B. v. Board of Education of Talbot County et al
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 3/12/2018. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BOARD OF EDUCATION OF TALBOT
COUNTY, et al.,
Civil Action No. GLR-16-2622
THIS MATTER is before the Court on Defendants Board of Education of Talbot
County (the “Board”), Kelly L. Griffith, and Tracy Elzey’s Motion to Dismiss for Failure
to State a Claim (ECF No. 36) and Plaintiff M.A.B.’s Motion for Preliminary Injunction
(ECF No. 41).
This action arises from Defendants’ decision to require M.A.B., a
transgender boy, to use restrooms and locker rooms for girls. The Motions are ripe for
disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2016). For the
reasons outlined below, the Court will deny the Motion to Dismiss. In addition, the Court
will deny without prejudice the Motion for Preliminary Injunction.
M.A.B. is a fifteen-year-old boy2 who attends high school at St. Michaels Middle
High School (the “High School”), which is located in Talbot County, Maryland. (Compl.
¶ 2, ECF No. 1). His birth sex,3 which is usually based on “the appearance of the
person’s external genitalia,” is “female.” (Id. ¶¶ 20, 21). Yet M.A.B.’s “deeply-held
internal sense of his own gender,” known as his gender identity, is male. (Id. ¶¶ 2, 20).
“[D]eterminations of gender,” unlike determinations of birth sex, are based on “multiple
factors.” (Id. ¶ 21). These factors include “chromosomes, hormone levels, internal and
external reproductive organs, and gender identity,” with gender identity being the
“primary determinant” among them. (Id. ¶¶ 21, 22).
Because M.A.B. was designated female at birth but has a male gender identity,
that designation does not accurately reflect his gender identity—giving him the status of a
transgender boy. (Id. ¶ 20). As a result, he also has had feelings of gender dysphoria
since early childhood.
(Id. ¶¶ 2, 26).
Gender dysphoria and “the status of being
transgender” are “not synonymous,” though “they are correlated.” (Id. ¶ 24). Gender
dysphoria is the “clinically significant distress” experienced by transgender individuals.
(Id. ¶ 23). Treatment for gender dysphoria includes “social transitioning,” which consists
Unless otherwise noted, the Court takes the following facts from M.A.B.’s
Amended Complaint and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citations omitted).
Throughout the Complaint and the parties’ briefing of the instant Motions, the
parties have used masculine pronouns to refer to M.A.B. Accordingly, the Court will
also use masculine pronouns.
The Court uses terms such as “birth sex” to refer to gender designations made at
of “living consistent with one’s gender identity . . . in all aspects of one’s life, including
when accessing single-sex spaces like restrooms and locker rooms.” (Id. ¶ 25).
When M.A.B. was in the sixth grade, he “arrived at the clear realization” that he
was a boy. (Id. ¶¶ 2, 26). M.A.B. received a clinical diagnosis of gender dysphoria in
2014, and has been seeing a medical professional regularly for his gender dysphoria and
process of gender transition. (Id. ¶ 26). When M.A.B. turned thirteen, therefore, he
began to socially transition to life as male, including going by “a more traditionally
masculine chosen first name.” (Id. ¶ 28). The Board and the High School “took several
steps” to assist M.A.B.’s social transition. (Id. ¶ 30). They addressed him by his new
name, addressed him with male pronouns, and conducted a professional development
workshop for its staff in 2015 on the topic of transgender students. (Id.). M.A.B. later
legally changed his name. (Id. ¶ 28). Since his transition began, M.A.B. “has been
generally accepted and recognized as male” by his peers at the High School. (Id. ¶ 29).
While aiding M.A.B.’s social transition in some ways, Defendants prohibited
M.A.B. from using the High School’s boys’ locker rooms, and initially, its boys’
restrooms. (Id. ¶ 31). Instead, the Board “designated” three of the High School’s singleuse restrooms as “gender neutral” and required M.A.B. to use them when he needed to
use the restroom or change his clothes. (Id. ¶ 32). After the United States Court of
Appeals for the Fourth Circuit issued its opinion in G.G. ex rel. Grimm v. Gloucester
County School Board., 822 F.3d 709 (4th Cir. 2016), Defendants permitted M.A.B. to use
the boys’ restrooms. (Id. ¶¶ 31, 45). Since M.A.B. began using the boys’ restrooms, no
male students at the High School have voiced “any discomfort” about M.A.B.’s access.
(Id. ¶ 49). In fact, many of M.A.B.’s peers “congratulated him” on the Board’s decision
to allow M.A.B. access. (Id.).
The Board, however, continued to prohibit M.A.B. from using the boys’ locker
rooms. (Id. ¶¶ 31, 45). It maintained its decision to require M.A.B. to use the restrooms
it designated as gender neutral whenever M.A.B. had to change his clothes (the
“Policy”).4 (Id. ¶¶ 32, 45). Unlike the locker rooms, the designated restrooms the Board
requires M.A.B. to use do not have benches or showers. (Id. ¶ 36). Meanwhile, the
boys’ locker rooms have partitioned stalls for changing clothes and partitioned stalls that
have toilets and stall doors. (Id. ¶ 48).
The Board requires only M.A.B., and no other student, to change clothes in the
designated restrooms. (Id. ¶ 37). This has resulted M.A.B. experiencing humiliation and
embarrassment, as well as alienation from his peers. (Id. ¶ 38). He has received “weird
looks” from other students when using the designated restrooms to change.
M.A.B., then, “has tried to use them as infrequently and inconspicuously as possible.”
The designated restrooms are “remotely located” from the boys’ and girls’ locker
rooms and the gymnasium. (Id. ¶ 35). The designated restrooms also do not have
lockers. (Id. ¶ 36). So, M.A.B. has to go to his student locker, which is far away from
the designated restrooms, before changing his clothes, and his physical education teacher
gives him extra time to change. (Id. ¶¶ 40, 41). Thus, when M.A.B. took physical
The Court will refer to the Board’s decision to prohibit M.A.B. from using the
boys’ locker rooms as a “policy,” even though the Board simply made a decision and
communicated it to M.A.B.’s counsel. (Id. ¶ 45). The High School’s principal at the
time later advised M.A.B. and his parents of this decision. (Id.).
education class in 2015, substitute teachers unaware of the Policy forced him to explain
why he was tardy to class. (Id. ¶ 41). This required M.A.B. to disclose his transgender
status to avoid disciplinary action. (Id.). The “stigma and impracticality” of changing his
clothes in the designated restrooms led M.A.B. to attend physical education class without
changing when he thought he would not sweat very much. (Id. ¶ 42). At times, his
physical education teacher penalized M.A.B.’s grade for not changing his clothes. (Id.).
M.A.B., by and through his parents and next friends L.A.B. and L.F.B., filed the
present action on July 19, 2016 against the Board, Kelly L. Griffith in her official
capacity as Superintendent of Talbot County Public Schools, and Tracy Elzey in her
official capacity as Principal of the High School. (ECF No. 1). In his four-count
Complaint, he alleges claims under: Title IX of the Education of Amendments of 1972,
20 U.S.C. § 1681 et seq. (2018) (“Title IX”) (Count I); the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution (Count II); Article 24 of the
Maryland Declaration of Rights (Count III); and Article 46 of the Maryland Declaration
of Rights (Count IV). (Id. ¶¶ 51–75). M.A.B. seeks judgment declaring that the Policy
violates his rights under Title IX, the Fourteenth Amendment, and Articles 24 and 26.
(Id. at 17). M.A.B. also seeks a preliminary injunction requiring Defendants to allow him
to use the High School boys’ locker room on the same terms as other male students.
(Id.). Finally, M.A.B. seeks nominal and compensatory damages, costs, and attorneys’
Defendants now move to dismiss all counts against them for failure to state a
claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6),
filing their Motion on April 18, 2017. (ECF No. 36). M.A.B. filed an Opposition on
May 22, 2017. (ECF No. 40). Defendants filed a Reply on June 5, 2017. (ECF No. 42).
M.A.B. also moves for a preliminary injunction under Rule 65, filing his Motion on May
22, 2017. (ECF No. 41). Defendants filed an Opposition on June 5, 2017. (ECF No.
43). M.A.B. filed a Reply on June 19, 2017. (ECF No. 44).
Rule 12(b)(6) Standard of Review
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint,”
not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v.
City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir. 1999)). A complaint fails to state a
claim if it does not contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that
is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though
the plaintiff is not required to forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each element. Goss v. Bank of Am.,
N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012)), aff’d sub nom., Goss v. Bank of Am., NA, 546 F.App’x 165
(4th Cir. 2013).
In considering a Rule 12(b)(6) motion, a court must examine the complaint as a
whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir.
2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But, the court need not
accept unsupported or conclusory factual allegations devoid of any reference to actual
events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal
conclusions couched as factual allegations, Iqbal, 556 U.S. at 678.
Rule 12(b)(6) Analysis
As a threshold matter, Defendants argue that the Court must dismiss all of
M.A.B.’s claims against the Board because the Board enjoys sovereign immunity under
the Eleventh Amendment to the United States Constitution. The Court disagrees.
The Eleventh Amendment provides: “The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State.” U.S. Const. amend. XI. The
Supreme Court of the United States has construed the Eleventh Amendment as also
protecting states from federal court suits brought by the state’s own citizens.
Thomas v. Prince George’s Cty. Pub. Schs., 666 F.3d 244, 248 (4th Cir. 2012) (quoting
Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990)).
Amendment immunity extends to “state agents and instrumentalities.”
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). As a matter of Maryland
law, county school boards of education are state instrumentalities, and therefore are
generally entitled to immunity under the Eleventh Amendment. See, e.g., Farrell v. Bd.
of Educ., No. GLR-16-2262, 2017 WL 1078014, at *3 (D.Md. Mar. 21, 2017) (citing
Lewis v. Bd. of Educ., 262 F.Supp.2d 608, 612 (D.Md. 2003)).
Nevertheless, there are exceptions. One exception is when a state waives its
Eleventh Amendment immunity from suit in a federal court. Lee-Thomas, 666 F.3d at
The Maryland legislature enacted a statute that waived a county board of
education’s Eleventh Amendment immunity “for all claims in the amount of $100,000 or
less.” Md.Code Ann., Cts. & Jud. Proc. § 5-518(c) (West 2018). As interpreted by the
Court of Appeals of Maryland, § 5-518(c) waives a county board of education’s Eleventh
Amendment immunity to suit from a plaintiff’s discrimination claim under a federal law.
Bd. of Educ. v. Zimmer–Rubert, 973 A.2d 233, 243 (Md. 2009). The Court of Appeals
later clarified that its interpretation of § 5-518(c) in Zimmer–Rubert applies to all “tort or
insurable” claims. Beka Indus., Inc. v. Worcester Cty. Bd. of Educ., 18 A.3d 890, 896
Under Maryland law, the definition of “tortious act or omission”
encompasses constitutional torts. See Espina v. Jackson, 112 A.3d 442, 450 (Md. 2015)
(holding that under Maryland’s Local Government Tort Claims Act, “tortious acts or
omissions” includes constitutional torts); see also, e.g., Green v. N.B.S., Inc., 976 A.2d
279, 287 (Md. 2009) (“[T]he term ‘tort’ as defined by Blacks encompasses all ‘civil
wrong.’” (citation omitted)).
Here, M.A.B. brings two sets of causes of action against the Board and the other
Defendants: (1) a discrimination claim under Title IX (Count I); and (2) claims under the
Fourteenth Amendment to the United States Constitution and associated Maryland
Declaration of Rights provisions (Counts II–IV). Because § 5-518(c) waives a county
board of education’s Eleventh Amendment immunity from discrimination claims under
federal law and the constitution, the Court concludes that such immunity does not apply
to M.A.B.’s claims against the Board. Accordingly, the Court will not dismiss M.A.B.’s
claims against the Board on Eleventh Amendment immunity grounds.
Defendants move to dismiss all of M.A.B.’s remaining claims for failure to state a
claim under Title IX and the Fourteenth Amendment and associated state constitutional
provisions. At bottom, the Court concludes that M.A.B. sufficiently states a claim under
both sets of causes of action. The Court addresses each set in turn.
Defendants contend that the Court should interpret Title IX narrowly to only
prohibit discrimination on the basis of birth sex. M.A.B. replies that the Court should
interpret Title IX more broadly to include discrimination on the basis of transgender
status. In short, the Court agrees with M.A.B.’s interpretation of Title IX and concludes
that M.A.B. has sufficiently stated a claim of sex discrimination.
34 C.F.R. § 106.33 (2017) and Transgender Status
Title IX provides, in relevant part: “[n]o person . . . shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a) (2018). To allege a violation of Title IX, M.A.B. must
show: “(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 [M.A.B.]
harm.” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd. (Grimm I), 822 F.3d 709, 718
(4th Cir. 2016), vacated, 137 S.Ct. 1239 (2017).5
Title IX does not prohibit all distinctions on the basis of sex. Id. Under one of
Title IX’s implementing regulations, 34 C.F.R. § 106.33 (2017), Title IX permits
separating toilets, locker rooms, and shower facilities on the basis of sex as long as they
are “comparable.” Grimm I observed that “[b]y implication,” then, § 106.33 permits
schools to exclude those with a birth sex of female from male facilities and vice-versa.
822 F.3d at 720.
Defendants maintain that because § 106.33 refers to males and females
unambiguously, the Court must interpret Title IX to apply only to discrimination on the
The Supreme Court vacated the Fourth Circuit’s judgment in Grimm I in light of
the United States Department of Education and United States Department of Justice
issuing a letter withdrawing the guidance documents that the judgment examined. See
137 S.Ct. at 1239; see also U.S. Dep’t of Just. Civil Rights Div. & U.S. Dep’t of Educ.
Office for Civil Rights, Dear Colleague Letter (Feb. 22, 2017), https://www2.ed.gov/
about/offices/list/ocr/letters/colleague-201702-title-ix.pdf. Grimm I remains binding law
of the Fourth Circuit, however, “unless it is overruled by a subsequent en banc opinion of
[the Fourth Circuit] or a superseding contrary decision of the Supreme Court.” United
States v. Giddins, 858 F.3d 870, 886 n.12 (4th Cir. 2017) (quoting United States v.
Collins, 415 F.3d 304, 311 (4th Cir. 2005)). There has been neither an en banc Fourth
Circuit opinion nor a superseding contrary Supreme Court decision overruling Grimm I.
Thus, the Court will rely on Grimm I to the extent it offers guidance for deciding issues
the Motions present.
basis of birth sex, and does not prohibit discrimination on the basis of transgender status.
The Court disagrees.
As Grimm I observed, the Court’s “inquiry is not ended” by § 106.33’s reference
to males and females. Id. “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.”
Id.; see also Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858
F.3d 1034, 1047 (7th Cir. 2017) (“Neither [Title IX] nor [its] regulations define the term
‘sex.’ Also absent from the statute is the term ‘biological,’ which [the defendant school
district] maintains is a necessary modifier.”).
The Fourth Circuit went on to hold that a January 7, 2015 opinion letter by the
Department of Education’s Office for Civil Rights, which interpreted the regulation to
require access to sex-segregated facilities be based on gender identity (the “2015 Opinion
Letter”), is entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997). Id. But on
February 22, 2017, after the Fourth Circuit decided Grimm I, the Department of
Education and the Department of Justice issued a guidance document withdrawing the
2015 Opinion Letter. U.S. Dep’t of Just. Civil Rights Div. & U.S. Dep’t of Educ. Office
for Civil Rights, Dear Colleague Letter (Feb. 22, 2017), https://www2.ed.gov/about/
offices/list/ocr/letters/colleague-201702-title-ix.pdf. Thus, with the 2015 Opinion Letter
no longer in effect, Grimm I no longer resolves how § 106.33 applies to a transgender
The Fourth Circuit has not spoken on how § 106.33 applies to a transgender
person since Grimm I. And the Supreme Court has never addressed the issue. It is wellsettled within the Fourth Circuit, however, that case law interpreting Title VII of the Civil
Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e et seq. (2018), guides
courts in evaluating a Title IX claim. Grimm I, 822 F.3d at 718 (citing Jennings v. Univ.
of N.C., 482 F.3d 686, 695 (4th Cir. 2007)).6 Accordingly, the Court turns to Title VII
precedent for guidance.
Title VII and Transgender Status
The Supreme Court has never addressed how Title VII applies to transgender
individuals. Nevertheless, other Supreme Court cases interpreting Title VII provide
helpful guidance. In Price Waterhouse v. Hopkins, the Supreme Court held that plaintiff
Hopkins, a woman who was denied partnership in an accounting firm, had an actionable
claim against that firm because the firm denied her a promotion for failing to conform to
gender stereotypes. 490 U.S. 228, 250–53 (1989). Various firm partners described
Hopkins as “macho,” in need of “a course in charm school,” “a lady using foul
language,” and someone who had been “a tough-talking somewhat masculine hard-nosed
manager.” Id. at 235. Partners advised her that she could improve her chances for
partnership if she were to “walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear jewelry.”
quotation marks omitted).
For this reason, Defendants’ various arguments about why the “very different
natures” of Title VII and Title IX precludes reliance on Title VII precedent have no merit.
(Defs.’ Reply at 3, ECF No. 42).
Writing for a plurality, Justice Brennan held that “[i]n the specific context of sex
stereotyping,” these comments were sufficient to show that the accounting firm “acted on
the basis of gender” when it denied Hopkins a promotion. Id. at 250. In doing so, six
members of the Court agreed that Title VII barred not only discrimination because
Hopkins was a woman, but also for “sex stereotyping” because she failed to act according
to the gender stereotype of a woman. Id. at 250–51; id. at 258–61 (White, J., concurring);
id. at 272–73 (O’Connor, J., concurring). Thus, Price Waterhouse establishes that Title
VII’s prohibition on discrimination because of sex includes—more broadly—gender
stereotyping. See id. at 251 (“[W]e are beyond the day when an employer could evaluate
employees by assuming or insisting that they matched the stereotype associated with their
After Price Waterhouse, the Supreme Court confirmed this broader interpretation
of Title VII in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). There,
the Court held that Title VII’s prohibition of sex discrimination is broad enough to
include same-sex harassment claims. Id. at 79. Justice Scalia, writing for a unanimous
Court, observed that “statutory prohibitions often go beyond the principal evil to cover
reasonably comparable evils, and it is ultimately the provisions of our laws rather than
the principal concerns of our legislators by which we are governed.” Id.
The Fourth Circuit has not applied Price Waterhouse in the context of claims
brought by transgender persons, or gender stereotyping claims more generally, under
Title VII. But see G.G. v. Gloucester Cty. Sch. Bd. (Grimm II), 654 F.App’x 606, 606–
07 (4th Cir. 2016) (Davis, J., concurring) (observing that the Supreme Court “has
expressly recognized” that “failure to conform” to gender stereotypes constitutes sex
discrimination under Title VII (citing Price Waterhouse, 490 U.S. at 250–51)). Still, this
Court has concluded that discrimination on the basis of transgender status constitutes
gender stereotyping because “by definition, transgender persons do not conform to
gender stereotypes.” Finkle v. Howard Cty., 12 F.Supp.3d 780, 787–88 (D.Md. 2014).
As a result, transgender discrimination is per se actionable sex discrimination under Title
VII based on Price Waterhouse. Id.
This Court’s conclusion is in accord with the First, Sixth, Ninth, and Eleventh
Circuits, which have all recognized that claims of discrimination on the basis of
transgender status is per se sex discrimination under Title VII or other federal civil rights
laws based on Price Waterhouse. See EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc.,
___ F.3d ___, 2018 WL 1177669, at *5–12 (6th Cir. Mar. 7, 2018) (Title VII); Glenn v.
Brumby, 663 F.3d 1312, 1316–19 (11th Cir. 2011) (Title VII); Rosa v. Park W. Bank &
Tr. Co., 214 F.3d 213, 215–16 (1st Cir. 2000) (Equal Credit Opportunity Act); Schwenk
v. Hartford, 204 F.3d 1187, 1201–03 (9th Cir. 2000) (Gender Motivated Violence Act);
see also Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) (holding that “sex
stereotyping based on a person’s gender non-conforming behavior” is unlawful under
Title VII); Grimm II, 654 F.App’x at 607 (Davis, J., concurring) (noting that Glenn,
Rosa, Schwenk, and Smith “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”).7
In addition, more generally, the First, Second, Third, Seventh, and Ninth Circuits
have all recognized that an allegation of gender stereotyping is actionable sex
discrimination under Title VII based on Price Waterhouse. See Hively v. Ivy Tech Cmty.
Coll., 853 F.3d 339, 351–52 (7th Cir. 2017) (en banc); Christiansen v. Omnicom Grp.,
Inc., 852 F.3d 195, 200–01 (2d Cir. 2017) (per curiam); Prowel v. Wise Bus. Forms, Inc.,
579 F.3d 285, 290 (3d Cir. 2009); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864,
874–75 (9th Cir. 2001); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261
n.4 (1st Cir. 1999).8 What is more, no Court of Appeals has held otherwise.
Thus, on the basis of the Supreme Court’s holding in Price Waterhouse,
subsequent opinions of several Courts of Appeals, and this Court’s opinion in Finkle, the
Court concludes that allegations of gender stereotyping are cognizable as sex-
The only Courts of Appeals that arguably have held to the contrary are the
Seventh, Eighth, and Tenth Circuits’ rulings that transgender status, taken alone, is not
entitled to Title VII protection. See Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221–
22 (10th Cir. 2007); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 749–50 (8th Cir.
1982); Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984).
As this Court has noted, however, “it is unclear what, if any, significance to
ascribe” to these holdings because “[i]n light of Price Waterhouse,” transgender
individuals may bring sex-discrimination claims under a gender-stereotyping theory.
Finkle, 12 F.Supp.3d at 788. Indeed, the Seventh Circuit recently explained that its prior
decision in Ulane “cannot and does not foreclose” transgender students from bringing
sex-discrimination claims based on Price Waterhouse’s gender-stereotyping theory.
Whitaker, 858 F.3d at 1047.
As a matter of fact, Defendants appear to agree that under Title VII, sexdiscrimination claims under a gender-stereotyping theory are cognizable based on Price
Waterhouse. (See Defs.’ Reply at 7) (“. . . [T]he Supreme Court has recognized since
[Price Waterhouse] that gender[-]stereotype discrimination may be evidence of sex
discrimination claims under Title VII, and consequently, Title IX. The Court further
concludes, on the basis of Finkle and several Courts of Appeals decisions, that claims of
discrimination on the basis of transgender status are per se actionable under a gender
The Policy under a Gender-Stereotyping Theory
Having determined that M.A.B. may bring a claim of discrimination under Title
IX on the basis of his transgender status, the Court turns to whether M.A.B. has
sufficiently alleged his claim under a gender-stereotyping theory. In brief, the Court
concludes that M.A.B. has done so.
M.A.B. asserts that under a gender-stereotyping theory, the alleged Policy subjects
him to sex discrimination. Defendants submit that even under a gender-stereotyping
theory, M.A.B. fails to state a claim. M.A.B. has not alleged that Defendants denied
M.A.B. access to the boys’ locker rooms “because of the way he dresses, talks, acts, or
any other outward expression,” as in Price Waterhouse. (Defs.’ Reply at 7). Defendants
highlight that unlike Price Waterhouse, the Policy is “based on biology alone.” (Id. at
8).9 The Court agrees with M.A.B.
Defendants’ argument is unavailing because they define gender stereotyping too
narrowly. Granted, the employer in Price Waterhouse did deny the plaintiff a promotion
because her appearance and behavior did not conform to the employer’s gender
Defendants also advance this argument in an attempt to distinguish this Court’s
opinion in Finkle. For the reasons stated below, this argument is unavailing. See Finkle,
12 F.Supp.3d at 788 (concluding that the plaintiff stated a Title VII claim because she
alleged that defendants discriminated against her because of her transgender status
without relying on the particular form of the discrimination).
stereotype of a woman. Yet the Supreme Court did not require gender stereotyping to
take the specific form of discrimination on the basis of appearance or behavior. In fact,
Price Waterhouse forecloses Defendants’ argument because it explicitly left open the
possibility of other forms of gender stereotyping: “By focusing on [appearance and
behavior], however, we do not suggest a limitation on the possible ways of proving that
stereotyping played a motivating role in an employment decision . . .” 490 U.S. at 251–
52; see also id. at 251 (observing that Congress intended “to strike at the entire spectrum
of disparate treatment of men and women resulting from sex stereotypes” when it enacted
Title VII (quoting L.A. Dep’t. of Water & Power v. Manhart, 435 U.S. 702, 707, n.13
(1978)) (emphasis added)). Thus, the Court will not limit its analysis to whether M.A.B.
alleges that Defendants discriminated against him based on his appearance or behavior.
The Court concludes that the alleged Policy subjects M.A.B. to sex
discrimination under a gender stereotyping theory because he has alleged that Defendants
denied him access to the boys’ locker room because he is transgender.
Since the 2015 Opinion Letter was withdrawn, only one United States Courts of
Appeals, the Seventh Circuit, has addressed whether denying transgender students access
to the sex-segregated facility that aligns with their gender identity may violate Title IX.
In Whitaker by Whitaker v. Kenosha Unified School District. No. 1 Board of Education,
a recent decision with very similar facts, the court held that the plaintiff, a transgender
boy, was entitled to a preliminary injunction granting him access to the boys’ restrooms.
858 F.3d 1034 (7th Cir. 2017).
In Whitaker, the plaintiff was a high school student in his senior year. Id. at 1040.
His birth certificate designated him as female, but his gender identity is male. Id. He
began to see a therapist during his freshman year of high school, who diagnosed him with
gender dysphoria, and socially transition to life as male.
His social transition
included using a different name, asking his teachers and peers to refer to him by that
name and to use male pronouns, and changing his legal name.
administration decided, nonetheless, that the plaintiff could only use the girls’ restrooms
or gender-neutral restrooms, which were far from his classrooms. Id. at 1040, 1041–42.
As a result of the administration’s decision, he suffered from depression and anxiety. Id.
at 1041. The plaintiff even restricted his water intake to avoid using the restroom, which
exacerbated medical problems. Id. at 1040–42. He also contemplated suicide. Id. at
1041. The school later required the student to complete a surgical transition before
permitting him access to the boys’ restrooms. Id. Despite the school’s prohibition, the
plaintiff used the boys’ restrooms in violation of the administration’s decisions, causing
administrators to remove him from class on several occasions and instruct security guards
to monitor his restroom usage. Id. at 1041.
In assessing the student’s likelihood of success on the merits on his Title IX claim,
Whitaker reasoned that “[b]y definition, a transgender individual does not conform to the
sex-based stereotypes” associated with the individual’s birth sex. Id. at 1048. Relying on
the logic of Title VII gender stereotyping cases—including Price Waterhouse, Oncale,
the Eleventh Circuit’s opinion in Glenn, and the Sixth Circuit’s opinion in Smith—the
Seventh Circuit concluded that discrimination on the basis of transgender status itself
constitutes gender stereotyping. Id. at 1048. Thus, the student had demonstrated a
likelihood of success on the merits of his Title IX claim because he alleged that the
school district “denied him access to the boys’ restroom because he is transgender.” Id.
The court explained that a “policy that requires an individual to use a bathroom
that does not conform with his or her gender identity punishes that individual for his or
her gender non-conformance, which in turn violates Title IX.” Id. at 1049. Moreover,
the school district’s decision barring the student from the boys’ restrooms unlawfully
subjects him, “as a transgender student, to different rules, sanctions, and treatment than
non-transgender students.” Id. at 1048–49.
Here, “[b]y definition” as a transgender boy, M.A.B. “does not conform to the sexbased stereotypes” associated with being assigned female at birth. Id. at 1048. So, as in
Whitaker, M.A.B.’s allegation that Defendants “denied him access” to the boys’ locker
room “because he is transgender” sufficiently states a Title IX claim for gender
stereotyping. See id. at 1048.
The main difference between the policy in Whitaker and Defendants’ policy here
is that the school administrators in Whitaker barred the student from the boys’ restrooms,
whereas here, Defendants barred M.A.B. from the boys’ locker room. 10 See, e.g., id. at
1041. That difference does not change the Court’s Title IX analysis. Like the policy in
Whitaker, Defendants’ policy of barring M.A.B. from the boys’ locker room requires him
to use a facility that “does not conform” with his gender identity. See id. at 1049. The
Policy, then, “punishes” M.A.B. for his “gender non-conformance, which in turn violates
As described above, however, Defendants also barred M.A.B. from the boys’
restrooms until the Fourth Circuit issued its opinion in Grimm I. (Compl. ¶¶ 31, 45).
Title IX.” See id. And most notably, like the policy in Whitaker, Defendants’ decision to
bar M.A.B. from the boys’ locker room subjects him, “as a transgender student, to
different rules, sanctions, and treatment than non-transgender students.” See id. at 1049–
The Court, therefore, concludes that M.A.B. has sufficiently stated a claim for
gender-stereotyping discrimination because he alleges that Defendants “denied him
access” to the boys’ locker room “because he is transgender.” See id. at 1049. As such,
the Court will not grant Defendants’ Motion as to M.A.B.’s Title IX claim. The Court
now turns to M.A.B.’s constitutional claims.
M.A.B. brings claims under the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution and Articles 24 and 26 of the Maryland Declaration
of Rights. (Compl. ¶¶ 61–75). Defendants argue that the Court should dismiss M.A.B.’s
constitutional claims because M.A.B. does not allege that Defendants have treated him
differently than any other students at the High School. Defendants further contend that
transgender status is not a suspect class under the Equal Protection Clause, and,
accordingly, the Policy requires and survives rational basis review.
M.A.B. responds that the Court should apply intermediate scrutiny rather than
rational basis review because the Policy constitutes a form of sex discrimination and
Defendants attempt to distinguish Whitaker by highlighting that M.A.B. makes
no allegation that Defendants “have sex-stereotyped [him] based on his outward
expression.” (Reply at 8 n.7). But neither did the plaintiff in Whitaker. 858 F.3d at 1048
(describing the school district’s argument that the policy the student alleges “is not based
on whether the student behaves, walks, talks, or dresses in a manner that is inconsistent”
with any gender stereotypes (emphasis added)).
because transgender status is a quasi-suspect classification. M.A.B. further submits that
the Policy does not withstand intermediate scrutiny because it is not substantially related
to an important government interest. At bottom, the Court agrees with M.A.B.
The Equal Protection Clause provides: “No State shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. In
simpler terms, “all persons similarly situated should be treated alike.” City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202,
216 (1982)). Likewise, the state must avoid distinguishing between classes of people in
an “arbitrary or irrational” manner or out of a “bare . . . desire to harm a politically
unpopular group.” Id. at 446–47 (quoting USDA v. Moreno, 413 U.S. 528, 534 (1973));
see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)
(prohibiting “intentional and arbitrary discrimination” (quoting Sioux City Bridge Co. v.
Dakota Cty., 260 U.S. 441, 445 (1923))).
Generally, courts presume state action to be lawful, and so, uphold classifications
as long as they are “rationally related to a legitimate state interest.” Cleburne, 473 U.S. at
440. This is known as “rational basis review.” See, e.g., Clark v. Jeter, 486 U.S. 456,
461 (1988). Conversely, when the state classifies a “suspect” or “quasi-suspect” group of
people, courts apply “heightened scrutiny.” Cleburne, 473 U.S. at 440–41. Heightened
scrutiny, unlike rational basis review, is “a more exacting standard of judicial review.”
Id. at 442.
One quasi-suspect class is sex.
Sex-based classifications require heightened
scrutiny because sex “frequently bears no relation to the ability to perform or contribute
to society.” Id. at 440–41 (quoting Frontiero v. Richardson, 411 U.S. 677, 686 (1973)
(plurality opinion)). For classifications based on sex, courts apply an “intermediate”
form of heightened scrutiny. See, e.g., Clark, 486 U.S. at 461. Intermediate scrutiny
requires the state to show that its justification for the classification is “exceedingly
persuasive.” United States v. Virginia, 518 U.S. 515, 533 (1996).
Proper Level of Scrutiny
As a preliminary matter, the parties disagree over whether rational basis review or
heightened scrutiny applies to the Policy. Defendants maintain that the more deferential
rational basis review applies, while M.A.B. asserts that the more rigorous intermediate
scrutiny applies. As with M.A.B.’s Title IX claim, neither the Supreme Court, nor the
Fourth Circuit, has decided the rights of transgender people under the Equal Protection
Clause.12 Based on the weight of decisions issued by other Courts of Appeals and recent
decisions issued by sister United States District Courts, the Court concludes that the
Policy warrants heightened scrutiny for two reasons. First, the Policy is a sex-based
classification. Second, transgender status itself is at least a quasi-suspect classification.
Transgender Discrimination as Sex-Based Discrimination
Only two Courts of Appeals have considered whether transgender classifications
are sex-based, and, consequently, are deserving of intermediate scrutiny—the Seventh
Circuit and the Eleventh Circuit. See Whitaker, 858 F.3d at 1051; Glenn, 663 F.3d at
1316. Both concluded that intermediate scrutiny applies. Whitaker, 858 F.3d at 1051;
Glenn, 663 F.3d at 1316; see also Smith, 378 F.3d at 577 (holding that the plaintiff, a
Grimm I declined to consider the plaintiff’s claim under the Equal Protection
Clause. 822 F.3d at 717 n.3.
transgender firefighter, sufficiently stated a claim of sex discrimination under the Equal
Protection Clause without further specifying the level of scrutiny that applied).
As the Seventh Circuit explained, if the state cannot justify a sex-based
classification “by relying on overbroad generalizations,” then “sex-based stereotypes are
also insufficient” to justify such a classification. Whitaker, 858 F.3d at 1051; see also
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 138 (1994) (rejecting, as a proper reason for
discrimination during jury selection, reliance on sex-based stereotypes). Because the
court had already concluded that the policy barring the student from the boys’ restrooms
constitutes gender stereotyping under Title IX, the Whitaker court held that “[i]t is
enough to say that, just as in Price Waterhouse,” such a policy and related facts in the
record “show[ ] sex stereotyping” under the Equal Protection Clause. Id. at 1051. The
school district’s policy “cannot be stated without referencing sex” because the school
district “decides which bathroom a student may use based upon the sex listed on the
student’s birth certificate.” Id. Thus, Whitaker held that the policy “is inherently based
upon a sex-classification” and intermediate scrutiny applies. Id.
Similarly, the Eleventh Circuit in Glenn held that classifications on the basis of
transgender status are sex-based classifications. Relying on a variety of Supreme Court
decisions, the court pointed out that “the consistent purpose” of applying intermediate
scrutiny to sex-based classifications “has been to eliminate discrimination on the basis of
gender stereotypes.” Glenn, 663 F.3d at 1319–20.13 The court reasoned that “[b]ecause
these protections are afforded to everyone, they cannot be denied to a transgender
Glenn expressly rejected making a distinction between describing this kind of
discrimination “as being on the basis of sex or gender.” 663 F.3d at 1317.
individual.” Id. at 1319. Glenn then held that such protections apply when there is
discrimination on the basis of transgender status: a “person is defined as transgender
precisely because of the perception that his or her behavior transgresses gender
stereotypes.” Id. at 1316. “[D]iscrimination against a transgender individual because of
her gender-nonconformity,” therefore, “is sex discrimination” under the Equal Protection
Clause. Id. at 1317.
Here, the Policy is a sex-based classification because it relies on sex-based
stereotypes. The Policy classifies M.A.B. differently on the basis of his transgender
status, and, as a result, subjects him to sex stereotyping. For the same reasons why the
Court concluded that the Policy impermissibly stereotypes under Title IX, “[i]t is enough
to say that, just as in Price Waterhouse,” the Policy M.A.B. alleges exists “shows sex
stereotyping” under the Equal Protection Clause. Whitaker, 858 F.3d at 1051. Likewise,
the Equal Protection Clause protects M.A.B. from “discrimination on the basis of gender
stereotypes,” and because the Policy classifies M.A.B. on the basis of his transgender
status, it constitutes “sex discrimination.” Glenn, 663 F.3d at 1317, 1319. Further, like
the policy in Whitaker, Defendants’ decision to bar M.A.B. from the boys’ locker room
“cannot be stated without referencing sex” because they decide which locker room
M.A.B. may use based upon his birth sex—female. See 858 F.3d at 1051.
The Policy, therefore, is subject to heightened scrutiny because as alleged, it relies
on sex-based stereotypes.
Transgender People as a Quasi-Suspect Class
Second, the Policy warrants heightened scrutiny because it classifies M.A.B. on
the basis of his transgender status. Classifications based on transgender status require
heightened scrutiny because transgender individuals are, at minimum, a quasi-suspect
The Supreme Court uses certain factors to decide whether a new classification
requires heightened scrutiny. They include: (1) whether the class has been historically
“subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (citation
omitted); (2) whether the class has a defining characteristic that “frequently bears [a]
relation to ability to perform or contribute to society,” Cleburne, 473 U.S. at 440–41; (3)
whether the class exhibits “obvious, immutable, or distinguishing characteristics that
define them as a discrete group;” Bowen, 483 U.S. at 602 (citation omitted); and (4)
whether the class is “a minority or politically powerless.” Id.
Here, all four factors justify treating transgender people as at least a quasi-suspect
class. First, transgender people have been historically subjected to discrimination. For
instance, Whitaker observed that “[t]here is no denying that transgender individuals face
discrimination, harassment, and violence because of their gender identity.” 858 F.3d at
1051. Indeed, recent reports found that transgender individuals suffer very high rates of
violence due to their transgender status. In a 2015 survey of transgender individuals, 9%
of survey respondents reported that they were physically attacked in the past year because
of their transgender status. Sandy E. James et al., Nat’l Ctr. for Transgender Equal., The
Report of the 2015 U.S. Transgender Survey 198 (2016), https://transequality.org/sites/
default/files/docs/usts/USTS-Full-Report-Dec17.pdf. Meanwhile, at least 25 transgender
persons in the United States were homicide victims in 2017, the highest annual total on
record. Mark Lee, Human Rights Campaign Found., A Time to Act: Fatal Violence
Against Transgender People in America 2017 4 (2017), https://assets2.hrc.org/files/
Tantamount here is the discrimination they face in the context of K-12 education:
78% of students who identify as transgender or as gender
non-conformant[ ] report being harassed while in grades K–
12. Jaime M. Grant et al., Injustice at Every Turn: A Report
of the National Transgender Discrimination Survey, Nat’l
Center for Transgender Equal., at 33 (2011),
/NTDS_Report.pdf. These same individuals in K–12 also
reported an alarming rate of assault, with 35% reporting
physical assault and 12% reporting sexual assault. Id. As a
result, 15% of transgender and gender non-conformant
students surveyed made the decision to drop out. Id. These
statistics are alarming.
Whitaker, 858 F.3d at 1051. And as other district courts have recognized, transgender
individuals report high rates of discrimination in education, employment, housing, and
access to healthcare. 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, 874 (S.D. Ohio 2016); Adkins v. City of New York, 143 F.Supp.3d
134, 139 (S.D.N.Y. 2015).
Second, transgender status bears no relation to ability to contribute to society. The
Court is not aware of any argument suggesting that a transgender person or person
experiencing gender dysphoria is any less productive than any other member of society.
Accord Evancho, 237 F.Supp.3d at 288; Highland, 208 F.Supp.3d at 874; Norsworthy v.
Beard, 87 F.Supp.3d 1104, 1120 (N.D. Cal. 2015); Adkins, 143 F.Supp.3d at 139.
Third, transgender individuals exhibit “obvious, immutable, or distinguishing
characteristics that define them as a discrete group.” See Bowen, 483 U.S. at 602
(quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986)). As several district courts have
concluded, transgender status is immutable. Evancho, 237 F.Supp.3d at 288; Highland,
208 F.Supp.3d at 874 (quoting Lyng, 477 U.S. at 638); Norsworthy, 87 F.Supp.3d at 119
n.8; Adkins, 143 F.Supp.3d at 139.
They have, moreover, distinguishing
characteristics—mainly, their gender identity does not align with the gender they were
assigned at birth. (Compl. ¶ 20).
Fourth, as a class, transgender people are “a minority or politically powerless.”
Bowen, 483 U.S. at 602 (quoting Lyng, 477 U.S. at 638). They comprise of a small
fraction of the population. Doe 1 v. Trump, 275 F.Supp.3d 167, 209 (D.D.C. 2017)
(highlighting an amicus party’s estimate that transgender people make up approximately
0.6% of the American adult population); Highland, 208 F.Supp.3d at 874 (describing
transgender people as “a tiny minority of the population”).
They are also politically powerless. Courts have had to block enforcement of
policies approved by the federal government or laws passed by state legislatures because
they violated the rights of transgender individuals. Notably, just months ago, this Court
enjoined enforcement of a memorandum issued by President Trump that permitted
discrimination against transgender members of the military because it likely violated their
rights under the Equal Protection Clause.
Stone v. Trump, No. MJG-17-2459, ___
F.Supp.3d ___, 2017 WL 5589122, at *14–17 (D.Md. Nov. 21, 2017); see also Doe 1,
275 F.Supp.3d 167 (enjoining implementation of two of the memorandum’s directives).
In 2016, a sister district court within the Fourth Circuit enjoined North Carolina from
enforcing a so-called “bathroom bill” requiring individuals to use bathrooms that align
with their birth sex because it likely violated Title IX.
Carcaño v. McCrory, 203
F.Supp.3d 615 (M.D.N.C. 2016).
Relatedly, there are very few transgender elected officials. Only two openly
transgender candidates have ever been elected; both won seats in a state legislature.
Maggie Astor, Danica Roem Wins Virginia Race, Breaking a Barrier for Transgender
People, N.Y. Times, Nov. 7, 2017, https://www.nytimes.com/2017/11/07/us/danicaroem-virginia-transgender.html. The first never took office, and the second was just
elected last November. Id. Nor are there any openly transgender members of the United
States Congress or the federal judiciary.14 Adkins, 143 F.Supp.3d at 140; see also G.G. v.
Gloucester Cty. Sch. Bd. (Grimm III), 853 F.3d 729, 730 (4th Cir. 2017) (Davis, J.,
concurring), as amended (Apr. 18, 2017) (observing that transgender people are a
“vulnerable group that has traditionally been unrecognized, unrepresented, and
The Court, therefore, concludes that classifications based on transgender status are
per se entitled to heightened scrutiny because transgender status itself is at least a quasi14
For that matter, the Court observes that one judicial nominee to the United
States District Court for the Eastern District of Texas described a first grade transgender
student’s lawsuit to access the girls’ restroom as part of “Satan’s plan.” Chris Massie &
Andrew Kaczynski, Trump Judicial Nominee Said Transgender Children are Part of
‘Satan’s Plan,’ Defended ‘Conversion Therapy’, CNN Politics (Sept. 20, 2017),
suspect class. Transgender people have been historically subjected to discrimination,
their status bears no relation to their ability to contribute to society, they exhibit
immutable and distinguishing characteristics, and they are both a minority and politically
What is more, this Court in Stone recently concluded that transgender status
deserves “at least a quasi-suspect classification.” 2017 WL 5589122, at *15 (citing Doe
1, 275 F.Supp.3d at 208–09).
Most district courts that have considered the issue came to the same conclusion.
Compare Doe 1, 275 F.Supp.3d at 208 (concluding that classifications on the basis of
transgender status are “at least a quasi-suspect classification”); Evancho, 237 F.Supp.3d
at 288 (concluding that transgender status is a classification requiring heightened
scrutiny); Highland, 208 F.Supp.3d at 874 (same); Adkins, 143 F.Supp.3d at 139–40
(same); and Norsworthy, 87 F.Supp.3d at 1119 (same), with Johnston v. Univ. of
Pittsburgh of the Commonwealth Sys. of Higher Educ., 97 F.Supp.3d 657, 668 (W.D.Pa.
2015) (declining to recognize transgender status as a class entitled to heightened scrutiny
because neither the Supreme Court nor the United States Court of Appeals for the Third
Circuit have ruled otherwise).15
The only Court of Appeals to address the issue, the Ninth Circuit in Holloway v.
Arthur Andersen & Co., held that transgender people were not a suspect or quasi-suspect
class. 566 F.2d 659, 663 (9th Cir. 1977). The Ninth Circuit later raised significant doubt
as to whether Holloway remains good law. See Schwenk v. Hartford, 204 F.3d 1187,
1201 (9th Cir. 2000) (“The initial judicial approach taken in cases such as Holloway has
been overruled by the logic and language of Price Waterhouse.”). In Whitaker, the
Seventh Circuit expressly declined to consider whether transgender status is per se
entitled to heightened scrutiny. See 858 F.3d at 1051 (“[T]his case does not require us to
In short, the Policy is subject to heightened scrutiny. The Policy, as alleged,
relies on sex-based stereotypes, warranting heightened scrutiny. Further, transgender
status itself is at least a quasi-suspect classification.
The Policy under Heightened Scrutiny
Having concluded that the Court must examine the Policy by applying heightened
scrutiny, the question remains whether the Policy withstands this review. At bottom, the
Court concludes that, for the purpose of deciding the pending Motion to Dismiss, the
Policy fails heightened scrutiny.
As mentioned above, sex-based classifications require an intermediate form of
heightened scrutiny, which requires the state to show that the justification for the
classification is “exceedingly persuasive.” Virginia, 518 U.S. at 533. An exceedingly
persuasive justification requires the state to demonstrate that the “classification serves
important governmental objectives and that the discriminatory means employed are
substantially related to the achievement of those objectives.” Virginia, 518 U.S. at 533
(quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)) (internal quotation
marks omitted). “The justification must be genuine,” and one that is “hypothesized or
invented post hoc in response to litigation” is not sufficient. Id. at 533. Nor can the
justification rely on “overbroad generalizations about the different talents, capacities, or
preferences of males and females.” Id.
The Seventh Circuit in Whitaker is the only United States Courts of Appeals that
has addressed whether a policy that denies transgender students access to the sexreach the question of whether transgender status is per se entitled to heightened
segregated facility that aligns with their gender identity violates the Equal Protection
Clause. There, the defendant school district defended its policy by first arguing that the
policy does not implicate the Equal Protection Clause because it treats all boys and girls
the same. Whitaker, 858 F.3d at 1051. It further asserted that the policy is necessary to
protect the privacy rights of all of the district’s students. Id. at 1052. The court rejected
both arguments. Id. at 1051, 1052.
Whitaker held that the school district’s contention that “it treats all boys and girls
the same” is “untrue.” Id. at 1051. Under the policy, if transgender students choose to
use a bathroom that aligns with their gender identity, the school district disciplines them.
Id. As a result, the policy implicates the Equal Protection Clause. Id. at 1051–52.
In assessing the plaintiff student’s likelihood of success on the merits of his claim
under intermediate scrutiny, Whitaker held that the record demonstrated that the school
district’s privacy justification, though “legitimate,” was not “genuine” because it was
“based upon sheer conjecture and abstraction.” Id. at 1052. The court highlighted that
the student used the boys restrooms without “incident or complaint” from other students.
Nor, the court held, was the policy substantially related to protecting other
students’ privacy rights. Preventing the student from using the boys’ restrooms “does
nothing to protect the privacy rights” the school district sought to protect. Id. The court
explained that a “transgender student’s presence in the 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 performing
their bodily functions.” Id. In addition, “those who have true privacy concerns are able
to utilize a stall,” and “[n]othing in the record suggests that the bathrooms at [the high
school] are particularly susceptible to an intrusion upon an individual’s privacy.” Id.
Further, Whitaker pointed out that if the school district was concerned that children with
different-looking anatomies were in the bathroom together, “then it would seem that
separate bathrooms also would be appropriate for pre-pubescent and post-pubescent
children who do not look alike anatomically,” which the school district had not provided.
Id. at 1052–53.
Thus, the court held that the school district did not establish an
exceedingly persuasive justification. Id. at 1053.
Here, Defendants make very similar arguments to the ones Whitaker rejected.
Defendants contend that the Policy does not implicate the Equal Protection Clause
because it treats M.A.B. like every other student at the High School. The Policy requires
him to use the locker room of his birth sex. Defendants further maintain that even under
intermediate scrutiny, the Policy survives because it protects the privacy rights of the
High School’s students. The Court disagrees.
The Policy clearly implicates the Equal Protection Clause.
It treats M.A.B.
differently from the rest of the High School’s students. While the rest of M.A.B.’s peers
may use the locker room that aligns with their gender identity, M.A.B. may not. Instead,
Defendants discipline M.A.B. if he uses such a locker room—the boys’ locker room. As
a matter of fact, his physical education teacher penalized his grade when M.A.B. did not
change his clothes because he did not want to deal with the “stigma and impracticality”
of changing in the designated restrooms. (Compl. ¶ 42). Also, M.A.B. had to disclose
his transgender status to substitute teachers to avoid disciplinary action for being late to
class after changing in those distant restrooms. (Id. ¶ 41). None of these events would
occur if the Policy permitted M.A.B. to change in the locker room that aligns with his
gender identity, like the rest of the students at the High School.
Thus, the Policy
implicates the Equal Protection Clause.
The Court concludes that the Policy does not withstand intermediate scrutiny
because, as alleged, it is not substantially related to the privacy rights Defendants raise.
To be sure, Whitaker and the Fourth Circuit in Grimm I both acknowledged that
bodily privacy is a “legitimate and important interest.” Grimm I, 822 F.3d at 723; see
also Whitaker, 858 F.3d at 1052 (recognizing that the school district “has a legitimate
interest in ensuring bathroom privacy rights are protected”). M.A.B. highlights that
Defendants have not offered a factual basis to support their privacy concerns. But on a
motion to dismiss, the Court may only consider M.A.B.’s allegations in the Complaint
and accept them as true. Albright, 510 U.S. at 268; Lambeth, 407 F.3d at 268 (citing
Scheuer, 416 U.S. at 236). M.A.B. does not describe the basis of Defendants’ privacy
concerns in his Complaint. Unlike in Whitaker, where the court had the benefit of a
factual record from which to conclude that the school district’s privacy concerns were not
“genuine,” in this case there is not yet a factual record.
The Court need not assess whether the privacy concerns Defendants raise are
sufficiently “important governmental objectives,” however. See Virginia, 518 U.S. at
524. Even assuming they are, the Court concludes that the Policy, as alleged, is not
“substantially related” to those asserted privacy rights. See id.
The policy in Whitaker was not substantially related to protecting other students’
privacy rights. See 858 F.3d at 1052. Defendants attempt to distinguish Whitaker’s
holding by emphasizing that the policy at issue in that case related to access to restrooms,
instead of the locker room access at issue here. Nonetheless, Whitaker’s reasoning
applies with similar force.
No allegations in the Complaint suggest that the High
School’s boys’ locker room is “particularly susceptible to an intrusion upon an
individual’s privacy.” Id. In fact, the boys’ locker room here has partitioned stalls for
changing clothes and stalls that have toilets and stall doors. (Compl. ¶ 48). And the
single-use restrooms Defendants require M.A.B. to change in are available as well. (See
Compl. ¶¶ 31, 32, 45).
Like in Whitaker, then, students “who have true privacy concerns are able to
utilize a stall” to change in. 858 F.3d at 1052; see also Grimm I, 822 F.3d at 729 (Davis,
J., concurring) (observing that if a student objects to using the restroom in the presence of
a transgender student, “all students have access to the single-stall restrooms”). Thus,
Defendants’ argument that permitting M.A.B. to use the boys’ locker room amounts to
“government compulsion of students to expose their bodies and to be exposed to the
bodies of students of the opposite [birth] sex” is misplaced. (See Mem. Supp. Mot.
Dismiss at 27, ECF No. 36-1).
The presence of single-use restrooms and stalls in the boys’ locker room is not
enough to assuage Defendants’ privacy concerns. They assert that if M.A.B. changing
clothes in the designated restrooms makes him feel humiliated and embarrassed, as well
as alienated from his peers, then students who use those restrooms for greater privacy
will feel the same way. Defendants’ argument is flawed for at least four reasons.
First, unlike a boy who decides to change clothes in a single-use restroom or stall
for greater privacy, barring M.A.B. from changing in the boys’ locker room harms his
health and well-being.
M.A.B. has been diagnosed with gender dysphoria, whose
treatment requires “social transitioning.” (Compl. ¶¶ 25, 26). This includes accessing
single-sex spaces, like locker rooms, that align with his gender identity. (Id. ¶ 25).
Barring M.A.B. from accessing the boys’ locker room interferes with his social
transitioning. Second, Defendants’ argument overlooks the very existence of the Policy.
It requires M.A.B. to change his clothes in the designated restrooms, against his doctor’s
medical advice, and M.A.B. risks discipline if he does not comply. Conversely, boys
who have privacy concerns have the option of changing clothes in a single-use restroom
or stall if they want greater privacy.
Third, their argument further overlooks the entire context surrounding the Policy.
It singles M.A.B. out, quite literally because it does not apply to anyone else at the High
School, and marks him as different for being transgender. On the contrary, a boy who
makes the personal choice to change clothes in a single-use restroom or stall does not
experience any such singling out at the hands of his school. See Grimm I, 822 F.3d at
729 (Davis, J., concurring) (“For other students, using the single-stall restrooms carries
no stigma whatsoever, whereas for [the transgender plaintiff], using those same restrooms
is tantamount to humiliation and a continuing mark of difference among his fellow
students.”). Fourth, even if some boys feel humiliated, embarrassed, or alienated for
deciding to change clothes in a single-use restroom or stall, changing there still serves
Defendants’ privacy concerns because those boys still enjoy greater privacy. Defendants
do not explain how preventing such ill feelings further the privacy rights of any students.
Because Defendants contend that they may bar M.A.B. from the boys’ locker
room completely—despite the presence of single-use restrooms or stalls—by implication,
Defendants are arguing that the presence of M.A.B. in the boys’ locker room—itself—is
what infringes on the privacy rights of other boys.16 Defendants do not provide any
explanation for why completely barring M.A.B. from the boys’ locker room protects the
privacy of other boys changing there, while the availability of single-use restrooms or
locker room stalls does not. Nor does the Court find any. M.A.B.’s presence in the boys’
locker room “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” while they change their clothes. See Whitaker, 858 F.3d
at 1052. So, as in Whitaker, preventing M.A.B. from changing clothes in the boys’
locker room “does nothing to protect the privacy rights” of students at the High School.
Finally, just as in Whitaker, if Defendants were concerned that children with
different-looking anatomies were changing clothes in the locker room together, “then it
would seem that separate [locker rooms] also would be appropriate for pre-pubescent and
Defendants also dispute whether there are partitioned stalls for changing clothes
in the boys’ locker room. Because the Court is considering a motion to dismiss, the
Court assumes as true M.A.B’s allegation that such stalls are present.
post-pubescent children who do not look alike anatomically.” Id. at 1052–53. But
Defendants have not separated locker rooms in that manner.
The Court, therefore, concludes that the Policy, as alleged, is not “substantially
related” to protecting the privacy rights of students at the High School. See Virginia, 518
U.S. at 524.17
To conclude, M.A.B.’s claims come down to “a boy asking his school to treat him
just like any other boy.” Grimm III, 853 F.3d at 730 (Davis, J., concurring). The Court
finds that Title IX and the Equal Protection Clause provide M.A.B. grounds to do so.
Accordingly, the Court will deny Defendants’ Motion to Dismiss.
Rule 65 Standard of Review
Having considered Defendants’ Motion to Dismiss, the Court will now consider
M.A.B.’s Motion for Preliminary Injunction.
The Court may grant a preliminary injunction if “specific facts . . . clearly show
that immediate and irreparable injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition.”
The purpose of a
For the aforementioned reasons, the Court will deny the Motion as to M.A.B.’s
claims under Articles 24 and 46 of the Maryland Declaration of Rights. Generally,
Article 24 claims are read in pari materia with equal protection claims, except in limited
circumstances when Article 24 may be interpreted more broadly. Ross v. Cecil Cty.
Dep’t of Soc. Servs., 878 F.Supp.2d 606, 622 (D.Md. 2012) (citing Koshko v. Haining,
921 A.2d 171, 194 n.22 (Md. 2007)). Because the Court denies the Motion as to
M.A.B.’s equal protection claim, it necessarily follows that the Court will deny the
Motion as to his Article 24 claim, which offers greater protections.
Article 46 “flatly prohibits gender based classifications, absent substantial
justification.” Giffin v. Crane, 716 A.2d 1029, 1037 (Md. 1998). For the same reasons
that Defendants fail to show that the Policy, as alleged, has an exceedingly persuasive
justification, the Court concludes that Defendants fail to demonstrate that there is
“substantial justification” for the Policy. Accordingly, the Court will deny the Motion as
to M.A.B.’s Article 46 claim.
preliminary injunction is to “protect the status quo and to prevent irreparable harm during
the pendency of a lawsuit ultimately to preserve the court’s ability to render a meaningful
judgment on the merits.” United States v. South Carolina, 720 F.3d 518, 524 (4th Cir.
2013) (quoting In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003)).
A plaintiff seeking a preliminary injunction must demonstrate: (1) likelihood of success
on the merits; (2) likelihood of suffering irreparable harm in the absence of preliminary
relief; (3) the balance of equities favors preliminary relief; and (4) an injunction is in the
public interest. Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017).
Rule 65 Analysis
In brief, the Court concludes that M.A.B. has not sufficiently shown that he faces
irreparable harm without preliminary relief before the Court issues a decision on the
To demonstrate a clear likelihood of suffering irreparable harm, a plaintiff seeking
a preliminary injunction “must demonstrate more than just a ‘possibility’” of the harm.
Id. The irreparable harm to be suffered cannot be “remote” or “speculative.” De Simone
v. VSL Pharm., Inc., 133 F.Supp.3d 776, 799 (D.Md. 2015) (quoting Direx Israel, Ltd. v.
Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991)). Instead, the harm to be
suffered must be “actual and imminent.” Id. (quoting Direx, 952 F.2d at 812). A
plaintiff must be likely to suffer the harm “before a decision on the merits can be
rendered.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (quoting 11
Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and
Procedure § 2810.1 (2d ed. 1995)).
Here, M.A.B. submits that he has demonstrated a clear likelihood of suffering
irreparable harm. He is enrolled in physical education class for the 2018–2019 school
year, which requires M.A.B. to change in a locker room when classes begin on
September 4, 2018. (ECF No. 52). Defendants do not dispute that M.A.B. is enrolled in
physical education for 2018–2019, but maintain that M.A.B. is not enrolled in that class
for the current school year.
The Court agrees with Defendants. Because M.A.B. is not enrolled in physical
education for the current school year, the harm he asserts is not “actual and imminent.”
De Simone, 133 F.Supp.3d at 799 (quoting Direx, 952 F.2d at 812). What is more, the
parties do not dispute that M.A.B. will not need to use a locker room for any other
purpose, such as participation in interscholastic athletics. Of course, it is certain M.A.B.
will take physical education class when the following school year begins this September.
Still, it is “speculative” whether the school year will begin before the Court will issue a
decision on the merits. Id. (quoting Direx, 952 F.2d at 812); see Winter, 555 U.S. at 22
(citation omitted). Accordingly, aware that the parties likely hope for a resolution to this
case before the following school year, the Court will order the parties to confer and
submit to the Court a joint proposed scheduling order.
The Court will, therefore, deny the Motion for Preliminary Injunction without
prejudice. M.A.B. may refile his Motion if there is a change in circumstances, and the
Court would then set-in preliminary injunction hearing dates scheduled to conclude
before September 4, 2018.
For the foregoing reasons, the Court will deny Defendants’ Motion to Dismiss for
Failure to State a Claim (ECF No. 36) and deny without prejudice M.A.B.’s Motion for
Preliminary Injunction (ECF No. 41). A separate order follows.
Entered this 12th day of March, 2018
George L. Russell, III
United States District Judge
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