 14-15. The only question is whether Title IX permits school boards to enact categorical rules prohibiting administrators from allowing any transgender student to use facilities consistent with their gender identity regardless of the facts of any particular situation.
E. This Case Is Not a Vehicle for Addressing Pennhurst Challenges.
Petitioner asserts that deference to ED’s interpretation would deprive the Board of the “clear notice” required by Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981). Pet. 3637. The Board has already waived that argument, however, by failing to raise it at any stage of this case. See Pl.’s C.A. Reply Br. at 14 n.9 (noting waiver).
Moreover, even if notice were inadequate, the lack of notice would have no bearing on G.’s requests for injunctive relief. Pennhurst does not affect “the scope of the behavior Title IX proscribes,” but merely the availability of “money damages.” Davis ex rel. LaShonda D., v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 639 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998).
On the merits, Petitioner’s Pennhurst argument is also foreclosed by Davis and Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175
28

(2005), which held that Title IX puts recipients on notice of liability for all forms of intentional discrimination for purposes of Pennhurst. Congress and administrative agencies need not “prospectively resolve every possible ambiguity concerning particular applications” of the statute and regulations. Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 669 (1985). Notice is provided “by the statutory provisions, regulations, and other guidelines provided by the Department at t[he] time” the funds are received. Id. at 670.
IV. THE JUDGMENT BELOW IS CORRECT.
Finally, certiorari should be denied because the Board’s policy is not authorized by the regulation on which it purportedly relies, regardless of whether the Department’s interpretation of that regulation receives Auer deference, Skidmore deference, or no deference at all.
A. The Interpretation of 34 C.F.R. § 106.33 Adopted Below Is Correct, With or Without Auer Deference.
Under Title IX, students are “specifically shielded from being ‘excluded from participation in’ or ‘denied the benefits of’ any ‘education program or activity receiving [f]ederal financial assistance.’” Davis, 526 U.S. at 650 (quoting 20 U.S.C. § 1681(a)). “The most obvious example” of a Title IX violation is “the overt, physical deprivation of access to school resources.” Id. The question in this case is whether there is an exception to this general principle that allows schools to deprive transgender students of access to school resources by prohibiting them from using the common restrooms used by other students.
29

Instead of adopting such an interpretation, the Department properly concluded that when a school provides separate restrooms for boys and girls, it must allow all boys and girls—including boys and girls who are transgender—to use those restrooms. And the only way transgender students can do so is if they are allowed to use restrooms consistent with their gender identity.
The term “sex” in 34 C.F.R. § 106.33, as in the underlying statute, encompasses all physiological, anatomical, and behavioral aspects of sex. That interpretation is consistent with dictionary definitions, see Pet. App. 20-23a, it is consistent with Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989), see Pet. App. 78-79a (Davis, J., concurring), and it is consistent with this Court’s repeated instructions to construe Title IX broadly to encompass “a wide range of intentional unequal treatment,” Jackson, 544 U.S. at 175.17
In the context of a transgender student, however, it is impossible to assign a restroom that corresponds with all those components of sex. As Judge Niemeyer conceded:
If the term ‘sex’ as used in the statute and regulations refers to both [sex
17 This Court’s own contemporaneous decisions from the early 1970s refute Petitioner’s anachronistic assertion that Title IX and its implementing regulations reflect a terminological distinction between “sex” and “gender.” This Court’s equal protection cases exclusively referred to “sex” discrimination until Kahn v. Shevin, 416 U.S. 351 (1974), when the petitioner’s brief and the Court’s opinion first used “gender” as a synonym. See also Catherine Crocker, Ginsburg Explains Origins of Sex, Gender, Associated Press (Nov. 21, 1993).
30

assigned at birth] and gender identity, then, while the School Board’s policy is in compliance with respect to most students, whose [sex assigned at birth] aligns with their gender identity, for students whose [sex assigned at birth] and gender identity do not align, no restroom or locker room separation could ever . . . satisfy the conjunctive criteria.
Pet. App. 56-57a (Niemeyer, J., dissenting) (emphasis omitted). From that simple fact, Judge Niemeyer concluded that the regulation must allow schools to assign students to restrooms based on their sex assigned at birth instead of their gender identity. Id. But that is a policy argument, not an inexorable command from the regulation’s plain text.
When the regulation was drafted, few would have conceived that students like G. would have been assigned a female sex at birth and yet, as a result of hormone therapy, have facial hair and other male secondary sex characteristics, have a male designation on his government ID card, and live all aspects of life in accordance with his male gender identity. An interpretation of the regulation allowing G. to use the boys’ restroom is no more “novel,” Pet. 12, than an interpretation placing him in the girls’ restroom. What is “novel” is the existence of transgender students who are finally able to live consistently with their gender identity.
But G. and other transgender students do exist and they must use the restroom, just like any other human being. The regulation does not authorize schools simply to banish transgender
31

students from the boys’ and girls’ restrooms entirely. When a school has separate restrooms for boys and girls, all boys and girls, including those who are transgender, must be able to use those restrooms. Absent a regulation specifically addressing which restroom a transgender student should use, the interpretation that actually enables transgender students to use the common restrooms is one that allows transgender students to use restrooms consistent with their gender identity.
Instead of asking which interpretation of 34 C.F.R. § 106.33 provides an equal education to transgender students, Petitioner and the dissent below argue that excluding transgender students from restrooms consistent with their gender identity is the only interpretation of 34 C.F.R. § 106.33 that adequately protects other students’ privacy. Even if that were the right question, no one disputes that separating restrooms on the basis of sex reflects traditions of modesty between men and women, but, as the panel explained, “the truth of these propositions” does not answer the question of which restroom a transgender boy like G. should use. Pet. App. 26a.
The Board assumes social customs regarding privacy are built entirely around a person’s genitals even in contexts such as restrooms, where there is no exposure to nudity. Pet. 35; Pet. App. 53a (Niemeyer, J., dissenting). But that assertion is hardly selfevident. For many people, the presence of a transgender man (who may look indistinguishable from a non-transgender man) in the women’s restroom would be more discomfiting than the presence of a transgender woman (who may look
32

indistinguishable from a non-transgender woman). Pet. App. 24a n.8. Indeed, in G.’s own experience, his use of the women’s restroom was far more disruptive than his current use of the men’s restroom has been. C.A. App. 18.
Schools can and do protect all students’ privacy without excluding transgender students from the same facilities as everyone else. See ED, Examples of Policies and Emerging Practices at 7-8. But at the very least, if Petitioner’s arguments are driven by concerns about potential exposure to nudity, then the result must be tailored to that concern. There is no rational reason to bar all transgender students from all restrooms regardless of whether students get undressed in front of one another. Title IX does not permit school boards to enact categorical rules prohibiting administrators from allowing any transgender student to use facilities consistent with their gender identity regardless of the facts of any particular situation. Cf. Carcaño, 2016 WL 4508192, at *15 (issuing preliminary injunction against “blanket ban that forecloses any form of accommodation for transgender students other than separate facilities”).
A categorical rule excluding transgender students from the common restrooms is an “overt, physical deprivation of access to school resources” that violates Title IX and its implementing regulation, fairly construed. Davis, 526 U.S. at 650. “The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender.” Id. That simple principle is enough to resolve this case.
33

B. The Department’s Reasonable Interpretation of its Own Regulation Is Worthy of Deference Under Any Standard.
The Fourth Circuit resolved the appeal on the narrowest available grounds by properly deferring to the Department’s reasonable interpretation of 34 C.F.R. § 106.33. In doing so, the Fourth Circuit did not allow the Department to define the meaning of sex. It independently interpreted the term “sex” to include all physiological, anatomical, and behavioral aspects of a person’s sex, and then deferred to the Department’s judgment of how to “provide separate toilet . . . facilities on the basis of sex” when different aspects of a student’s sex diverge. 34 C.F.R. § 106.33. The Department concluded that allowing transgender students to use restrooms consistent with their gender identity is the only way to “provide separate toilet . . . facilities on the basis of sex” in a manner consistent with the regulation’s premise that separate restrooms for boys and girls do not deprive students of equal educational opportunity. Id. The Fourth Circuit properly deferred to that policy judgment, but the definition of “sex” remains unchanged.
Such deference is particularly appropriate in light of Title IX’s structure and the role of the Department in administering the statute pursuant to an express delegation of authority. See 20 U.S.C. § 1682. Title IX prohibits all forms of disparate treatment on the basis of sex unless specifically authorized by one of the “narrow exceptions to that broad prohibition” in the statutory text or implementing regulations. Jackson, 544 U.S. at 175.
34

Congress included an exception in the text of Title IX allowing schools to “maintain[] separate living facilities for the different sexes.” 20 U.S.C. § 1686. But the authority to provide separate restrooms— and other sex-segregated activities—was created through regulations. 34 C.F.R. § 106.33. Without the regulatory exception, separate restrooms would “fall[] within Title IX’s general prohibition against sex discrimination.” Carcaño, 2016 WL 4508192, at *13.18
Congress was well aware that the statute delegated policy questions about restrooms to the administrative agency. During congressional debate, Title IX’s sponsor, Senator Bayh, opposed a statutory exception analogous to the “bona fide occupational qualification” exception in Title VII “because all too often this is the hook on which discrimination can be hung.” 117 Cong. Rec. 30407 (1971). Instead, he noted that “the rulemaking powers . . . give the Secretary discretion to take care of this particular policy problem.” Id.; accord 118 Cong. Rec. 5807 (1972) (Statement of Sen. Bayh) (“[R]egulations would allow enforcing agencies to permit differential treatment by sex . . . where personal privacy must be preserved.”). The decision to permit sex-segregated restrooms is thus “a creature of the Secretary’s own regulations.” Gonzales v. Oregon, 546 U.S. 243, 256 (2006). The Department exercised discretion by
18 The Department has for decades provided interpretative guidance for its regulations, and that guidance has consistently received deference in light of Title IX’s broad delegation of power. See, e.g., Biediger v. Quinnipiac Univ., 691 F.3d 85, 96 (2d Cir. 2012) (discussing longstanding deference to policy interpretation from 1979).
35

permitting differential treatment in the context of restrooms in the first place, and it makes sense to defer to the Department’s determination of what practices are consistent with that policy decision. Cf. City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1876 (2013) (The question is “whether Congress would have intended the agency to resolve the resulting ambiguity. If so, deference is warranted.”).
As the agency charged with enforcing Title IX, the Department of Education has “a body of experience and informed judgment,” that would merit deference even under the less deferential standard of Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944). See Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 403 (2008). From its nation-wide vantage, the Department has rested its judgment on the collective experiences of students, school districts, and school administrators across the country. See Department of Education, Examples of Policies and Emerging Practices. As part of the Executive Branch, the Department of Education is also politically accountable for its decisions, and Congress retains the power to overrule the Department’s policies if it wishes to do so. Cf. Holowecki, 552 U.S. at 403.
Title IX entrusts the administrative agency with responsibility for making policy judgments about when to permit differential treatment on the basis of sex. The Department of Education’s reasonable interpretation of its own regulation falls squarely within that delegation of authority and is worthy of deference. If Petitioner disagrees with the Department’s judgment, its remedy lies with the political branches, not this Court.
36

CONCLUSION The petition for a writ of certiorari should be denied.
Respectfully Submitted,
Joshua A. Block Counsel of Record
James D. Esseks Leslie Cooper Louise Melling Steven R. Shapiro AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 549-2500 jblock@aclu.org
Gail M. Deady Rebecca K. Glenberg
(of counsel) AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA FOUNDATION, INC. 701 E. Franklin Street, Suite 1412 Richmond, VA 23219
Date: September 13, 2016
37

 
 No. 16-273

In the Supreme Court of the United States
_____________

GLOUCESTER COUNTY SCHOOL BOARD, PETITIONER
v.
G.G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM _____________

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_____________

REPLY IN SUPPORT OF
PETITION FOR A WRIT OF CERTIORARI _____________

JONATHAN F. MITCHELL D. JOHN SAUER JAMES OTIS LAW GROUP, LLC 12977 North Forty Drive Suite 214 St. Louis, MO 63141 (314) 682-6067
DAVID P. CORRIGAN JEREMY D. CAPPS M. SCOTT FISHER JR. HARMAN, CLAYTOR, CORRIGAN & WELLMAN Post Office Box 70280 Richmond, VA 23255 (804) 747-5200

S. KYLE DUNCAN Counsel of Record
GENE C. SCHAERR SCHAERR|DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006  (202) 714-9492 KDuncan@SchaerrDuncan.com
Counsel for Petitioner

i
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................... i
TABLE OF AUTHORITIES............................................. ii
INTRODUCTION ............................................................... 1
I. Auer’s Viability Richly Merits Review, Independent Of The Title IX Issue. ...................... 1
II. Among Other Issues, The Circuits Are Divided Over The Proper Application Of Auer To Informal Agency Opinion Letters. ......... 3
III.This Case Is An Excellent Vehicle For Resolving Both The Divisions Over Auer And The Proper Interpretation Of Title IX And Its Regulation................................................... 7
A. This Case Presents No Finality Concerns.............................................................. 7
B. This Case Is A Superior Vehicle For Revisiting Auer In A Setting In Which It Is Having Nationwide Impact. ......................... 9
C. The Department’s Interpretation Of Title IX And Its Implementing Regulation Is Not Entitled To Deference Under Any Standard. ...................................... 11
CONCLUSION .................................................................. 14

ii
TABLE OF AUTHORITIES
Cases
Arizona v. United States, 132 S. Ct. 2492 (2012) ....................................................... 9
Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002) ........................................ 5
Auer v. Robbins, 519 U.S. 452 (1997) ....................................................... 1, 2
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) ....................................................... 9
Carcaño v. McCrory, No. 1:16-cv-00236 (M.D.N.C. Aug. 26, 2016)............... 10
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ........................................................... 2
Christensen v. Harris Cty., 529 U.S. 576 (2000) ..................................................... 9, 11
Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326 (2013) ....................................................... 3
Falken v. Glynn Cty., 197 F.3d 1341, 1350 (11th Cir. 1999) .............................. 6
Glossip v. Gross, 135 S. Ct. 2726 (2015) ....................................................... 9
Gloucester Cty. Sch. Bd. v. G.G., 136 S. Ct. 2442 (2016) (per curiam) ................................ 8

iii
Gonzales v. Oregon, 546 U.S. 243 (2006) ......................................................... 11
Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003) ............................................ 5
Lawrence v. Texas, 539 U.S. 538 (2003) ........................................................... 2
Mazurek v. Armstrong, 520 U.S. 968 (1997) ........................................................... 9
Mount Soledad Mem’l Ass’n v. Trunk, 132 S. Ct. 2535 (2012) ....................................................... 7
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ................................................... 2, 9
Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015) ....................................................... 9
Pleasant Grove City v. Summum, 555 U.S. 460 (2009) ........................................................... 9
Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47 (2006) ............................................................. 9
Texas v. United States, No. 7:16-cv-00054 (N.D. Tex. Aug. 21, 2016)........... 3, 10
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) ......................................................... 12
U.S. Freightways Corp. v. Commissioner, 270 F.3d 1137 (7th Cir. 2001) .......................................... 5
United States v. Lachman, 387 F.3d 42 (1st Cir. 2004)........................................... 4, 5

iv
United States v. Mead Corp., 533 U.S. 218 (2001) ..................................................... 2, 12
United States v. North Carolina, No. 1:16-cv-00425 (M.D.N.C. July 5, 2016) ................. 10
United States v. Texas, 136 S. Ct. 906 (2016) ......................................................... 9
Statutes
20 U.S.C. § 1682 ............................................................ 12, 13
5 U.S.C. § 553(b)(3) .............................................................. 3
Other Authorities
Jonathan H. Adler, What “Sex” Has to Do with Seminole Rock, Yale J. Reg.: Notice & Comment (Sept. 16, 2016), http://yalejreg.com/nc/what-sexhas-to-do-with-seminole-rock-by-jonathan-hadler/ .................................................................................11
Cass R. Sunstein & Adrian Vermeule, The Unbearable Rightness of Auer, 83 U. Chi. L. Rev. (forthcoming 2016) ........................... 2
Regulations
34 C.F.R. § 106.33............................................................... 11

INTRODUCTION
G.G.’s arguments opposing review are no more persuasive now than when G.G. unsuccessfully opposed the Board’s earlier stay application. First, G.G. offers nothing to contradict the conclusion by several Justices that Auer v. Robbins, 519 U.S. 452 (1997), should be reconsidered. Second, G.G.’s attempt to avoid the circuit conflicts described in the petition mischaracterizes the decision below. Third, this case remains an excellent vehicle for resolving both the divisions over Auer and — if the Court chooses — the proper interpretation of Title IX and its implementing regulation.
G.G.’s suggestion that the Court should nevertheless “wait and see” how other courts address these issues ignores the fact that the merits of Auer have already been exhaustively discussed in judicial opinions and legal scholarship. More importantly, the suggestion also ignores the enormous costs now being inflicted nationwide on educational institutions, school boards, and States by the regulatory mischief on vivid display in this case. Just as those widespread and irreparable harms justified this Court’s recall and stay of the Fourth Circuit’s mandate, they likewise justify immediate review.
I. AUER’S VIABILITY RICHLY MERITS REVIEW, INDEPENDENT OF THE TITLE IX ISSUE.
G.G. disputes none of the Board’s challenges to Auer. Thus, G.G. does not dispute that Auer deference to agency regulatory interpretations gives officials enormous
(1)

2
power over controversial policies, as dramatically illustrated by decision below. Nor does G.G. dispute that Auer deference in its current form violates the Administrative Procedure Act. Nor does G.G. dispute that, contrary to separation of powers, Auer empowers an agency to invade the law-making and law-interpreting provinces of Congress and the courts. Pet. 18–25.
1. Tellingly, G.G. also does not dispute that Auer is untenable after Mead, which substantially cabined Chevron’s application to agency interpretations of the statutes they administer. See Pet. 23–25; see also United States v. Mead Corp., 533 U.S. 218, 229–34 (2001) (holding Chevron applies only when Congress affirmatively intends to delegate interpretive or gap-filling authority to an agency). And Mead itself is a complete answer to G.G’s argument that overruling or limiting Auer would require “special justification.” Opp. 17. Fundamental incompatibility with subsequent precedents is justification for overruling or limiting earlier ones. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2598–99 (2015); Lawrence v. Texas, 539 U.S. 538, 573–75 (2003).
2. G.G. attempts to buttress Auer by citing a forthcoming article by Professors Sunstein and Vermeule. See Opp. 17–18 (citing Cass R. Sunstein & Adrian Vermeule, The Unbearable Rightness of Auer, 83 U. Chi. L. Rev. (forthcoming 2016), available at http://ssrn.com/ abstract=2716737). But G.G. ignores two decades of scholarly criticism of Auer. See Brief of Cato Institute at 5–8 (detailing academic criticism of Auer). In any event, Sunstein and Vermeule do not explain how Auer comports with Mead. Nor do they explain how extending

3
Auer to informal agency letters honors the APA requirement that “substantive” agency rules undergo notice and comment. See 5 U.S.C. § 553(b)(3). Nor do they address the most fundamental objection to applying Auer here: If the Ferg-Cadima interpretation binds the federal courts and Title IX recipients, then why is it not a “substantive” rule that must undergo notice and comment? See Pet. 24–25; see also Texas v. United States, No. 7:16-cv-00054 (N.D. Tex. Aug. 21, 2016) (App. 212a– 217a) (holding May 13, 2016 “Dear Colleague” letter is a substantive rule triggering notice and comment).
Once agency pronouncements such as the FergCadima letter receive the Auer mantle, they carry the force of law — as illustrated by the fact that, if the decision below stands, any school in the Fourth Circuit that departs from the letter’s “guidance” will be sued, face the loss of federal educational funds, or both. The propriety of that state of affairs — which is “a basic [issue] going to the heart of administrative law,” Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1339 (2013) (Roberts, C.J., concurring) — is squarely posed by this case and should be taken up by the Court.
II. AMONG OTHER ISSUES, THE CIRCUITS ARE DIVIDED OVER THE PROPER APPLICATION OF AUER TO INFORMAL AGENCY OPINION LETTERS.
G.G. is also mistaken in challenging the circuit divisions explained in the petition (at 25–29), and in suggesting that, regardless, this case “does not implicate” them. Opp. 18.

4
1. Taking the second point first: G.G.’s argument that the divisions outlined in the petition are not “implicated by this case” (Opp. 18) attempts to rewrite the Fourth Circuit’s decision. G.G. is of course correct that the Department of Education (Department) asserted its position in this case, not just in the Ferg-Cadima letter, but also in a statement of interest and amicus brief. Id. But that is irrelevant: The only document to which the Fourth Circuit actually deferred was the Ferg-Cadima letter. See App. 18a (noting United States requested deference to “OCR’s January 7, 2015 letter”); see also id. 41a (Niemeyer, J., dissenting) (noting “the majority relies entirely on [the] 2015 letter”). Thus, Fourth Circuit law now requires courts to defer to informal agency letters regardless of whether they are accompanied by statements of interest or amicus briefs.
2. G.G. also argues that the 4-3 circuit split on deference to informal agency pronouncements like the FergCadima letter is “questionable.” Opp. 18. It is not.
For example, while United States v. Lachman, 387 F.3d 42, 54 (1st Cir. 2004), concerned informal statements at industry seminars rather than in an opinion letter (Opp. 19), the reasons the First Circuit gave for refusing to defer in that setting plainly apply here. The court explained that Mead’s “requirements of public accessibility and formality are applicable in the context of agency interpretations of regulations,” and consequently held that “[t]he non-public or informal understandings of agency officials concerning the meaning of a regulation are thus not relevant.” Id. at 54 (emphases added). In light of Lachman, G.G. cannot (and does not) deny that the First

5
Circuit would not have deferred to the Ferg-Cadima letter had this case arisen there.
The same is true of the Seventh Circuit. Although G.G. is correct that the analysis in Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003), of informal agency interpretations was arguably dicta, G.G. does not dispute that the discussion of that issue in U.S. Freightways Corp. v. Commissioner, 270 F.3d 1137 (7th Cir. 2001) (Wood, J.), was essential to the holding there. Thus, under the holding in U.S. Freightways, the Ferg-Cadima letter would not have received “full Chevron deference” had this case arisen in the Seventh Circuit. Cf. id. at 1141–42.
To be sure, as G.G. points out (at 19), U.S. Freightways did not expressly discuss Auer. But the opinion clearly assumes that Mead overtook Auer as to regulations, just as it cabined Chevron as to statutes: Judge Wood’s opinion noted that the same considerations that under Mead preclude “full Chevron deference” to informal agency interpretations of statutes also preclude such deference to informal interpretations of regulations. Id. at 1142. And Judge Posner’s subsequent opinion in Keys made that view explicit as to Auer — leaving no doubt on that point in the Seventh Circuit. See Keys, 347 F.3d at 993.
As to the Eleventh Circuit: G.G. does not dispute that the decision below conflicts with Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1238 (11th Cir. 2002), which applied Skidmore rather than Auer to opinion letters interpreting agency regulations. Nor does G.G. dispute that, under Arriaga, the Eleventh Circuit would not

6 have deferred to the Ferg-Cadima letter. Instead, G.G. suggests that Eleventh Circuit law is unclear because, three years before Arriaga, the Eleventh Circuit applied Auer to an informal opinion letter “without explanation.” Opp. 20 (citing Falken v. Glynn Cty., 197 F.3d 1341, 1350 (11th Cir. 1999)). But the “explanation” for the shift is obvious: Mead was decided in the interim and, as already explained, is incompatible with Auer.
There can thus be no doubt that this case would have come out differently if it had arisen in the First, Seventh, or Eleventh Circuits. In short, the 4-3 split identified in the petition concerning deference to informal agency opinions is real.1
1 G.G. also mistakenly asserts that this case does not implicate the second division discussed in the petition — over whether Auer applies to positions first articulated in the dispute at issue. See Pet. 30–31. Contrary to G.G.’s assertion (at 20), the Department’s “interpretation of § 106.33 dates back” only to 2015, not to “2013.” See App. 18a (noting United States requested deference to “OCR’s January 7, 2015 letter”); App. 23a (noting “the Department’s interpretation is novel because there was no interpretation as to how § 106.33 applied to transgender individuals before January 2015”). And that 2015 “interpretation” arose out of a request concerning the policy in this case. See Pet. 8–9.

7
III. THIS CASE IS AN EXCELLENT VEHICLE FOR RESOLVING BOTH THE DIVISIONS OVER AUER AND THE PROPER INTERPRETATION OF TITLE IX AND ITS REGULATION.
G.G. incorrectly suggests that other concerns make this case a poor vehicle for resolving the divisions over Auer and the proper interpretation of Title IX.
A. This Case Presents No Finality Concerns.
G.G. first suggests that this case is a bad vehicle because the judgment below is nonfinal. Opp. 23–25. But the Court’s general reluctance to review cases “in an interlocutory posture” is inapplicable here. Mount Soledad Mem’l Ass’n v. Trunk, 132 S. Ct. 2535, 2536 (2012) (Alito, J., concurring in denial of certiorari).
First, the Fourth Circuit’s decision turned on a pure question of law — whether the Ferg-Cadima letter merits Auer deference. App. 71a–72a. The Board’s petition therefore does not implicate the subsidiary factual matters alluded to by G.G. See Opp. 4 & nn. 2–3, 27 (discussing questions regarding transgender people). As Judge Niemeyer observed, “the facts of this case, in particular, are especially ‘clean,’ such as to enable the [Supreme] Court to address the [legal] issue without the distraction of subservient issues.” App. 65a.
Second, there is no question about the ultimate impact of the decision below. Following the Fourth Circuit’s decision, the district court immediately entered a preliminary injunction based entirely on that decision. Pet.

8
16. This case thus sharply contrasts with cases like Mount Soledad, in which at the time certiorari was sought, “it remain[ed] unclear precisely what action the . . . Government will be required to take” as a result of the court of appeals’ decision. 132 S. Ct. at 2536 (Alito, J., concurring). Here there is no doubt about the ultimate outcome in the district court — the injunction has already been entered — or in the subsequent Fourth Circuit appeal.
Third, the Board has also sought certiorari before judgment in the second Fourth Circuit appeal (which challenges the district court’s injunction) even as it seeks review of the Fourth Circuit’s earlier decision. Pet. 17. Indeed, when seeking a stay the Board told this Court it would seek review in both cases — see Reply in Supp. of Stay at 4 — and the Court consequently stayed both cases. Gloucester Cty. Sch. Bd. v. G.G., 136 S. Ct. 2442 (2016) (per curiam). If the Court wishes to have the preliminary injunction before it as well as the Fourth Circuit’s decision, the petition provides that option.
Moreover, this case meets Rule 11’s standard for certiorari before judgment as well as the usual Rule 10 standards. Given that the Fourth Circuit’s decision immediately spawned a nationwide transgender nondiscrimination policy imposed by mid-ranking officials at the Departments of Justice and Education, this is undoubtedly a case of “imperative public importance.” Pet. 14–16. And this Court has not hesitated to review preliminary-injunction decisions that, like the decision below, involve pure questions of law and present issues of nationwide significance. See, e.g., United States v. Texas,

9
136 S. Ct. 906 (2016) (granting certiorari); Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Glossip v. Gross, 135 S. Ct. 2726 (2015); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Arizona v. United States, 132 S. Ct. 2492 (2012); Pleasant Grove City v. Summum, 555 U.S. 460 (2009); Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47 (2006); Mazurek v. Armstrong, 520 U.S. 968 (1997).
B. This Case Is A Superior Vehicle For Revisiting Auer In A Setting In Which It Is Having Nationwide Impact.
G.G. is also mistaken in suggesting that in various respects the Fourth Circuit’s decision is too narrow to be a good vehicle for resolving the questions presented. Opp. 25, 27–28.
First, the precise question decided below makes this case an ideal vehicle for considering how best to curtail Auer. The Fourth Circuit held that Auer requires deference to an informal, unpublished letter, written by a lowlevel agency official, in the context of the very dispute in which deference was sought. Pet. 8. The decision thus puts Auer’s defects on maximum display. See, e.g., Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1217 (2015) (Thomas, J., concurring in the judgment) (stating that Auer effects an unconstitutional “transfer of judicial power to the Executive Branch”); Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (“Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement

10
guidelines, all of which lack the force of law — do not warrant Chevron-style deference.”).
Second, G.G.’s suggestion that the Fourth Circuit’s decision “concern[s] access to restrooms only” is false. Opp. 25. The letter to which the court deferred extends beyond restrooms to facilities such as “locker rooms, shower facilities, [and] housing.” App. 123a. The United States has already told a federal district court that “the reasoning of Gloucester’s holding applies to changing facilities with equal force.” Mem. in Supp. of Prelim. Inj. at 15, in United States v. North Carolina, No. 1:16-cv-00425 (M.D.N.C. July 5, 2016), ECF No. 74. And G.G.’s counsel has taken the same position. See Mem. in Supp. of Prelim. Inj. at 14, Carcaño v. McCrory, No. 1:16-cv-00236 (M.D.N.C. May 16, 2016), ECF No. 23 (arguing “[t]he Fourth Circuit’s controlling decision in G.G. applies with equal force to ‘changing facilities,’ such as locker rooms”).
But even if the Fourth Circuit’s decision were limited to restrooms, it would still merit this Court’s review. See, e.g., Texas v. United States (App. 219a–223a, 229a) (rejecting G.G. and issuing nationwide injunction against federal edicts regarding transgender access to school restrooms); Order at 4–5, Carcaño v. McCrory, No. 1:16cv-00236 (M.D.N.C. Aug. 26, 2016), ECF No. 127 (following G.G. and issuing preliminary injunction against North Carolina law concerning restroom access). Even if so limited, the decision rests on an indefensible application of Auer that is already having nationwide impact. See Pet. 3, 14–16, 31–32. This case is therefore an ideal candidate for reconsidering Auer’s deference regime.

11
C. The Department’s Interpretation Of Title IX And Its Implementing Regulation Is Not Entitled To Deference Under Any Standard.
G.G.’s attempt to defend the Department’s interpretation of Title IX and its implementing regulation is also meritless. See Opp. 29–36. Although full exploration of that issue should await merits briefing, the Department’s interpretation cannot bear scrutiny under any deference standard, save perhaps the Fourth Circuit’s rubberstamp regime.
First, the Ferg-Cadima letter interprets — not merely the regulation — but the term “sex” in the Title IX statute. See App. 121a (“Title IX” bans discrimination “on the basis of sex, including gender identity”) (emphasis added). But Auer does not apply to an agency interpretation of the underlying statute, Gonzales v. Oregon, 546 U.S. 243, 256–57 (2006), and informal opinion letters do not receive Chevron deference under Mead. Christensen, 529 U.S. at 587. See also Pet. 8, 31 n.11; Jonathan H. Adler, What “Sex” Has to Do with Seminole Rock, Yale J. Reg.: Notice & Comment (Sept. 16, 2016), http://yalejreg.com/nc/what-sex-has-to-do-with-seminolerock-by-jonathan-h-adler/ (“[T]he relevant ambiguity exists in the underlying statutory language as well. . . . In such cases, agency interpretations of their own regulations are, for all practical purposes, interpretations of the statute, and are therefore only eligible for deference under Chevron — and Chevron (as explicated in Mead) requires an agency to do more than issue a guidance letter or file a brief.”).

12
Second, even assuming the regulation were sufficiently ambiguous to invoke Auer, cf. Pet. 11, 33–34, G.G.’s own argument shows that the Board’s policy satisfies the regulation. G.G. concedes that “[t]he term ‘sex’ in 34 C.F.R. § 106.33, as in the underlying statute, encompasses all physiological, anatomical, and behavioral aspects of sex.” Opp. 30 (emphasis added). But the Board’s policy itself treats sex as a “physiological” and “anatomical” concept. See App. 144a (limiting restrooms and locker rooms to “biological” sexes). The policy would only violate the regulation if “sex” means only “gender identity,” which, as the district court explained, would be absurd. App. 99a, 102a.
Third, G.G. candidly admits (at 1) that the Department’s interpretation of “sex” would have been unfathomable when the regulation was adopted. But this is an admission that Auer cannot justify the Department’s novel interpretation. See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (noting that an agency interpretation is not entitled to deference if alternative reading is “compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation”). It is also an admission that the Congress that enacted Title IX never intended to delegate to the Department the prerogative to resolve complex issues of transgender access to restrooms. See Mead, 533 U.S. at 229–34 (noting that Chevron applies only when Congress affirmatively intends to delegate interpretive authority).
Finally, G.G. suggests that such a delegation is nevertheless found in 20 U.S.C. § 1682. Opp. 34. But that stat-

13
ute authorizes Federal agencies empowered to administer educational funding to effectuate Title IX only “by issuing rules, regulations, or orders of general applicability,” which, moreover, must be “approved by the President.” 20 U.S.C. § 1682. The Ferg-Cadima letter obviously does not qualify.

14 CONCLUSION The petition for a writ of certiorari should be granted.
Respectfully submitted.

JONATHAN F. MITCHELL D. JOHN SAUER JAMES OTIS LAW GROUP, LLC 12977 North Forty Drive Suite 214 St. Louis, MO 63141 (314) 682-6067
DAVID P. CORRIGAN JEREMY D. CAPPS M. SCOTT FISHER JR. HARMAN, CLAYTOR, CORRIGAN & WELLMAN Post Office Box 70280 Richmond, VA 23255 (804) 747-5200

S. KYLE DUNCAN Counsel of Record
GENE C. SCHAERR SCHAERR|DUNCAN LLP 1717 K Street NW Suite 900 Washington, DC 20006  (202) 714-9492 KDuncan@SchaerrDuncan.com

September 26, 2016

Counsel for Petitioner

 
 No. 16-273

In the Supreme Court of the United States
_____________

GLOUCESTER COUNTY SCHOOL BOARD, PETITIONER
v.
G.G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM _____________
On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit _____________

BRIEF OF PETITIONER _____________

JONATHAN F. MITCHELL 559 Nathan Abbott Way Stanford, CA 94305 jfmitche@stanford.edu
DAVID P. CORRIGAN JEREMY D. CAPPS M. SCOTT FISHER, JR. HARMAN, CLAYTOR, CORRIGAN & WELLMAN Post Office Box 70280 Richmond, VA 23255 (804) 747-5200 dcorrigan@hccw.com

S. KYLE DUNCAN Counsel of Record
GENE C. SCHAERR STEPHEN S. SCHWARTZ SCHAERR|DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 (202) 714-9492 KDuncan@SchaerrDuncan.com
Counsel for Petitioner

i
QUESTIONS PRESENTED
Title IX of the Education Amendments of 1972 (“Title IX”) prohibits discrimination “on the basis of sex,” 20 U.S.C. §1681(a), while its implementing regulation permits “separate toilet, locker room, and shower facilities on the basis of sex,” if the facilities are “comparable” for students of both sexes, 34 C.F.R. §106.33. In this case, a Department of Education official opined in an unpublished letter that Title IX’s prohibition of “sex” discrimination “include[s] gender identity,” and that a funding recipient providing sexseparated facilities under the regulation “must generally treat transgender students consistent with their gender identity.” App. 128a, 100a. The Fourth Circuit afforded this letter “controlling” deference under the doctrine of Auer v. Robbins, 519 U.S. 452 (1997). On remand the district court entered a preliminary injunction requiring the petitioner school board to allow respondent—who was born a girl but identifies as a boy—to use the boys’ restrooms at school.
The questions presented are:
1. Should Auer deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?
2. With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. §106.33 be given effect?

ii
PARTIES TO THE PROCEEDING
Petitioner Gloucester County School Board was Defendant-Appellee in the court of appeals in No. 152056, and Defendant-Appellant in the court of appeals in No. 16-1733.
Respondent G.G., by his next friend and mother, Deirdre Grimm, was Plaintiff-Appellant in the court of appeals in No. 15-2056 and Plaintiff-Appellee in the court of appeals in No. 16-1733.

iii TABLE OF CONTENTS Questions Presented ................................................... i Parties to the Proceeding ........................................... ii Table of Authorities....................................................vi Introduction .................................................................1 Opinions Below............................................................2 Jurisdiction ..................................................................3 Statutory and Regulatory Provisions Involved..........3 Statement of the Case .................................................4 A. Statutory And Regulatory Background ...........4 1. Title IX prohibited sex discrimination as a means of ending educational discrimination against women....................5 2. Title IX allows certain facilities and programs to be separated by sex. ...............7 3. Title IX is enforced by multiple agencies through formal rules and clear notice...................................................9 B. Factual Background .......................................10 C. Procedural History .........................................13 1. The Ferg-Cadima letter ............................13 2. District Court proceedings ........................14 3. Fourth Circuit appeal in No. 15-2056 ......17 4. Proceedings after remand .........................19

iv
Summary of Argument..............................................20
Argument ...................................................................24
I. The Board’s Policy Separating Restrooms By Physiological Sex Is Plainly Valid Under Title IX And Section 106.33. ........................................25
A. The Text And History Of Title IX And Section 106.33 Refute The Notion That “Sex” Can Be Equated With “Gender Identity.” .........................................................26
B. Equating “Sex” With Gender Identity Would Undermine Title IX’s Structure. ........36
C. If “Sex” Were Equated With “Gender Identity,” Title IX And Its Regulations Would Be Invalid For Lack Of Clear Notice. .............................................................41
II. The Fourth Circuit Erred In Extending Auer Deference To The Ferg-Cadima Letter. ..............43
A. Auer Deference Is Inapplicable Because The Ferg-Cadima Letter Interprets Title IX, Rather Than Department Regulations. ....................................................44
B. Auer Deference Is Inapplicable Because The Governing Regulation, Like Title IX, Is Unambiguous..............................................49
C. Auer Deference Is Inapplicable Because The Department Failed To Follow The Necessary Formal Procedures........................54

v
1. The Ferg-Cadima letter does not carry the force of law under Mead and Christensen. ...............................................54
2. The Ferg-Cadima letter issued without observance of procedures required by Title IX.......................................................61
Conclusion .................................................................64

vi
TABLE OF AUTHORITIES
Cases
Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) .............................56
Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 (2006) .........................................22, 42
Auer v. Robbins, 519 U.S. 452 (1997) ...................................15, 17, 24
Bennett v. Spear, 520 U.S. 154 (1997) ...............................................58
Brown v. Gardner, 513 U.S. 115 (1994) ...............................................50
Central Laborers’ Pension Fund v. Heinz, 541 U.S. 739 (2004). ..............................................59
Chamber of Commerce v. Department of Labor, 174 F.3d 206 (D.C. Cir. 1999). ..............................56
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) .........................................17, 50
Christensen v. Harris County, 529 U.S. 576 (2000) .............................16, 23, 55, 56
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012)...........................................53

vii
City of Los Angeles, Department of Water & Power v. Manhart 435 U.S. 702 (1978) ...............................................35
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568 (1988) ...............................................43
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016)...........................................63
Equity in Athletics, Inc. v. Department of Education, 639 F.3d 91 (4th Cir. 2011)...................................63
Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008) ...............................................47
Fogo De Chao (Holdings) Inc. v. United States Department of Homeland Security, 769 F.3d 1127 (D.C. Cir. 2014) .............................47
Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ...............................................50
Franciscan Alliance, Inc. v. Burwell, No. 7:16-cv-00108, ECF No. 62 (N.D. Tex. Dec. 31, 2016) ........................................................19
Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) .................................................10

viii
General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004) ...............................................50
General Electric Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002) ...............................56
General Electric Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995) ...............................53
Gloucester County School Board v. G.G., 136 S. Ct. 2442 (2016)...........................................19
Gonzales v. Oregon, 546 U.S. 243 (2006) .........................................23, 46
Griswold v. Connecticut, 381 U.S. 479 (1965) .................................................7
In re Kaiser Aluminum Corp., 456 F.3d 328 (3d Cir. 2006). .................................47
Independent Equipment Dealers Association v. EPA, 372 F.3d 420 (D.C. Cir. 2004) ...............................58
Johnston v. University of Pittsburgh of the Commonwealth System of Higher Education, 97 F. Supp. 3d 657 (W.D. Pa. 2015)......................36
Kentucky Retirement System v. EEOC, 554 U.S. 135 (2008) ...................................47, 48, 49
Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003).................................57

ix
King v. Burwell, 135 S. Ct. 2480 (2015)...........................................36
Louisiana Public Service Commission v. FCC, 476 U.S. 355 (1986) ...............................................57
Martin v. Occupational Safety & Health Review Commission, 499 U.S. 144 (1991) .........................................46, 57
Massachusetts Mutual Life Insurance Co. v. United States, 782 F.3d 1354 (Fed. Cir. 2015) .............................60
MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994) ...................................30, 31, 50
Michigan v. EPA, 135 S. Ct. 2699 (2015)...........................................52
Mission Group Kansas, Inc. v. Riley, 146 F.3d 775 (10th Cir. 1998).........................53, 54
Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) .................................................51
National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998) .........................................34, 50
National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)...........................................43

x
Nebraska v. United States, No. 4:16-cv-03117, ECF No. 24 (D. Neb. Nov. 23, 2016)........................................................18
Nguyen v. INS, 533 U.S. 53 (2001) .................................................35
North Haven Board of Education v. Bell, 456 U.S. 512 (1982) ...............................................33
Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981).......................................22, 42, 43
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...................................22, 32, 39
Sackett v. EPA, 132 S. Ct. 1367 (2012)...........................................59
Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987) .........................................30, 32
Skidmore v. Swift & Co., 323 U.S. 134 (1944) .........................................55, 57
Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund, 724 F.3d 129 (1st Cir. 2013) .................................47
Texas v. United States, __ F.Supp.3d __, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016) ...............................................18
Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994) .........................................46, 57

xi
United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016)...........................................59
United States v. Mead Corp., 533 U.S. 218 (2001) ...................................23, 55, 63
United States v. Virginia, 518 U.S. 515 (1996) ...........................................1, 35
Upton v. SEC, 75 F.3d 92 (2d Cir. 1996) ......................................53
Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).....................................52, 53
Vietnam Veterans of America v. CIA, 811 F.3d 1068 (9th Cir. 2015)...............................60
Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986) ...............................................11
Statutes 5 U.S.C. §552 .......................................................56, 62
5 U.S.C. §553 .......................................................56, 62
18 U.S.C. §249 ...........................................................34
20 U.S.C. §1092 .........................................................34
20 U.S.C. §1232(a).....................................................62
20 U.S.C. §1232(f)................................................10, 62
20 U.S.C. §1681 .......................................................1, 3
20 U.S.C. §1682 ................................................. passim

xii 20 U.S.C. §1686 .............................................1, 4, 5, 47 28 U.S.C. §1254(1).......................................................3 28 U.S.C. §2101 ...........................................................3 29 U.S.C. §623 ...........................................................48 42 U.S.C. §13925 .......................................................33 42 U.S.C. §1981 .........................................................31 42 U.S.C. §3716 .........................................................34 Regulations 7 C.F.R. §15a.33 ..........................................................8 24 C.F.R. §3.410 ..........................................................8 29 C.F.R. §1625.10 ....................................................49 29 C.F.R. §36.410 ........................................................8 34 C.F.R. §106.33 .............................................. passim 34 C.F.R. §106.41 ..................................................9, 40 38 C.F.R. §23.410 ........................................................8 40 C.F.R. §5.410 ..........................................................8 45 C.F.R. pt. 92..........................................................19 39 Fed. Reg. 22228 (June 20, 1974)............................8 40 Fed. Reg. 24128 (June 4, 1975)..........................8, 9 45 Fed. Reg. 30802 (May 9, 1980)...............................8 Legislative Materials 117 Cong. Rec. 30407 ..................................................7

xiii 117 Cong. Rec. 39098 ..................................................6 117 Cong. Rec. 39250 ..................................................6 117 Cong. Rep. 39251................................................32 117 Cong. Rec. 39253 ..................................................6 117 Cong. Rec. 39258 ..................................................6 117 Cong. Rep. 39259..................................................6 117 Cong. Rec. 39260 ..................................................8 117 Cong. Rec. 39263 ..................................................8 118 Cong. Rec. 5104 ....................................................6 118 Cong. Rec. 5802 ....................................................6 118 Cong. Rec. 5803 ..........................................5, 6, 32 118 Cong. Rec. 5804 ....................................................6 118 Cong. Rec. 5807 ..............................................7, 32 118 Cong. Rec. 5809 ....................................................5 121 Cong. Rec. 16060 ..............................................5, 9 H.R. 4530 (111th Cong. 2010)...................................34 H.R. 998 (112th Cong. 2011).....................................34 H.R. 1652 (113th Cong. 2013)...................................34 H.R. 846 (114th Cong. 2015).....................................34 H.R. 3185 (114th Cong. 2015)...................................34 H.R. Conf. Rep. No. 92-1085 .......................................8 S. 3390 (111th Cong. 2010) .......................................34

xiv
S. 555 (112th Cong. 2011) .........................................34
S. 1088 (113th Cong. 2013) .......................................34
S. 439 (114th Cong. 2015) .........................................34
S. 1858 (114th Cong. 2015) .......................................34
Other Authorities
American College Dictionary (1970) .............27, 28, 52
American Heritage Dictionary (5th ed. 2011).......................................27, 28, 30, 31
American Heritage Dictionary (1976).......................28
Bayh, Birch, Personal Insights and Experiences Regarding the Passage of Title IX, 55 Clev. St. L. Rev. 463 (2007) ...............................5
Black’s Law Dictionary (10th ed. 2014)..............27, 30
Brown, Barbara A., Thomas I. Emerson, Gail Falk, Ann E. Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971) ...........................................7
Comment, Implementing Title IX: The HEW Regulations, 124 U. Pa. L. Rev. 806 (1976) ...........................8, 48
Gersen, Jeannie Suk, The Transgender Bathroom Debate and the Looming Title IX Crisis, The New Yorker (May 24, 2016)...............40

xv
Merriam-Webster’s Collegiate Dictionary (11th ed. 2011).......................................................28
Obama Administration Commemorates 40 Years of Increasing Equality and Opportunity for Women in Education and Athletics, White House, Office of the Press Secretary (June 20, 2012) .......................................4
Random House College Dictionary (rev. ed. 1980)........................................................27
Stephenson, Matthew C. & Miri Pogoriler, Seminole Rock’s Domain, 79 Geo. Wash. L. Rev. 1449 (2011).......................59
Sweeney, Paul C., Abuse Misuse & Abrogation of the Use of Legislative History: Title IX & Peer Sexual Harassment, 66 UMKC L. Rev. 41 (1997)................................5, 6
Transgender Track Star Stirs Controversy Competing in Alaska’s Girls’ State Meet Championships, CBS New York, June 8, 2016 .......................................................................41
United States Department of Education, Questions and Answers on Title IX and Sexual Violence (April 29, 2014)...........................16
United States Department of Education, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014) ......................................................14, 16, 45

xvi
United States Department of Labor, Directive: Job Corps Program Instruction Notice No. 14-31 (May 1, 2015)...............................................40
Webster’s New Collegiate Dictionary (1979) .............27
Webster’s New World College Dictionary (5th ed. 2014).........................................................28
Webster’s Third New International Dictionary (1971) ...................................................27, 28, 30, 31

No. 16-273
In the Supreme Court of the United States
_____________
GLOUCESTER COUNTY SCHOOL BOARD, PETITIONER
v.
G.G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM _____________
INTRODUCTION
The Fourth Circuit has adopted an agency interpretation of Title IX that is plainly wrong and that would make this landmark law unrecognizable to the Congress that enacted it four decades ago.
Title IX forbids discrimination in educational programs “on the basis of sex,” 20 U.S.C. §1681(a) (emphasis added), a straightforward prohibition intended to erase discrimination against women in classrooms, faculties, and athletics. No one imagined, however, that Title IX would erase all distinctions between men and women, nor dismantle expectations of privacy between the sexes. That is why Title IX permits “separate living facilities for the different sexes,” 20 U.S.C. §1686, including “separate toilet, locker room, and shower facilities on the basis of sex[.]” 34 C.F.R. §106.33. For over forty years, our Nation’s schools have structured facilities around that sensible idea— namely, that in intimate settings men and women may be separated “to afford members of each sex privacy from the other sex.” United States v. Virginia, 518 U.S. 515, 550 n.19 (1996).

2
The interpretation adopted by the Fourth Circuit turns that expectation upside down. Deferring to an unpublished letter written in January 2015 by a midlevel official in the Department of Education (“Department”), the court reasoned that the term “sex” in Title IX does not mean the physiological distinctions between males and females—which is what Congress (and everyone else) thought the term meant when Title IX was enacted and its regulations issued in the mid-1970s. Instead, we are now told that “sex” is ambiguous as applied to persons whose gender identity diverges from their physiology. According to the Fourth Circuit, this means a physiologically female student who identifies as a male must be allowed to use the boys’ restroom, and vice versa. It also means that the policy of the petitioner Gloucester County School Board (“Board”)—which separates restrooms by physiological sex, while also providing unisex restrooms for all students—is prohibited by Title IX.
That preposterous interpretation is foreclosed by the text, structure, and history of Title IX and its implementing regulation, and no amount of deference to an administrative agency can justify it.
OPINIONS BELOW
This Court has granted review of two related cases in the court of appeals, Nos. 15-2056 and 16-1733. No. 15-2056 is G.G.’s appeal of the district court’s order dismissing the Title IX claim and denying a preliminary injunction. The opinion of the court of appeals in that case is available at 822 F.3d 709 (4th Cir. 2016).

3
App. 1a–60a. The district court’s opinion is available at 132 F. Supp. 3d 736 (E.D. Va. 2015). App. 84a– 117a.
No. 16-1733 is the Board’s appeal of the district court’s order granting a preliminary injunction after the remand in No. 15-2056. The district court’s opinion is available at 2016 WL 3581852 (E.D. Va. June 23, 2016). App. 71a–72a.
JURISDICTION
In No. 15-2056, the court of appeals entered its judgment on April 19, 2016. App. 3a. It denied the Board’s petition for rehearing en banc on May 31, 2016. App. 61a. No. 16-1733 remains pending in the court of appeals. The Board timely petitioned for certiorari on August 29, 2016, see 28 U.S.C. §2101(c), and this Court granted the writ on October 28, 2016. This Court has jurisdiction under 28 U.S.C. §1254(1).
STATUTORY AND REGULATORY PROVISIONS INVOLVED
Title IX of the Education Amendments of 1972 provides, in relevant part:
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. §1681(a).

4
Notwithstanding 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 separate living facilities for the different sexes.
20 U.S.C. §1686.
Department of Education Title IX regulations provide, in relevant part:
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. §106.33.
STATEMENT OF THE CASE
A. Statutory And Regulatory Background
Marking Title IX’s fortieth anniversary in 2012, the White House praised its “commonsense” prohibition on sex discrimination in education and observed that the law “marked a momentous shift for women’s equality in classrooms, on playing fields, and in communities throughout our nation.”1 That is exactly
1 Obama Administration Commemorates 40 Years of Increasing Equality and Opportunity for Women in Education and Athletics, White House, Office of the Press Sec’y (June 20, 2012).

5
right. In the words of its principal sponsor, Senator Birch Bayh of Indiana, Title IX aimed “a death blow” at “one of the great failings of the American educational system”—namely, “corrosive and unjustified discrimination against women.” 118 Cong. Rec. 5809, 5803. At the same time, however, Title IX carefully preserved settled expectations of privacy by permitting “separate living facilities for the different sexes, 20 U.S.C. §1686, and “separate toilet, locker room, and shower facilities on the basis of sex,” 34 C.F.R. §106.33 (“section 106.33”). That exception was “designed,” as Senator Bayh explained, “to allow discrimination only in instances where personal privacy must be preserved.” 121 Cong. Rec. 16060.
1. Title IX prohibited sex discrimination as a means of ending educational discrimination against women.
Title IX emerged from Congress’s multifaceted efforts in the early 1970’s to address discrimination against women. See generally Paul C. Sweeney, Abuse Misuse & Abrogation of the Use of Legislative History: Title IX & Peer Sexual Harassment, 66 UMKC L. Rev. 41, 50–54 (1997). Frustrated with lack of progress on the Equal Rights Amendment (“ERA”), Senator Bayh decided to pursue its goals through other means. Birch Bayh, Personal Insights and Experiences Regarding the Passage of Title IX, 55 Clev. St. L. Rev. 463, 467 (2007). Believing that the worst discrimination against women was in “the educational area,” id. at 468, Bayh focused on the Higher Education Act of

6
1965, which granted money to universities. Sweeney, supra, at 51. In 1972, while that Act was being amended, floor amendments added the text that is now Title IX. See 117 Cong. Rec. 39098; 118 Cong. Rec. 5802–03.
Those amendments were principally motivated to end discrimination against women in university admissions and appointments. See 117 Cong. Rec. 39250, 39253, 39258; 118 Cong. Rec. 5104–06. Title IX’s architects viewed such discrimination as rooted in pernicious stereotypes about women. As Senator Bayh vividly put it, “[w]e are all familiar with the stereotype of women as pretty things who go to college to find a husband, go on to graduate school because they want a more interesting husband, and finally marry, have children, and never work again.” 118 Cong. Rec. 5804. Title IX meant to extirpate such “myths about the ‘weaker sex.’” Id.
Indeed, in the debates Senator Bayh used the term “sex discrimination” and “discrimination against women” as virtually interchangeable. See, e.g., 118 Cong. Rec. 5803. House members did the same, explaining that the legislation would afford “[w]omen … [an] equal opportunity to start their careers on a sound basis,” 117 Cong. Rec. 39253 (Rep. Sullivan), and that extending such protection to “women” would be “[a]ll that this title does[.]” 117 Cong. Rep. 39259 (Rep. Green).

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2. Title IX allows certain facilities and programs to be separated by sex.
At the same time, Congress understood that not all distinctions between men and women are based on stereotypes. Foremost among those are distinctions needed to preserve privacy. As ERA proponents had grasped, “disrobing in front of the other sex is usually associated with sexual relationships,” Barbara A. Brown, Thomas I. Emerson, Gail Falk, Ann E. Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 901 (1971), and thus implicated the recently-recognized right to privacy. See id. at 900–01 (citing Griswold v. Connecticut, 381 U.S. 479 (1965)). That privacy right “would permit the separation of the sexes” in intimate facilities such as “public rest rooms[.]” Id.
Both the Senate and House grasped this commonsense principle. For instance, Senator Bayh noted sex separation would be justified where “absolutely necessary to the success of the program” such as “in classes for pregnant girls,” and “in sports facilities or other instances where personal privacy must be preserved.” 118 Cong. Rec. 5807.2 Representative Thomp-
2 When unsuccessfully introducing similar legislation the year before, Bayh observed that, by “provid[ing] equal [educational] access for women and men students … [w]e are not requiring that intercollegiate football be desegregated, nor that the men’s locker room be desegregated.” 117 Cong. Rec. 30407 (emphasis added).

8
son—“disturbed” by suggestions that banning sex discrimination would prohibit all sex-separated facilities—proposed an amendment stating that “nothing contained herein shall preclude any educational institution from maintaining separate living facilities because of sex.” 117 Cong. Rec. 39260. The language was introduced that day and adopted by the House without debate. 117 Cong. Rec. 39263. Although Bayh’s version lacked a similar proviso, the conference committee included Thompson’s language without further discussion. H.R. Conf. Rep. No. 92-1085 at 222.
Subsequently, the Department of Health, Education, and Welfare (“HEW”) proposed a Title IX regulation fleshing out the statute’s reference to “living facilities.” See Comment, Implementing Title IX: The HEW Regulations, 124 U. Pa. L. Rev. 806, 811 (1976) (noting “living facilities” was ambiguous). The HEW regulation provided that living facilities would include “toilet, locker room and shower facilities.” HEW, 39 Fed. Reg. 22228, 22230 (June 20, 1974). The final regulations retained HEW’s definition. HEW, 40 Fed. Reg. 24128, 24141 (June 4, 1975); 34 C.F.R. §106.33.3
3 HEW’s regulations were recodified in their present form after the reorganization that created the Department of Education in 1980. See United States Dep’t of Educ., 45 Fed. Reg. 30802, 30960 (May 9, 1980). Additionally, because multiple agencies issue Title IX regulations, the section 106.33 exception appears verbatim in 25 other regulations. See, e.g., 7 C.F.R. §15a.33 (Agriculture); 24 C.F.R. §3.410 (Housing & Urban Development); 29 C.F.R. §36.410 (Labor); 38 C.F.R. §23.410 (Veterans Affairs); 40 C.F.R. §5.410 (EPA).

9
HEW’s regulations continued to use the statutory term “sex,” without elaboration.
When Congress considered the HEW regulation on “living facilities,” Senator Bayh again linked the issue to privacy. He introduced into the record a scholarly article explaining that Title IX “was designed to allow discrimination only in instances where personal privacy must be preserved. For example, the privacy exception lies behind the exemption from the Act of campus living facilities. The proposed regulations preserve this exception, as well as permit ‘separate toilet, locker room, and shower facilities on the basis of sex.’” 121 Cong. Rec. 16060.
Title IX regulations contain another relevant provision for separation between male and female students, also based on physical differences. Funding recipients are prohibited from discriminating on the basis of sex in athletic activities and must provide “equal athletic opportunity for members of both sexes.” 34 C.F.R. §106.41(a), (c); HEW, 40 Fed. Reg. 24128 (June 4, 1975). Nonetheless, they are permitted to establish “separate teams for members of each sex where selection … is based upon competitive skill or the activity involved is a contact sport.” 34 C.F.R. §106.41(b).
3. Title IX is enforced by multiple agencies through formal rules and clear notice.
Title IX is authorized by the Spending Clause, see Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 74

10
(1992), and Congress has accordingly vested enforcement responsibility with “[e]ach Federal department and agency … empowered to extend Federal financial assistance to any education program or activity[.]” 20 U.S.C. §1682. Those agencies may “effectuate” Title IX by “issu[ing] rules, regulations, or orders of general applicability,” and “[n]o such rule, regulation, or order shall become effective unless and until approved by the President.” Id.; see also 20 U.S.C. §1232(f) (requiring that certain Department acts be transmitted to leaders of Congress).
Title IX may be enforced by terminating federal financial support to noncompliant institutions. 20 U.S.C. §1682. Agencies seeking to enforce Title IX in that way must comply with certain procedural requirements, including notice and opportunity for a hearing, and must provide written reports on the termination to Congress. Id.
B. Factual Background
G.G. is a 17-year-old student at Gloucester High School who was born female. JA61, 64.4 According to G.G., however, “I was born in the wrong sex.” App. 151a. In April 2014, a psychologist diagnosed G.G. with gender dysphoria, a condition involving “incongruence between a person’s gender identity” and birth sex. JA64–65. G.G. defines “gender identity” as one’s “innate sense of being male or female,” in contrast to
4 These factual allegations are taken from G.G.’s complaint and declaration. JA61–79; App. 146a–152a.

11
one’s “sex … assigned at birth.” JA64. G.G. was advised to “transition” to a male gender identity by adopting a male name and “us[ing] … the [boys’] restroom.” JA66. G.G. has since legally adopted a male name, but has not undergone any genital surgery and is still anatomically female. JA89.5
In August 2014, before the 2014–15 school year began, G.G. and G.G.’s mother met with the Gloucester High School principal and guidance counselor. App. 148a. The officials “expressed support for [G.G.] and a willingness to ensure a welcoming environment.” Id. Records were changed to reflect G.G.’s male name, and teachers were told that G.G. was to be addressed by a male name and pronouns. G.G. was also permitted to continue with a home-bound physical education program, which meant G.G. did not need to use the school’s locker room. App. 149a.
G.G. initially agreed to use a separate restroom, being “unsure how other students would react to [G.G.’s] transition.” Id. However, after two months G.G. “found it stigmatizing to use a separate restroom” and “determined that it was not necessary” to
5 G.G.’s brief opposing certiorari claimed that, “in June 2016, G. had chest reconstruction surgery.” Opp. 5–6 n.5. Since certiorari was granted, G.G.’s counsel has informed the Board’s counsel that the sex designation on G.G.’s Virginia birth certificate has been changed from “female” to “male.” These developments do not appear in the record before this Court, and thus are not proper grounds for decision. Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 486 n. 3 (1986).

12
do so. Id. The principal allowed G.G. to use the boys’ restroom beginning on October 20, 2014. Id.
The next day, the Board began receiving numerous complaints from parents and students who regarded G.G.’s presence in the boys’ restroom as an invasion of student privacy. App. 144a; Pet. 6. The Board considered the problem and, after two public meetings on November 11 and December 9, 2014, adopted the following policy:
Whereas the GCPS [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.
Id.

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Before the Board adopted this resolution, the high school announced it would install three single-stall unisex bathrooms, regardless of whether the Board approved the December 9 resolution. JA71–72, 73. These unisex restrooms—which were available on December 16—would be open to all students who, for whatever reason, desire greater privacy. App. 144a– 145a. G.G. refuses to use them, however, claiming they make G.G. feel “stigmatized and isolated.” App. 151a. G.G. acknowledges that male classmates may be “uncomfortable” using the restroom with G.G., but asserts that they should “avail [themselves] of the recently installed single stall bathrooms.” JA75.
C. Procedural History
1. The Ferg-Cadima letter
On December 14, 2014, five days after the Board passed its resolution, a lawyer sent an e-mail to the Department asking whether it had any “guidance or rules” relevant to the Board’s resolution. App. 119a. On January 7, 2015, James A. Ferg-Cadima, an Acting Deputy Assistant Secretary for Policy in the Department’s Office of Civil Rights, sent a letter in response. App. 121a (“Ferg-Cadima letter”).
The Ferg-Cadima letter stated that “Title IX … prohibits recipients of Federal financial assistance from discriminating on the basis of sex, including gender identity.” App. 121a (emphases added). The letter acknowledged that Title IX and its regulations “permit schools to provide sex-segregated restrooms locker

14
rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances,” App. 123a, while providing the following guidance as to those circumstances:
When 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.
Id.
The Ferg-Cadima letter cited no agency document requiring schools to treat transgender students “consistent with their gender identity” regarding restroom, locker room, or shower access. Instead it cited a Department Q&A sheet, which says only that schools must treat transgender students consistent with their gender identity when holding single-sex classes. See United States Department of Education, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014), http://bit.ly/1HRS6yI (emphasis added) (Q&A #31) (opining “[h]ow ... the Title IX requirements on single-sex classes apply to transgender students) (emphasis added).
2. District Court proceedings
G.G. sued the Board on June 11, 2015, six months after the Board passed its resolution, claiming the Board’s policy violates the Equal Protection Clause

15
and Title IX. JA75–78. G.G. sought declaratory and injunctive relief, damages, and attorneys’ fees. JA78.
G.G. moved for a preliminary injunction on June 18, 2015. ECF 18. With respect to Title IX, G.G. argued that section 106.33 does not allow a school to “assign transgender boys to the girls’ room,” and that Title IX therefore requires giving G.G. access to the boys’ restroom. Id. at 37. G.G. reiterated that “gender identity” means “one’s sense of oneself as male or female,” id. at 1, or “the conviction of belonging to a particular gender,” id. at 2, and asserted further that “[f]rom a medical perspective, there is no distinction between an individual’s gender identity and his or her ‘biological’ sex or gender.” Id. at 17 n.13. G.G. also cited the Department’s purported position that Title IX requires access to sex-separated facilities consistent with gender identity and urged the district court to defer to that position under Auer. Id. at 38.
On June 29, 2015, the United States filed a “statement of interest” in support of G.G., arguing that “prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under Title IX.” App. 160a, 162a. The United States did not cite section 106.33, nor explain how the Board’s policy could be unlawful under the regulation. Instead, it relied on the Ferg-Cadima letter as the

16
“controlling” interpretation of Title IX and section 106.33. See App. 172a.6
Without ruling on the equal protection claim, the district court dismissed G.G.’s Title IX claim and denied a preliminary injunction. App. 82a–83a (order); 84a–117a (opinion). First, the district court held that the Title IX claim was “precluded by Department of Education regulations”—specifically section 106.33. App. 97a–98a. The court reasoned that section 106.33 allows separation of restrooms by “sex” and, “[u]nder any fair reading, ‘sex’ in section 106.33 clearly includes biological sex.” App. 99a. The court thus concluded that the Board’s policy of “providing separate bathrooms on the basis of biological sex is permissible under the regulation,” regardless of whether “sex” encompasses “gender identity,” as G.G. urged. Id.
Second, the district court refused to give controlling weight to the Ferg-Cadima letter. The district court observed that letters of this sort lack the force of law under Christensen v. Harris County, 529 U.S. 576, 587 (2000), and cannot receive Chevron deference
6 The United States cited two other Department documents, but neither addresses whether schools must allow students into restrooms or locker rooms corresponding with their gender identity. See App. 170a–172a (citing United States Department of Education, Questions and Answers on Title IX and Sexual Violence (April 29, 2014), and United States Department of Education, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities); see also supra at 15.

17
when interpreting Title IX. App. 101a; see Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The Court also held that the letter should not receive deference under Auer v. Robbins, 519 U.S. 452 (1997), because it would prevent school districts from establishing separate restrooms “on the basis of sex,” as section 106.33 “clearly allows.” App. 102a.
3. Fourth Circuit appeal in No. 15-2056
The Fourth Circuit reversed the district court’s dismissal of G.G.’s Title IX claim, holding that the district court should have accepted the Ferg-Cadima letter as the “controlling” construction of Title IX and section 106.33 under Auer. App. 13a–25a.
First, the panel held that section 106.33 was “ambiguous” as applied to “whether a transgender individual is a male or a female for the purpose of access to sex-segregated restrooms,” and that the Ferg-Cadima letter “resolve[d]” this ambiguity by determining sex solely “by reference to … gender identity.” Id. at 19a–20a, 18a.
Second, the panel held that the letter’s interpretation—“although perhaps not the intuitive one,” id. at 23a—was not, in the words of Auer, “plainly erroneous or inconsistent with the regulation or the statute.” Id at 20a, 22a–23a. In the panel’s view, the term “sex” does not necessarily suggest “a hard-and-fast binary division [of males and females] on the basis of reproductive organs.” Id. at 22a.

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Third, the panel found that the letter’s interpretation constituted the agency’s “fair and considered judgment,” because the agency had consistently enforced this position “since 2014”—that is, for the previous several months—and it was “in line with” other agency guidance. Id. at 24a. While conceding the interpretation was “novel,” given “there was no interpretation of how section 106.33 applied to transgender individuals before January 2015,” the panel nonetheless thought this novelty was no reason to deny Auer deference. Id. at 23a.7
The Board moved for rehearing en banc, which was denied on May 31, 2016. Id. at 61a–66a. The Board then asked for a stay of the Fourth Circuit’s mandate pending its filing a certiorari petition. This too was denied, again over Judge Niemeyer’s dissent. Id. at 67a– 70a. The mandate in No. 15-2056 issued on June 17, 2016.8
7 Judge Niemeyer dissented for many of the reasons given by the district court. App. 40a–60a.
8 On May 13, 2016, the Departments of Education and Justice issued a “Dear Colleague” letter elaborating on the Ferg-Cadima letter. See Pet. 14–15. Challenges to the Dear Colleague letter by numerous States, see id. at 15–16, have resulted in a nationwide preliminary injunction against the Departments. See Texas v. United States, __ F.Supp.3d __, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016), on appeal, Texas v. United States, No. 16-11534 (5th Cir.). A similar lawsuit in Nebraska has been stayed pending this case. See Nebraska v. United States, No. 4:16-cv-03117, ECF No. 24 (D. Neb. Nov. 23, 2016).
(continued…)

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4. Proceedings after remand
On remand, the district court entered a preliminary injunction without taking additional briefing or evidence. App. 71a–72a. The injunction ordered the Board to permit G.G. to use the boys’ restroom at Gloucester High School. Id. at 72a. The Board appealed this order, creating a second case in the Fourth Circuit, No. 16-1733. The Board’s request to stay the injunction pending appeal was denied by the district court, App. 73a–75a, and the Fourth Circuit, again over Judge Niemeyer’s dissent. App. 76a–81a.
Finally, the Board asked this Court to recall and stay the Fourth Circuit’s mandate in No. 15-2056, and to stay the district court’s preliminary injunction, pending this certiorari petition. That request was granted on August 3, 2016. Gloucester Cnty. Sch. Bd. v. G.G., 136 S. Ct. 2442 (2016) (per curiam). The Board timely petitioned for a writ of certiorari on three questions, which this Court granted as to questions two and three. Order, Oct. 28, 2016. In this brief, these questions have been renumbered as questions one and two, respectively.
Separately, the Department of Health & Human Services issued Affordable Care Act regulations interpreting Title IX in the same way as the Ferg-Cadima letter. Those regulations were preliminarily enjoined last week. See Franciscan Alliance, Inc. v. Burwell, No. 7:16-cv-00108, ECF No. 62 (N.D. Tex. Dec. 31, 2016) (enjoining aspects of 45 C.F.R. pt. 92).

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SUMMARY OF ARGUMENT
The interpretation of Title IX and its implementing regulation adopted by the Fourth Circuit would upend the ingrained practices of nearly every school in the Nation on a matter of basic privacy and dignity—whether separate restrooms, locker rooms, and showers may be provided for boys and girls, as defined by their physical sexual attributes.
The majority deemed “controlling” an agency’s view that “sex” in Title IX turns, not on physiological distinctions between males and females, but on “gender identity”—meaning one’s internal perception of being male or female. That profoundly mistaken view would outlaw the (until now) universally accepted practice of separating restrooms, locker rooms, showers, athletic teams, and dormitory rooms based on physiological differences between the sexes. It would also transform Title IX’s straightforward prohibition on “sex” discrimination into a different prohibition on “gender identity” discrimination which Congress never contemplated or enacted. The Fourth Circuit’s decision cannot stand. This Court should reverse on either of two distinct grounds.
I. Most fundamentally, the Court should reverse because no matter what level of deference is given to the agency, the interpretation of Title IX and its regulation adopted by the Fourth Circuit is wrong.
A. The Board’s policy is plainly valid under the Title IX regulation at issue—section 106.33—which has

21
long permitted separation of restrooms by “sex.” Indeed, the Board went above and beyond the accommodation section 106.33 contemplates by providing additional unisex restrooms for any student who desires greater privacy for whatever reason.
To invalidate the Board’s policy under Title IX, the Fourth Circuit adopted a view that equates the term “sex” entirely with “gender identity,” effectively compelling schools to disregard the very physiological differences that justify separation in the first place. That cannot be right as a matter of Title IX’s text, history, and structure.
All indicators of statutory meaning show that when Title IX was enacted, Congress understood “sex” to refer to physiological distinctions between men and women. Title IX-era dictionaries unanimously defined sex based on those physical characteristics, and modern dictionaries overwhelmingly do the same. None treats gender identity as determinative of sex.
Neither does Title IX’s legislative history. While seeking to end discrimination against women, Title IX’s architects deliberately allowed separation of the sexes to protect privacy—an interest rooted in physical differences between the sexes that would be nullified by equating sex with gender identity.
B. The Fourth Circuit’s interpretation would also undermine Title IX’s structure and purposes. Requiring schools to evaluate access to intimate facilities based on gender identity rather than physiological differences would lead them either to (1) abandon sex-

22
separated facilities altogether, or (2) undertake caseby-case evaluations of a student’s gender presentation.
The first approach would nullify the privacy safeguards envisioned by Title IX’s proponents and expressly provided in the statute and implementing regulation. The second approach would be impossible to administer and, in any event, would ironically incentivize sex-stereotyping discrimination outlawed by the Constitution and federal anti-discrimination law. Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989) (plurality opinion). Making sex turn on gender identity, furthermore, poses a threat to female-only athletic teams, one of Title IX’s signal achievements.
C. Even assuming Title IX theoretically permitted the interpretation adopted by the Fourth Circuit, it would surely come as a surprise to four decades of Title IX recipients. That has constitutional significance: as a Spending Clause statute, Title IX must give fair notice of its conditions. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006); Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). The latent possibility that schools would be required to treat sex as equivalent to gender identity, on pain of losing federal funding, would offend that clear-notice requirement. This Court should interpret Title IX to avoid this constitutional problem.
II. Alternatively, the Court may reverse because the Fourth Circuit should not have extended Auer deference to the agency interpretation.

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A. Auer deference applies only when an agency interprets its own regulations. The Ferg-Cadima letter, however, turns on what the agency thinks Title IX itself requires, not merely on what the regulatory language means. But even indulging the assumption that the letter interprets the regulatory language, that language merely parrots Title IX by importing the term “sex” directly from the statute. This Court has held that agencies cannot claim Auer deference when they interpret regulatory terms that come directly from statutes. Gonzales v. Oregon, 546 U.S. 243, 247 (2006).
B. Assuming Auer deference applies, it only aids agencies when regulatory language is ambiguous and the agency clarifies it in a permissible way. Christensen, 529 U.S. at 588. But for many of the same reasons that Title IX forecloses the agency’s interpretation, the regulations do as well. “Sex” is not an ambiguous term: as used in Title IX, it plainly refers to physiological differences between men and women. And reading “sex” as depending on gender identity is not a permissible interpretive choice in any event.
C. Finally, Auer deference is inapplicable because the Department ignored procedural requirements for acting with the force of law. This Court has held that agency interpretations of statutes merit Chevron deference only when agencies act with the force of law by employing relatively formal procedures. United States v. Mead Corp., 533 U.S. 218 (2001); Christensen, 529 U.S. at 588. That rule ensures agencies can only bind

24
courts and regulated parties through methods Congress provided. This Court has implied that Auer should be limited in a similar way, and should now so hold.
Even if Auer might apply to some informal agency acts, it should not apply here. Congress has required specific processes, including but not limited to those in the Administrative Procedure Act, that the Department must follow if it seeks to act with the force of law. See 20 U.S.C. §1682. The Ferg-Cadima letter was not issued pursuant to those procedures and should therefore not control in court.
ARGUMENT
In agreeing to review the Fourth Circuit’s decision, this Court granted certiorari on two questions: (1) whether the Fourth Circuit properly deferred to the agency’s interpretation under Auer v. Robbins, 519 U.S. 452 (1997), Pet. 25–32, and (2) whether—regardless of Auer—that interpretation was correct. Pet. 33– 38; see also id. at 33 (arguing the agency’s “interpretation is flatly wrong”). This brief addresses these questions in reverse order for two reasons.
First, understanding how Title IX addresses sexseparated facilities illuminates why Auer never should have applied. For instance, it is not ambiguous whether Title IX and section 106.33 permit separate restrooms based on physiological differences between the sexes—they plainly do—which removes the premise for applying Auer.

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Second, a new administration will take office on January 20, 2017. This raises the possibility that the guidance on which the Fourth Circuit relied will be altered or rescinded. Even that development, however, would leave the question of whether the underlying interpretation was correct. See, e.g., Pet. Reply 1 (asking Court to resolve “the proper interpretation of Title IX and its implementing regulation”). This Court can—and should—resolve that distinct question, apart from whether Auer should have applied. That is because the meaning of Title IX and section 106.33 on this issue is plain and may be resolved as a matter of straightforward interpretation, instead of remanding for needless additional litigation in the lower courts.
I. The Board’s Policy Separating Restrooms By Physiological Sex Is Plainly Valid Under Title IX And Section 106.33.
The Fourth Circuit accepted an interpretation of Title IX and its implementing regulation that conclusively determines “sex” according to “gender identity,” meaning the internal perception of oneself as male or female. App. 15a–16a, 20a. That interpretation is unambiguously precluded by the text, history, and structure of Title IX and its implementing regulation and should be rejected by this Court.

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A. The Text And History Of Title IX And Section 106.33 Refute The Notion That “Sex” Can Be Equated With “Gender Identity.”
The most straightforward way to resolve the interpretive question in this case is the one taken by the district court. See App. 97a–100a. As that court correctly explained, the Title IX regulation at issue—section 106.33—“specifically allows schools to maintain separate bathrooms based on sex as long as the bathrooms for each sex are comparable.” App. 99a. That regulation confirms the legality of the Board’s policy under Title IX, regardless of whether the term “sex” may include some notion of a person’s “gender identity.” See id. (concluding that, because Board’s policy is permitted by the regulation, “the Court need not decide whether ‘sex’ in … [s]ection 106.33 also includes ‘gender identity’”).
As the district court explained, it is beyond dispute that the agency that adopted section 106.33 in the mid-1970s understood “sex,” at a minimum, to include physiological distinctions between men and women. See App. 99a (observing, “[u]nder any fair reading, ‘sex’ in [s]ection 106.33 clearly includes biological sex”). Indeed, as discussed below, all relevant indicia of meaning show that the understanding of “sex” shared by Title IX’s architects was wholly determined by those physiological distinctions. Yet the position accepted by the Fourth Circuit majority implies the opposite: that one’s internal, perceived sense of gender identity is determinative when it diverges from

27
physiological sex. See App. 20a (accepting as a “plausible” reading one that “determin[es] maleness or femaleness with reference to gender identity”). Practically speaking, this means that physiological sex is not only irrelevant but invalid under Title IX as a general basis for classification. To put the matter most starkly, the interpretation accepted by the Fourth Circuit forbids something the statute and regulation permit: using physiological sex to separate boys and girls in restrooms.
1. The linguistic evidence found in dictionary definitions confirms that the term “sex” in Title IX and section 106.33 turns overwhelmingly on the physiological differences between men and women. Those sources provide no support for the notion adopted by the Fourth Circuit that “sex” equates with “gender identity,” to the exclusion of physiology.
The panel majority and Judge Niemeyer’s dissent cited nine dictionaries between them, covering a period from before the enactment of Title IX to the present day. Every single one referred to physiological characteristics as a criterion for distinguishing men from women. App. 21a–22a (majority) (citing American College Dictionary 1109 (1970), Webster’s Third New International Dictionary 2081 (1971), Black’s Law Dictionary 1583 (10th ed. 2014), and American Heritage Dictionary 1605 (5th ed. 2011)); App. 54a– 55a (dissent) (citing The Random House College Dictionary 1206 (rev. ed. 1980), Webster’s New Collegiate Dictionary 1054 (1979), American Heritage Dictionary

28
1187 (1976), Webster’s Third New International Dictionary 2081 (1971), The American College Dictionary 1109 (1970), Webster’s New World College Dictionary 1331 (5th ed. 2014); The American Heritage Dictionary 1605 (5th ed. 2011), and Merriam-Webster’s Collegiate Dictionary 1140 (11th ed. 2011)).
For instance, the majority’s dictionary definitions include concepts such as “anatomical,” “physiological,” and “morphological” differences; “biparental reproduction”; and “sex chromosomes.” App. 21a. Similarly, the dissent’s definitions include concepts such as “structural” differences, “reproductive functions,” and “reproductive organs.” App. 54a–55a. The fact that “even today, the term ‘sex’ continues to be defined based on the physiological distinctions between males and females” strongly suggests that is what the term meant in the 1970s-era statute and regulation. App. 55a (Niemeyer, J., dissenting).
Nevertheless, the majority found ambiguity in certain definitions of “sex,” observing that the definitions in two dictionaries contemporary with Title IX “used qualifiers such as references to the ‘sum of’ various factors, ‘typical dichotomous occurrence,’ and ‘typically manifested as maleness and femaleness.’” App. 22a. The majority failed to read those supposed “qualifiers” in context.
For instance, the majority pointed out that the American College Dictionary (1970) and Webster’s Third New International Dictionary (1971) referenced

29
the “‘sum of’ various factors” bearing on sex. Id. (emphasis in maj. op.). But the panel overlooked that the “factors” to be “sum[med]” up consist of “anatomical and physiological differences” (in the former dictionary) and “‘the morphological, physiological, and behavioral peculiarities of living beings that subserve[ ] biparental reproduction’” (in the latter). App. 21a (emphasis added). The reference in Webster’s to “typical” sex characteristics, meanwhile, appears to refer to the usual range of expression of those characteristics, rather than acknowledging the existence of alternative definitions of sex. App. 21a–22a. In other words, whatever “factors” might be relevant and whatever variation from the “typical” case might exist, both dictionaries confirm that physiological characteristics—and those related to “reproduction” in particular—are the overriding consideration.
The majority nonetheless argued that where “the various indicators of sex … diverge,” these dictionary definitions “shed little light on how exactly to determine” whether a person is male or female. App. 22a. But that is false: as discussed above, the 1970s-era definitions relied on by the majority distinguish men from women based on physical characteristics. More importantly, for the majority’s point to have any relevance to this case, a person’s perceived gender identity would have to have been considered an “indicator[ ] of sex” that can contradict other “indicators”—

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and no dictionary definition contemporary with Title IX suggested that it was.9
To be sure, the majority cited three dictionaries that referred to non-physiological factors in defining sex: two that included “behavioral peculiarities” or “gender” as an aspect of sex, see App. 21a–22a (quoting Webster’s Third New International Dictionary 2081, and Black’s Law Dictionary 1583), and one that “includes in the definition of ‘sex’ ‘[o]ne’s identity as either female or male,’” App. 22a (quoting American Heritage Dictionary 1605). However, the majority’s editions of Black’s and American Heritage were published in 2014 and 2011, respectively, and have little probative value as applied to Congress’s understanding of language enacted in the mid-1970s. See, e.g., MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 228 (1994) (rejecting reliance on a dictionary “not yet even contemplated” when statute was enacted); St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610–13 (1987) (defining “race” according to dictionaries and
9 The majority cited various circumstances where physiological sex is supposedly more difficult to settle, such as someone who had “sex-reassignment surgery,” an “intersex individual,” someone “born with X-X-Y sex chromosomes,” or someone “who lost external genitalia in an accident.” App. 20a. Regardless of how these particular cases would be settled under Title IX, none involves the situation where a person’s perceived gender identity is determinative of sex, regardless of physiology.
(continued…)

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encyclopedias existing “when [42 U.S.C.] §1981 became law in the 19th century”).10 Even if modern dictionaries were probative, not even the 2011 American Heritage Dictionary went as far as G.G.’s position that one’s perceived “identity” overrides physiological sex. And if it did, that dictionary would have exactly the same problem that the Fourth Circuit and the FergCadima letter created, namely, a gender identitybased definition of “sex” that swallows up all other definitions. This Court has rejected proposed interpretations derived from a “meaning set forth in a single dictionary … which not only supplements the meaning contained in all other dictionaries, but contradicts one of the meanings contained in virtually all other dictionaries.” MCI Telecomms., 512 U.S. at 227.
Of those three dictionaries, only Webster’s Third New International Dictionary, published in 1971, was contemporary with Title IX. App. 21a–22a. But its definition of “sex”—based on a combination of “morphological, physiological, and behavioral peculiarities”— does not include gender identity at all.11 Nor could it:
10 Furthermore, even Black’s primary definition of “sex” turns on physiology. See App. 22a (noting Black’s first definition as “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism”).
11 Moreover, even assuming the dictionary suggests that purely “behavioral peculiarities” are an aspect of “sex” in a linguistic sense, incorporating those “peculiarities” into Title IX would violate the law. This Court’s decision in Price Waterhouse v. Hopkins recognizes that discrimination on the basis of conformity (continued…)

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as already explained, the various factors identified in the definition are limited to those that “subserve[ ] biparental reproduction,” and so could hardly refer to the internal perception of oneself as male or female.
In short, the majority had no linguistic basis for holding that the term “sex” in Title IX could have been understood to refer to gender identity rather than the objective physiological characteristics distinguishing men from women—much less make gender identity override those physiological characteristics. See also Brief of Amici Members of Congress.
2. Title IX’s legislative history, which the panel majority did not address, confirms the dictionary definitions. See, e.g., St. Francis Coll., 481 U.S. at 612– 13 (confirming textual meaning through legislative history). Congress’s manifest purpose in Title IX was to fix the pervasive problem of discrimination against women in educational programs. Title IX’s proponents were consequently focused on prohibiting “sex” discrimination, see 118 Cong. Rec. 5803; 117 Cong. Rep. 39251, but at the same time sought to preserve schools’ ability to separate males and females to preserve “personal privacy,” see 118 Cong. Rec. 5807
with sex stereotypes is a form of sex discrimination. 490 U.S. at 250. Schools thus cannot consider “behavioral peculiarities” in determining whether someone is male or female.
(continued…)

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(Sen. Bayh).12 See supra at 6–10. Not a shred of legislative history suggests that Congress considered “gender identity” at all, much less that the concept could supplant physiology. Nor is there any evidence that HEW considered “sex” to include gender identity when section 106.33 was promulgated. Even G.G. has indicated that the Congress that enacted Title IX and the agency that adopted section 106.33 were focused on physiological sex and never conceived of gender identity. Opp. 1. That effectively concedes that the position adopted by the Fourth Circuit transforms the statutory prohibition from one that protects women against discrimination vis-à-vis men (and vice versa), into one concerned with the quite different issue of “gender identity” discrimination. See also Brief of Amici William Bennett et al.
3. Other indications of congressional purpose point in the same direction. For example, the subsequently enacted Violence Against Women Act (“VAWA”)—a Spending Clause statute, like Title IX— prohibits funded programs or activities from discriminating based on either “sex” or “gender identity.” 42 U.S.C. §13925(b)(13)(A). “Sex” and “gender identity” must have meant distinct things to the Congress that enacted VAWA, for equating sex with gender identity would create surplusage. See, e.g., National Credit
12 This Court has considered “Senator Bayh’s remarks, as those of the sponsor of the language ultimately enacted” as Title IX, to be “an authoritative guide to the statute’s construction.” N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526–27 (1982).

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Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 501 (1998) (rejecting agency interpretation under Chevron for this reason).
Other statutes enacted after Title IX relate to discriminatory acts based on “gender” and “gender identity,” implying Congress distinguished outward manifestations of sexual identity—akin to sex—from inward, perceived ones. 18 U.S.C. §249 (federal hate crimes); 42 U.S.C. §3716(a)(1)(C) (Attorney General authority to assist with State and local investigations and prosecutions); 20 U.S.C. §1092(f)(1)(F)(ii) (crime reporting by universities).
Not only is a separate provision for gender identity absent from the text of Title IX, but in other contexts Congress has repeatedly declined to enact statutes forbidding gender identity discrimination in education. The Student Non-Discrimination Act, introduced in 2010, 2011, 2013, and 2015 in both the Senate and the House,13 would condition school funding on prohibiting gender identity discrimination. Another measure, the “Equality Act,” would amend the Civil Rights Act of 1964 to prohibit gender identity discrimination in various contexts, including employment and education.14 Neither bill has ever left committee.
13 H.R. 4530 (111th Cong. 2010); S. 3390 (111th Cong. 2010); H.R. 998 (112th Cong. 2011); S. 555 (112th Cong. 2011); H.R. 1652 (113th Cong. 2013); S. 1088 (113th Cong. 2013); H.R. 846 (114th Cong. 2015); S. 439 (114th Cong. 2015).
14 S. 1858 (114th Cong. 2015); H.R. 3185 (114th Cong. 2015).

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4. When determining the nature and limits of sex discrimination law, this Court has always focused on physiological differences, especially in contexts involving the lawful separation of males and females. For example, in Virginia, this Court determined that male-only admission to the Virginia Military Institute violated equal protection, but noted that the required co-educational integration “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.” 518 U.S. at 550 n.19. Similarly, as Justice Kennedy wrote for the Court in Tuan Anh Nguyen v. INS, a more rigorous standard for proving paternity as opposed to maternity did not violate equal protection because “[f]athers and mothers are not similarly situated with regard to the proof of biological parenthood.” 533 U.S. 53, 62–63 (2001). Justice Stevens captured the essence of this point in City of Los Angeles, Department of Water & Power v. Manhart, when he wrote for the Court that “[t]here are both real and fictional differences between women and men.” 435 U.S. 702, 707 (1978). Physiological differences between men and women—especially when it comes to privacy—are real ones. Nowhere is that more true than in the educational settings of bathrooms, showers, and sports teams.
Those cases support interpreting Title IX and its regulations to allow the privacy-based separation of

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men and women on the basis of physiological differences.15 As this Court has observed, “[t]o fail to acknowledge even our most basic biological differences … risks making the guarantee of equal protection superficial, and so disserving it.” Nguyen, 533 U.S. at 73. The same commonsense principle applies to Title IX.
B. Equating “Sex” With Gender Identity Would Undermine Title IX’s Structure.
In addition to violating Title IX’s text and history, the interpretation accepted by the Fourth Circuit—requiring access to sex-separated facilities based on gender identity—would undermine Title IX’s structure and make the statute impossible to administer. Gender identity, as G.G. explained below, means individuals’ “innate sense of being male or female,” which may differ from “the sex they were assigned at birth.” JA64. Making access to sex-separated facilities turn on this elusive concept would lead to obvious and intractable problems of administration. Because “[i]t is implausible that Congress meant [Title IX] to operate in this manner,” King v. Burwell, 135 S. Ct. 2480, 2494 (2015), this is yet another reason to reject the interpretation accepted by the Fourth Circuit.
15 Lower courts have similarly concluded that federal prohibitions on “sex” discrimination concern physiological distinctions between men and women. See, e.g., Johnston v. Univ. of Pittsburgh of the Com. Sys. of Higher Educ., 97 F. Supp. 3d 657, 670, 676 (W.D. Pa. 2015), appeal dismissed (Mar. 30, 2016) (collecting decisions).

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To put it plainly: how is a school to determine a student’s gender identity for purposes of managing access to sex-separated restrooms, locker rooms, or showers? The Fourth Circuit’s opinion does not say, and no standard suggested below provides any plausible answer.
1. The standard suggested by G.G.’s definition of “gender identity”—one’s “innate sense of being male or female,” JA64—implies that a student’s mere assertion of his or her gender identity settles the matter.16 But if members of one physiological sex could obtain access to facilities reserved for the other sex simply by announcing their gender identity, the sex separation contemplated by Title IX and its regulations would cease to exist. A school might wish to keep boys and girls in separate facilities, but in practice any given facility would be open to members of both sexes. Some may use the opposite sex’s facilities to express their gender identity, but others will do so for less worthy reasons. A “pure assertion” standard gives no way to distinguish them.
That outcome would come as a shock to Title IX’s congressional advocates, who authorized separate “living facilities” to ensure that members of different
16 While the Ferg-Cadima letter does not address this issue, the Department’s Dear Colleague letter would also establish a “pure assertion” standard: a student must be treated according to his or her gender identity once “the student … notifies the school” of that gender identity, and without any requirement of a “medical diagnosis or treatment.” App. 130a–131a.

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sexes would be separable in certain intimate settings. Supra at 7–10. If Title IX’s proponents had contemplated that members of one sex could use the opposite sex’s facilities, based on their perception of having been “born in the wrong sex,” App. 151a, there would have been no reason for permitting separation of sexes in intimate settings. See App. 57a (Niemeyer, J. dissenting). The interpretation accepted by the Fourth Circuit thus nullifies what the framers of Title IX and its regulations plainly sought to preserve: spaces available to members of one physiological sex and offlimits to the other.
2. Some of G.G.’s pleadings below may imply an alternative approach, but it fits Title IX no better. This approach appears to turn on gender presentation (i.e., whether someone appears to be relatively more masculine or feminine) and corresponding feelings of discomfort on being required to use a facility consistent with physiological sex. In other words, because G.G. “presents” as a boy, JA65, 67, 73, and feels more at home in a boys’ restroom, JA73–74, G.G. should have access to boys’ restrooms. But that standard would create even more serious problems than the first one. It suggests that schools must evaluate access claims based on how consistently or comprehensively a student presents his or her gender identity. The Department appears to have joined that approach initially—App. 181a (supporting preliminary injunction because G.G.’s “gender identity is male and [he] presents as male in all aspects of his life”)—but has since

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disavowed it. See App. 57a–58a (Niemeyer, J. dissenting); App. 130a.
That is for good reason, because such an approach would require schools to engage in sex-stereotyping discrimination. Administrators would inevitably have to evaluate students’ access to facilities based on relative masculine or feminine traits—which is classic sex-stereotyping. See Price Waterhouse, 490 U.S. at 250–51 (forbidding adverse actions against women under Title VII based on stereotypical views of women’s appearance or mannerisms). The only way out of this trap is to understand “sex” as the Board’s policy does—namely, as referring to objective physiological criteria. That standard rejects classifying students based on whether they meet any stereotypical notion of maleness or femaleness, and in that sense is the opposite of sex-stereotyping.
3. Even if the problem of standards were resolved, other contradictions would arise. For instance, making access turn on gender identity would perpetuate discrimination in a different form. Persons whose gender identities align with physiological sex would have access only to one facility, but individuals such as G.G. could opt in to the opposite sex’s facilities depending on their gender presentation or the status of their transition to the opposite sex. There would thus be different degrees of access depending on divergence of gender identity from physiology: another classic case of discrimination.

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This standard would also create new legal risks for regulated schools. For instance, below the United States urged denying “any recognition” to the “discomfort” expressed by “parents and community members … to students sharing a common use restroom with transgender students[.]” App. 180a. Doing so would “‘cater to … perceived biases[.]’” Id. 181a (quoting United States Dep’t of Labor, Directive: Job Corps Program Instruction Notice No. 14-31 3–4 (May 1, 2015)). As callous as that position sounds on paper, it also has likely legal consequences—for example, if a sexual assault victim felt that the presence of the opposite sex in restrooms, lockers, or showers created a hostile environment. See Jeannie Suk Gersen, The Transgender Bathroom Debate and the Looming Title IX Crisis, The New Yorker (May 24, 2016).
Yet another problem arises in the context of athletics, where regulations provide a similar safe harbor for sex separation. As mentioned supra, Title IX regulations prohibit discriminating on the basis of sex in athletic activities and require recipients to “provide equal athletic opportunity for members of both sexes.” 34 C.F.R. §106.41(a), (c). But the regulations also provide for “separate teams for members of each sex where selection … is based upon competitive skill or the activity involved is a contact sport.” 34 C.F.R. §106.41(b). That separation is plainly grounded in physiology: Even beyond privacy interests in contact sports, providing separate teams for female students creates more opportunities for participation and protects them from injury.

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Sex separation in athletics only works, however, if “sex” means physiological sex; if it means “gender identity,” nothing prevents athletes who were born male from opting onto female teams, obtaining competitive advantages and displacing girls and women. See, e.g., Transgender Track Star Stirs Controversy Competing in Alaska’s Girls’ State Meet Championships, CBS New York, June 8, 2016 (noting an “18year old runner … [who] was born male and identifies as female” competed in “Class 3A girls’ sprints”). Given the Fourth Circuit majority’s position that “‘sex’ should be construed uniformly throughout Title IX and its implementing regulations,” App. 25a, such an outcome appears inevitable.
These and other serious practical problems17 counsel strongly against the Fourth Circuit’s attempt to transform the statutory prohibition on sex discrimination into the distinctly different prohibition on gender identity discrimination.
C. If “Sex” Were Equated With “Gender Identity,” Title IX And Its Regulations Would Be Invalid For Lack Of Clear Notice.
Even if Title IX and its regulations did not unambiguously forbid the interpretation advanced by the
17 See, e.g., Brief of Amici McHugh and Mayer; Brief of Amicus Curiae Alliance Defending Freedom; Brief of Amicus Curiae Safe Spaces for Women; Brief of Amici Religious Colleges, Schools, and Educators; Brief of Amici Major Religious Organizations.

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Department and accepted by the Fourth Circuit, they certainly did not foreshadow it. Again, as G.G. admits, that interpretation was unimaginable at the time Title IX and its regulations were first adopted. Opp. 1. If that is true—and it is—the Fourth Circuit’s holding would make Title IX violate the Spending Clause for failure to afford funding recipients clear notice of the conditions of funding.
Title IX was enacted under the Spending Clause, and the threat of withdrawing federal funding is the main enforcement mechanism. See 20 U.S.C. §1682. “Legislation enacted pursuant to the spending power is much in the nature of a contract, and therefore, to be bound by federally imposed conditions, recipients of federal funds must accept them voluntarily and knowingly.” Murphy, 548 U.S. at 296 (quotes and alteration omitted) (quoting Pennhurst, 451 U.S. at 17). For that reason, “when Congress attaches conditions to a State’s acceptance of federal funds, the conditions must be set out unambiguously,” for “States cannot knowingly accept conditions of which they are unaware or which they are unable to ascertain.” Id. (quotes and citation omitted).
For over four decades, States have accepted Title IX funding with the understanding that they could maintain separate facilities based on men and women’s different physiologies; nothing in the text of Title IX or its implementing regulations “even hint[s]” that they would ever have to do anything else. Id. at 297. If the Fourth Circuit’s position is plausible, then

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it sets the stage for a funding condition that States never could have anticipated. See Brief of Amici States of West Virginia et al.
That position must be rejected under the rule of constitutional avoidance. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”). That rule supports interpreting Title IX in a way that does not permit the Fourth Circuit— or the Department—to “surpris[e] participating States with post-acceptance or retroactive conditions.” NFIB v. Sebelius, 132 S. Ct. 2566, 2606 (2012) (quoting Pennhurst, 451 U.S. at 25). This is yet another reason to reject the interpretation embraced by the Fourth Circuit.
II. The Fourth Circuit Erred In Extending Auer Deference To The Ferg-Cadima Letter.
Alternatively, this Court can reverse the Fourth Circuit on the ground that the panel erred in extending Auer deference to the interpretation in the FergCadima letter.

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A. Auer Deference Is Inapplicable Because The Ferg-Cadima Letter Interprets Title IX, Rather Than Department Regulations.
The simplest reason why Auer deference should not extend to the Ferg-Cadima letter is that the letter does not interpret the Department’s Title IX regulations. Instead, the letter interprets the term “sex” in Title IX itself. That distinction is critical to the letter’s legal effect, for this Court has held that Auer deference is inappropriate where an agency’s view “cannot be considered an interpretation of the regulation” as opposed to the underlying statute. See Gonzales, 546 U.S. at 247.
1. Identifying the interpretive object of the FergCadima letter begins with reading the letter on its own terms. When the letter states its key conclusion— that “sex” includes “gender identity”—it says it is interpreting Title IX, not a regulation: “Title IX … prohibits recipients of Federal financial assistance from discriminating on the basis of sex, including gender identity.” App. 121a. That language can only mean that Title IX itself—at least in the Department’s view—incorporates a prohibition on gender identity discrimination.
The rest of the letter points in the same direction. It opens by referring to guidance documents concerning “application of Title IX … to gender identity discrimination.” App. 121a (emphasis added). The Q&A sheet the letter cites as precedent also interpreted the

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statute: it posed the hypothetical question, “How do the Title IX requirements on single-sex classes apply to transgender students?” It answered that “[u]nder Title IX, a recipient generally must treat transgender students consistent with their gender identity[.]” App. 16a (quoting Q&A #31) (emphasis added). This reasoning is plainly driven by an interpretation of Title IX itself and not the Department’s regulations, which means that the basic premise for applying Auer is absent.
To be sure, the Ferg-Cadima letter notes that Department “regulations” permit certain sex-separated facilities. App. 123a. But nothing suggests that the Department’s position—that schools “must treat transgender students consistent with their gender identity”—turns on an interpretation of that regulatory language. Id. at 123a. To the contrary, the letter refers to the regulation merely to note the situations in which recipients may “treat students differently on the basis of sex,” and then peremptorily states that in those situations schools must treat transgender students according to “gender identity.” Id. Every indication, then, is that the Department’s position turns on the letter’s major premise that “Title IX” prohibits discrimination “on the basis of sex, including gender identity.” App. 121a.
Limiting Auer deference to interpretations of regulations rather than statutes follows from the justifications this Court has provided for Auer—namely,

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agencies’ “historical familiarity and policymaking expertise” with regulatory regimes under their supervision and their supposed insight into the regulations they promulgated. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 153 (1991); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). Whatever force those justifications may have as to regulations, they have none when an agency interprets Congress’s words. Just so here: the Department was interpreting the statutory term “sex,” and its interpretation is therefore not entitled to Auer deference.
2. Even assuming arguendo that the Ferg-Cadima letter interpreted the regulatory language rather than Title IX, Auer does not apply when—as here—the regulation only “restate[s] the terms of the statute itself.” Gonzales, 546 U.S. at 257. The point of Auer, as Gonzales explained, is that agencies have authority to interpret their own words, at least in some circumstances. But “[a]n agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.” Id.
The Gonzales exception to Auer applies not only when an agency imports entire statutory provisions into the Code of Federal Regulations verbatim, but also when a regulation’s key terms of art derive from the statute. In Gonzales, the regulation “repeat[ed]

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two statutory phrases”—specifically, “legitimate medical purpose” and “the course of professional practice”—“and attempt[ed] to summarize” others. Id. Because nothing “turn[ed] on any difference between the statutory and regulatory language,” the Court held that “the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute.” Id.; see also Kentucky Retirement System v. EEOC, 554 U.S. 135, 149 (2008) (“KRS”) (applying Gonzales when agency paraphrased statutory language without clarifying its substance); Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 398 (2008) (noting Auer may not apply to interpretation of regulatory term “change” because “[i]t is a term Congress used in the underlying statute that has been incorporated in the regulations by the agency”).18
That reasoning forecloses Auer deference here, for as in Gonzales, the Department’s regulations merely “parrot” the relevant statutory term. Title IX provides that its anti-discrimination rule shall not be “construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” 20 U.S.C. §1686
18 Lower courts have applied Gonzales in the same way. See Fogo De Chao (Holdings) Inc. v. United States Dep’t of Homeland Sec., 769 F.3d 1127, 1136 (D.C. Cir. 2014); Sun Capital Partners III, LP v. New England Teamsters & Trucking Indus. Pension Fund, 724 F.3d 129, 139–41 (1st Cir. 2013); In re Kaiser Aluminum Corp., 456 F.3d 328, 345–46 & n.12 (3d Cir. 2006).

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(emphasis added). The Department’s regulations address that exemption by providing that a funding 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. §106.33 (emphasis added).
In the regulation, HEW applied its interpretive authority and expertise not to elaborate on the definition of “sex,” but to flesh out the statute’s reference to “living facilities.” Implementing Title IX, supra, at 826; App. 98a. The regulation builds on the statute by describing which facilities count and by adding the proviso that when separate facilities are established, they must be “comparable.” But this litigation does not turn on any of that. Instead, it turns on the meaning of “sex”—a term Congress used in the statute and which the regulations reuse without elaboration. The Department cannot claim that its interpretation of that term “turns on any difference between the statutory and regulatory language.” Gonzales, 546 U.S. at 257. To the contrary, the term “sex” “comes from Congress, not the [agency],” and the agency has no “special authority” to interpret it. Id.
This Court’s decision in KRS confirms this conclusion. See 554 U.S. 135. That case involved the Age Discrimination in Employment Act (“ADEA”), which forbids discriminating against workers “because of ... age.” 29 U.S.C. §623(a)(1). As in this case, an agency

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had promulgated a regulation setting out what a regulated party could do: specifically, that giving “‘the same level of benefits to older workers as to younger workers’ does not violate the [ADEA].” See KRS, 554 U.S. at 149 (quoting 29 C.F.R. §1625.10(a)(2)) (emphasis omitted). And as here, the agency interpreted the regulation’s key criterion (age differences) to include other unenumerated factors (factors correlated with age, such as receipt of pension benefits). Id. But this Court refused to defer to that interpretation, reasoning that “the regulation ‘does little more than restate the terms of the statute itself.’” Id. (quoting Gonzales, 546 U.S. at 257). This case is even easier than KRS, because the regulatory language there was further removed from the statutory language than section 106.33 is from Title IX.
Of course, the Department could attempt to invoke its interpretive authority as to the statutory term “sex,” in which case it could argue that whatever interpretation it reaches is entitled to Chevron deference. As discussed below, the Department has never done so. See Gonzales, 546 U.S. at 258. And as discussed above, the statutory text forecloses its interpretation. Supra at 26–32.
B. Auer Deference Is Inapplicable Because The Governing Regulation, Like Title IX, Is Unambiguous.
Assuming that Auer could extend to the Department’s interpretation of “sex,” Auer applies only when regulatory language is ambiguous. See Christensen,

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529 U.S. at 588. When the regulation is unambiguous, Auer does not aid the agency; courts instead apply the regulation as written. Id. Any other rule “would … permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Id. With respect to the term “sex,” the regulation is not ambiguous, however, and certainly not in the way implied by the Ferg-Cadima letter.
1. As this Court has held, “ambiguity” in the context of interpreting statutes and regulations means more than room for semantic disagreement: “[a]mbiguity is a creature not of definitional possibilities but of statutory context[.]” Brown v. Gardner, 513 U.S. 115, 118 (1994); see also also MCI Telecomms, 512 U.S. at 226 (explaining courts should not merely “defer to the agency’s choice among available dictionary definitions”). An analogy to identifying ambiguity under Chevron is illustrative: under Chevron, a court can determine a statute is ambiguous “only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent.” See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004); Chevron, 467 U.S. at 843 n.9. Those tools include canons of construction, Nat’l Credit Union Admin., 522 U.S. at 501, awareness of how statutory structures work as a whole, Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000), and “common sense,” id. at 133.

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Here, the standard tools of statutory construction show that the term “sex” in the Department’s regulations does not extend to gender identity—and certainly does not permit gender identity to determine a person’s sex. 34 C.F.R. §106.33. As explained above, Congress understood the term “sex” in Title IX to refer to the physiological differences between men and women, and the same considerations apply with equal force to the term as it appears in the regulations promulgated by HEW. The practical concerns that would arise if “sex” meant something other than physiology are essentially identical. Just as with the interpretation of Title IX, these considerations show that “sex” in the Department regulations unambiguously refers to physiology.19
2. The Department’s decision to introduce gender identity into the regulatory scheme in the teeth of this history raises two related concerns. First, agency acts are arbitrary and capricious when an agency “relie[s] on factors which Congress has not intended it to consider[.]” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). That
19 As already discussed, the Fourth Circuit found ambiguity in the term “sex” by misreading two 1970s-era dictionaries. App. 21a–22a; supra at 26–32. But even assuming those sources showed “sex” could have various shades of meaning, they do not show the ambiguity the Fourth Circuit discerned: i.e., as applied to persons whose perceived gender “diverge[s]” from their physiological sex. App. 21a–23a. None of those definitions suggests that a person’s perception of being male or female is a component of “sex.” See supra at 26–32 (discussing definitions).

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is, insofar as “sex” is ambiguous, the Department can only clarify it with reference to the factors that Congress authorized. See Michigan v. EPA, 135 S. Ct. 2699, 2706–07 (2015) (citing, inter alia, Motor Vehicle Mfrs., 463 U.S. at 43). That includes the factors Congress would have thought relevant to the definition of sex —i.e., “the sum of those anatomical and physiological differences with reference to which the male and female are distinguished,” App. 21a (quoting American College Dictionary 1109)—but not a factor like gender identity, which no one would have thought included in the term “sex,” much less determinative of its meaning.
Second, even when resolving ambiguities, “agencies must operate within the bounds of reasonable interpretation.” UARG v. EPA, 134 S. Ct. 2427, 2442 (2014) (quotes omitted). A term “that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” Id. (quotes and alteration omitted). Likewise, “an agency interpretation that is inconsistent with the design and structure of the statute as a whole does not merit deference.” Id. (quotes, citation, and alteration omitted). Those principles foreclose the approach the Ferg-Cadima letter takes. The letter purports to resolve a putative ambiguity of “sex” as related to gender identity that ends up undermining Congress’s purposes and sets up potentially intractable problems of administration. Supra at 32–44. In short, what the Department cannot

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do under the guise of resolving “ambiguities” is introduce extraneous factors that would render a fortyyear-old anti-discrimination rule “unrecognizable to the Congress that designed it.” Id. at 2444 (quotes omitted).
3. At a minimum, Auer deference can extend only to interpretations that would have been foreseeable at the time the regulation was promulgated. Extending Auer to unforeseeable interpretations would offend the requirement of the Administrative Procedure Act that members of the public have the opportunity to comment on regulations affecting them, see Mission Group Kansas, Inc. v. Riley, 146 F.3d 775, 782 (10th Cir. 1998), and potentially the fair notice requirement of federal due process, see Upton v. SEC, 75 F.3d 92, 98 (2d Cir. 1996); Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995). This Court has already declined to apply Auer in an analogous context, where an agency first announced its position in amicus briefs filed after “a very lengthy period of conspicuous inaction[.]” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168 (2012).
The notion that Title IX’s anti-discrimination rule requires that members of different physiological sexes be allowed to share restrooms, lockers, and showers would have been inconceivable until the Ferg-Cadima letter was issued. Not only did that letter cite no precedent relevant to restroom, locker, and shower facilities, supra at 14–15, but the Fourth Circuit itself conceded that the “interpretation is novel because there

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was no interpretation as to how §106.33 applied to transgender individuals before January 2015[.]” App. 23a (emphasis added). Doubtless members of the public would have wanted to comment on this “novel” question. Mission Group Kansas, 146 F.3d at 782. The regulations should be interpreted to avoid springing such a surprise on affected parties.
C. Auer Deference Is Inapplicable Because The Department Failed To Follow The Necessary Formal Procedures.
Finally, the Ferg-Cadima letter does not merit deference because the Department ignored the formal procedures required to act with the force of law. The Fourth Circuit held, in essence, that an agency can “control[ ]” a court’s interpretation of a regulation merely by issuing an informal opinion letter signed by an intermediate agency official. App. 25a. Whatever Auer’s proper scope should be, it should not extend so far.
1. The Ferg-Cadima letter does not carry the force of law under Mead and Christensen.
Extending Auer to an informal document like the Ferg-Cadima letter creates conflict between Auer and the related doctrine of deference to agency statutory interpretations embodied in Chevron. As several courts of appeals have held, Auer doctrine should be tailored to avoid that tension.

55
1. This Court’s decisions in United States v. Mead Corp., 533 U.S. 218 (2001), and Christensen v. Harris County, 529 U.S. 576 (2000), establish the scope and theoretical foundations of the modern Chevron doctrine. Mead holds that deference to agency interpretations of statutes rests on the assumption that Congress sometimes implicitly delegates to agencies the authority to create law by filling the gaps in statutes. 533 U.S. at 226–27, 229. For an agency act to carry the force of law, the agency has to act within the scope of that delegation, i.e., there must have been a substantive delegation of lawmaking power to the agency from Congress, and the agency must have exercised that delegation through the procedural channels Congress created. Id.
Only acts carrying the force of law are entitled to Chevron deference. Id.; see also id. at 243 (Scalia, J., dissenting). For example, as indicated in Christensen, even where an agency has authority to act with the force of law, it typically needs to employ formal procedures such as “formal adjudication or notice-and-comment rulemaking”—or at least close equivalents—to ensure that a particular act compels deference in court. See 529 U.S. at 587. When an agency act does not carry the force of law, it does not bind a court, but instead carries weight proportionate only to its “‘power to persuade.’” Mead, 533 U.S. at 234–35 (quoting Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
The Mead/Christensen rule resolves a legal puzzle. Under the APA, an agency must follow formal, public

56
procedures when it creates law—as opposed to engaging in informal adjudications or issuing nonbinding guidelines or interpretations. See 5 U.S.C. §552(a)(1)(D) (requiring that “interpretations of general applicability” be published in the Federal Register); id. §553(b) (providing procedures for notice-andcomment rulemaking). Lower federal courts have often worked to prevent agencies from circumventing procedural requirements by issuing purportedly nonbinding guidance documents. See Gen. Elec. Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002); Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000); Chamber of Commerce v. Dep’t of Labor, 174 F.3d 206 (D.C. Cir. 1999). Yet without Mead and Christensen, such informal documents would have binding legal force in the sense that they bind courts. This Court’s Mead/Christensen rule thus prevents agencies from creating law without observing mandatory procedures.
2. Under the Fourth Circuit’s approach, however, the puzzle that Mead and Christensen resolved for Chevron purposes persists under Auer, where agencies interpret their own regulations. This Court held in Christensen that an informal “opinion letter”— much like the Ferg-Cadima letter—“lack[s] the force of law” and so “do[es] not warrant Chevron-style deference” when it purports to interpret a statute. 529 U.S. at 587. Yet because the majority in this case thought the Ferg-Cadima letter interpreted Department regulations, it gave the letter “controlling” deference under Auer. That creates a paradox under

57
which agency actions that do not carry the force of law nonetheless bind courts—and thereby end up carrying the force of law at least as to the parties.
It is difficult to square that paradox with any plausible account of congressional intent. Only Congress could have delegated the Department the ability to authoritatively fill gaps in its own regulations by informal means. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374–75 (1986) (explaining that agencies cannot create new powers for themselves). But Title IX and the APA give no reason to conclude that Congress intended to allow the Department to do so. Even if Congress’s delegation of lawmaking power to agencies does implicitly entail an authoritative gap-filling power applicable to regulations, it is “odd” to think that Congress would delegate that power to informal acts by mid-level officers like Mr. Ferg-Cadima. See Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir. 2003) (Posner, J.).
The principal justifications for Auer deference do not require courts to defer to informal agency interpretations. This Court has customarily explained Auer in terms of agencies’ “historical familiarity and policymaking expertise” with regulatory regimes under their supervision. See Martin, 499 U.S. at 153; Thomas Jefferson Univ., 512 U.S. at 512. But while expertise-based factors justify the persuasive weight given to agency interpretations of statutes under Skidmore, see Mead, 533 U.S. at 228, they do not jus-

58
tify Chevron deference, which requires a congressional delegation, see id. at 229. The rationales underlying Auer, in other words, justify giving informal agency interpretations of regulations due weight, but not letting them control in court. See also Brief of Amici Cato Institute, Michael W. McConnell, Richard A. Epstein et al.
3. Applying Auer deference to the Ferg-Cadima letter would also be inconsistent with doctrines governing the reviewability of agency actions. Final agency acts with binding legal effect are typically subject to immediate judicial review under the APA by parties with standing to challenge them. See Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (setting out standards for APA reviewability). But courts have consistently ruled that informal opinion letters and guidance documents are not immediately reviewable, reasoning that they do not carry binding legal effect. See, e.g., Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004). If opinion letters carry only persuasive weight, that rule makes sense. But the Fourth Circuit’s application of Auer deference implies that countless opinion letters bearing on agency regulations do have legal effect; they revise the meaning of ambiguous regulations, “controlling” judicial resolution of cases and binding private parties. App. 25a. The implication is that agencies are creating law every day without risk of being held to immediate account in court, a circumstance this Court has repeatedly sought to avoid. See United States Army Corps of

59
Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (2016); Sackett v. EPA, 132 S. Ct. 1367 (2012).
4. The most plausible solution that preserves Auer is to maintain the symmetry and consistency of the Chevron and Auer deference doctrines. If the Department wants documents like the Ferg-Cadima letter to have controlling effect in court, it should follow procedures sufficient to give them the force of law. If the Department does not want to follow those procedures, it should not expect its positions to merit controlling deference. See Matthew C. Stephenson & Miri Pogoriler, Seminole Rock’s Domain, 79 Geo. Wash. L. Rev. 1449, 1464 (2011).
Some circuit courts have already indicated that Chevron-like formality considerations should apply in cases governed by Auer.20 And this Court has implied the same thing. In Central Laborers’ Pension Fund v. Heinz, the Court addressed an IRS regulation where two agency interpretations were contrary to the regulation’s plain meaning: a provision of the Internal Revenue Manual, and the United States’ amicus brief before the Court. 541 U.S. 739, 748 (2004). The Court rejected reliance on both: “neither an unreasoned statement in the manual nor allegedly longstanding agency practice can trump a formal regulation with the procedural history necessary to take on the force
20 See Pet. 26–28 (collecting decisions). However, as noted in the petition, there is a circuit split on this issue. See id. at 29 (collecting contrary decisions).

60
of law.” Id. Although the Court did not mention Auer, the import of the Court’s language is that informal agency positions, because they lack the force of law, cannot command the kind of deference that makes them binding on courts. The principle alone requires reversal of the Fourth Circuit’s decision here.
5. Deference to informal agency interpretations is particularly inappropriate where, as here, the interpretation is issued for the first time in an effort to affect the outcome of a specific judicial proceeding. See Pet. 26–27. For example, in Vietnam Veterans of America v. CIA, 811 F.3d 1068 (9th Cir. 2015), the Ninth Circuit refused to apply Auer deference to an interpretation of agency rules that was “‘developed … only in the context of this litigation.’” Id. at 1078. And in Massachusetts Mutual Life Insurance Co. v. United States, 782 F.3d 1354 (Fed. Cir. 2015), the Federal Circuit refused to apply the Auer framework to an IRS interpretation that was “advanced for the first time in litigation.” Id. at 1369–70. Both of these decisions correctly recognize that deferring to an informal agency interpretation that is developed solely to influence the judicial proceeding in which deference is sought creates enormous incentives for gamesmanship. According Auer deference in such circumstances also denies the public—or other affected parties—any effective ability to ensure that their views are adequately heard and considered before the agency acts. This too is a sufficient basis for reversing the Fourth Circuit’s decision to invoke Auer deference.

61
6. Even under this modest approach to Auer deference, that doctrine would still retain vitality in certain circumstances. For example, Auer deference might apply when agencies resolve legal issues in the course of formal agency adjudications, or when they issue official guidance after notice and comment. However, it no longer makes sense for Auer to extend to ad hoc, informal agency acts such as the Ferg-Cadima letter—especially when such acts are taken in the context of the very proceeding in which deference is sought.
2. The Ferg-Cadima letter issued without observance of procedures required by Title IX.
Even if Auer deference remains theoretically applicable to agency actions that would not deserve deference under Chevron, it at least should not apply to agency actions taken in excess of the lawmaking powers Congress has delegated.
Congress enumerated in Title IX the circumstances under which the Department can bind regulated entities with the force of law. See 20 U.S.C. §1682. The Department can initiate formal administrative adjudications to enforce Title IX by terminating federal funding. Id. DOE may also “effectuate” Title IX’s anti-discrimination policy by issuing “rules, regulations, or orders of general applicability[.]” Id. To issue such rules, regulations, and orders, the Department must follow statutory procedures beyond those prescribed by the APA. Specifically, section 1682

62
states that “[n]o such rule, regulation, or order shall become effective unless and until approved by the President.” Id. In addition, Congress has imposed certain requirements when the Department issues a “regulation,” defined as “any generally applicable rule, regulation, guideline, interpretation, or other requirement that—(1) is prescribed by the Secretary or the Department; and (2) has legally binding effect in connection with, or affecting, the provision of financial assistance under any applicable program.” 20 U.S.C. §1232(a). Such regulations must, for example, be transmitted to the Speaker of the House of Representatives and the President pro tempore of the Senate “[c]oncurrently” with their publication. Id. §1232(f).
If the Department intended the Ferg-Cadima letter to have binding legal effect, it breached its procedural obligations. No formal adjudication has taken place, so if the letter had legally binding effect it must be a “regulation” within the meaning of section 1232(a). But nothing in the record indicates that the Ferg-Cadima letter was directly approved by the President, id. §1682, or transmitted to the leaders of Congress, id. §1232(f). As noted above, the Department did not follow the publication, notice, and public comment procedures necessary for binding “rules,” “regulations,” or “interpretations of general applicability” under the APA. See 5 U.S.C. §§552, 553
The Department cannot claim binding legal effect for agency acts while failing to observe procedural re-

63
quirements imposed by Congress. In the Chevron context, this Court has made clear that “deference is not warranted where the regulation is ‘procedurally defective’—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.” See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). Moreover, Congress’s provision of particular means for an agency to act with the force of law implies that the agency lacks the force of law when it acts in other ways. See Mead, 533 U.S. at 231– 32; Gonzales, 546 U.S. at 260.
To be sure, the Department can avoid many of Title IX’s procedural obligations by issuing nonbinding documents. For example, the Department does not need presidential approval when issuing nonbinding “interpretive guidelines.” See Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 106 (4th Cir. 2011). But in the Chevron context, the Department would sacrifice judicial deference by doing so. Applying Auer deference in circumstances like these would once again go beyond Chevron by allowing the Department to bind private parties without following procedural prerequisites.
That, in essence, would make the agency a law unto itself, thereby raising all the concerns that have led several members of this Court to consider overruling Auer altogether. See Pet. 18–20. If Auer is to remain in force, it should be applied in a way that respects the boundaries Congress has set.

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CONCLUSION

The decisions below should be reversed and the preliminary injunction vacated.

Respectfully submitted,

JONATHAN F. MITCHELL 559 Nathan Abbott Way Stanford, CA 94305 jfmitche@stanford.edu
DAVID P. CORRIGAN JEREMY D. CAPPS M. SCOTT FISHER JR. HARMAN, CLAYTOR, CORRIGAN & WELLMAN Post Office Box 70280 Richmond, VA 23255 (804) 747-5200 dcorrigan@hccw.com

S. KYLE DUNCAN Counsel of Record GENE C. SCHAERR STEPHEN S. SCHWARTZ SCHAERR|DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 (202) 714-9492 KDuncan@Schaerr-Duncan.com

January 3, 2017

Counsel for Petitioner

 
 No. 16-273

In the Supreme Court of the United States
GLOUCESTER COUNTY SCHOOL BOARD, Petitioner,
v.
G.G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM, Respondent.
ON WRIT OF CERTIORARI TO THE U.S. COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Brief of Amici Curiae the State of West Virginia, 20 Other States, and the Governors of Kentucky and Maine
Supporting Petitioner

OFFICE OF THE ATTORNEY GENERAL State Capitol Building 1, Room E-26 Charleston, WV 25305 Elbert.Lin@wvago.gov (304) 558-2021

PATRICK MORRISEY Attorney General ELBERT LIN Solicitor General Counsel of Record THOMAS M. JOHNSON, JR. Deputy Solicitor General JULIE MARIE BLAKE Assistant Attorney General

Counsel for Amicus Curiae State of West Virginia

TABLE OF CONTENTS
TABLE OF CONTENTS ............................................. i
TABLE OF AUTHORITIES...................................... iii
INTRODUCTION AND INTEREST OF AMICI.......1
SUMMARY OF ARGUMENT.....................................4
ARGUMENT ...............................................................6
I. The Spending Clause Prohibits The New Condition That Respondents and The Department Seek To Read Into Title IX. .............7
A. Congress Must Provide Adequate Notice Of All Conditions Attached To Federal Funds In The Text Of A Statute Enacted Under The Spending Clause. .........................8
B. Title IX Does Not Provide Sufficiently Clear Notice That States Must Give Students Restroom Access Consistent With Their Gender Identity. ........................14
C. Were This Court To Expansively Interpret Title IX, States Would Be Unconstitutionally Coerced Into Accepting New Grant Conditions Long After the Receipt of Funds. ..........................26
II. Auer Deference Has No Application In This Case. ....................................................................28
A. Because Statutes Enacted Under The Spending Clause Must Clearly Articulate The States’ Obligations, Agencies Cannot Receive Controlling Deference For Interpretations of Their Own Rules. ...........29

ii
B. This Court Need Not Address Whether Any Other Controlling Deference Is Appropriate In Spending Clause Cases.......32
CONCLUSION ..........................................................35 COUNSEL FOR ADDITIONAL AMICI ...................37

iii
TABLE OF AUTHORITIES
CASES
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006)....................................13, 23–24
Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985)................................................12
Auer v. Robbins, 519 U.S. 452 (1997)........................................ passim
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)................................................23
Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656 (1985)..........................................22, 25
Bond v. United States, 134 S. Ct. 2077 (2014)..........................10, 12, 14, 24
Bond v. United States, 564 U.S. 211 (2011)..................................................9
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988)..........................................28, 30
Cannon v. University of Chicago, 441 U.S. 677 (1979)................................................15
Carcaño v. McCrory, No. 1:16-cv-236, 2016 WL 4508192 (M.D.N.C. Aug. 26, 2016)..........7
Carcieri v. Salazar, 555 U.S. 379 (2009)................................................13
Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722 (6th Cir. 2013)..................................31
Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996)..................................................20
Cedar Rapids Cmty. Sch. Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66 (1999)..................................................13

iv
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)................................................30
Com. of Va., Dep’t of Educ. v. Riley, 106 F.3d 567(4th Cir. 1997).............................28, 31
Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999)..............................14–16, 21, 25
Dellmuth v. Muth, 491 U.S. 223 (1989)................................................23
Doe v. Bd. of Educ. of Oak Park & River Forest High Sch. Dist. 200, 115 F.3d 1273 (7th Cir. 1997)................................31
EEOC v. FLRA, 476 U.S. 19 (1986)..................................................20
Franciscan Alliance v. Burwell, No. 7:16-cv-00108 (N.D. Tex. Dec. 31, 2016)…….19
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)............................................8–10
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)..............................14, 16, 18, 21
Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000)................................................34
Gregory v. Ashcroft, 501 U.S. 452 (1991)....................9–12, 23–24, 29, 31
Harris v. James, 127 F.3d 993 (11th Cir. 1997)................................31
Honig v. Doe, 484 U.S. 305 (1988)................................................14
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005)................................................25
Milliken v. Bradley, 418 U.S. 717 (1974)................................................14
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012)......................................26–27

v
Nelson v. Adams USA, Inc., 529 U.S. 460 (2000)................................................20
New York v. United States, 505 U.S. 144 (1992)............................................9, 26
North Haven Board of Education v. Bell, 456 U.S. 512 (1982) ................................................15
Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267 (1994)................................................14
Ohio v. Robinette, 519 U.S. 33 (1996)..................................................20
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981).............. 4, 8, 12–13, 18–19, 22, 24
Perrin v. United States, 444 U.S. 37 (1979)..................................................14
Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299 (1990)................................................13
Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)................................................12
Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648 (5th Cir. 1997)............................30–31
Sch. Dist. of City of Pontiac v. Sec’y of U.S. Dep’t of Educ., 584 F.3d 253 (6th Cir. 2009)..................................31
Solid Waste Agency of N. Cook Cty. (SWANCC) v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001)................................................31
Sossamon v. Texas, 563 U.S. 277 (2011)....................................12, 23–24
Steward Machine Co. v. Davis, 301 U.S. 548 (1937)................................................26
Students & Parents for Privacy v. U.S. Dep’t of Educ., No. 16-cv-4945, 2016 WL 6134121 (N.D. Ill. Oct. 18, 2016) ............................................7

vi
Texas v. United States, No. 7:16-cv-054 (N.D. Tex. Oct. 18, 2016)……….3
Texas v. White, 7 Wall. 700 (1869) ....................................................9
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993)................................................20
United States v. Bass, 404 U.S. 336 (1971)................................................11
United States v. Lopez, 514 U.S. 549 (1995)................................................15
United States v. Mead Corp., 533 U.S. 218 (2001)................................................32
Whitaker v. Kenosha Unified Sch. Dist. No. 1, No. 16-cv-943, 2016 WL 5239829 (E.D. Wis. Sept. 22, 2016) ........................................7
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015)............................................20
STATUTES
U.S. Const. art. I, § 7, cl. 3 ..........................................9 5 U.S.C. § 553 ............................................................33 20 U.S.C. § 1682 ........................................................33 20 U.S.C. § 1686 ....................................................2, 17 Pub. L. 79-396, 60 Stat. 230 (1946) ..........................27 Pub. L. 101-476, 104 Stat. 1142 (1990) ....................28
REGULATIONS
34 C.F.R. § 106.33 ...........................................2, 17, 34 45 C.F.R. pt. 92..........................................................19 Nondiscrimination in Health Programs and
Activities, 81 Fed. Reg. 31,376 (May 18, 2016) ......................19

vii
OTHER AUTHORITIES
122 Cong. Rec. H10,685 ............................................11 Administrative Law As the New Federalism,
57 Duke L.J. 2023 (2008).......................................34 Chevron and Preemption,
102 Mich. L. Rev. 737 (2004) .................................30 Democracy and Distrust: A Theory of Judicial
Review (1980)………………………………………….7 Our (National) Federalism,
123 Yale L.J. 1996 (2014).......................................30 Pennhurst, Chevron, and the Spending Power,
110 Yale L.J. 1187 (2001) ......................................30 Substantive Canons and Faithful Agency,
90 B.U. L. Rev. 109 (2010).....................................10 The Political Safeguards of Federalism: The Role of
the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954) ..................................9

INTRODUCTION AND INTEREST OF AMICI
In violation of the Spending Clause, Respondent and the U.S. Department of Education seek to introduce in Title IX a condition on the States’ receipt of billions of dollars in education funds that is not clearly stated in the law. Under this Court’s cases, if Congress wishes to impose conditions on States in exchange for federal funds, it must unambiguously express those requirements in the statutory language, such that States would not be surprised by their obligations. But as both Respondent and the court of appeals have acknowledged, the view that Title IX requires States to permit access to sex-separated facilities based on gender identity is indisputably “new” and “novel.” App. 23a; BIO 22, 31.
For more than forty years, States have accepted federal education funding on the understanding that Title IX left to them and local school boards the discretion to determine that the physical differences between males and females warrant separate restroom facilities.1 Title IX provides that “nothing contained herein shall be construed to prohibit any educational institution receiving funds . . . from maintaining separate living facilities for the different
1 Amici are the States of West Virginia, Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wisconsin and the Governors of Kentucky and Maine. Pursuant to Supreme Court Rule 37, the parties consent to the filing of this brief. This brief was authored and funded entirely by amici curiae and their counsel.

2
sexes,” 20 U.S.C. § 1686, including “separate toilet, locker room, and shower facilities on the basis of sex,” so long as the facilities are “comparable,” 34 C.F.R. § 106.33. When the statute was passed in 1972, the term “sex” was widely understood to refer to the physiological distinctions between males and females. Pet. Br. 7–9, 26–34.
Disrupting this settled understanding, the Department issued an unpublished opinion letter in 2015—in the context of this very dispute—that introduced a new Title IX obligation on the States. The Department claimed that Title IX makes it discriminatory for a school to separate male and female bathrooms, unless each student is allowed to select either bathroom in accordance with that student’s gender identity. Compounding that error, the court of appeals below afforded this informal opinion letter controlling deference under this Court’s decision in Auer v. Robbins, 519 U.S. 452 (1997).
As recipients of grants subject to Title IX, and as the home to political subdivisions that receive grants subject to Title IX, amici States have direct institutional and economic interests in enforcing the Spending Clause’s structural limits on federal power. Under the Respondent and Department’s newfound condition, States would be forced either to relinquish control over policies designed to protect student privacy and safety or else forfeit their entire share of $55.8 billion in annual federal school funds.2 Thus,
2 For a list of state laws affecting the local management of schools that would need to be modified or abandoned in light of the new interpretation of Title IX, see App. 194a–197a n.8;

3
when the Department attempted to apply its novel view of Title IX even more broadly in a guidance letter issued after the decision of the court of appeals in this case, many States challenged the position and obtained an injunction.3
More generally, the decision in this case will have consequences for all Spending Clause regimes. If the federal government may change States’ obligations decades after they first agree to receive funds, the federal government will have the power to leverage the States’ longstanding reliance on such funds into accepting any number of conditions. Under the decision below, little would prevent the federal government from imposing novel conditions on the States in a variety of other contexts.
The decisions must be reversed.
States PI Mot., Texas v. United States, No. 7:16-cv-054, 2016 WL 3877027 at 9–10 nn.8–20 (N.D. Tex. July 6, 2016) (hereinafter States PI Mot.). 3 App. 183a (coalition of the States of Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Texas, Utah, West Virginia, and Wisconsin); McCrory v. United States, 5:16-cv-238 (E.D.N.C.) (filed May 9, 2016) (North Carolina); Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ., No. 2:16-cv-524 (S.D. Ohio) (filed June 10, 2016) (Ohio school district); Nebraska v. United States, No. 4:16-cv-3117 (D. Neb.) (filed July 8, 2016) (coalition of the States of Arkansas, Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming); see also Idaho Amicus Br., Texas v. United States, No. 7:16-CV-00054 (N.D. Tex. July 17, 2016) (supporting the 13-State Texas suit). This injunction applies nationally, including to the federal government’s activities within the Fourth Circuit, such as in West Virginia and South Carolina. Texas v. United States, slip op., No. 7:16-cv-054 at *4 (N.D. Tex. Oct. 18, 2016).

4
SUMMARY OF ARGUMENT
I. Invoking its power under the Spending Clause, Congress enacted Title IX in 1972 to further the important public policy of eradicating discrimination against women in higher education. In exchange for States’ agreement to abide by Title IX’s antidiscrimination mandate and waive their sovereign immunity from suit for non-compliance, Congress offered States federal financial assistance for education programs.
Congress’s power under the Spending Clause has limits, however, including that Congress must clearly indicate in its statute any conditions on the States’ acceptance of federal funds. Neither Congress nor any agency charged with administering Title IX can threaten the States with loss of federal funds simply because it believes the States to have acted in a manner inconsistent with the statute. Rather, the States’ obligations are limited to those “unambiguously” set forth on the face of the statute. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
This clear-statement requirement furthers important federalism principles. It ensures that the States’ representatives in Congress, particularly in the Senate, deliberate and resolve the specific conditions at issue before imposing national policy on the States. It also ensures that States have full and fair notice of their obligations before they decide whether to accept federal funds and subject themselves to suit.
In this case, the statute not only lacks a clear statement supporting the Respondent and

5
Department’s view, it unambiguously forecloses that interpretation. As Petitioner explains at length (Pet. Br. 26–41), Title IX expressly permits States and schools to separate students into different living facilities based on “sex,” a term widely understood when Title IX was enacted as referring to the physiological distinction between males and females.
But even if there were some debate on this point, this Court need not definitively resolve it. It is enough that the States did not have clear, unmistakable notice that they would be required to permit students to access restrooms based on their gender identity. The court of appeals and Respondent have both acknowledged that this interpretation is “novel.” Supra p.1.
That alone requires reversing the decisions below. This Court’s cases make clear that States cannot be required to comply with obligations they could not anticipate from the enacted statutory language. Moreover, to allow such a post hoc change to States’ obligations would also violate the Spending Clause’s prohibition on undue coercion by the federal government. Given the billions of dollars of federal education funding on which States have long relied, States would not have any real choice but to accept the Department’s new command.
II. Respondent cannot avoid the Spending Clause’s clear-statement requirement by claiming deference for the Department’s faulty view of Title IX and its regulations.
The deference principles in Auer v. Robbins, 519 U.S. 452 (1997), fundamentally conflict with the

6
Spending Clause’s clear-statement requirement. On one hand is a judge-made theory that affords controlling weight to an agency’s interpretation of an ambiguous regulation. On the other, the Constitution requires Congress to speak explicitly when it imposes grant conditions and alters the traditional balance of power between the federal government and the States.
In this clash between interpretive principles, the Constitution must prevail. The doctrine of Auer deference should not apply to statutes enacted under the Spending Clause. That is particularly true where, as here, the Department seeks to place new grant conditions on the States via an informal opinion letter that it did not even properly subject to public notice and comment.
ARGUMENT
This Court granted review in this case to decide two questions: (1) whether Auer deference is due to the Department’s informal view that Title IX requires schools to open their restrooms to students on the basis of gender identity; and (2) regardless of deference, whether Respondent and the Department have correctly interpreted Title IX and its regulations.
Like Petitioner, amici States have reversed the order of these two questions in this brief. Part I of this brief explains that the Spending Clause prohibits the new condition that Respondent and the Department seek to read into Title IX. Part II shows why this Court’s Spending Clause jurisprudence leaves no room for Auer deference. There are logical and practical reasons for the reversed order, as

7
Petitioner explains. At a minimum, the reversal reflects the reality that a new Administration assumes office in ten days. That Administration could take actions that affect the deference question but not the controversy between Petitioner and Respondent over the interpretation of the word “sex,” which this Court has determined is independently worthy of review and has consequences for numerous pending cases involving the States in federal court.4
I. The Spending Clause Prohibits The New Condition That Respondents and The Department Seek To Read Into Title IX.
Petitioner correctly explains at length why this Court should interpret Title IX, applying general principles of statutory construction, as allowing States to provide separate restroom facilities to students based on physiological sex. Pet. Br. 24–41. Amici States concur with Petitioner’s textual analysis and adopt it herein by reference.
But even if there were some ambiguity on this point, there is no doubt that States cannot be
4 See, e.g., Carcaño v. McCrory, No. 1:16-cv-236, 2016 WL 4508192 (M.D.N.C. Aug. 26, 2016), appeal pending, No. 16-1989 (4th Cir.); Students & Parents for Privacy v. U.S. Dep’t of Educ., No. 16-cv-4945, 2016 WL 6134121 (N.D. Ill. Oct. 18, 2016); Whitaker v. Kenosha Unified Sch. Dist. No. 1, No. 16-cv943, 2016 WL 5239829 (E.D. Wis. Sept. 22, 2016); Privacy Matters v. United States, No. 16-cv-03015 (D. Minn.) (filed Sept. 7, 2016); Women’s Liberation Front v. U.S. Dep’t of Justice, 1:16-cv-915 (D.N.M.) (filed Aug. 11, 2016); United States v. North Carolina, No. 1:16-cv-425 (M.D.N.C.) (filed May 9, 2016); Tooley v. Van Buren Public Schools, No. 2:14-cv-13466 (E.D. Mich.) (filed Sept. 5, 2014); see also supra p.3 n.3 (listing additional State-initiated cases).

8
required to comply with the new condition advanced by Respondent and the Department. The Spending Clause to the U.S. Constitution precludes the federal government from imposing an obligation on States, as a condition of receipt of federal funds, that Congress did not make clear in the statutory language. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 24–25 (1981). This clearstatement rule bars the newfound view that Title IX requires States to permit a student to choose a restroom consistent with the student’s gender identity.
A. Congress Must Provide Adequate Notice Of All Conditions Attached To Federal Funds In The Text Of A Statute Enacted Under The Spending Clause.
To protect the residual sovereignty of the States that the Framers deemed essential to our federal system, this Court has required that any conditions imposed on States pursuant to the Spending Clause be clearly and unmistakably stated.
1. Reflecting their concern with protecting the States’ residual sovereignty from federal intrusion, the Framers included several structural safeguards in the Constitution. As James Wilson explained, “‘it was a favorite object in the Convention’ to provide for the security of the States against federal encroachment and . . . the structure of the federal government itself served that end.” Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551 (1985) (quoting 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution 438–39 (J. Elliot 2d. ed. 1876)). Thus,

9
“the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the . . . National government.” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) (quoting Texas v. White, 7 Wall. 700, 725 (1869)).
Numerous safeguards are found in Article I alone. Foremost, Article I protects state control over local matters by limiting Congress’s authority to specified, enumerated powers. Garcia, 469 U.S. at 550. Article I also requires each bill to win the approval of the Senate, “where each State receive[s] equal representation.” Id. at 551. This allows a group of Senators who represent a majority of the States, but only a minority of the population, to block federal action by rejecting or refusing to vote on federal legislation and appropriations.5 And Article I further requires each law to win the approval of the House of Representatives and the President (or the override of a Presidential veto), which prevents the federal government from displacing any state law without the agreement of those who represent at least half the States. U.S. Const. art. I, § 7, cl. 3.
Critically, in protecting the States, these structural principles serve to “protect the individual as well.” Bond v. United States, 564 U.S. 211, 222 (2011). By providing protections for the sovereignty of the States, the Constitution secures “‘the liberties that derive’” to individual citizens “‘from the diffusion of sovereign power.’” New York v. United
5 Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 547–48 (1954).

10
States, 505 U.S. 144, 181 (1992) (internal quotation omitted). As James Madison explained, by dividing power “between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments,” “a double security arises to the rights of the people”: the “different governments will control each other, at the same time that each will be controlled by itself.” Garcia, 469 U.S. at 582 (quoting The Federalist No. 51 (James Madison)). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Gregory, 501 U.S. at 458.
2. Given the constitutional imperative to preserve the balance of power between the federal government and the States, this Court has long interpreted federal statutes “against the backdrop” of the federal-state relationship. Bond v. United States, 134 S. Ct. 2077, 2088 (2014) (citation omitted). This Court presumes, as “a time-honored rule,”6 that Congress will enact statutes “consistent with principles of federalism inherent in our constitutional structure,” absent a plain statement to the contrary, Bond, 134 S. Ct. at 2088. Put another way, this Court has long required that it be
6 Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 143–150, 173 (2010) (cataloguing the history of the canon requiring a clear statement before interpreting a federal law to override state sovereign immunity).

11
“absolutely certain,” Gregory v. Ashcroft, 501 U.S. 452, 464 (1991), before it will find that Congress displaced the States in any particular case.
This approach ensures that Congress “has in fact faced, and intended to bring into issue,” the particular disruption of State authority at issue. United States v. Bass, 404 U.S. 336, 349 (1971). As this Court has explained, if courts instead were to “‘give the state-displacing weight of federal law to mere congressional ambiguity,’” there would be every incentive for Congress to “‘evade the [constitutional] procedure[s] for lawmaking [that] protect states’ interests.” Gregory, 501 U.S. at 464 (quoting L. Tribe, American Constitutional Law § 6-25, p. 480 (2d ed. 1988)). If Congress were not required to explain clearly its intent to displace or bind the States, its members would invariably “pass the buck to the agencies with vaguely worded statutes,” whenever “hard decisions ha[d] to be made.”7 After all, on “most hard issues our representatives quite shrewdly prefer not to have to stand up and be counted but rather to let some executive-branch bureaucrat, or perhaps some independent regulatory commission, ‘take the inevitable political heat.’”8
3. This presumption has manifested in the form of several clear-statement rules of statutory interpretation. For example, to displace a traditional sphere of state authority or preempt state law, Congress “must make its intention to do so
7 122 Cong. Rec. H10,685 (daily ed. Sept. 21, 1976) (statement of Rep. Levitas) quoted in John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 131–32 (1980) 8 Ely, supra n. 7 at 131–32.

12
‘unmistakably clear in the language of the statute.’” Gregory, 501 U.S. at 460 (citation omitted). Without a “clear and manifest” statement, this Court will not read a statute to preempt “the historic police powers of the States,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), or to permit an agency to regulate a matter in “areas of traditional state responsibility,” Bond, 134 S. Ct. at 2089.
Similarly, to abrogate the States’ historic immunity from suit, Congress must state its intent “expressly and unequivocally in the text of the relevant statute.” Sossamon v. Texas, 563 U.S. 277, 290–91 (2011). Congress has the power to abrogate state sovereign immunity under the Fourteenth Amendment, as well as the power to make the States’ waiver of sovereign immunity a condition to receipt of federal funds. But before this Court will find that Congress has done so, it will ask whether Congress has made abundantly clear its intent to do so. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985).
Relevant here, a clear-statement requirement also applies to statutes enacted under the Spending Clause. To ensure that the federal government does not use federal funds to coerce States into carrying out federal policy, this Court has treated Spending Clause statutes “much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). This puts an important limit on Congress’s power, by requiring that “the State voluntarily and knowingly accepts the terms of the ‘contract.’” Ibid. And there can “be no knowing acceptance if a State is unaware

13
of the conditions or is unable to ascertain what is expected of it,” unless Congress speaks clearly. Ibid.
The “crucial inquiry” for a court interpreting a spending statute, therefore, is “whether Congress spoke so clearly that [the court] can fairly say that the State could make an informed choice.” Id. at 25. Congress may not “surpris[e] participating States with post acceptance or ‘retroactive’ conditions.” Ibid. “[I]f Congress intends to impose a condition on the grant of federal moneys,” it “must do so unambiguously”—and not leave a State’s obligations under the Act indeterminate. Id. at 17. This is “a particularly strict standard.” Port Auth. TransHudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (citations omitted). As a result, courts “must interpret Spending Clause legislation narrowly, in order to avoid saddling the States with obligations that they did not anticipate.” Cedar Rapids Cmty. Sch. Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 84 (1999) (Thomas & Kennedy, JJ., dissenting).
In setting forth a condition, the statutory text must be clear at the time of enactment. As this Court has said, the law must be viewed “from the perspective of a state official who is engaged in the process of deciding whether the State should accept [the] funds and the obligations that go with those funds.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). Following this Court’s settled rules of statutory interpretation, such an official would discern those obligations based on the meaning of the statutory language at the time Congress passed the law. See Carcieri v. Salazar, 555 U.S. 379, 388 (2009) (“We begin with the ordinary meaning of the word ‘now,’ as understood when the

14
IRA was enacted”); Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994) (“[W]e must seek to ascertain the ordinary meaning of ‘burden of proof’ in 1946, the year the APA was enacted.”); Perrin v. United States, 444 U.S. 37, 42 (1979) (“[W]e look to the ordinary meaning of the term ‘bribery’ at the time Congress enacted the statute in 1961”).
B. Title IX Does Not Provide Sufficiently Clear Notice That States Must Give Students Restroom Access Consistent With Their Gender Identity.
1. This Court has “repeatedly treated Title IX as legislation enacted pursuant to Congress’ authority under the Spending Clause.” Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640 (1999). Title IX intrudes on an “area[] of traditional state responsibility,” Bond, 134 S. Ct. at 2089, namely the control of schools, which is “perhaps the most important function of state and local governments,” Honig v. Doe, 484 U.S. 305, 309 (1988) (internal quotation marks omitted). Indeed, “[n]o single tradition in public education is more deeply rooted than local control over the operation of schools.” Milliken v. Bradley, 418 U.S. 717, 741 (1974). Under Congress’s Spending Power, Title IX displaces this traditional state authority by conditioning “an offer of federal funding on a promise by the recipient not to discriminate.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998).
Accordingly, state obligations under Title IX must be unambiguously set forth in the statute. Because it is a Spending Clause statute, grant

15
recipients subject to Title IX are only responsible for conditions expressed in the “clear terms” of the statute itself, Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642 (1999). In addition, because the statute intrudes on an area “where States historically have been sovereign,” United States v. Lopez, 514 U.S. 549, 564 (1995), Congress must speak clearly where it seeks to regulate.
This Court’s Title IX cases are consistent with this requirement. For example, in North Haven Board of Education v. Bell, this Court considered whether Title IX “prohibit[s] federally funded education programs from discriminating on the basis of gender with respect to employment.” 456 U.S. 512, 514 (1982). This Court held that Title IX does prohibit employment discrimination because “[e]mployees who directly participate in federal programs or who directly benefit from federal grants, loans, or contracts clearly fall within the first two protective categories described in § 901(a).” Id. at 520 (emphasis added). This Court went on to find that the legislative history, among other things, “confirms Congress’ desire to ban employment discrimination in federally financed education programs.” Id. at 530–31.
Similarly, even in a line of cases concerning the scope of the implied private right of action under Title IX, this Court has consistently acknowledged the requirement that States have clear notice of the scope of their liability. Because the cases concerned an implied private right of action found in a prePennhurst case, Cannon v. University of Chicago, 441 U.S. 677, 717 (1979), which this Court has

16
declined to reconsider, this Court could not demand clarity from any particular statutory terms. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285 (1998) (“Because Congress did not expressly create a private right of action under Title IX, the statutory text does not shed light on Congress’ intent with respect to the scope of available remedies.”). Nevertheless, this Court has repeatedly reiterated that “Title IX’s contractual nature has implications for our construction of the scope of available remedies.” Id. at 287; see also Davis, 526 U.S. at 640 (“Because we have repeatedly treated Title IX as legislation enacted pursuant to Congress’ authority under the Spending Clause, . . . private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue.”).
Thus, in Gebser, this Court held that private suits based on the implied right of action cannot impose monetary liability for sexual harassment by a teacher unless the school has actual notice of the conduct. 524 U.S. at 292–93. The Court determined that it would not satisfy the clear-statement rule to hold a school liable in such cases “on principles of constructive notice or respondeat superior” because the school was likely “unaware of the discrimination.” Id. at 287. The Court found support in Title IX’s plain text, noting that an enforcement of Title IX by the federal government—which is provided for expressly in the statute—”operates on an assumption of actual notice to officials of the funding recipient.” Id. at 288.
2. Applying this clear-statement rule to the statutory language that all parties agree is at issue

17
in this case, it is plain that Respondent and the federal government cannot impose their novel condition on the States.
For decades, Title IX and its implementing regulation have been widely understood to include an express provision authorizing States to provide separate restrooms based on physiological sex. The law promises States that they may decide at the local level whether to “maintain[] separate living facilities for the different sexes.” 20 U.S.C. § 1686, including “separate toilet, locker rooms, and shower facilities on the basis of sex,” so long as the facilities are “comparable” for students of both sexes, 34 C.F.R. § 106.33. At the time of Title IX’s passage in 1972, dictionaries defined sex as a biological category based principally on physical anatomy, App. 53a– 55a, and this physiological understanding prevailed in every prior case to consider the question of restrooms.9
Disregarding this settled understanding, Respondent and the Department now argue that Title IX actually requires States to provide students access to restrooms consistent with their gender identity. But that cannot be squared with the Spending Clause’s clear-statement rule. There is no plausible argument that this exemption in Title IX unmistakably requires what Respondent and the government suggest. If anything, Congress has decided in clear terms to permit States to provide separate facilities by physiological sex. Pet. Br. 7–9,
9 State Amici Br., G.G. v. Gloucester County School Board, No. 15-2056, 2015 WL 7749913 at *7–8, 14 & n.1 (4th Cir. Nov. 30, 2015) (surveying cases).

18
24–41. Thus, even Respondent has admitted that when Title IX was enacted, “few would have conceived” that States would face the question of bathroom access based on gender identity. BIO 1. And the Fourth Circuit has done so, too, conceding that Respondent and the Department’s position was not “intuitive” in light of the statute’s text. App. 23a; see also Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 25 (1981) (noting that it “strains credulity to argue that participating States should have known of their ‘obligations’ . . . when . . . the governmental agency responsible for the administration of the Act . . . has never understood [the statutory provision] to impose conditions on participating States”).
Accordingly, the decisions below must be reversed. While restroom access in schools may be an important and evolving public policy question, States and local school boards cannot be required under Title IX to give students access based on gender identity because Congress has not “sp[oken] directly” to the issue. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292 (1998). In fact, this Court need not even determine the best or most plausible reading of Title IX’s reference to “sex” may be, though Petitioner does show persuasively that the term refers to physiological sex. It is enough that the statute does not unmistakably require the position advanced by Respondent and the Department. Under this Court’s case law, the States cannot be said to have agreed to any such obligation as a condition of receiving federal funds.
To permit the decisions below to stand would be wrong not only for this case, but would have

19
consequences for Spending Clause legislation more broadly. Allowing this intrusion into state sovereignty to go unchecked will encourage federal courts and agencies to introduce new conditions in other Spending Clause statutes to impose other policy changes that Congress could not approve through ordinary political channels. Indeed, the federal government has already begun similar efforts to expand the definition of sex relating to healthcare.10
3. Respondent has previously offered three arguments why the Spending Clause’s clearstatement rule does not apply to constrain the interpretation of Title IX advanced here. None has merit.
First, Respondent has alleged that any consideration of the clear-statement rule was waived in this case, BIO 28, but that is untrue. The question at issue is the proper interpretation of the word “sex” in Title IX and its supporting regulations. The Spending Clause clear-statement rule is merely a tool of statutory construction to be used in resolving that question. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 24 (1981). It is no more waivable than any other principle of statutory interpretation, such as ejusdem generis or exclusio unius est expressio alterius.
10 See Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) (to be codified at 45 C.F.R. pt. 92), preliminarily enjoined by Franciscan Alliance v. Burwell, slip op., No. 7:16-cv-00108 at *32–34 (N.D. Tex. Dec. 31, 2016).

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Moreover, even if the Spending Clause clearstatement rule is considered a distinct legal argument, this Court will not deem waived any “particular legal theories advanced by the parties” to resolve a question under review. U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993) (internal quotation marks omitted). The grant of a question for review includes the consideration of any theory “predicate to an intelligent resolution” of the question presented, and “fairly included therein,” such as a particular argument as to the meaning of a statute. Ohio v. Robinette, 519 U.S. 33, 38 (1996) (quoting inter alia Sup. Ct. R. 14.1(a)). After all, “[p]arties cannot waive the correct interpretation of the law simply by failing to invoke it.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2101 n.2 (2015) (Thomas, J., concurring in the judgment in part and dissenting in part) (citing, e.g., EEOC v. FLRA, 476 U.S. 19, 23 (1986) (per curiam)); see Caterpillar Inc. v. Lewis, 519 U.S. 61, 75 n.13 (1996).
In any event, Respondent can hardly argue inadequate notice. Nelson v. Adams USA, Inc., 529 U.S. 460, 469–70 (2000). The States raised this specific argument about the clear-statement rule in depth in their briefs before the Fourth Circuit at both the panel and petition for en banc stages, as well as before this Court at the petition stage (as did Petitioner).11
11 See Pet. at 36–37; State Amici Br., Gloucester Cty. Sch. Bd. v. G.G., No. 16-273, 2016 WL 5543363 (U.S. Sept. 27, 2016) (petition for certiorari); State Amici Br., G.G. v. Gloucester Cty. Sch. Bd., No. 15-2056, 2015 WL 7749913 at *8 (4th Cir. Nov. 30,

21
Second, Respondent has argued that the clearstatement rule does not apply to “requests for injunctive relief,” but rather “merely [to] the availability of ‘money damages.’” BIO 28–29 (quoting Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 639 (1999), and Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998).
But neither Davis nor Gebser held that the clearstatement rule is inapplicable to claims for injunctive relief. Those cases concerned only the availability of money damages for certain claims of sexual harassment brought under the implied private right of action. See Davis, 526 U.S. at 639 (“We must determine whether a district’s failure to respond to student-on-student harassment in its schools can support a private suit for money damages.”); Gebser, 524 U.S. at 277 (“The question in this case is when a school district may be held liable in damages in an implied right of action under Title IX . . . for the sexual harassment of a student by one of the district’s teachers.”). Neither case had occasion for the Court to reach the question of the applicability of the clear-statement rule to injunctive relief, and neither did so.
Moreover, the rationale behind the Spending Clause clear-statement rule applies equally to claims for injunctive and monetary relief. In both circumstances, Congress seeks to “impose a condition on the grant of federal moneys,” and therefore “must do so unambiguously,” so that a court “can fairly say
2015) (panel); State Amici Br., id., 2016 WL 2765036 at *4–5 (4th Cir. May 10, 2016) (petition for rehearing en banc).

22
that the State [had] ma[d]e an informed choice.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 25 (1981). If that canon prohibits a court from awarding money damages when a statute is unclear, it certainly prohibits imposition of costly new compliance conditions via injunction—such as monitoring restroom access or modifying existing facilities.
Regardless, Respondent does seek money damages in this case, and, therefore, cannot escape application of the clear-statement rule on this ground. BIO 11 n.10.
Third, Respondent has alleged that “Title IX puts recipients on notice of liability for all forms of intentional discrimination for purposes of Pennhurst,” arguing that the federal government “need not ‘prospectively resolve every possible ambiguity concerning particular applications’ of the statute and regulations.” BIO 28–29 (quoting Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 669 (1985)). This, too, is unavailing.
As a threshold matter, this argument entirely misses the point. Even if it is true that States are on notice of liability under Title IX for “all forms of intentional discrimination” on the basis of sex, that does not answer the critical question: the meaning of “sex.”
And to the extent Respondent is suggesting that the case law permits Congress to impose conditions through broad or vague terms to be interpreted on a case-by-case basis, that is simply incorrect. A clear statement is necessary both to make a statute apply

23
to the States and to show that the statute applies in the particular manner claimed. E.g., Arlington Cent. Sch. Dist. Bd. of Edu. v. Murphy, 548 U.S. 291, 296 (2006); Gregory v. Ashcroft, 501 U.S. 452, 460–70 (1991). After all, a chief purpose of a clear-statement rule is to ensure that Congress has “specifically considered” an issue and “intentionally legislated on the matter.” Sossamon v. Texas, 563 U.S. 277, 290– 91 (2011).
Congress may not through loose draftsmanship put “upon the States a burden of unspecified proportions and weight, to be revealed only through case-by-case adjudication in the courts.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 190 n.11 (1982). If a statute does not spell out a new obligation plainly, it “may not be implied” later on by a court. Sossamon, 563 U.S. at 284, 290–91. A statute that merely uses broad or general terms, under which a particular obligation on the States is a permissible or plausible inference, lacks the necessary clarity. Dellmuth v. Muth, 491 U.S. 223, 232 (1989).
For example, in Sossamon v. Texas, this Court held that Congress had not plainly authorized money damages against the States under the Religious Land Use and Institutionalized Persons Act—even though the statute provided for “appropriate relief” against the States. 563 U.S. at 288. Noting the existence of “plausible arguments” both ways as to the meaning of the term “appropriate relief,” this Court held that the term was not “so free from ambiguity that we may conclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their sovereign immunity

24
to suits for damages.” Ibid. Accordingly, the Court “strictly constru[ed]” the statute “in favor of the sovereign—as we must.” Ibid.
Other cases interpreting the Spending Clause or applying similar federalism canons prove the same point. For instance, in Pennhurst, this Court held that Congress did not provide States clear notice of their obligations under the Developmentally Disabled Assistance and Bill of Rights Act—even though the Act said that the disabled have a right to appropriate treatment from States, a broad right that arguably included some form of specific obligation by States. 451 U.S. 1, 13, 25 (1981). Similarly, in Gregory v. Ashcroft, this Court held that Congress had not specifically included state judges in the Age Discrimination in Employment Act—even though the Act covered state “appointee[s] on the policymaking level,” a category that could plausibly be read to include state judges. 501 U.S. 452, 467 (1991). Likewise, in Arlington Central School District Board of Education v. Murphy, this Court held that Congress, under the Individuals with Disabilities Education Act (IDEA), had not given clear notice of its intent to provide for the recovery of expert witness fees against States—even though the statute provided for the recovery of attorney’s fees “as part of the costs” of a case, a category arguably ambiguous enough to include expert witness fees. 548 U.S. 291, 296–300 (2006) (citation omitted). So, too, in Bond v. United States, this Court held that Congress in a federal criminal law did not provide “a clear statement that Congress meant the statute to reach local criminal conduct” and intrude upon traditional state criminal jurisdiction—even though the law included an extremely broad prohibition on

25
any use of a chemical weapon, a definition arguably broad enough to include applying harmful chemicals to the property of another person. 134 S. Ct. 2077, 2090 (2014).
Respondent’s reliance on Bennett v. Kentucky Department of Education, for the proposition that agencies may resolve how a broadly-worded statutory condition in a Spending Clause statute should be applied is misplaced. BIO 29 (citing 470 U.S. 656, 669 (1985)). In that case, this Court deemed the language at issue under Title I unambiguous and found it unnecessary to decide how to handle cases of potential ambiguity. Id. at 666, 670. But this Court made clear, at minimum, that the States have not “guaranteed that their performance under the grant agreements would satisfy whatever interpretation of the terms might later be adopted by the Secretary.” Id. at 670. That is what Respondent seeks to do here, by imposing a grant condition on the States articulated for the first time decades after the States first accepted Title IX funds. Nothing in Bennett suggests that a State can be held to conditions or obligations of which it did not have notice.
Nor do the Title IX cases cited by Respondent stand for such a proposition. In both, this Court reaffirmed not only that Title IX is a Spending Clause statute, but also that a funding recipient must have “adequate notice” of the conditions imposed. See Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640 (1999); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 181–82 (2005).

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C. Were This Court To Expansively Interpret Title IX, States Would Be Unconstitutionally Coerced Into Accepting New Grant Conditions Long After the Receipt of Funds.
Beyond violating the clear-statement rule, Respondent and the Department’s new condition raises a second, independent problem under the Spending Clause: unconstitutional coercion. The “Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York v. United States, 505 U.S. 144, 162 (1992). Thus, this Court reaffirmed just four years ago that “Congress may use its spending power to create incentives for States to act in accordance with federal policies,” but “when ‘pressure turns to compulsion,’ the legislation runs contrary to our system of federalism.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2602 (2012) (Roberts, C.J.) (internal citation omitted).
Respondent and the Department’s view of the law would exert through Title IX a “power akin to undue influence.” Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937). States would face a choice between giving up their reserved power to set policies for the use of school facilities or the entirety of their federal education funding on which they have come to rely for decades. This “financial ‘inducement’” is “much more than ‘relatively mild encouragement.’” Nat’l Fed’n of Indep. Bus., 132 S. Ct. at 2604. Like the threatened loss of all Medicaid funding on which States had long relied in National Federation of Independent Business, the threatened loss of 100% of a State’s federal education funding based on a

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newfound condition “is economic dragooning that leaves the States with no real option but to acquiesce.” Id. at 2605.
The import of federal funding to local education can hardly be overstated. School districts throughout the country share nearly $56 billion in annual funding that the federal government directs to education.12 These funds amount to an average of 9.3 percent of total spending on public elementary and secondary education nationwide, roughly $1,000 per pupil.13 West Virginia’s public elementary and secondary schools receive an average of $380,192,000 in federal funds annually, $1,343 per pupil, which amounts to about 10.7 percent of the State’s total revenue for public elementary and secondary schools.14 In some States, like Arizona, Kentucky, Tennessee, and Texas, the numbers reach higher and comprise nearly 20% of the total school budget.15 Much of the money goes to poor and special-needs children.16 It is difficult to imagine a clearer instance
12 Not counting funds paid directly to state education agencies, or funds paid for non-elementary and secondary programs, the national amount of direct federal funding to public elementary and secondary schools alone exceeds $55,862,552,000 on average annually. U.S. Dep’t of Educ. & Inst. of Educ. Scis., Nat’l Ctr. For Educ. Statistics, Digest of Education Statistics, Table 235.20, available at https://nces.ed.gov/programs/digest/ d15/tables/dt15_235.20.asp?current=yes (hereinafter Digest of Education Statistics). 13 States PI Mot., 2016 WL 3877027 at *13. 14 Digest of Education Statistics, Table 235.20. 15 States PI Mot., 2016 WL 3877027 at *13. 16 Two of the most important ways the States use federal school funds is to feed poor students, National School Lunch Act, Pub. L. 79-396, 60 Stat. 230 (1946), and to provide special-education

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of unlawful coercion. See Com. of Va., Dep’t of Educ. v. Riley, 106 F.3d 559, 570 (4th Cir. 1997) (en banc) (Luttig, J.) (describing the threat of withholding education funding as raising a “Tenth Amendment claim of the highest order”).
II. Auer Deference Has No Application In This Case.
Respondent cannot escape the requirements of the Spending Clause by claiming deference under Auer v. Robbins to the Department’s informal opinion letter. 519 U.S. 452 (1997). The Auer doctrine, under which a court affords controlling deference to an agency’s interpretation of an ambiguous regulation, cannot be squared with judicial enforcement of the Spending Clause’s clearstatement rule, which requires that Congress speak unequivocally in statutory text if it intends to place a binding condition on the States’ receipt of federal funds. Indeed, while Pennhurst requires clear statutory notice at the time of enactment, the Department adopted its interpretation in this case only after the school board had allegedly violated the statute. See Pet. Br. 13. It is fundamentally unfair, and indeed, impermissibly retroactive, to impose regulatory obligations on States in this manner. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
teachers for disabled students, Individuals with Disabilities Education Act, Pub. L. 101-476, 104 Stat. 1142 (1990).

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A. Because Statutes Enacted Under The Spending Clause Must Clearly Articulate The States’ Obligations, Agencies Cannot Receive Controlling Deference For Interpretations of Their Own Rules.
Whatever place Auer deference may have in other contexts, it can have no role in interpreting statutes enacted pursuant to the Spending Clause. Under the Fourth Circuit’s unrestrained understanding of Auer, a court provides controlling deference to an agency’s preferred interpretation of a rule without first discerning either whether Congress spoke clearly to the question at issue or whether Congress intended to delegate interpretive authority on that question to the agency. Pet. Br. 44– 49, 55–58. Moreover, that interpretation can occur, as here, decades after the regulation itself or the underlying statute was enacted.
This approach to regulation is fundamentally inconsistent with the Spending Clause clearstatement rule and the federalism principles motivating that rule. As explained earlier, when Congress places conditions on the States’ receipt of federal funds, it must make those conditions explicit in the text of the statute at the time of enactment. Like this Court’s other clear-statement federalism canons, this rule is designed to ensure that courts are “absolutely certain,” Gregory v. Ashcroft, 501 U.S. 452, 464 (1991), before finding that Congress displaced the States in any particular case. The core principle in Auer—that a court need not inquire at all into congressional intent—cannot be reconciled with that requirement.

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Auer deference also should not apply in Spending Clause cases because of its retroactive effect. This Court has applied a clear-statement rule to Spending Clause cases in part because Spending Clause legislation is treated much like a contract. To ensure that States have knowingly and voluntarily decided whether to accept certain costly obligations in exchange for receipt of federal funds, this Court has required that Congress state those conditions clearly on the face of the statute. But Auer presumes that deference is owed to agency interpretations regardless of when the interpretation is made, which effectively allows an agency to “modify past agreements with recipients by unilaterally issuing guidelines.” Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 658 (5th Cir. 1997). This is fundamentally unfair, contrary to this Court’s repeated statements that States must have plain notice of their obligations when accepting federal funds, and should not be permitted. Indeed, retroactive regulatory power does not exist in any circumstances absent a clear statement from Congress. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
In this clash of interpretive principles, the one rooted in the Constitution—the federalism clearstatement rule—must prevail.17 Even in the context of Chevron deference, Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984), this
17 For scholarship on this topic, see, e.g., Abbe R. Gluck, Our (National) Federalism, 123 Yale L.J. 1996, 2028 (2014); Nina A. Mendelson, Chevron and Preemption, 102 Mich. L. Rev. 737, 742, 799–800 (2004); Peter J. Smith, Pennhurst, Chevron, and the Spending Power, 110 Yale L.J. 1187, 1189–91 (2001).

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Court has applied clear-statement rules, rather than defer to a contrary agency position, when necessary “to avoid the significant constitutional and federalism questions raised by [an agency’s] interpretation.” Solid Waste Agency of N. Cook Cty. (SWANCC) v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172–74 (2001). In Gregory v. Ashcroft, for instance, this Court relied on Pennhurst, and rejected a contrary agency interpretation, when it declined to extend the protections of the federal Age Discrimination in Employment Act to state judges. 501 U.S. at 470. The Court reasoned that the Act’s reference to “appointee[s] on the policymaking level” was “at least ambiguous” as applied to state judges “in light of the ADEA’s clear exclusion of most important public officials.” Ibid. This Court thus concluded that, absent clearer language, it would not presume that Congress intended to intrude on States’ traditional authority over the judiciary. See ibid. In so doing, the Court declined to afford any deference to the EEOC’s competing interpretation of the statute, over a dissent urging that the agency’s position be accorded Chevron deference. See Gregory, 501 U.S. at 493 (Blackmun, J., dissenting).18
18 Federal circuit courts have also read this Court’s opinions as affording interpretive precedence to clear-statement rules over agency deference. E.g., Sch. Dist. of City of Pontiac v. Sec’y of U.S. Dep’t of Educ., 584 F.3d 253, 277 (6th Cir. 2009); Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 658 (5th Cir. 1997); Com. of Va., Dep’t of Educ. v. Riley, 106 F.3d 559, 567 (4th Cir. 1997) (en banc); Doe v. Bd. of Educ. of Oak Park & River Forest High Sch. Dist. 200, 115 F.3d 1273, 1278–79 (7th Cir. 1997); see also Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 731, 734 (6th Cir. 2013) (Sutton, J., concurring); Harris v. James, 127 F.3d 993, 1009 (11th Cir. 1997).

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Amici are not aware of any case in which this Court has ever applied Auer deference when interpreting a statute subject to a clear-statement rule, including under Title IX. This case should not be the first. Instead, this Court should resolve the tension between Auer and the clear-statement rule by reaffirming that the Constitution’s clearstatement rule takes precedence over the judge-made theory of Auer deference.
B. This Court Need Not Address Whether Any Other Controlling Deference Is Appropriate In Spending Clause Cases.
While SWANCC and Gregory suggest that there may be circumstances where a clear-statement rule trumps even Chevron deference, that issue is not presented in this case, and should not deter this Court from addressing the tension between Auer and the Spending Clause clear-statement rule. For Chevron deference to apply, a court must first assure itself that Congress explicitly intended to delegate interpretive authority to an agency, and that the agency acted with the degree of formality required by Congress under the implementing statute and the APA—which in the case of rules requires, at minimum, notice and an opportunity to comment. See United States v. Mead Corp., 533 U.S. 218, 229– 34 (2001)). These protections, which help ensure that States have a meaningful role in both the legislative and rulemaking processes before courts defer to a regulatory interpretation, are not satisfied here.
To begin with, there is no indication that Congress intended to delegate to the agency interpretive authority over the statutory language at

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issue. The Department has purported to interpret the term “sex”—a plain English word that appears both in Title IX and in the implementing rule—to require schools to permit students to access intimate areas consistent with their gender identity. But there is no evidence that Congress considered the term “sex” ambiguous or intended to delegate to the Department the authority to interpret it; nor is there any reason to believe the Department has any special expertise in elucidating the meaning of that word. What is more, the word the Department purports to interpret appears in an explicit statutory safe harbor. There is no reason to believe that Congress intended that safe harbor to be a font of additional liability for States to arise whenever the Department changed its view of the meaning of the word “sex.” And finally, given the Pennhurst clearstatement rule, this Court should not strain to locate a source of congressional delegation in this Spending Clause statute where one does not exist.
Even if there were a clear congressional mandate in Title IX for the Department to interpret the term “sex,” the Department’s opinion letter still would not trigger Chevron deference, because it failed to act with the requisite formality required by Title IX and the APA. As Petitioner explains, Title IX provides that the Department can only bind regulated parties with the force of law if the Department issues a “rule, regulation, or order” that is approved by the President. Pet. Br. 61–62 (quoting 20 U.S.C. § 1682). And under the APA, rules can only be enacted following notice and an opportunity for public comment. See 5 U.S.C. § 553. These are clear instructions on the conditions under which the Department could issue a binding regulation under

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Title IX—procedures that the States were aware of when they first agreed to accept funds under the statute. The Department’s letter failed to meet those requirements and thus cannot have any force or effect on the States.
To be sure, the Department did issue a formal rule concerning restroom access that provides that funding recipients “may provide separate toilet, locker room, and shower facilities on the basis of sex.” 34 C.F.R. § § 106.33 (emphasis added). But that rule does not purport to interpret the term “sex” in Title IX; it merely parrots the statutory language. If the Department hoped to obtain any deference for its interpretation of the term “sex” in Title IX, it would need first to comply with Title IX’s procedures for valid rulemaking—which it has not done here.
These protections are vitally important, because “[u]nlike Congress, administrative agencies are clearly not designed to represent the interests of States.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 908 (2000) (Stevens, J., dissenting). Because agencies are not subject to structural checks that provide “adequate protection against agency failure to take federalism concerns seriously,” the only way in which States can influence regulatory action is through the APA’s “opportunities for state notification and participation created by notice-and-comment rulemaking procedures and amplified by substantive requirements of agency explanation and reasoned decisionmaking.” Gillian E. Metzger, Administrative Law As the New Federalism, 57 Duke L.J. 2023, 2083–84 (2008). Uncritical deference to informal opinion letters robs the States of this role in the

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rulemaking process—and deprives States of any semblance of notice to guide their future actions.
* * *
Ultimately, Respondent seeks to prohibit the States from doing what Title IX promises the States they may do: decide at the local level whether to separate school facilities by physiological sex. Reinterpreting Title IX to mean the opposite of what it says, decades after funds were accepted, coerces the States into accepting conditions that they could not possibly have voluntarily or knowingly accepted at the time they first opted into the Title IX regime. The Spending Clause to the U.S. Constitution prohibits that result.
CONCLUSION
The decisions below should be reversed.

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Respectfully submitted,
Patrick Morrisey Attorney General
Elbert Lin Solicitor General Counsel of Record
Thomas M. Johnson, Jr. Deputy Solicitor General
Julie Marie Blake Assistant Attorney General
Office of the Attorney General State Capitol Building 1, Room E-26 Charleston, WV 25305 Elbert.Lin@wvago.gov (304) 558-2021
Counsel for Amicus Curiae State of West Virginia
January 10, 2017

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COUNSEL FOR ADDITIONAL AMICI

LUTHER STRANGE Attorney General State of Alabama

JIM HOOD Attorney General State of Mississippi

MARK BRNOVICH Attorney General State of Arizona

JOSHUA D. HAWLEY Attorney General State of Missouri

LESLIE RUTLEDGE Attorney General State of Arkansas

TIMOTHY C. FOX Attorney General State of Montana

CHRISTOPHER M. CARR Attorney General State of Georgia

DOUGLAS J. PETERSON Attorney General State of Nebraska

LAWRENCE G. WASDEN Attorney General State of Idaho

MICHAEL DEWINE Attorney General State of Ohio

DEREK SCHMIDT Attorney General State of Kansas

E. SCOTT PRUITT Attorney General State of Oklahoma

JEFF LANDRY Attorney General State of Louisiana

ALAN WILSON Attorney General State of South Carolina

BILL SCHUETTE Attorney General State of Michigan

MARTY J. JACKLEY Attorney General State of South Dakota

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HERBERT SLATERY III Attorney General State of Tennessee
KEN PAXTON Attorney General State of Texas
SEAN D. REYES Attorney General State of Utah
BRAD D. SCHIMEL Attorney General State of Wisconsin

MATTHEW G. BEVIN Governor Commonwealth of Kentucky Through counsel Mark Stephen Pitt
General Counsel Office of the Governor of Kentucky State Capitol, Suite 101 700 Capitol Avenue Frankfort, KY 40601 (502) 564-2611 steve.pitt@ky.gov.
PAUL R. LEPAGE Governor State of Maine Pro Se 1 State House Station Augusta, Maine 04333 (207) 287-3531