A three-judge panel of the Richmond-based U.S. 4th Circuit Court of Appeals voted 2-1 on April 19 that U.S. District Judge Robert G. Doumar erred by not deferring to the U.S. Department of Education’s interpretation of its regulations to require schools to let transgender students use restrooms consistent with their gender identity. Judge Doumar had dismissed a claim by G.G., a teenage transgender boy attending high school in Gloucester County, Virginia, that the school violated his statutory right under Title IX of the Education Amendments Act by adopting a rule that he could use only restrooms designated for girls or unisex single-user restrooms. The court referred to the plaintiff by his initials throughout the opinion to guard his privacy, but the ACLU’s press releases about the case identify him as Gavin Grimm. G.G. v. Gloucester County School Board, 2016 U.S. App. LEXIS 7026 (April 19, 2016).
The high school had accommodated G.G. when, at the beginning of his sophomore year in August 2014, he informed school officials that he was transitioning, had gotten a legal name change, and would be expressing his male gender identity, by letting him use the boys’ restroom. After several weeks without serious incident, some parents alerted to the situation by their children objected and pushed the school board to adopt its resolution after two public meetings in which indignant parents threatened the board members with political retribution if they did not adopt the restrictive policy. G.G., now 16, has not undergone reassignment surgery, which is not available to minors under the prevailing medical standards for treating gender dysphoria, but has transitioned in all other respects and identifies fully as male.
The 4th Circuit is the first federal appeals court to rule that the Education Department’s interpretation of Title IX, as expressed in an opinion letter by the Department’s Office of Civil Rights on January 7, 2015, in response to this controversy, should be followed by the federal courts. Since North Carolina is also within the 4th Circuit, this ruling, as it now stands, suggests that the “bathroom” provisions of the notorious H.B. 2, at least as they apply to public educational institutions, violate federal law, as the ACLU and Lambda Legal have argued in a lawsuit challenging that statute pending in the U.S. District Court in North Carolina.
Writing for the majority of the panel, Circuit Judge Henry F. Floyd observed that the court’s role in a case involving an administrative agency’s interpretation of a statute is most deferential when the statute and the official regulations that have been adopted by the agency are ambiguous regarding the particular issue in dispute. Title IX says that educational institutions that receive federal funds may not discriminate because of sex. The regulations, adopted decades ago, provide that educational institutions may designate separate facilities for use by males and females, so long as the facilities are equal in quality, but never directly address how to deal with transgender individuals whose “biological sex” differs from their gender identity. In this respect, concluded a majority of the court, the regulations are “ambiguous.” As such, the Department’s interpretation of the regulations should be deferred to by the court when they are a reasonable interpretation of the statute. Indeed, wrote Floyd, the Department’s interpretation is entitled to deference “unless the [school] board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute.”
District Judge Doumar had concluded that the regulations were not ambiguous, and refused to defer to the Department interpretation. Judge Floyd devoted a section of his opinion to explaining why the regulations are ambiguous. “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.” When language can support alternative readings, there is ambiguity. “The Department’s interpretation resolves the 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.”
Protesting against this conclusion, dissenting Circuit Judge Paul Niemeyer (who was, incidentally, also a dissenter in the 4th Circuit’s Virginia marriage equality decision in 2014), found that it would produce unacceptable results by violating the “physiological privacy interest” of students who did not want to share restroom facilities with students whose biological sex differed from theirs. Judge Niemeyer essentially articulated, in more elevated terms, the arguments that North Carolina Governor Pat McCrory has been making in defense of the “bathroom” provisions in H.B. 2: that the privacy concerns of students who object to sharing facilities with transgender students should take priority over the interests of the transgender students.
But Judge Niemeyer doesn’t put it quite so crudely. Indeed, he suggests that the opinion letter from the Department authorized just what the school board did, by opining that schools could accommodate the needs of transgender students by providing unisex single-occupancy facilities for them to use. Judge Floyd points out, however, that the Department’s advice was to provide such facilities for students who did not want to use multiple-use facilities. In this case, G.G. wants to use the male-designated multiple-use facility as being congruent with his gender identity. As to the privacy concerns, the court noted that the school board has made physical modifications in the boys’ restrooms by adding partitions between urinals and taping over visual gaps in the toilet stalls so as to enhance the privacy of all users.
Judge Floyd emphasized that because G.G. was only contesting the school board’s policy on restrooms, the court did not have to deal with the question whether other single-sex facilities, such as locker rooms and shower rooms, would have to be open to transgender students as well. Judge Niemeyer observed that discrimination “because of sex” had to mean the same thing throughout the statute and regulations, so he argued that the majority opinion opened up the door to allowing transgender students to claim a right of access to all such sex-designated facilities.
In a somewhat unintentionally humorous footnote, Judge Floyd noted the school board’s argument, reiterated in Judge Niemeyer’s dissent, that allowing biological males into the girls’ restrooms and biological females into the boys’ restrooms could produce “danger caused by ‘sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex.’” Floyd observed, perhaps tongue in cheek, “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.” Yes! Here is a federal judge with real empathy for hormone-infused teenagers of every sexual orientation and gender identity!
In addition to appealing Judge Doumar’s dismissal of his Title IX claim, G.G. was also appealing the Judge Doumar’s refusal to issue a preliminary injunction that would require the school board to let him use the boys’ restroom facilities while the case proceeded. Judge Doumar had refrained from ruling on G.G.’s constitutional equal protection claim, so his case was still alive before the district court even though his Title IX claim was dismissed. Judge Doumar had focused his refusal of injunctive relief on his determination that G.G. failed to show that he would suffer irreparable harm if he was excluded from the boys’ restrooms while the case was pending.
The majority of the panel concluded that Doumar had wrongly refused to give appropriate consideration to the evidence presented by G.G. and his medical expert on this point, applying too strict a standard for considering evidence in the context of a motion for a preliminary injunction. The majority concluded that the appropriate step was to reverse the dismissal of the Title IX claim and send the case back to the district court for reconsideration of the motion for preliminary injunction, applying the correct evidentiary standard. This means that G.G. will be back to square one before the district court, but with the wind of the court of appeals decision behind his back on key issues in the case.
G.G. had asked the court of appeals to reassign the case to another district judge. Judge Doumar made various comments in court that suggested bias, or at least a refusal to believe in the validity of the concept of gender identity, with references to G.G. as a girl who wanted to be a boy. However, Judge Floyd pointed out, none of that objectionable language appeared in the written opinion that Judge Doumar released to explain his ruling, and the court was not going to conclude at this point that Doumar would not give appropriate consideration to the evidence when called upon by the court of appeals to reconsider his ruling, so the court denied G.G.’s request and the case will return to Judge Doumar.
The third member of the panel, Senior Circuit Judge Andre M. Davis, agreed with Judge Floyd that the Title IX claim should be revived, but would have gone further, contending that G.G. had satisfied the requirements for a preliminary injunction. However, since the grant of such an injunction is a matter within the discretion of the trial judge, he ultimately agreed to “defer to the district court in this instance. It is to be hoped,” he continued, “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.”
Judge Niemeyer’s dissent, reminiscent of his dissent in the Virginia marriage equality case, harps on the “unprecedented” nature of the ruling, asserting that the court’s “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.” He also accused the majority of misconstruing the language of Title IX and its regulations, and concluded that “it reaches an unworkable and illogical result.”
G.G. is represented by the ACLU of Virginia and the ACLU’s national LGBT rights project. Joshua Block argued the appeal on his behalf on January 27.