On June 11, 2015, a sixteen-year-old transgender boy filed this lawsuit against the Gloucester County School Board in the U.S. District Court for the Eastern District of Virginia. The plaintiff, represented by the national and Virginia ACLU, proceeded under Title IX and 42 U.S.C. § 1983. He sought a preliminary and permanent injunction allowing him to use the boys' restroom at school, claiming that the school board's policy of requiring transgender students to use a private restroom facility violated his rights under Title IX and the Fourteenth Amendment. Specifically, the plaintiff alleged that after he had used the boys' restroom with the school's permission for seven weeks without incident, the school board 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 U.S. Department of Justice (DOJ) on December 18, 2014, only days after the school board instituted the restroom policy. The ACLU's complaint stated that the school board'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 the 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. Then on September 17, 2015, the court also 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.
The plaintiff appealed. In the Fourth Circuit, on October 28, 2015, the DOJ filed an amicus curiae brief in support of plaintiff's appeal. The DOJ, citing a letter issued by the U.S. Department of Education (DOE), took the position that discrimination based on transgender status constitutes discrimination based on sex, denying a student access to the restroom that corresponds to their gender identity denies the student equal educational opportunity, and general invocations of privacy and safety do not override Title IX's prohibition on sex-based discrimination. This marked the first time the administration took 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 DOE’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 Fourth Circuit reversed Judge Doumar's grant of summary judgment to the school board, finding that the DOE’s interpretation was entitled to deference. The Fourth Circuit further found that the Judge Doumar had improperly excluded evidence in deciding whether to grant the plaintiff preliminary injunctive relief. The Fourth Circuit then remanded the question of whether to grant plaintiff injunctive relief with instructions to consider the improperly excluded evidence. 822 F.3d 709 (4th Cir. 2016).
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 judge had pre-existing views that he would unwilling to set aside in the face of contrary evidence about gender and sexuality. The Fourth Circuit denied reassignment, finding that there was insufficient evidence that the Judge Doumar would refuse to consider and credit sound contrary evidence, and that his methods were idiosyncratic but not fundamentally unfair. Id.
The Fourth Circuit denied rehearing en banc over a dissent by Judge Niemeyer. 824 F.3d 450 (4th Cir. 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 plaintiff’s ability to access the boys' restrooms.
On June 27, 2016, 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 Fourth Circuit denied the stay on July 6, 2016.
The defendants then applied for relief with the Supreme Court. On August 3, 2016, the Court granted the application to recall and stay the mandate of the Fourth Circuit that was submitted to the Chief Justice. When the application was granted, the district court's preliminary injunction allowing the plaintiff access to the boys’ restrooms was stayed pending a petition for a writ of certiorari with the Court.
The school board then filed an unopposed motion to stay in the Fourth Circuit on August 18, 2016. The Fourth Circuit granted this motion on August 31, 2016.
The petition for a writ of certiorari was filed with the Supreme Court on August 29, 2016. Three questions were presented in this petition. First, whether the Court should retain the Auer doctrine, which allows deference to agencies’ regulations even when the regulations are ambiguous. Second, whether the Auer deference extends to an unpublished agency letter that does not carry the force of law. Third, whether the DOE’s Title IX interpretation is valid. On October 31, 2016, the Court granted the petition for a writ of certiorari, but limited the grant to questions 2 and 3.
Argument before the Court was set for March 28, 2017. But on March 6, 2017, the Court vacated the Fourth Circuit's judgment and remanded the case "for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017." That guidance document withdrew the prior federal statements on the issue, taking no position on whether/how gender identity was covered under Title IX. The case will continue in the lower courts. Katherine Reineck - 10/31/2015
Ryan Berry - 07/01/2016
Amelia Huckins - 02/13/2017