On June 11, 2015, a sixteen-year-old transgender boy filed this lawsuit in U.S. District Court for the Eastern District of Virginia under Title IX and 42 U.S.C. section 1983, against Gloucester County School Board. The plaintiff, represented by the national and Virginia ACLU, asked the court for a preliminary and permanent injunction allowing him to use the boys' restroom at school, claiming that the school's policy of requiring transgender students to use a private restroom facility violated his rights under Title IX and the Fourteenth Amendment. Specifically, Plaintiff alleged that after Plaintiff had used the boys' restroom with the school's permission for seven weeks without incident, the school released a policy stating that students' access to restrooms was restricted based on their "biological gender" and that students who were unable to use the corresponding restroom because of "gender identity issues" were to use an alternative private facility. At the time, Plaintiff was the only student at the school required to use the private facility.
The ACLU had previously filed a complaint with the Department of Justice on December 18, 2014, only days after the school instituted the restroom policy. The ACLU's complaint stated that the school's behavior was a violation of Title IX in that discrimination based on a person's transgender status is discrimination based on sex. Additionally, the complaint alleged that, since there had never been any complaints regarding Plaintiff, any privacy concerns were nothing more than irrational prejudice or stigma against transgender people.
On September 4, 2015, the court (Judge Doumar) denied Plaintiff's motion for a preliminary injunction. On September 10, 2015, Plaintiff filed a notice of appeal.
On September 17, 2015, the court granted the school board's motion to dismiss. The school board argued that discrimination based on gender identity is not sex discrimination, and therefore, not covered under Title IX. Judge Doumar agreed, ruling that Plaintiff failed to state a valid claim under Title IX because schools are permitted to keep separate restrooms based on sex as long as the restrooms are comparable. The court also explained that it had denied Plaintiff's motion for a preliminary injunction on the basis that allowing him to use the boys' restroom would violate other students' constitutional right to privacy.
Plaintiff appealed. In the Fourth Circuit, on October 28, 2015, the Department of Justice filed an amicus curiae brief in support of Plaintiff's appeal. The DOJ, citing a letter issued by the Department of Education, took the position that discrimination based on transgender status constitutes discrimination based on sex, that denying a student access to the restroom that corresponds to their gender identity denies the student equal educational opportunity, and that general invocations of privacy and safety do not override Title IX's prohibition on sex-based discrimination. This marks the first time the administration has taken this position in an appeals court.
On April 19, 2016, the Fourth Circuit reversed and vacated in part the district court’s ruling. The circuit court found that Title IX is ambiguous on how gender should be determined for purposes of finding impermissible sex discrimination. The court also found that the U.S Department of Education’s interpretation of Title IX, which required schools to treat transgender students consistent with the gender identity, was the result of the agency’s fair and considered judgment, and was neither a convenient litigating position nor a post hoc rationalization. Based on those findings, the circuit court reversed the Judge Doumar's grant of summary judgment to the school board, finding that the Department of Education’s interpretation was entitled to deference. The circuit court further found that the Judge Doumar had improperly excluded evidence in deciding whether to grant the Plaintiff preliminary injunctive relief. The circuit court then remanded the question of whether to grant Plaintiff injunctive relief with instructions to consider the improperly excluded evidence. ___ F.3d ___, 2016 WL 1567467.
Plaintiff had also asked for the case to be reassigned to a different court on remand. He argued that various statements by Judge Doumar expressing opinions about medical facts and gender dysphoria indicated that the district court had pre-existing views that it would unwilling to set aside in the face of contrary evidence about gender and sexuality. The circuit court denied reassignment, finding that there was insufficient evidence that the Judge Doumar would refuse to consider and credit sound contrary evidence, and that the his methods were idiosyncratic but not fundamentally unfair. Id.
The Court denied rehearing en banc over a dissent by Judge Niemeyer. 2016 WL 3080263 (May 31, 2016). It also denied a stay of its mandate.
On June 23, 2016, Judge Doumar issued an order granting plaintiff a preliminary injunction allowing him to use the boys' restroom. Judge Doumar, noting that the plaintiff had not asked for access to the boys' locker rooms, specified that the preliminary injunction was limited to access to the boys' restrooms.
On June 27, defendants appealed Judge Doumar's decision to grant plaintiff a preliminary injunction, and asked for a stay of Judge Doumar's order pending the outcome of that appeal. The court of appeals denied a stay.
The case remains ongoing. Judge Doumar has granted the plaintiff a preliminary injunction, but he has yet to issue final judgment.Katherine Reineck - 10/31/2015
Ryan Berry - 07/01/2016