Education Law

Transgender teen may sue over school's restroom restriction, 4th Circuit says

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A federal appeals court has reinstated a Title IX claim by a transgender teen who sued over his school’s refusal to allow him to use the boys’ restroom.

In a 2-1 decision (PDF) on Tuesday, the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals reversed the trial judge’s Title IX ruling and said he used the wrong standard to deny a preliminary injunction. But the appeals court refused to assign the case on remand to a new judge, despite his “distinct way of proceeding in court.”

The plaintiff, who identifies as male, is now a junior in high school.

The appellate opinion by Judge Henry Floyd said a trial judge didn’t give appropriate deference to federal regulations, which interpret Title IX to require schools to treat transgender students consistent with their gender identity.

The trial judge had withheld a ruling on the equal protection claim, and the 4th Circuit didn’t consider the issue.

The student’s high school had initially allowed the teen, referred to as “G.G.,” to use the boys’ restroom. But some community members complained, spurring the school board to require the school to provide a separate, private facility for transgender students. G.G. complains that the separate restrooms make him feel stigmatized and he avoids using the restroom at school, which has caused multiple urinary tract infections.

Lawyers for the teen did not explicitly claim the trial judge, U.S. District Judge Robert Doumar, is biased. But they sought a new judge based on his expressed views about “gender and sexuality in particular.”

The trial judge had called gender dysphoria a “mental disorder” and rejected lawyers’ attempts to clarify that it only becomes a disorder when untreated, the appeals court said. He also expressed concern about restroom “mating,” saying there are only two instincts: self-preservation and procreation.

The appeals court said that, despite the judge’s views of medical facts and skepticism of G.G.’s claims, the record doesn’t clearly indicate he would refuse to consider contrary evidence.

“Further,” the appeals court said, “although the district court has a distinct way of proceeding in court, the hearing record and the district court’s written order in the case do not raise in our minds a question about the fundamental fairness of the proceedings, however idiosyncratic.”

In a concurrence, Judge Andre Davis said the appeals court would have been justified in granting the preliminary injunction based on the facts in the record.

A third judge agreed with the decision to keep the trial judge on the case, but would have affirmed the trial judge’s decisions. The appeals court majority “completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes,” Judge Paul Niemeyer wrote.

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