G.G. v. Gloucester Cnty. Sch. Bd.

• Decision Date: 17 September 2015
• Docket Number: Civil No. 4:15cv54.
• Citation: 132 F.Supp.3d 736
• Court: U.S. District Court — Eastern District of Virginia
• Parties: G.G., by his next friend and mother, Deirdre GRIMM, Plaintiffs, v. GLOUCESTER COUNTY SCHOOL BOARD, Defendant.

132 F.Supp.3d 736

G.G., by his next friend and mother, Deirdre GRIMM, Plaintiffs,

v.GLOUCESTER COUNTY SCHOOL BOARD, Defendant.

Civil No. 4:15cv54.

United States District Court, E.D. Virginia, Newport News Division.

Signed Sept. 17, 2015.

Gail Marie Deady, American Civil Liberties Union of Virginia, Rebecca Kim Glenberg, ACLU of Virginia, Richmond, VA, Joshua Abraham Block, Leslie Jill Cooper, American Civil Liberties Union, New York, NY, for Plaintiffs.

David P. Corrigan, Jeremy David Capps, Maurice Scott Fisher, Jr., Harman Claytor Corrigan & Wellman, Richmond, VA, for Defendant.

MEMORANDUM OPINION

ROBERT G. DOUMAR, Senior District Judge.

This matter is before the Court on Plaintiff G.G.'s challenge to a recent resolution (the "Resolution") passed by the Gloucester County School Board (the "School Board") on December 9, 2014. This Resolution addresses the restroom and locker room policy for all students in Gloucester County Public Schools. Specifically, G.G. brings claims under both the Equal Protection Clause of the Fourteenth Amendment (the "Equal Protection Clause") and Title IX of the Education Amendments of 1972 ("Title IX"), seeking to contest the School Board's restroom policy under the Resolution.

On June 11, 2015, G.G. filed a Motion for Preliminary Injunction, ECF No. 11, and on July 7, 2015, the School Board filed a Motion to Dismiss, ECF No. 31. On July 27.2015. the parties appeared before the Court and argued their respective positions as to both motions. ECF No. 47. At that hearing, the Court took both motions under advisement. From the bench, the Court GRANTED the Motion to Dismiss as to Count 11, G.G.'s claim under Title IX. On September 4, 2015, the Court DENIED the Motion for Preliminary Injunction. ECF No. 53. This opinion memorializes the reasons for these orders.

I. FACTUAL AND PROCEDURAL HISTORY

The following summary is taken from the factual allegations contained in Plaintiffs Complaint, which, for purposes of ruling on the Motion to Dismiss as to Count II, the Court accepts as true. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d 250, 253 (4th Cir.2009).

This case arises from a student's challenge to a recent restroom policy passed by the School Board. Plaintiff G.G. was born in Gloucester County on [redacted], 1999 and designated female.¹ Compl. ¶¶ 12, 14. However, at a very young age, G.G. did not feel like a girl. Id. ¶ 16. Before age six, Plaintiff "refused to wear girl clothes." Id. ¶ 17. Starting at approximately age twelve, "G.G. acknowledged his male gender identity to himself."² Id. ¶ 18. In 2013–14, during G.G.'s freshman year of high school, most of his friends were aware that he identified as male. Id. ¶¶ 18–19. Furthermore, away from home and school, G.G. presented himself as a male. Id. ¶ 19.

During G.G.'s freshman year of high school, which began in September 2013, he experienced severe depression and anxiety related to the stress of concealing his gender identity from his family. Id. ¶ 20. This is the reason he alleges that he did not attend school during the spring semester of his freshman year, from January 2014 to June 2014, and instead took classes through a home-bound program. Id. In April 2014, G.G. first informed his parents that he is transgender, that is, he believed that he was a man.³ Id. ¶ 21. Sometime after informing his parents that he is transgender in April 2014, G.G., at his own request, began to see a psychologist, who subsequently diagnosed him with Gender Dysphoria.⁴ Id. ¶ 21. As part of G.G.'s treatment, his psychologist recommended that G.G. begin living in accordance with his male gender identity in all respects. Id. ¶ 23. The psychologist provided G.G. with a "Treatment Documentation Letter" that confirmed that "he was receiving treatment for Gender Dysphoria and that, as part of that treatment, he should be treated as a boy in all respects, including with respect to his use of the restroom." Id. The psychologist also recommended that G.G. "see an endocrinologist and begin hormone treatment." Id. ¶ 26.

Subsequently, G.G. sought to implement his psychologist's recommendation. Id. ¶ 25. In July 2014, G.G. petitioned the Circuit Court of Gloucester County to change his legal name to his present masculine name and, the court granted his petition. Id. At his own request, G.G.'s new name is used for all purposes, and his friends and family refer to him using male pronouns. Id. Additionally, when out in public, G.G. uses the boys' restroom. Id.

G.G. also sought to implement his lifestyle transition at school. In August 2014, G.G. and his mother notified officials at Gloucester High School that G.G. is transgender and that he had changed his name. Id. 27. Consequently, officials changed school records to reflect G.G.'s new masculine name. Id. Furthermore, before the beginning of the 2014–15 school year, G.G. and his mother met with the school principal and guidance counselor to discuss his social transition. Id. ¶ 28. The school representatives allowed G.G. to email teachers and inform them that he preferred to be addressed using his new name and male pronouns. Id. Being unsure how students would react to his transition, G.G. initially agreed to use a separate bathroom in the nurse's office. Id. ¶ 30. G.G. was also permitted to continue his physical education requirement through his home school program. Id. ¶ 29. Consequently, G.G. "has not and does not intend to use a locker room at school." Id.

However, after 2014–15 school year began, G.G. found it stigmatizing to use a separate restroom. Id. ¶ 31. G.G. requested to use the male restroom. Id. On or around October 20, 2014, the school principal agreed to G.G.'s request. Id. ¶ 32. For the next seven weeks, G.G. used the boys' restroom. Id.

Some members of the community disapproved of G.G.'s use of the men's bathroom when they learned of it. Id. ¶ 33. Some of these individuals contacted members of the School Board and asked that G.G. be prohibited from using the men's restroom. Id. Shortly before the School Board's meeting on November 11, 2014, one of its members added an item to the agenda, titled "Discussion of Use of Restrooms/Locker Room Facilities," along with a proposed resolution. Id. ¶ 34. This proposed resolution stated as follows:

Whereas the [Gloucester County Public Schools] recognizes that some students question their gender identities, and

Whereas the [Gloucester County Public Schools] encourages such students to seek support, advice, and guidance from parents, professionals and other trusted adults, and

Whereas the [Gloucester County Public Schools] seeks to provide a safe learning environment for all students and to protect the privacy of all students, therefore

It shall be the practice of the [Gloucester County Public Schools] to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.

Id. ¶ 34. At the meeting, a majority of the twenty-seven people who spoke were in favor of the proposal. Id. ¶ 37. Some proponents argued that transgender students' use of the restrooms would violate the privacy of other students and might "lead to sexual assault in the bathrooms." Id. It was suggested that a non-transgender boy could come to the school in a dress and demand to use the girls' restroom. Id. G.G. addressed the group and spoke against the proposed resolution and thus identified himself to the entire community. Id. ¶ 38. At the end of the meeting, the School Board voted 4–3 to defer a vote on the policy until its meeting on December 9, 2014. Id. ¶ 39.

On December 3, 2014, the School Board issued a news release stating that regardless of the outcome, it intended to take measures to increase privacy for all students using school restrooms, including "expanding partitions between urinals in male restrooms"; "adding privacy strips to the doors of stalls in all restrooms"; and "designat[ing] single-stall, unisex restrooms, similar to what's in many other public spaces." Id. ¶ 41. On December 9, 2014, the School Board held a meeting to vote on the proposed resolution. Before the vote was conducted, a Citizens' Comments Period was held to allow a discussion on the proposed resolution. Id. Again, a majority of the speakers supported the resolution. Id. ¶ 42. Speakers again raised concerns about the privacy of other students. Id. After thirty-seven people spoke during the Citizens' Comment Period, the School Board voted 6–1 to pass the Resolution. Id. ¶ 43.

On December 10, 2015, the day after the School Board passed the Resolution, the school principal informed G.G. that he could no longer use the boys' restroom and would be disciplined if he did. Id. ¶ 45.

Since the adoption of the restroom policy, certain physical improvements have been made to the school restrooms at Gloucester High School. The school has installed three unisex single-stall restrooms. Id. ¶ 47. The school has also raised the doors and walls around the bathroom stalls so that students cannot see into an adjoining stall. Id. Additionally, partitions were installed between the urinals in the boys' restrooms. Id.

Sometime after the actions of the School Board, G.G. began receiving hormone treatment in December 2014. Id. ¶ 26 These treatments have deepened his voice, increased the growth of his facial hair, and given him a more masculine appearance. Id.

It is alleged that "[u]sing the girls' restroom is not possible for G.G." Id. 46. G.G. alleges that prior to his treatment for Gender Dysphoria, girls and women who encountered G.G. in female restrooms would react negatively because of his masculine appearance; that in eighth and ninth grade, the period from September 2012 to June 2014, girls at school would ask him to leave the female restroom; and that use of the girls' restroom would also cause G.G. "severe psychological stress" and...