No. 19-1952 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT GAVIN GRIMM Plaintiff-Appellee, v. GLOUCESTER COUNTY SCHOOL BOARD, Defendant-Appellant. On Appeal from the United States District Court for the Eastern District of Virginia Newport News Division BRIEF OF PLAINTIFF-APPELLEE GAVIN GRIMM Eden B. Heilman (VSB No. 93554) Jennifer Safstrom (VSB No. 93746) Nicole Tortoriello (VSB No. 91129) AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 [email protected][email protected][email protected]Joshua A. Block Leslie Cooper AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2593 Fax: (212) 549-2650 [email protected][email protected]Counsel for Plaintiff-Appellee USCA4 Appeal: 19-1952 Doc: 23 Filed: 11/18/2019 Pg: 1 of 68
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UNITED STATES COURT OF APPEALS FOR THE FOURTH … · No. 19-1952 . UNITED STATES COURT OF APPEALS . FOR THE FOURTH CIRCUIT . GAVIN GRIMM. Plaintiff-Appellee, . v. GLOUCESTER COUNTY
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No. 19-1952
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
GAVIN GRIMM
Plaintiff-Appellee,
v.
GLOUCESTER COUNTY SCHOOL BOARD,
Defendant-Appellant.
On Appeal from the United States District Court for the Eastern District of Virginia
Newport News Division
BRIEF OF PLAINTIFF-APPELLEE GAVIN GRIMM
Eden B. Heilman (VSB No. 93554) Jennifer Safstrom (VSB No. 93746) Nicole Tortoriello (VSB No. 91129) AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 [email protected][email protected][email protected]
Joshua A. Block Leslie Cooper AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2593 Fax: (212) 549-2650 [email protected][email protected]
I. Legal Standard. ..............................................................................................26
II. Graduation Did Not Moot Gavin’s Claims for Nominal Damages. ..............26
III. The Board’s Policy Violated the Equal Protection Clause............................29
A. The Board’s Policy Treated Gavin Differently From Other Students Because He Is a Boy Who Is Transgender. ..........................30
B. The Board’s Differential Treatment of Gavin Was Unequal. .............33
C. The Board’s Policy Is Subject to Heightened Scrutiny as Discrimination Based on Transgender Status. ....................................36
D. The Board’s Policy Is Subject to Heightened Scrutiny as Discrimination Based on Gender. .......................................................37
E. The Board’s Discrimination Against Gavin Fails Heightened Scrutiny. ..............................................................................................39
F. The Board’s Discrimination Against Gavin Fails Rational Basis Review. ................................................................................................42
IV. The Board’s Policy Violated Title IX. .........................................................45
V. The Board’s Refusal to Update Gavin’s Transcript Violates Title IX and the Equal Protection Clause. ..........................................................................51
VI. The Board Is Not Entitled to Summary Judgment. ......................................55
A Helping Hand, LLC v. Baltimore Cty., MD, 515 F.3d 356 (4th Cir. 2008) ..............................................................................55
Adams v. Sch. Bd. of St. Johns Cty., Fla., 318 F. Supp. 3d 1293 (M.D. Fla. 2018) ...................................................... passim
Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015) ........................37
Bains LLC v. Arco Prod. Co., Div. of Atl. Richfield Co., 405 F.3d 764 (9th Cir. 2005) ..............................................................................28
Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t. of Educ., 208 F. Supp. 3d 850(S.D. Ohio) .................................................................. 30, 37
Bennett v. Ky. Dep’t of Educ., 470 U.S. 656 (1985) ................................................50
Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995) .....................................................37
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ...........................47
Cannon v. University of Chicago, 441 U.S. 677 (1979) ..........................................51
Chapin Furniture Outlet Inc. v. Town of Chapin, 252 F. App’x 566 (4th Cir. 2007) ......................................................................28
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ............................................................................................43
City of Los Angeles. v. Patel, 135 S. Ct. 2443(2015) ..............................................31
Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421 (4th Cir. 2007) .............................................................................27
Daniel v. Paul, 395 U.S. 298 (1969) .......................................................................34
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) .......................................46
Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016) ...................................30
Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3rd Cir. 2018) ................................................................. 34, 41, 44
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) ...................................54
Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248 (11th Cir. 2017) ............................................................. 24, 27, 28
Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) .......................37
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) ....................................51
Johnston v. University of Pittsburgh of the Com. Sys. of Higher Educ., 97 F. Supp. 3d 657 (W.D. Pa. 2015) ............................................................ 30, 54
Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019) .................................................36
Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006) ...................................................27
M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704 (D. Md. 2018) ............................................................ passim
Marks v. City Council of City of Chesapeake, Va., 723 F. Supp. 1155 (E.D. Va. 1988) ....................................................................27
Minn. Lawyers Mut. Ins. Co. v. Batzli, 442 F. App’x 40 (4th Cir. 2011) .........................................................................27
Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) ..........................................38
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ............................................ 39, 43, 44
Parents for Privacy v. Dallas Sch. Dist. No. 2, 326 F. Supp. 3d 1075 (D. Or. 2018) ...................................................................45
Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496 (1982) ............................................................................................54
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) ................................................................................................50
Potomac Elec. Power Co. v. Elec. Motor & Supply, Inc., 262 F.3d 260 (4th Cir. 2001) ..............................................................................28
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ................................................45
Ret. Comm. of DAK Americas LLC v. Brewer, 867 F.3d 471 (4th Cir. 2017) ..............................................................................26
Robbins v. Bentsen, 41 F.3d 1195 (7th Cir. 1994) ...................................................50
Romer v. Evans, 517 U.S. 620 (1996) .....................................................................43
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) ...................................... 39, 42
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .......................................................29
Sweatt v. Painter, 339 U.S. 629 (1950) ...................................................................33
Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) .........................................................38
United States v. Biocic, 928 F.2d 112 (4th Cir. 1991) .............................................42
United States v. Virginia, 518 U.S. 515 (1996) ............................................... passim
United States v. Windsor, 133 S. Ct. 2675 (2013) ...................................................52
W.V. Dep’t of Health & Human Resources v. Sebelius, 649 F.3d 217 (4th Cir. 2011) ..............................................................................50
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) .................................................................... passim
Gender identity is the medical term for a person’s deeply felt, inherent sense
of belonging to a particular gender. JA 174.1 Most people have a gender identity
that matches the sex they were designated at birth. Id. But people who are
transgender have a gender identity that differs from their birth-assigned sex.
JA 175. Boys and girls who are transgender are people who consistently,
persistently, and insistently do not identify with the sex assigned to them at birth.
Id.
By ninth grade, most of Gavin’s friends knew about his gender identity, and
he lived openly as a boy when socializing away from home and school. JA 110.
But with the onset of puberty, Gavin began to suffer debilitating levels of distress
from gender dysphoria, a condition in which transgender individuals experience
clinically significant distress caused by the incongruence between their gender
identity and the sex assigned to them at birth. JA 111, 175. In April of 2014, Gavin
1 In support of summary judgment, Gavin submitted the expert report and declaration of Dr. Melinda Penn, a pediatric endocrinologist who specializes in treating transgender youth. JA 172-82. Her testimony is relevant to provide background information about the treatments provided to transgender youth and the effects of those treatments on their physiology and anatomy.
The Board’s designated expert did not dispute that Dr. Penn’s report is consistent with the recommendations of the American Academy of Pediatrics (“AAP”) and the Endocrine Society, or that treatments in accordance with those recommendations are provided to transgender youth throughout the country. JA 350-51. He simply disagreed with those recommendations and accused the AAP of promoting an “ideology of transgenderism.” JA 350.
Collins did not think he was making a commitment that transgender students
could also use the same locker rooms as other boys and girls. His decision was
“focused on the restroom specifically.” JA 374.
The School Board Intervenes
Gavin used the same restrooms as other boys for seven weeks without
incident: “Over the course of those seven weeks, I had a single conversation with a
student in the restroom,” Gavin recalls. “He asked me if I liked his socks, and I
said yes.” JA 115.
Although Gavin never encountered any problems while using the restroom,2
some adults in the community contacted Principal Collins, Superintendent
Clemons, and members of the Board to demand that the transgender student (who
was not publicly identified as Gavin until later) be barred from the boys’
restrooms. JA 160-69. One student also spoke to Principal Collins in person. JA
161.
2 The Board’s inflammatory assertion that Gavin “was involved in an altercation” (Def.’s Br. 9) is not supported by the record. The Board relies on a teacher’s email (JA 1211) that is hearsay and cannot be considered on summary judgment. According to the email, Gavin and another student were “yelling” in class, but Gavin testified that he had no intention of physically fighting. JA 873, 1211. Gavin provided undisputed testimony that the yelling began because a school bully was loudly talking about Gavin’s genitals in class and calling Gavin “disgusting” and “freaky.” JA 871-72.
None of the complaints involved any actual instance in which someone was
in the restroom when Gavin was present and felt that their privacy had been
violated. JA 160-69
Superintendent Clemons contacted the Board on October 22, 2014, and told
them there were two issues he wanted to discuss “in closed session,” including “a
transgender issue.” JA 759. At the closed session, the Board decided not to take
any immediate action to overrule Principal Collins. JA 762, 765. But two days
before the Board’s November 11, 2014 meeting, Board member Carla Hook
proposed the following policy:
Whereas the GCPS recognizes that some students question their gender identities, and Whereas the GCPS encourages such students to seek support and advice from parents, professionals and other trusted adults, and Whereas the GCPS 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 GCPS 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.
to pass the new policy. JA 141-42. With Gavin in attendance, speakers pointedly
referred to him as a “young lady.” JA 116, 142. One speaker called Gavin a
“freak” and compared him to a person who thinks he is a “dog” and wants to
urinate on fire hydrants. Id. “Put him in a separate bathroom if that’s what it’s
going to take,” said another. Id. The Board meetings made Gavin feel that he had
been turned into a public spectacle in front of the entire community. JA 116.
The Board passed the policy by a 6-1 vote. JA 775.
The following day, Principal Collins told Gavin he could no longer use the
same restrooms as other boys and would be punished if he did so. JA 116. In a
letter to Gavin’s parents, Collins wrote that, because of the Board’s new policy,
“Gavin will no longer be able to use the male restrooms at Gloucester High School
effectively immediately.” JA 779.3
The “Alternative Private Facilities”
There was a period of time after the Board passed its restroom policy before
the new single-user restrooms were constructed. JA 117. At one point during that
time, Gavin stayed after school for an event. Id. When Gavin realized he had to use
the restroom and the nurse’s room was locked, he broke down sobbing in the
3 Collins privately wondered “how we would come to know that a student was transgender” and whether this is “an enforceable policy.” JA 403-04. He concluded “it would be difficult to enforce.” JA 404.
mooted, the action is not moot if the plaintiff may be ‘entitled to at least nominal
damages.’” Rendelman, 569 F.3d at 187 (quoting Covenant Media of S.C., LLC v.
City of N. Charleston, 493 F.3d 421, 429 n.4 (4th Cir. 2007)).4
The Board asks this Court to follow a recent 7-5 decision from the en banc
Eleventh Circuit in Flanigan’s, 868 F.3d at 1263-64, which held that a challenge to
a city ordinance was moot despite the plaintiff’s request for nominal damages.
Def.’s Br. 58. But even if this panel were free to disregard circuit precedent,
Gavin’s claims would not be moot under the Flanigan’s standard either.
“The term ‘nominal damages’ describes two types of awards: (1) those damages recoverable where a legal right is to be vindicated against an invasion that has produced no actual, present loss of any kind; and (2) the very different allowance made when actual loss or injury is shown, but the plaintiff fails to prove the amount of damages.”
Minn. Lawyers Mut. Ins. Co. v. Batzli, 442 F. App’x 40, 51 (4th Cir. 2011)
(quoting 22 Am. Jur. 2d Damages § 8 (2003)). The “nominal damages” in
Flanigan’s fell into the first category: The plaintiffs challenged an ordinance that
was repealed before it was ever applied to them. Flanigan’s reasoned that the
4 Gavin’s graduation also does not moot his request for a retrospective declaratory judgment, which is intertwined with the damages claim. See Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th Cir. 2006); Marks v. City Council of City of Chesapeake, Va., 723 F. Supp. 1155, 1160 (E.D. Va. 1988), aff’d, 883 F.2d 308 (4th Cir. 1989).
v. Elec. Motor & Supply, Inc., 262 F.3d 260, 266 (4th Cir. 2001) (explaining that
where “some amount of damage likely is present … a nominal amount of damage
is adequate to support liability”).
Article III does not foreclose such relief. “A plaintiff may demand payment
for nominal damages no less than he may demand payment for millions of dollars
5 The result in Flanigan’s might be more appropriately characterized as a determination that the plaintiff never established standing to bring a nominal damages claim in the first place. Cf. Chapin Furniture Outlet Inc. v. Town of Chapin, 252 F. App’x 566, 571 (4th Cir. 2007).
A. The Board’s Policy Treated Gavin Differently From Other Students Because He Is a Boy Who Is Transgender.
On its face the Board’s policy explicitly targets transgender students for
different treatment. The policy begins with the preface, “Whereas the [Board]
recognizes that some students question their gender identities.” The policy then
concludes with the declaration, “therefore,” the use of common restrooms “shall be
limited to the corresponding biological genders” and students with “gender identity
issues” will be provided “an alternative … facility.” JA 768. The express purpose
of the policy was to stop the students it describes as having “gender identity
issues” from using the common restrooms and move them to “an alternative …
facility.” Id.
The Board nevertheless asserts that the policy treats everyone “the same”
because every student can use either the restroom associated with their “biological
gender” or a single-user restroom. Def.’s Br. 44. But, as the Board’s 30(b)(6)
Cir. Aug. 24, 2018); M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 717-26 (D. Md. 2018); Evancho v. Pine Richland Sch. Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t. of Educ., 208 F. Supp. 3d 850, 856-58 (S.D. Ohio), stay denied sub nom., Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016).
The Board continues to cite Johnston v. University of Pittsburgh of the Com. Sys. of Higher Educ., 97 F. Supp. 3d 657 (W.D. Pa. 2015). But the overwhelming majority of courts over the past four years have rejected Johnston’s analysis. See Adams, 318 F. Supp. 3d at 1319.
have to endure that as the price of attending their public school”), cert. denied, 139
S. Ct. 2636 (2019).7
Although the Board argued below that Gavin could not prevail without
expert testimony, the Board’s counsel eventually conceded that Gavin’s testimony
was sufficient for purposes of nominal damages, and the Board does not raise the
issue on appeal. JA 1184. No expert testimony is necessary to establish that “it is
humiliating to be segregated from the general population.” G.G., 853 F.3d at 730
(Davis, J., concurring).
Second, the single-stall restrooms were also unequal because they were not
equally accessible as a practical matter. There were no single-stall restrooms
available for Gavin in the football stadium. JA 118. If Gavin had to use the
restroom while watching a football game, he had to leave the stadium and be
driven home or to a nearby hardware store. Id.
Even inside the school building, there were only three single-user restrooms,
and they were all clustered together near A Hall. Gavin testified that the single-
stall restrooms were too far away for him to use between classes on B Hall, C Hall,
and D Hall, and that he would have to miss an inordinate amount of class time to
7 Indeed, the Board’s designated expert witness testified that one of the benefits of excluding transgender students from using restrooms that align with their gender identity is that it communicates a message to the student’s peers that gender transition is not normal. JA 691. He also believes that allowing Gavin to use the same restrooms as other boys could spread a “social contagion.” JA 697.
they are a minority with relatively little political power.” Evancho, 237 F. Supp. 3d
at 288; accord JA 59-60; M.A.B., 286 F. Supp. 3d at 719-22; Highland, 208 F.
Supp. 3d at 873-74; Adkins v. City of New York, 143 F. Supp. 3d 134, 139-40
(S.D.N.Y. 2015).8
D. The Board’s Policy Is Subject to Heightened Scrutiny as Discrimination Based on Gender.
By singling out Gavin for different and unequal treatment, the Board
discriminated against him based on gender under the Equal Protection Clause. As a
boy who is transgender, Gavin did “not conform to some people’s idea about who
is a boy.” G.G., 853 F.3d at 730 (Davis, J., concurring). But generalizations that
are accurate for most boys cannot justify discrimination against boys who fall
“outside the average description.” Virginia, 518 U.S. at 550. The Board’s policy
“is inherently based upon a sex-classification,” Whitaker, 858 F.3d at 1051, and
8 The only circuit precedents rejecting heightened scrutiny are Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977), which is no longer good law, and Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995), which noted that “[r]ecent research concluding that sexual identity may be biological suggests reevaluating Holloway” but concluded that the plaintiff’s “allegations are too conclusory to allow proper analysis of this legal question.”
There is no exception to heightened scrutiny for gender discrimination based
on physiological or biological characteristics. See Tuan Anh Nguyen v. INS, 533
U.S. 53, 70, 73 (2001) (applying heightened scrutiny and upholding policy because
it imposed only a “minimal” burden was not “marked by misconception and
prejudice” or “disrespect”).
There is also no exception to heightened scrutiny for sex-separated programs
and facilities. In arguing for a lower standard of review, the Board relies on dicta
from Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993), which discussed sex-
separated restrooms as a context in which equal protection might permit “separate
but equal” facilities. But, as discussed supra, the uncontested facts establish that
the “alternative” single-stall restrooms at Gloucester High School were both
separate and unequal.10
9 The Supreme Court will decide in R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18-107, whether discrimination against transgender employees is discrimination because of sex under Title VII of the Civil Rights Act of 1964. But gender discrimination under the Fourteenth Amendment is not constrained by the narrower scope of statutory protections. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 732 (1982).
10 To the extent that Faulkner suggested that sex-separated facilities are subject to a different standard, that suggestion was abrogated by Virginia, which explicitly
E. The Board’s Discrimination Against Gavin Fails Heightened Scrutiny.
To survive heightened scrutiny, the Board must show its policy serves an
important governmental interest and “that the discriminatory means employed”
“are substantially related to the achievement of those objectives.” Sessions v.
Morales-Santana, 137 S. Ct. 1678, 1690 (2017). “Moreover, the classification
must substantially serve an important governmental interest today, for in
interpreting the equal protection guarantee, we have recognized that new insights
and societal understandings can reveal unjustified inequality that once passed
unnoticed and unchallenged.” Id. (quoting Obergefell v. Hodges, 135 S. Ct. 2584,
2603 (2015)) (cleaned up). “The burden of justification is demanding and it rests
entirely on the [government].” Virginia, 518 U.S. at 533.
The Board failed to present any evidence to carry its demanding burden. The
Board’s 30(b)(6) witness testified that the policy is based solely on a privacy
interest in preventing exposure to nudity around students with different
physiological sex characteristics. JA 464, 479. 11 But the undisputed evidence
rejected the “substantively comparable” standard employed in the VMI and Faulkner cases. Virginia, 518 U.S. at 529.
11 The Board’s 30(b)(6) witness did not assert that “a secondary governmental
interest was student safety.” Def.’s Br. 12. When asked whether the policy was also justified by student safety, the witness said “each individual board member
student privacy related to nudity but “I can’t think of any other off the top of my
head.” JA 472. When confronted with the same question by the district court, the
Board’s counsel conceded that that there is no privacy concern related to nudity
when a transgender student walks into a stall and shuts the door. JA 1187.12
Although the Board attempts to draw support from Virginia, 518 U.S. at 550
n.19 (see Def.’s Br. 33), the case only undermines its argument. The parties in
Virginia agreed that including women in the Virginia Military Institute would
require adjustments such as “locked doors and coverings on windows.” Id. at 588.
The Court nevertheless concluded that these minor changes to provide “privacy
from the other sex” would not disrupt the essential nature of the program and could
not justify excluding women from admission. Id. at 550 n.19. The teaching of the
case is that asserted “privacy” interests cannot justify overbroad exclusions or
unequal treatment. See id. at 555 n.20.
12 This as-applied challenge is limited to restrooms, not locker rooms. Indeed, when Gavin’s attorneys attempted to ask the 30(b)(6) witness about how the Board’s policy protected privacy in locker rooms, the Board’s counsel declared the questions to be irrelevant and instructed the witness not to answer. JA 481-83.
Even in the context of locker rooms, however, courts have found that transgender students already share the same locker rooms as other boys and girls without any actual exposure to nudity taking place. There are many non-discriminatory ways to enhance privacy for all students without banishing transgender students from the facilities. See Boyertown, 897 F.3d at 531 (privacy stalls and single-user facilities available for any student); M.A.B., 286 F. Supp. 3d at 724 (single-user restrooms and locker room stalls).
justify a policy that “demeans or stigmatizes those whose own liberty is then
denied.” Obergefell, 135 S. Ct. at 2602. Excluding transgender people from using
the same restrooms as everyone else prevents them “from participating fully in our
society, which is precisely the type of segregation that the Fourteenth Amendment
cannot countenance.” Bostic, 760 F.3d at 384.
IV. The Board’s Policy Violated Title IX.
The district court also correctly held that the Board’s policy discriminated
against Gavin on the basis of sex, in violation of Title IX. That holding is
consistent with rulings from the Seventh Circuit and the overwhelming majority of
district courts.13 This Court should affirm.
As the district court recognized, discriminating against someone because
they are transgender inherently constitutes sex discrimination under Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). “By definition, a transgender
individual does not conform to the sex-based stereotypes of the sex that he or she
was assigned at birth,” Whitaker, 858 F.3d at 1048, and “transitioning status
constitutes an inherently gender non-conforming trait,” EEOC v. R.G. & G.R.
13 See Whitaker, 858 F.3d at 1050-54; Parents for Privacy v. Dallas Sch. Dist. No. 2, 326 F. Supp. 3d 1075, 1106 (D. Or. 2018), appeal docketed, 18-35708 (9th Cir. Aug. 23, 2018); Adams, 318 F. Supp. 3d at 1320-25; M.A.B., 286 F. Supp. 3d at 712-17.
The restroom regulation does not—and cannot—create an exception to the
statute’s ban on “discrimination.” Section 1681(a) categorically provides that no
person shall “be excluded from participation in, be denied the benefits of, or be
subjected to discrimination” at school. 20 U.S.C. § 1681(a). “[T]he term
‘discriminate against’ refers to distinctions or differences in treatment that injure
protected individuals.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59
(2006). When Congress intended to completely lift the statute’s prohibition on
“discrimination” it did so explicitly by stating that that the prohibition on
discrimination “shall not apply.” 20 U.S.C. § 1681(a)(2)-(9). Unlike those statutory
exemptions, the restroom regulation authorizes schools to “provide separate toilet
facilities … on the basis of sex,” while leaving the statutory prohibition on
“discrimination” undisturbed.14 When a school provides restrooms on the basis of
sex, it must do so in a manner that does not subject individual students to unequal
treatment that causes harm.
Instead of harmonizing the regulation with the statutory text, the Board
asserts that the “plain meaning” of the regulation allows schools to stigmatize and
discriminate against transgender students by subjecting them to different and
14 Similarly, the statutory provision authorizing schools to “maintain[] separate living facilities for the different sexes,” 20 U.S.C. § 1686, does not declare that the prohibition on discrimination “shall not apply.”
schools and employers with a transcript stating that his sex was “female,” which
“negates [his] male identity and marks [him] as different from other boys.” JA 121.
Cf. United States v. Windsor, 133 S. Ct. 2675, 2694 (2013) (explaining that refusal
to recognize marriages of same-sex couples “tells those couples, and all the world,
that their otherwise valid marriages are unworthy of federal recognition”). The
Board singled out Gavin for this different treatment because Gavin is transgender
and does not conform to the Board’s stereotypes and overbroad generalizations
about gender and physiology.
The Board has no legal basis for asserting that Gavin’s court order and birth
certificate were not issued in conformance with Virginia law. The Board argues
that the Circuit Court for Gloucester County was wrong to issue an order legally
declaring Gavin’s sex to be male because the Board thinks that Gavin’s chest-
reconstruction surgery does not legally qualify as a “surgical gender reassignment
procedure.” Def.’s Br. 56. But the Board offers no legal or factual support for that
assertion. To the contrary, the DMS-V specifically includes “mastectomy” as an
example of “gender reassignment surgery.” JA 1117.15
15 The Board’s 30(b)(6) witness specifically disavowed any claim that Gavin’s chest-reconstruction surgery was legally insufficient as “not within our purview as a school board to determine.” JA 515.
interpretation of Virginia law regarding what information should be included on
birth certificates issued to the public. But the Board does not explain how that
disagreement has any relevance for which restroom Gavin uses at school or what
sex designation is on his transcript. The Board merely offers post hoc excuses for
its decision to disregard Gavin’s birth certificate, not a logical reason for doing so.
Finally, the Board argues that Gavin was required to “exhaust” his Title IX
and equal protection claims by requesting a FERPA hearing. Def.’s Br. 56. No
such requirement exists. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
255 (2009) (Title IX); Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 516
(1982) (42 U.S.C. § 1983).16
The Board erroneously cites to Johnston as dismissing an equal protection
claim “for not updating school records because the plaintiff did not comply with
school policy in requesting a change.” Def.’s Br. 58. There was no claim in
Johnston based on failure to update student records. The case simply noted that the
transgender plaintiff’s school records had not been updated because the school
required “a court order or a new birth certificate reflecting Plaintiff’s current
16The district court rejected the Board’s argument that FERPA provides the exclusive remedy for claims related to school records. JA 66-69. The Board does not raise that argument on appeal.
Eden B. Heilman (VSB No. 93554) Jennifer Safstrom (VSB No. 93746) Nicole Tortoriello (VSB No. 91129) AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 [email protected][email protected][email protected]
Joshua A. Block Leslie Cooper AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 [email protected][email protected]