U.S. District Judge Robert G. Doumar issued an opinion on September 17 in G. G. v. Gloucester County School Board, 2015 U.S. Dist. LEXIS 124905, 2015 WL 5560190 (E.D. Va.), explaining his earlier bench decision in July dismissing the plaintiff’s Title IX count and his September 4 denial of the plaintiff’s request for a preliminary injunction in a dispute over restroom usage at the Gloucester, Virginia, High School. The plaintiff, a transgender boy, is being denied use of the restrooms designated for boys at the school. Judge Doumar found that Title IX does not require public schools to allow transgender students to use the restrooms that conform to their gender identity, so long as they are provided with “comparable” restroom facilities, and that the plaintiff had not presented evidence sufficient to support his request to be allowed to use the boys’ restrooms pending a final ruling on the merits of his constitutional equal protection claim.
According to G.G.’s complaint, although designated female at birth he began to feel like a boy at “a very young age.” By age 12, he had acknowledged his male identity to himself and by the time he was a high school freshman “most of his friends were aware that he identified as male” and “away from home and school, G.G. presented himself as male.” During his freshman year, starting in September 2013, he experienced “severe depression and anxiety related to the stress of concealing his gender identity from his family.” He alleges that this led him to avoid school during the spring semester and to take classes “through a home-bound program.” In April of that 2014 spring semester, he finally told his parents that he was a transgender male and at his request began to see a psychologist, who diagnosed him with gender dysphoria. The psychologist recommended that G.G. “begin living in accordance with his male gender identity in all respects” including restroom usage, and gave him a “Treatment Documentation Letter” confirming the diagnosis and these directions, stating that he was under treatment. The psychologist also recommended that he begin hormone treatment. In July 2014, G.G. petitioned the local court for a legal name change, which was granted, and G.G. requested that his friends and family use his new name and refer to him using male pronouns. In public settings, G.G. began using restrooms designated for males.
In August 2014, prior to the beginning of fall semester, G.G. and his mother notified officials at Gloucester High School about his gender dysphoria and his name change. The high school officials were very accommodating, agreeing to change school records to record his new name. G.G. and his mother met with the principal and guidance counselor to discuss his transition. They allowed him to notify all his teachers about his preferences. “Being unsure how students would react to his transition,” wrote Doumar, “G.G. initially agreed to use a separate bathroom in the nurse’s office” and he was allowed to fulfill his physical education requirement through the home school program to avoid use of a locker room at school. But after the semester began G.G. “found it stigmatizing to use a separate restroom” and requested permission to use the male restrooms, which was granted by the principal. G.G. used the male restrooms for seven weeks, during which the School Board received protests from parents on behalf of their sons about G.G.’s use of the male restrooms.
A member of the School Board introduced a resolution that would limit use of restroom facilities to “the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.” A majority of speakers at the November School Board meeting supported the resolution, contending that G.G.’s use of a male restroom violated the privacy rights of male students and might “lead to sexual assault in the bathrooms.” At least one parent suggested that a non-transgender boy could come to school wearing a dress and demand to use the girl’s restroom based on the precedent of letting G.G. use the men’s room. G.G. testified, speaking against the proposed resolution and “outing” himself to the entire community as transgender. The School Board voted 4-3 to defer a vote on the resolution to its next meeting, but prior to that meeting issued a news release indicating that steps were being taken to increase the privacy of all students by modifying the restrooms to expand partitions between urinals in the male restrooms and “adding privacy strips to the doors of stalls in all restrooms.” In addition, the school designated three single-stall unisex restrooms, “similar to what’s in many other public spaces.” At its December 9 meeting, the Board approved the resolution restricting restroom use by a vote of 6-1. The next day, the principal instructed G.G. not to use the boys’ restroom, threatening him with discipline if he violated the rule. He was allowed only to use the restroom in the nurse’s office, the girls’ restrooms, and the newly-designated unisex restrooms.
G.G. began receiving hormone treatments shortly after that School Board meeting, deepening his voice, increasing his facial hair and giving him a “more masculine appearance.” He claimed that as he was presenting as male, he was unwelcome on the girls’ restrooms; and that girls had actually asked him to leave when he tried to use those restrooms before this controversy arose. He also alleged that the unisex restrooms were not convenient to the rooms where his classes met,=, and that using them would be stigmatizing to him, causing psychological damage.
On June 11, 2015, G.G. filed suit alleging a violation of Title IX’s ban on sex discrimination in public schools and the equal protection clause, and requested a preliminary injunction to allow him to use the boys’ restrooms pending a final ruling on the merits of his claim. The School Board moved to dismiss the case. The U.S. Justice Department filed a statement of interest in the case, arguing that the Board’s resolution violated Title IX. The court heard initial arguments on the motions on July 27, and promptly dismissed the Title IX claim. In a subsequent hearing on September 4, the court denied the motion for preliminary injunction, promising to issue an explanatory opinion for both rulings at a later date.
Turning first to the Title IX claim, the court found that an existing Title IX regulation appeared to authorize the School Board’s restroom use policy. 34 C.F.R. Sec. 106.33 “expressly allows schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable,” Judge Doumar wrote, and he found that the regulation is not “arbitrary, capricious, or manifestly contrary to the statute.” Rather, he found, it “seems to effectuate Title IX’s provision allowing separate living facilities based on sex,” so he gave it controlling weight. Rejecting G.G.’s argument that Title IX should be construed to prohibit only gender identity discrimination as such, he said, “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 Section 106.33 also includes ‘gender identity’.” Judge Doumar found that G.G. had not alleged that the unisex facilities or the nurse’s restroom failed to satisfy the requirement of “comparable facilities” under the regulation, so no Title IX claim was stated.
The court had to deal as well with the Justice Department’s argument that the court should defer to a more recent interpretation by the Department of Education, which was issued in a January 7, 2015 “Guidance Letter” stating that students should be allowed to use restroom facilities consistent with their gender identity, which itself was based on an interpretive bulletin issued by DOE in December 2014. “The Department of Education’s interpretation does not stand up to scrutiny,” wrote the judge. “Unlike regulations, interpretations in opinion letters, policy statements, agency manuals, and enforcement guidelines do not warrant” the deference that courts normally pay to agency regulations that are adopted under statutes pursuant to the Administrative Procedure Act through a process of publication, public comment and, sometimes, public hearings before final official publication.
“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,” wrote Judge Doumar. Using this standard, he concluded that the recent guidance letter did not stand up, because “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,’” so the school was authorized to segregate restrooms based on the biological sex of students. “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,” he continued. “If the Department of Education wishes to amend its regulation, it is of course entitled to do so. However, it must go through notice and comment rulemaking, as required by the Administrative Procedure Act.”
Turning to the motion for preliminary injunction, the court found that G.G. failed to meet the most important test: to show that he was likely to prevail on the merits. Unlike the motion to dismiss the Title IX claim, as to which the court had to accept as true all of G.G.’s factual allegations, on the motion for preliminary injunction Judge Doumar said that G.G. had to submit evidence tending to prove his allegations, and as to this he had fallen short, merely repeating the allegations of the complaint and failing to flesh them out with the kind of factual details that would show he was likely to win on his equal protection claim. Among other things, Judge Doumar faulted G.G. for failing to present an affidavit from the psychologist who had diagnosed his gender dysphoria. The judge pointed out that the expert psychological evidence submitted with the motion was by another psychologist apparently hired for purposes of the litigation who had only met briefly with G.G. once, and whose testimony was generalized and not specific to G.G. Thus, there was no evidence beyond G.G.’s own assertions that being banned from using the boys’ restrooms was psychologically harmful to G.G. G.G. also failed to provide factual evidence to demonstrate his contention that the unisex restrooms were so inconveniently located as to present a hardship. He claimed that because of the proximity problem he had to hold his urine and suffered urinary infections, but offered no medical testimony to support this claim.
Most importantly, however, Judge Doumar accepted the School Board’s argument that allowing G.G. to use the boys’ restrooms would intrude on the constitutional privacy rights of male students. He observed that courts have generally found that individuals have a constitutional right of privacy with regard to exposure of their bodies to the opposite sex. The underlying, albeit unspoken, aspect of this analysis was that the complaining boys regard G.G. as a girl and object to a girl being present and observing them in the boys’ room. The court cited a recent decision by a federal court in Pittsburgh, rejecting a transgender man’s restroom suit against the University of Pittsburgh, and observed that the privacy concerns are even greater in the context of high school students. To the court, when the clash is between the constitutional right of privacy of the male students and the alleged psychological harm to G.G. of having to use a unisex restroom, the balance clearly favored the other male students, at least for purposes of preliminary relief pending trial. Doumar emphasized that G.G. was raising a “novel” claim, that it was unclear that he could prevail on the merits, and that he had presented no factual evidence on the issue of any irreparable injury that he might suffer if denied the use of the boys’ restrooms while this case proceeds on his equal protection claim.
G.G. is represented by attorneys from the ACLU of Virginia and the ACLU’s national LGBT Rights Project, who might seek to appeal these rulings to the 4th Circuit Court of Appeals. Although the 4th Circuit was traditionally a very conservative bench, President Obama’s appointments have turned it around, resulting in the circuit’s Virginia marriage equality decision in 2014, followed by a refusal to stay that opinion pending appeal. Thus, it is hard to predict how the 4th Circuit might react in light of the Justice Department’s intervention on behalf of G.G. in this case, but an appeal might not be hopeless.