UNPUBLISHED
FILED: July 12, 2016
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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No. 16-1733
(4:15-cv-00054-RGD-DEM)
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G. G., by his next friend and mother, Deirdre Grimm,
Plaintiff - Appellee,
v.
GLOUCESTER COUNTY SCHOOL BOARD,
Defendant - Appellant.
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O R D E R
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Upon consideration of submissions relative to the motion of
appellant for stay pending appeal, the court denies the motion.
Entered at the direction of Judge Floyd. Senior Judge Davis
wrote an opinion concurring in the denial of a stay pending the
filing of, and action on, a petition for certiorari. Judge
Niemeyer wrote an opinion dissenting from the denial of a stay
pending appeal.
For the Court
/s/ Patricia S. Connor, Clerk
DAVIS, Senior Circuit Judge, concurring in the denial of a stay
pending the filing of, and action on, a petition for certiorari:
I vote to deny the motion for stay.
In Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989),
plaintiff Ann Hopkins received comments from partners describing
her as “macho,” suggesting that she “overcompensated for being a
woman,” and “advis[ing] her to take a course at charm school”
during her bid for partnership. Price Waterhouse, 490 U.S. 228,
235 (1989) (citations omitted). Hopkins was told that to improve
her chances of attaining partnership, she should “walk more
femininely, talk more femininely, dress more femininely, wear
make-up, have her hair styled, and wear jewelry.” Id. (citation
omitted). Rejecting Price Waterhouse’s insinuation that acting in
reliance on sex stereotyping was not prohibited by Title VII, the
Supreme Court unequivocally stated otherwise:
[W]e are beyond the day when an employer could evaluate
employees by assuming or insisting that they matched
the stereotype associated with their group, for “[i]n
forbidding employers to discriminate against
individuals because of their sex, Congress intended to
strike at the entire spectrum of disparate treatment
of men and women resulting from sex stereotypes.”
Id. at 251 (second alteration in original) (quoting Los Angeles
Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, n.13 (1978)).
The Supreme Court has expressly recognized that claims based on an
individual’s failure to conform to societal expectations based on
that person’s gender constitute discrimination “because of sex”
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under Title VII. Id. at 250–51 (plurality); Price Waterhouse, 490
U.S. at 272-73 (O’Connor, J., concurring); Price Waterhouse, 490
U.S. at 260-61 (White, J., concurring).
The First, Sixth, Ninth, and Eleventh Circuits have all
recognized that discrimination against a transgender individual
based on that person’s transgender status is discrimination
because of sex under federal civil rights statutes and the Equal
Protection Clause of the Constitution. See Glenn v. Brumby, 663
F.3d 1312, 1316–19 (11th Cir. 2011) (holding that terminating an
employee because she is transgender violates the prohibition on
sex-based discrimination under the Equal Protection Clause
following the reasoning of Price Waterhouse); Smith v. City of
Salem, Ohio, 378 F.3d 566, 573–75 (6th Cir. 2004) (holding that
transgender employee had stated a claim under Title VII based on
the reasoning of Price Waterhouse); Rosa v. Park W. Bank & Trust
Co., 214 F.3d 213, 215–16 (1st Cir. 2000) (holding that a
transgender individual could state a claim for sex discrimination
under the Equal Credit Opportunity Act based on Price Waterhouse);
Schwenk v. Hartford, 204 F.3d 1187, 1201–03 (9th Cir. 2000)
(holding that a transgender individual could state a claim under
the Gender Motivated Violence Act under the reasoning of Price
Waterhouse).
On this long-settled jurisprudential foundation, our friend’s
assertion that the majority opinion issued when this case was
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previously before us is “unprecedented” misses the mark. In any
event, as regards the standards for a stay, the dissent contains
its own rebuttal. Contrary to the dissent’s assertion that “the
School Board has constructed three unisex bathrooms to accommodate
any person who feels uncomfortable using facilities separated on
the basis of sex,” the three unisex bathrooms are in fact available
to “any student” at the school. Mot. for Stay at 5.
In short, there is no reason to disturb the district court’s
exercise of discretion in denying the motion to stay its
preliminary injunction.
NIEMEYER, Circuit Judge, dissenting from the denial of a stay
pending appeal:
I would grant Gloucester County School Board’s motion for a
stay pending appeal. See Long v. Robinson, 432 F.2d 977 (4th Cir.
1970); cf. Winter v. National Resources Defense Council, Inc., 555
U.S. 7 (2008). Facially, the district court conducted no analysis
required by Winter for the entry of a preliminary injunction,
relying only on our earlier decision in this case. And under the
balancing analysis prescribed by Long, I conclude that a stay is
appropriate, based on the following:
1. The earlier groundbreaking decision of this court is, as
I have noted previously, unprecedented. Indeed, it appears to
violate the clear, unambiguous language of Title IX, which
explicitly authorizes the provision of various separate facilities
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“on the basis of sex.” Moreover, the court’s decision applying
deference under Auer v. Robins, 519 U.S. 452 (1997), is
questionable, and, even if deference were appropriate, it relies
solely on a letter from the U.S. Department of Education, imposing
an entirely new interpretation of “sex” in Title IX without the
support of any law. In view of this, it is difficult to understand
how the decision is sustainable.
2. By enforcing the injunction now, male students at
Gloucester High School will be denied the separate facilities
provided by the School Board on the basis of sex, as authorized by
Congress, and thus will be denied bodily privacy when using the
facilities, to the dismay of the students and their parents. These
consequences are likely to cause disruption both in the school and
among the parents.
3. While I recognize the sensitivities of G.G.’s gender
transition, I nonetheless conclude that he is unlikely to suffer
substantial injury from a stay of the district court’s injunction,
particularly because the School Board has constructed three unisex
bathrooms to accommodate any person who feels uncomfortable using
facilities separated on the basis of sex.
4. The public interest in a final and orderly resolution of
G.G.’s claims before enforcement of this court’s decision is served
by a stay pending appeal. The changes that this injunction would
require -- and that the Department of Justice and Department of
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Education now seek to impose nationwide on the basis of our earlier
decision -- mark a dramatic departure from the responsibilities
local school boards have heretofore understood and the
authorizations that Congress has long provided. These school
boards and the communities they serve would benefit from the
thoughtful and final disposition of G.G.’s claims, and from
ultimate guidance from the Supreme Court or Congress, before having
to undertake these sweeping reforms.
In short, I conclude that the Gloucester County School
Board has adequately made its case for a stay pending appeal,
and I would grant its motion for such a stay.
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