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Civil Rights – Agency Reg Supports Transgender Student Request

G.G., by his Next Friend v. Gloucester County School Board (Lawyers Weekly No. 001-069-16, 69 pp.) (Floyd, J.) No. 15-2056, April 19, 2016; USDC at Newport News, Va. (Doumar, J.) 4th Cir.

Holding: In ruling on a transgender high-school student’s Title IX challenge to the local school board’s policy that forbade him from using the boys’ restroom at his school, the district court did not give proper deference to the Department of Education’s interpretation of the pertinent Title IX regulation, and used the wrong evidentiary standard for a preliminary injunction; the 4th Circuit vacates dismissal of the suit and remands for reconsideration.

Title IX Regulation

At the heart of this appeal is whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity. In an opinion letter of Jan. 7, 2016, the Department of Education’s Office for Civil Rights interpreted how the pertinent regulation, at 34 C.F.R. § 106.33, 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.

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 it “clearly allows the School Board to limit bathroom access ‘on the basis of sex,’ including birth or biological sex.”

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 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 females with reference exclusively to gender identity. 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. 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.

We conclude the department’s interpretation of its own regulation, § 106.33, as it relates to restroom access by transgender individuals, is entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997), and is to be accorded controlling weight in this case. We reverse the district court’s contrary conclusion and its resultant dismissal of plaintiff’s Title IX claim.

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.


With regard to plaintiff’s request for an injunction, the district court analyzed his request only with reference to the third factor – the balance of hardships – and found that the balance of hardships did not weigh in his favor. Plaintiff submitted two declarations in support of his complaint, one from himself and one from a medical expert, to explain what harms he would suffer as a result of his exclusion from the boys’ bathroom. The district court refused to consider this evidence because it was “replete with inadmissible evidence including thoughts of others, hearsay and suppositions.”

It was error for the district court to summarily reject the student’s proffered evidence because it may have been inadmissible at a subsequent trial. Further, 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.

We conclude the district court abused its discretion when it denied plaintiff’s request for a preliminary injunction without considering the student’s proffered evidence. We vacate the district court’s denial of the student’s motion for a preliminary injunction and remand the case to the district court for consideration of plaintiff’s evidence.

Plaintiff’s request to have this case assigned to a different judge on remand is rejected. Although the district court did express opinions about medical facts and skepticism of plaintiff’s claims, the record does not clearly indicate that the district judge would refuse to consider and credit sound contrary evidence. 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.

Reversed in part, vacated in part and remanded.


Davis, S.J.: I concur in Judge Floyd’s fine opinion. I write separately to note that, while I am happy to join in the remand of this matter to the district court so it may consider plaintiff’s evidence under the 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.

Concurrence & Dissent

Niemeyer, J.: I concur in part IV of the court’s opinion denying reassignment of the district court judge. With respect to whether plaintiff stated a claim under Title IX and whether the district court abused its discretion in denying plaintiff’s motion for a preliminary injunction, I would affirm the ruling of the district court dismissing the Title IX claim and denying his motion for a preliminary injunction. 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. Finally, it reaches an unworkable and illogical result.

I therefore dissent from the majority decision on those issues.

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