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We recently wrote on a Virginia District Court’s opinion dismissing a Title IX claim and denying a request for a preliminary injunction brought by a transgender student. As a refresher from that article, G.G., a transgender boy, sought 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. G.G. alleged 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. An appeal followed. The Fourth Circuit concluded that the district court did not accord appropriate deference to the relevant Department of Education regulations and reversed the dismissal of G.G.’s Title IX claim. Because it concluded that the district court used the wrong evidentiary standard in assessing G.G.’s motion for a preliminary injunction, it also vacated the denial and remanded for consideration under the correct standard.

At the heart of this appeal was whether Title IX required schools to provide transgender students access to restrooms congruent with their gender identity.  In its September 17, 2015 order, the district court reasoned that Title IX prohibits discrimination on the basis of sex and not on the basis of other concepts such as gender, gender identity, or sexual orientation. The district court observed that the regulations implementing Title IX specifically allow schools to provide separate restrooms on the basis of sex. The district court concluded that G.G.’s sex was female and that requiring him to use the female restroom facilities did not impermissibly discriminate against him on the basis of sex in violation of Title IX. With respect to G.G.’s request for an injunction, the district court found that G.G. had not made the required showing that the balance of equities was in his favor. The district court found that requiring G.G. to use the unisex restrooms during the pendency of this lawsuit was not unduly burdensome and would result in less hardship than requiring other students made uncomfortable by G.G.’s presence in the boys’ restroom to themselves use the unisex restrooms.

The 4th Circuit addressed first the district court’s dismissal of G.G.’s Title IX claim.  To allege a violation of Title IX, G.G. must allege (1) that he was excluded from participation in an education program because of his sex; (2) that the educational institution was receiving federal financial assistance at the time of his exclusion; and (3) that the improper discrimination caused G.G. harm.  Not all distinctions on the basis of sex are impermissible under Title IX. For example, Title IX permits the provision of separate living facilities on the basis of sex.  The Department’s regulations implementing Title IX permit the provision of separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex

The district court declined to afford deference to the Department’s interpretation of the relevant regulation. The district court found the regulation to be unambiguous because “[i]t clearly allows the School Board to limit bathroom access ‘on the basis of sex,’ including birth or biological sex.” G.G. v. Gloucester Cty. Sch. Bd., No. 4:15cv54, 2015 WL 5560190, at *8 (E.D. Va. Sept. 17, 2015). The district court also found, alternatively, that the interpretation advanced by the Department was clearly erroneous and inconsistent with the regulation. The district court reasoned that, because “on the basis of sex” means, at most, on the basis of sex and gender together, it cannot mean on the basis of gender alone.

A court will not accord an agency’s interpretation of an unambiguous regulation deference.  Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. The 4th Circuit concluded that the regulation was susceptible to more than one plausible reading because it permits both the Board’s reading—determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity.  The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.

Because it concluded that the regulation was ambiguous as applied to transgender individuals, the Department’s interpretation was entitled to deference unless the Board demonstrated that the interpretation was plainly erroneous or inconsistent with the regulation or statute.  The 4th Circuit’s review of the agency’s interpretation in this context was therefore highly deferential.    The court concluded that the Department’s interpretation of how the regulation and its underlying assumptions should apply to transgender individuals was not plainly erroneous or inconsistent with the text of the regulation. The regulation was silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”

Finally, the court considered whether the Department’s interpretation of the regulation was the result of the agency’s fair and considered judgment. Even a valid interpretation will not be accorded deference where it conflicts with a prior interpretation, where it appears that the interpretation is no more than a convenient litigating position, or where the interpretation is a post hoc rationalization.  Although the Department’s interpretation is novel because there was no interpretation as to how the regulation applied to transgender individuals before January 2015, “novelty alone is no reason to refuse deference” and does not render the current interpretation inconsistent with prior agency practice.  The court concluded that the Department’s interpretation of its own regulation, as it relates to restroom access by transgender individuals, was entitled to deference and was to be accorded controlling weight in this case. The court reversed the district court’s contrary conclusion and its resultant dismissal of G.G.’s Title IX claim.

G.G. also asked the appellate court to reverse the district court’s denial of the preliminary injunction he sought which would have allowed him to use the boys’ restroom during the pendency of this lawsuit. The district court analyzed G.G.’s request only with reference to the third factor—the balance of hardships—and found that the balance of hardships did not weigh in G.G.’s favor. The 4th Circuit found that the district court misstated the evidentiary standard governing preliminary injunction hearings. Preliminary injunctions are governed by less strict rules of evidence. Thus, although admissible evidence may be more persuasive than inadmissible evidence in the preliminary injunction context, it was error for the district court to summarily reject G.G.’s proffered evidence because it may have been inadmissible at a subsequent trial.  Additionally, the district court completely excluded some of G.G.’s proffered evidence on hearsay grounds. The seven of our sister circuits to have considered the admissibility of hearsay evidence in preliminary injunction proceedings have decided that the nature of evidence as hearsay goes to “weight, not preclusion” and have permitted district courts to “rely on hearsay evidence for the limited purpose of determining whether to award a preliminary injunction.

Because the district court evaluated G.G.’s proffered evidence against a stricter evidentiary standard than was warranted by the nature and purpose of preliminary injunction proceedings to prevent irreparable harm before a full trial on the merits, the district court was “guided by erroneous legal principles.” The court therefore concluded that the district court abused its discretion when it denied G.G.’s request for a preliminary injunction without considering G.G.’s proffered evidence.  The court vacated the district court’s denial of G.G.’s motion for a preliminary injunction and remanded the case to the district court for consideration of G.G.’s evidence in light of the evidentiary standards set forth in the opinion.

Those institutions bound by the 4th Circuit must give this opinion careful credence and follow its dictates, although the dissent provides some contrary authority to reply upon.  For those institutions outside of the 4th Circuit’s jurisdiction who want to continue to fight this battle and the Department’s interpretation, the dissent and the district court opinion provide legal authority to challenge any Title IX and preliminary injunction suits.