822 F.3d 709 (4th Cir. 2016), 15-2056, G. G. v. Gloucester County School Bd.

Docket Nº15-2056
Citation822 F.3d 709
Opinion JudgeFLOYD, Circuit Judge:
Party NameG. G., by his next friend and mother, Deirdre Grimm, Plaintiff - Appellant, v. GLOUCESTER COUNTY SCHOOL BOARD, Defendant - Appellee. JUDY CHIASSON, Ph. D., School Administrator California; DAVID VANNASDALL, School Administrator California; DIANA K. BRUCE, School Administrator District of Columbia; DENISE PALAZZO, School Administrator Florida; JEREM
AttorneyARGUED: Joshua A. Block, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellant. David Patrick Corrigan, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, Richmond, Virginia, for Appellee. ON BRIEF: Rebecca K. Glenberg, Gail Deady, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, I...
Judge PanelBefore NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Judge Floyd wrote the opinion, in which Senior Judge Davis joined. Senior Judge Davis wrote a separate concurring opinion. Judge Niemeyer wrote a separate opinion concurring in part and dissenting in part. DAVIS, Senior C...
Case DateApril 19, 2016
CourtUnited States Courts of Appeals, United States Court of Appeals (4th Circuit)

Page 709

822 F.3d 709 (4th Cir. 2016)

G. G., by his next friend and mother, Deirdre Grimm, Plaintiff - Appellant,

v.

GLOUCESTER COUNTY SCHOOL BOARD, Defendant - Appellee.

JUDY CHIASSON, Ph. D., School Administrator California; DAVID VANNASDALL, School Administrator California; DIANA K. BRUCE, School Administrator District of Columbia; DENISE PALAZZO, School Administrator Florida; JEREMY MAJESKI, School Administrator Illinois; THOMAS A ABERLI, School Administrator Kentucky; ROBERT BOURGEOIS, School Administrator Massachusetts; MARY DORAN, School Administrator Minnesota; VALERIA SILVA, School Administrator Minnesota; RUDY RUDOLPH, School Administrator Oregon; JOHN O'REILLY, School Administrator New York; LISA LOVE, School Administrator Washington; DYLAN PAULY, School Administrator Wisconsin; SHERIE HOHS, School Administrator Wisconsin; THE NATIONAL WOMEN'S LAW CENTER; LEGAL MOMENTUM; THE ASSOCIATION OF TITLE IV ADMINISTRATORS; EQUAL RIGHTS ADVOCATES; GENDER JUSTICE; THE WOMEN'S LAW PROJECT; LEGAL VOICE; LEGAL AID SOCIETY - EMPLOYMENT LAW CENTER; SOUTHWEST WOMEN'S LAW CENTER; CALIFORNIA WOMEN'S LAW CENTER; THE WORLD PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH; PEDIATRIC ENDOCRINE SOCIETY; CHILD AND ADOLESCENT GENDER CENTER CLINIC AT UCSF BENIOFF CHILDREN'S HOSPITAL; CENTER FOR TRANSYOUTH HEALTH AND DEVELOPMENT AT CHILDREN'S HOSPITAL LOS ANGELES; GENDER & SEX DEVELOPMENT PROGRAM AT ANN & ROBERT H. LURIE CHILDREN'S HOSPITAL OF CHICAGO; FAN FREE CLINIC; WHITMAN-WALKER CLINIC, INC., d/b/a Whitman-Walker Health; GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; TRANSGENDER LAW & POLICY INSTITUTE; GENDER BENDERS; GAY, LESBIAN & STRAIGHT EDUCATION NETWORK; GAY-STRAIGHT ALLIANCE NETWORK; INSIDEOUT; EVIE PRIESTMAN; ROSMY; TIME OUT YOUTH; WE ARE FAMILY; UNITED STATES OF AMERICA; MICHELLE FORCIER, M.D.; NORMAN SPACK, M.D., Amici Supporting Appellant,

STATE OF SOUTH CAROLINA; PAUL R. LEPAGE, In his official capacity as Governor State of Maine; STATE OF ARIZONA; THE FAMILY FOUNDATION OF VIRGINIA; STATE OF MISSISSIPPI; JOHN WALSH; STATE OF WEST VIRGINIA; LORRAINE WALSH; PATRICK L. MCCRORY, In his official capacity as Governor State of North Carolina; MARK FRECHETTE; JUDITH REISMAN, Ph.D.; JON LYNSKY; LIBERTY CENTER FOR CHILD PROTECTION; BRADLY FRIEDLIN; LISA TERRY; LEE TERRY; DONALD CAULDER; WENDY CAULDER; KIM WARD; ALICE MAY; JIM RUTAN; ISSAC RUTAN; DORETHA GUJU; DOCTOR RODNEY AUTRY; PASTOR JAMES LARSEN; DAVID THORNTON; KATHY THORNTON; JOSHUA CUBA; CLAUDIA CLIFTON; ILONA GAMBILL; TIM BYRD; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND, Amici Supporting Appellee

No. 15-2056

United States Court of Appeals, Fourth Circuit

April 19, 2016

Argued January 27, 2016.

Petition for certiorari filed at, 08/29/2016

Page 710

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Page 713

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. (4:15-cv-00054-RGD-DEM). Robert G. Doumar, Senior District Judge.

REVERSED IN PART, VACATED IN PART, AND REMANDED.

ARGUED: Joshua A. Block, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellant.

David Patrick Corrigan, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, Richmond, Virginia, for Appellee.

ON BRIEF: Rebecca K. Glenberg, Gail Deady, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC., Richmond, Virginia; Leslie Cooper, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellant.

Jeremy D. Capps, M. Scott Fisher, Jr., HARMAN, CLAYTOR, CORRIGAN & WELLMAN, Richmond, Virginia, for Appellee.

Cynthia Cook Robertson, Washington, D.C., Narumi Ito, Amy L. Pierce, Los Angeles, California, Alexander P. Hardiman, Shawn P. Thomas, New York, New York, Richard M. Segal, Nathaniel R. Smith, PILLSBURY WINTHROP SHAW PITTMAN LLP, San Diego, California; Tara L. Borelli, Atlanta, Georgia, Kyle A. Palazzolo, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois; Alison Pennington, TRANSGENDER LAW CENTER, Oakland, California, for Amici School Administrators Judy Chiasson, David Vannasdall, Diana K. Bruce, Denise Palazzo, Jeremy Majeski, Thomas A. Aberli, Robert Bourgeois, Mary Doran, Valeria Silva, Rudy Rudolph, John O'Reilly, Lisa Love, Dylan Pauly, and Sherie Hohs.

Suzanne B. Goldberg, Sexuality and Gender Law Clinic, COLUMBIA LAW SCHOOL, New York, New York; Erin E. Buzuvis, WESTERN NEW ENGLAND UNIVERSITY SCHOOL OF LAW, Springfield, Massachusetts, for Amici The National Women's Law Center, Legal Momentum, The Association of Title IX Administrators, Equal Rights Advocates, Gender Justice, The Women's Law Project, Legal Voice, Legal Aid Society-Employment Law Center, Southwest Women's Law Center, and California Women's Law Center.

Jennifer Levi, GAY & LESBIAN ADVOCATES & DEFENDERS, Boston, Massachusetts; Thomas M. Hefferon, Washington, D.C., Mary K. Dulka, New York, New York, Christine Dieter, Jaime A. Santos, GOODWIN PROCTER LLP, Boston, Massachusetts; Shannon Minter, Asaf Orr, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Amici The World Professional Association for Transgender Health, Pediatric Endocrine Society, Child and Adolescent Gender Center Clinic at UCSF Benioff Children's Hospital, Center for Transyouth Health and Development at Children's Hospital Los Angeles, Gender & Sex Development Program at Ann & Robert H. Lurie Children's Hospital of Chicago, Fan Free Clinic, Whitman-Walker Clinic, Inc., GLMA: Health Professionals Advancing LGBT Equality, Transgender Law & Policy Institute, Michelle Forcier, M.D. and Norman Spack, M.D. David Dinielli, Rick Mula, SOUTHERN POVERTY LAW CENTER, Montgomery, Alabama, for Amici Gender Benders, Gay, Lesbian & Straight Education Network, Gay-Straight Alliance Network, iNSIDEoUT, Evie Priestman, ROSMY, Time Out Youth, and We Are Family.

James Cole, Jr., General Counsel, Francisco Lopez, Vanessa Santos, Michelle Tucker, Attorneys, Office of the General Counsel, UNITED STATES DEPARTMENT OF EDUCATION, Washington, D.C.; Gregory B. Friel, Deputy Assistant Attorney General, Diana K. Flynn, Sharon M. McGowan, Christine A. Monta, Attorneys, Civil Rights Division, Appellate Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of America.

Alan Wilson, Attorney General, Robert D. Cook, Solicitor General, James Emory Smith, Jr., Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Amicus State of South Carolina; Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona, for Amicus State of Arizona; Jim Hood, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MISSISSIPPI, Jackson, Mississippi, for Amicus State of Mississippi; Patrick Morrisey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Amicus Paul R. LePage, Governor, State of Maine, Augusta, Maine; Robert C. Stephens, Jr., Jonathan R. Harris, COUNSEL FOR THE GOVERNOR OF NORTH CAROLINA, Raleigh, North Carolina, for Amicus Patrick L. Mccrory, Governor of North Carolina.

Mary E. McAlister, Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, LIBERTY COUNSEL, Orlando, Florida, for Amici Liberty Center for Child Protection and Judith Reisman, PhD. Jeremy D. Tedesco, Scottsdale, Arizona, Jordan Lorence, Washington, D.C., David A. Cortman, J. Matthew Sharp, Rory T. Gray, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia, for Amici The Family Foundation of Virginia, John Walsh, Lorraine Walsh, Mark Frechette, Jon Lynsky, Bradly Friedlin, Lisa Terry, Lee Terry, Donald Caulder, Wendy Caulder, Kim Ward, Alice May, Jim Rutan, Issac Rutan, Doretha Guju, Rodney Autry, James Larsen, David Thornton, Kathy Thornton, Joshua Cuba, Claudia Clifton, Ilona Gambill, and Tim Byrd.

Lawrence J. Joseph, Washington, D.C., for Amicus Eagle Forum Education and Legal Defense Fund.

Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Judge Floyd wrote the opinion, in which Senior Judge Davis joined. Senior Judge Davis wrote a separate concurring opinion. Judge Niemeyer wrote a separate opinion concurring in part and dissenting in part.

OPINION

Page 714

FLOYD, Circuit Judge:

G.G., a transgender boy, seeks to use the boys' restrooms at his high school. After G.G. began to use the boys' restrooms with the approval of the school administration, the local school board passed a policy banning G.G. from the boys' restroom.

Page 715

G.G. alleges that the school board impermissibly discriminated against him in violation of Title IX and the Equal Protection Clause of the Constitution. The district court dismissed G.G.'s Title IX claim and denied his request for a preliminary injunction. This appeal followed. Because we conclude the district court did not accord appropriate deference to the relevant Department of Education regulations, we reverse its dismissal of G.G.'s Title IX claim. Because we conclude that the district court used the wrong evidentiary standard in assessing G.G.'s motion for a preliminary injunction, we vacate its denial and remand for consideration under the correct standard. We therefore reverse in part, vacate in part, and remand the case for further proceedings consistent with this opinion.

I.

At the heart of this appeal is whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity. Title IX provides: " [n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The...

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95 practice notes
  • Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority
    • United States
    • Centers For Medicare And Medicaid Services
    • Invalid date
    ...that the Congress that enacted it would not have accepted.'') (Posner, J., concurring); G.G. ex rel Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 736 (4th Cir. 2016) (``Title IX was enacted in 1972 and the regulations were promulgated in 1975 and readopted in 1980, and during that time ......
  • Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act
    • United States
    • Federal Register December 02, 2016
    • December 2, 2016
    ...Sec. 38.7(a).\177\ --------------------------------------------------------------------------- \174\ G.G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 723 (4th Cir. 2016) (upholding the Department of Education's interpretation of its Title IX regulation as requiring schools to permit transge......
  • Nondiscrimination in Health and Health Education Programs or Activities
    • United States
    • Centers For Medicare And Medicaid Services
    • Invalid date
    ...Educ., 858 F.3d 1034, 1046-54 (7th Cir. 2017), cert. dismissed, 138 S. Ct. 1260 (2018); G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 720-723 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239 (2017); Dodds v. U.S. Dept. of Education, 845 F.3d 217 (6th Cir. 2016). Porti......
  • 968 F.3d 1286 (11th Cir. 2020), 18-13592, Adams v. School Board of St. Johns County
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eleventh Circuit
    • August 7, 2020
    ...arising from the biological differences between males and females." G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 734 (4th Cir. 2016) (Niemeyer, J., concurring in part and dissenting in part), vacated, ___ U.S. ___, 137 S.Ct. 1239, 197 L.Ed.2d 4......
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57 cases
  • 968 F.3d 1286 (11th Cir. 2020), 18-13592, Adams v. School Board of St. Johns County
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (11th Circuit)
    • August 7, 2020
    ...arising from the biological differences between males and females." G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 734 (4th Cir. 2016) (Niemeyer, J., concurring in part and dissenting in part), vacated, ___ U.S. ___, 137 S.Ct. 1239, 197 L.Ed.2d 4......
  • 203 F.Supp.3d 615 (M.D.N.C. 2016), 1:16cv236, Carcano v. McCrory
    • United States
    • Federal Cases United States District Courts 4th Circuit Middle District of North Carolina
    • August 26, 2016
    ...does not undermine the existence of a justiciable case or controversy. See G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 716-17 (4th Cir. 2016) (evaluating the merits of a Title IX claim involving transgender bathroom use without discussing whether t......
  • Standage v. Braithwaite, 122220 MDDC, C. A. ELH-20-2830
    • United States
    • Federal Cases United States District Courts 4th Circuit United States District Court (Maryland)
    • December 22, 2020
    ...evidence when deciding whether a preliminary injunction is warranted.” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 725-26 (4th Cir. 2016), vacated on other grounds, __ U.S. __, 137 S.Ct. 1239 (2017)); see Profiles, Inc. v. Bank of Am. Corp., 453 F.......
  • 446 F.Supp.3d 1 (M.D.N.C. 2020), 1:19CV272, Kadel v. Folwell
    • United States
    • Federal Cases United States District Courts 4th Circuit Middle District of North Carolina
    • March 10, 2020
    ...7 and (3) that the improper discrimination caused [him] harm." See G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 718 (4th Cir. 2016), vacated on other grounds, ___ U.S. ___, 137 S.Ct. 1239, 197 L.Ed.2d 460 The Supreme Court recently heard argume......
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19 firm's commentaries
  • Is Agency Deference Waning?
    • United States
    • LexBlog United States
    • December 6, 2016
    ...other transgender students—to use the bathroom associated with his “biological gender.” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 716 (4th Cir. 2016), cert. granted in part, No. 16-273, 2016 WL 4565643 (U.S. Oct. 28, 2016). G.G. argued that the resolution violated Title ......
  • More Than A “Bathroom Mandate”: Gender Identity Discrimination Under Titles VII And IX In The Trump Era
    • United States
    • JD Supra United States
    • February 28, 2017
    ...other significant reason for the Administration’s swift retraction of the prior guidance: G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir.), cert. granted in part, 137 S. Ct. 369, 196 L. Ed. 2d 283 On March 28, 2017, the United States Supreme Court will hear oral argum......
  • Quirky Question #286: Best Practices on Restroom Access and Terminology for Transgender Employees
    • United States
    • JD Supra United States
    • July 26, 2016
    ...to use the boys’ restroom at his elementary school, which the school district initially allowed. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016). But after receiving numerous complaints from concerned parents, the school board held two public meetings to discuss the issue. ......
  • I Meant What I Said: Transgender Student Rights In Connecticut In The Face Of The Latest Federal Court Developments
    • United States
    • JD Supra United States
    • October 12, 2016
    ...use bathroom facilities corresponding with their gender identity rather than their biological sex. G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. April 19, Recent Court Challenges to the Federal Guidance The Dear Colleague Letter and the Fourth Circuit’s decision have sparke......
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15 books & journal articles
  • The Claims of Official Reason: Administrative Guidance on Social Inclusion.
    • United States
    • Yale Law Journal Vol. 128 Nbr. 8, July 2019
    • July 1, 2019
    ...seek to influence legal reasoning in such proceedings with persuasive force. Guidance may properly exercise such nonbinding power. (324.) 822 F.3d 709, 722 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239 (325.) Id. at 720. (326.) Id. at 719, 721. It is telling that both the dissent i......
  • Title IX's reproductive remedies.
    • United States
    • Columbia Journal of Gender and Law Vol. 32 Nbr. 2, March 2017
    • March 22, 2017
    ...7, 213-14, Neal v. Colorado State Univ., No. l:16-cv-00873, (D. Col. 2016). (111) See G. G. ex rel. Grimm v. Gloucester County School Bd., 822 F.3d 709, 723 (4th Cir. 2016) (holding that the 2014 Dear Colleague Letter was entitled to deference), cert, granted, 2016 WL 4565643 (U.S. 2016); T......
  • Respect, Individualism, and Colorblindness.
    • United States
    • Yale Law Journal Vol. 129 Nbr. 6, April 2020
    • April 1, 2020
    ...gender practices, but rather interacts with them in a selective manner."). (262.) G.G. exrel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 730-31 (4th Cir. 2016) (Niemeyer, J., concurring in part and dissenting in part); see id. at 734; see also Obergefell v. Hodges, 135 S. Ct. 258......
  • THE JUDICIAL AND GENERATIONAL DISPUTE OVER TRANSGENDER RIGHTS.
    • United States
    • Stanford Law & Policy Review Vol. 29 Nbr. 1, January 2018
    • January 1, 2018
    ...in favor of the students on their Title IX claim, citing the uncertainty surrounding G.G. ex rel. Grimm v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), vacated, 137 S. Ct. 1239 (2017), and reiterating that the Equal Protection analysis was sufficient to resolve the case. Id......
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