Does Sex Discrimination Include Gender Identity: Courts in the Fourth Circuit Weigh in on the Question
Rena M. Lindevaldsen*
The Fourth Circuit Court of Appeals finds itself in the mix of a handful of recent cases—including four from lower courts within the Fourth Circuit—challenging governmental decisions on how to treat transgender individuals. One case from the District of Maryland resulted in a nationwide injunction against President Trump’s decision to prohibit transgender individuals from serving in the military. Another case stems from what was colloquially referred to as the North Carolina Bathroom Bill (HB 2). Although HB 2 was repealed, there is an ongoing legal challenge to provisions in the law that repealed HB 2. Further, there are two pending cases involving challenges by transgender students to school policies mandating that they use restrooms or locker facilities consistent with their biological sex. One of these cases is currently in the Maryland District Court. The second case, Grimm, is the subject of this Article.
Since the Grimm litigation began in 2015, it has already resulted in two District Court orders, a Fourth Circuit opinion, a Fourth Circuit order, one District Court Opinion, and a Supreme Court order, to name a few. The case is presently pending again in the Eastern District of Virginia and is working its way back to the Fourth Circuit. The underlying legal questions of this case involve significant issues of concern for schools, employers, places of public accommodation, and all entities covered under Titles VII and IX of the Civil Rights Act.
In the past few decades, the United States has witnessed drastic changes in the prevalence of those identifying as transgendered and in how the legal community responds to those individuals. Significantly, policy makers, administrators, and business owners struggle with balancing the interests of the transgender individual with the free speech, religious, privacy, and other conscience-based interests of those who are asked (or required) to accommodate the person’s preferred gender identity.
The legal approaches to transgender individuals parallel the two primary approaches by the medical community. One medical approach is to provide hormones and sex reassignment surgery to patients with gender dysphoria. The overarching goal in this approach is to affirm the person’s expressed gender identity. These medical professionals believe that pathologizing differences in gender identity expression—including diagnosing someone with a disorder—demonstrates a lack of respect for the patient. As a result, treatment protocols include puberty-suppressing hormones for children, living out as the preferred gender identity, cross-gender hormones, and sex-reassignment surgeries.
The other prevalent medical approach seeks to align one’s gender identity with one’s biological sex. This approach is based on the belief that gender is an immutable trait, binary in nature, and coincides from birth with an individual’s sex. This approach avoids the known and unknown medical risks associated with hormone use and sex reassignment surgery. One significant area of treatment involving unknown medical risks is that of children and adolescents. It is becoming more common to prescribe puberty-suppressing hormones to prepubertal children to “block hormone-induced biological changes, such as vocal chord changes, the development of breast tissue or changes in facial structure, that are irreversible and can be especially distressing to children who are gender non-conforming or transgender.” The FDA, however, has not approved these puberty-suppressing drugs (GnRH analogue drugs) for the treatment of gender identity disorder and there is a dearth of research on the long-term consequences of that treatment. Another reason to avoid medical intervention for adolescents is because seventy-seven to ninety-four percent of children with gender identity issues later developed an identity that aligned with their biological sex.
Similar to the conflicting medical responses, the two overarching approaches adopted in the case law and legislation on this issue are (1) that sex is biologically determined at birth and cannot be changed through medical interventions or (2) that a person can change his or her gender from the biological sex determined at birth. In one of the earliest reported cases addressing the question, a 1976 decision by a New Jersey intermediate appellate court concluded that a man who had undergone a male-to-female sex-reassignment surgery should be treated as a woman for purposes of a marriage license. In the decades that followed, other jurisdictions similarly concluded that a person should be treated as the gender he or she desires to be for purposes of driver’s license name changes, birth certificates, and prison assignments.
Conversely, in 1999, a Texas Court of Appeals concluded that biology determined one’s sex. After pointing out its belief that the legislature should determine whether someone who undergoes a sex change surgery should be legally treated as having changed his sex, the court held that because “male chromosomes do not change with either hormonal treatment or sex reassignment surgery. . . . [A] post-operative female transsexual is still a male.” Adopting that line of reasoning, in 2004 a Florida District Court of Appeal declared a marriage void that had been entered into between a biological female who identified as a female and another biological female who had undergone a female-to-male sex reassignment.
In the education context, recent legal challenges have focused primarily on access to restrooms/locker facilities. As discussed below, the plaintiffs in the restroom/locker facilities cases assert that refusing to permit transgendered students to use the restroom consistent with their gender identity violates Title IX and the Fourteenth Amendment Equal Protection Clause. One case that has garnered nationwide attention on these issues arises out of the Eastern District of Virginia and has already resulted in conflicting district court opinions and orders, a Fourth Circuit opinion, a Fourth Circuit order, and a grant of review by the United States Supreme Court.
In its 2015 decision, the Eastern District of Virginia dismissed claims by a transgender student that the school’s restroom policy violated Title IX and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The student was born female, but as a high school freshman, began publicly identifying as a male. During the summer before sophomore year, Grimm obtained a legal name change to reflect a male identity. At the beginning of the year, Grimm agreed to use a separate bathroom in the nurse’s office rather than the boys’ student restroom. Because Grimm “found it stigmatizing to use a separate restroom,” the school agreed in October, 2014 to let Grimm use the boys’ restroom. Grimm used the boys’ restroom for seven weeks before members of the community complained to the school board.
Raising concerns over student privacy and safety, the School Board eventually passed a resolution in December, 2014 requiring students to use the restroom that corresponded with their “biological gender.” The resolution required schools to provide “students with gender identity issues” with “an alternative appropriate private facility.” The School Board also planned to “expand partitions between urinals in male restrooms[,] add privacy strips to the doors of [all] stalls[,] and designate single-stall, unisex restrooms” for use by students. The day after the School Board passed the resolution, the principal instructed Grimm to no longer use the boys’ restroom. In June 2015, Grimm filed suit against the School Board and sought a preliminary injunction requiring the school to permit Grimm to use the boys’ restroom. The School Board then filed a motion to dismiss.
The main point of contention in the district court was whether discrimination based on gender identity is included within Title IX’s prohibition of “sex” discrimination. The district court, however, did not squarely answer that question; instead, it concluded that Grimm’s claim was precluded by the plain language of the Department of Education’s regulations. Specifically, Title IX lists an exception to the prohibition of sex-based discrimination explaining that “nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for different sexes.” The Department of Education regulation then specifies that a Title IX recipient “may provide separate toilet, locker room, and shower facilities on the basis of sex” as long as those facilities are “comparable.” The district court refused to give any deference to a 2015 Department of Education letter (2015 Letter) that relied on a 2014 Department of Education guidance document (2014 Guidance Document) that said schools “‘must generally treat transgender students consistent with their gender identity’ . . . .” The court explained that the documents were not entitled to Auer deference because such deference is given to guidance documents when the text of the regulation is ambiguous; the court found the regulation to be unambiguous.
After dismissing Grimm’s Title IX claim, the court then analyzed whether Grimm was entitled to a preliminary injunction based on the Equal Protection claim. In making its determination, the court weighed Grimm’s “claims of stigma and distress against the privacy interests of the other students protected by separate restrooms.” In denying the preliminary injunction, the court concluded that the other students had a right to bodily privacy from exposure to the opposite sex in restrooms and locker room facilities. The court also noted that the need for privacy is “even more pronounced in the state educational system” where almost all of the students are minors. Refusing to consider hearsay evidence for purposes of the motion, the court characterized Grimm’s claims of stigma as “unsubstantiated claims of hardship”—Grimm had not articulated specific harms that would occur if forced to use the single-stall restrooms during the pendency of the litigation.
In April 2016, the Fourth Circuit reversed the District Court’s decision in Grimm. As to the Title IX claim, the court held that the District Court should have given Auer deference to the 2015 Letter and 2014 Guidance Document because the meaning of “sex” is ambiguous in the regulation. Specifically, “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.” Thus, the guidance documents were entitled to Auer deference unless they were “plainly erroneous or inconsistent with the regulation or statute.” After reviewing dictionary definitions of “sex” that referred to the “sum of” various “morphological, physiological, and behavioral peculiarities,” the court concluded it was not plainly erroneous for the 2015 Letter and 2014 Guidance Document to require covered entities to determine a person’s sex based on gender identity. As a result, the Fourth Circuit reversed the district court’s dismissal of Grimm’s Title IX claim. In reaching its decision, the court acknowledged that a “subsequent administration” could choose to implement a different policy or that Congress could revise Title IX “explicitly to prohibit or authorize” the approach taken in the guidance document. Until then, the court stated that it rested its decision on application of Auer deference.
The court also reversed the denial of Grimm’s motion for preliminary injunctive relief, remanding the case to the trial court for application of the proper evidentiary procedure. The Fourth Circuit held that the district court had “evaluated [Grimm’s] proffered evidence against a stricter evidentiary standard than is warranted by the nature and purpose of a preliminary injunction.” Specifically, the Fourth Circuit instructed the district court that it is proper to evaluate hearsay for purposes of a preliminary injunction motion.
One concurring opinion analyzed each preliminary injunction standard and explained why the district court “would be on sound ground” to grant the motion. The other panel judge concurred only in the decision to deny Grimm’s motion to assign a new trial judge on remand, but dissented as to the decision to reverse the district court. The dissenting opinion echoed the sentiment of the district court judge and fleshed out the privacy concerns raised with respect to permitting Grimm to use the boys’ restroom. It also discussed the logical inconsistencies in the government’s argument that “sex” discrimination included gender identity.
Biological males and females whose gender identity aligned would be required to use the same restrooms and locker rooms as persons of the opposite biological sex whose gender identity did not align. With such mixed use of separate facilities, no purpose would be gained by designating a separate use “on the basis of sex,” and privacy concerns would be left unaddressed.
On remand, with very little substantive discussion, the district court granted injunctive relief.
On August 3, 2016, the United States Supreme Court granted the School Board’s request for a stay of the Fourth Circuit mandate and the district court’s preliminary injunction. On October 28, 2016, the United States Supreme Court then granted a petition for certiorari review. The Court limited its review to two of the three questions presented. First, if Auer deference is retained by the Court, should such deference be given to an unpublished agency letter that does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? Second, regardless of whether deference is given to the letter, should the Department’s specific interpretation of Title IX and the regulation be given effect? The Court set oral argument for March 28, 2017.
On February 22, 2017, just one month after President Trump took office, the Departments of Justice and Education wrote a “Dear Colleague” letter rescinding the prior letters that the Fourth Circuit had relied on in Grimm. The letter cited conflicting court opinions on the meaning of “sex” for purposes of Title IX and indicated that it would “more completely consider the legal issues involved.” It reminded schools of their obligation to provide a safe environment for all students and to protect students from discrimination, bullying, and harassment.
In response to the letter, on February 23, 2017, the Supreme Court requested the parties to submit their views on how the case should proceed. On March 6, 2017, the Court vacated the Fourth Circuit’s decision and remanded the matter back to the Fourth Circuit for further consideration in light of the February 22, 2017 guidance document. In April 2017, the Fourth Circuit granted the School Board’s unopposed motion to vacate the preliminary injunction.
In response to the Supreme Court and Fourth Circuit orders, Grimm filed an amended complaint that again asserted Title IX and Equal Protection claims. In May 2018, with a new judge assigned, the district court denied the school board’s motion to dismiss the amended complaint. The district court held that Grimm sufficiently pled a Title IX claim. In reaching that decision, the court started by explaining that the reference to “sex” in the regulation was ambiguous. Unlike the Fourth Circuit, however, it could not then give Auer deference to an agency guidance document because no such document now existed. Instead, the district court analyzed case law to help it interpret the alleged ambiguity.
With no controlling Title IX precedent, the court turned to case law interpreting the analogous Title VII. It explained that neither the Fourth Circuit nor the Supreme Court had yet addressed how Title VII applied to transgender individuals. In Price Waterhouse v. Hopkins, however, the Supreme Court had constructed a framework under Title VII to address “sex discrimination claims brought by individuals who fail to conform to social expectations for their gender group.” Although the Fourth Circuit had not yet expressly applied Price Waterhouse to Title VII claims brought by transgender individuals, the district court adopted the reasoning of the Maryland District Court to conclude that “discrimination on the basis of transgender status constitutes gender stereotyping because by definition, transgender persons do not conform to gender stereotypes.” The court then concluded that “transgender discrimination is per se actionable sex discrimination under Title VII” and that by extension is actionable under Title IX.
The district court in Grimm applied intermediate scrutiny to conclude that plaintiff had sufficiently pled an Equal Protection claim. Significantly, the court concluded that transgendered individuals constituted a quasi-suspect or suspect class because (1) they have historically been subject to discrimination, (2) transgender status has no bearing on a transgender individual’s ability to contribute to society, (3) transgender status is immutable, and, (4) the class is a minority group that is politically powerless. To satisfy the intermediate scrutiny standard, the school board asserted that the policy requiring students to use the restroom and locker facilities consistent with their biological gender protected the privacy interests of other students. The court rejected the privacy concerns of other students as “sheer conjecture.” “[A] transgender student’s presence in a restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates . . . .”
Following the May 2018 district court decision in Grimm, several district courts have addressed cases involved claims by transgender persons under the Fifth Amendment, Fourteenth Amendment, Title IX, or Title VII. Three district courts and one Circuit Court have issued opinions involving students challenging school policies requiring students to use restrooms and locker rooms consistent with their biological sex. In one of those cases, the Middle District of Florida addressed the questions of whether Drew Adams—who was a biological female that self-identified as a male—was (1) a male and (2) whether Drew’s presence in the female locker rooms presented a privacy concern for other students.
Drew Adams says he is a boy and has undergone extensive surgery to conform his body to his gender identity; medical science says he is a boy; the State of Florida says so (both Adams’ Florida birth certificate and Florida driver’s license say he is a male); and the Florida High School Athletic Association says so. Other than at his school, Adams uses the men’s bathroom wherever he goes. . . . When confronted with something affecting our children that is new, outside of our experience, and contrary to gender norms we thought we understood, it is natural that parents want to protect their children. But the evidence is that Drew Adams poses no threat to the privacy or safety of any of his fellow students.
The court went on to hold that the school’s policy violated the plaintiff’s rights under the Equal Protection Clause and Title IX. An Indiana District Court also concluded that a transgender high school student was likely to succeed on claims that the school’s refusal to permit the biological female to use the male restrooms violated Title IX and the Equal Protection Clause.
After reviewing prior case law that asserted a privacy interest against permitting transgender students the use of locker room or bathroom facilities consistent with their gender identity, the district court in Oregon similarly concluded that “high school students do not have a fundamental privacy right to not share school restrooms, lockers, and showers with transgender students whose biological sex is different than theirs.” The plaintiffs in this case represented current and former high school students—and their parents—who opposed a policy permitting biological boys to use the girls’ restrooms and locker facilities or biological girls to use the boys’ restrooms and locker facilities. The court dismissed plaintiffs’ claims to enjoin the policy.
The Third Circuit Court of Appeals denied a motion by “cisgender” high school students to enjoin a policy that permitted students access to restrooms and locker rooms consistent with their gender identity rather than biological sex. In an order dismissing a motion for en banc review, four justices dissented, writing:
Reasonable people can and will disagree about the most appropriate way to address transgender students’ desire to select which bathroom or locker room facilities to use. It is a problem without a perfect solution, and we have not even begun to analyze those competing interests except for in this one specific fact circumstance presented for preliminary injunctive relief. Despite that, the panel’s dicta in the revised opinion continue to imply otherwise, and so are likely to handicap efforts by local school districts throughout this Circuit to thoughtfully address how to best handle the issue in their own communities. The law does not mandate only one outcome, as the panel opinion suggests.
In a different, but related context, the Middle District of North Carolina has a case pending before it stemming from the now-repealed “bathroom bill” that required all public entities in North Carolina to require individuals to use the restroom consistent with their biological sex. Even though HB 2 was repealed, the court permitted plaintiff to proceed with claims that the law repealing HB 142 violated their equal protection rights insofar as it preempts attempts by local government to enact anti-discrimination ordinances that regulate restroom use.
And in yet another recent district court opinion, in November of 2018, a Maryland District Court judge enjoined President Trump’s memorandum that prohibited transgender service members. Just days prior to that decision, the President filed a motion asking the Supreme Court to immediately review all pending cases across the country challenging the transgender service ban. All of these recent cases are still pending and working their way to (or back to) the Fourth Circuit Court of Appeals.
As these cases demonstrate, there are significant competing policy concerns that need to be addressed by Congress rather than left to the changing administrations in the Executive Branch and which will have widespread impact for employers, administrators, governmental entities, school students, parents, and individuals struggling with gender identity issues. Some of the legal questions involved include whether “sex” discrimination under Title IX and the Fourteenth Amendment—which were enacted or adopted to afford equal opportunities to women that had previously been denied to them—include gender identity. If it does, then courts must decide how to properly balance the interest of the transgender person with the free speech, religious, privacy, and other conscience-based interests of those who are asked (or required) to accommodate the person’s preferred gender identity. Finally, it cannot be ignored that all of these legal decisions rest on still unresolved medical and psychological questions about the proper response to a person whose gender identity does not align with his or her biological sex.
Having spoken once already in the context of a motion to dismiss on whether “sex” discrimination includes gender identity status, the Fourth Circuit, with the several pending cases in the lower courts, is poised to address the issue head on in the near future. With no direct controlling precedent to rely on—and very little persuasive precedent from sister courts—the Fourth Circuit will soon weigh in on the merits of the significant legal questions that arise when transgender persons request to be treated consistent with their gender identity rather than their biological sex.
-Under-New-Guidelines-423082734.html (last updated Sept. 13, 2017, 2:50 PM) (“Doctors . . . recommend kids get off the puberty blocker by the time they turn 14 for fear of potential side effects . . . .”). ↑