                            PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 15-2056


G. G., by his next friend and mother, Deirdre Grimm,

               Plaintiff - Appellant,

          v.

GLOUCESTER COUNTY SCHOOL BOARD,

               Defendant - Appellee.

------------------------

JUDY CHIASSON, Ph. D., School Administrator California;
DAVID VANNASDALL, School Administrator California; DIANA K.
BRUCE, School Administrator District of Columbia; DENISE
PALAZZO, School Administrator Florida; JEREMY MAJESKI,
School Administrator Illinois; THOMAS A ABERLI, School
Administrator    Kentucky;     ROBERT     BOURGEOIS,   School
Administrator    Massachusetts;      MARY     DORAN,   School
Administrator Minnesota; VALERIA SILVA, School Administrator
Minnesota; RUDY RUDOLPH, School Administrator Oregon; JOHN
O'REILLY, School Administrator New York; LISA LOVE, School
Administrator Washington; DYLAN PAULY, School Administrator
Wisconsin; SHERIE HOHS, School Administrator Wisconsin; THE
NATIONAL WOMEN'S LAW CENTER; LEGAL MOMENTUM; THE ASSOCIATION
OF TITLE IV ADMINISTRATORS; EQUAL RIGHTS ADVOCATES; GENDER
JUSTICE; THE WOMEN'S LAW PROJECT; LEGAL VOICE; LEGAL AID
SOCIETY - EMPLOYMENT LAW CENTER; SOUTHWEST WOMEN'S LAW
CENTER;   CALIFORNIA   WOMEN'S    LAW    CENTER;   THE  WORLD
PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH; PEDIATRIC
ENDOCRINE SOCIETY; CHILD AND ADOLESCENT GENDER CENTER CLINIC
AT UCSF BENIOFF CHILDREN'S HOSPITAL; CENTER FOR TRANSYOUTH
HEALTH AND DEVELOPMENT AT CHILDREN'S HOSPITAL LOS ANGELES;
GENDER & SEX DEVELOPMENT PROGRAM AT ANN & ROBERT H. LURIE
CHILDREN'S HOSPITAL OF CHICAGO; FAN FREE CLINIC; WHITMAN-
WALKER CLINIC, INC., d/b/a Whitman-Walker Health; GLMA:
HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; TRANSGENDER
LAW & POLICY INSTITUTE; GENDER BENDERS; GAY, LESBIAN &
STRAIGHT EDUCATION NETWORK; GAY-STRAIGHT ALLIANCE NETWORK;
INSIDEOUT; EVIE PRIESTMAN; ROSMY; TIME OUT YOUTH; WE ARE
FAMILY; UNITED STATES OF AMERICA; MICHELLE FORCIER, M.D.;
NORMAN SPACK, M.D.,

           Amici Supporting Appellant,

STATE OF SOUTH CAROLINA; PAUL R. LEPAGE, In his official
capacity as Governor State of Maine; STATE OF ARIZONA; THE
FAMILY FOUNDATION OF VIRGINIA; STATE OF MISSISSIPPI; JOHN
WALSH; STATE OF WEST VIRGINIA; LORRAINE WALSH; PATRICK L.
MCCRORY, In his official capacity as Governor State of North
Carolina; MARK FRECHETTE; JUDITH REISMAN, Ph.D.; JON LYNSKY;
LIBERTY CENTER FOR CHILD PROTECTION; BRADLY FRIEDLIN; LISA
TERRY; LEE TERRY; DONALD CAULDER; WENDY CAULDER; KIM WARD;
ALICE MAY; JIM RUTAN; ISSAC RUTAN; DORETHA GUJU; DOCTOR
RODNEY AUTRY; PASTOR JAMES LARSEN; DAVID THORNTON; KATHY
THORNTON; JOSHUA CUBA; CLAUDIA CLIFTON; ILONA GAMBILL; TIM
BYRD; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND,

           Amici Supporting Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:15-cv-00054-RGD-DEM)


Argued:   January 27, 2016               Decided:   April 19, 2016


Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Reversed in part, vacated in part, and      remanded by published
opinion.   Judge Floyd wrote the opinion,   in which Senior Judge
Davis joined.    Senior Judge Davis wrote   a separate concurring
opinion. Judge Niemeyer wrote a separate     opinion concurring in
part and dissenting in part.


ARGUED: Joshua A. Block, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, New York, New York, for Appellant.   David Patrick
Corrigan,  HARMAN,  CLAYTOR,  CORRIGAN  &  WELLMAN,  Richmond,
Virginia, for Appellee.   ON BRIEF: Rebecca K. Glenberg, Gail


                                 2
Deady, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION,
INC.,   Richmond,   Virginia;   Leslie   Cooper,   AMERICAN   CIVIL
LIBERTIES UNION FOUNDATION, New York, New York, for Appellant.
Jeremy D. Capps, M. Scott Fisher, Jr., HARMAN, CLAYTOR, CORRIGAN
& WELLMAN, Richmond, Virginia, for Appellee.          Cynthia Cook
Robertson, Washington, D.C., Narumi Ito, Amy L. Pierce, Los
Angeles, California, Alexander P. Hardiman, Shawn P. Thomas, New
York, New York, Richard M. Segal, Nathaniel R. Smith, PILLSBURY
WINTHROP SHAW PITTMAN LLP, San Diego, California; Tara L.
Borelli, Atlanta, Georgia, Kyle A. Palazzolo, LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois; Alison
Pennington, TRANSGENDER LAW CENTER, Oakland, California, for
Amici School Administrators Judy Chiasson, David Vannasdall,
Diana K. Bruce, Denise Palazzo, Jeremy Majeski, Thomas A.
Aberli, Robert Bourgeois, Mary Doran, Valeria Silva, Rudy
Rudolph, John O’Reilly, Lisa Love, Dylan Pauly, and Sherie Hohs.
Suzanne B. Goldberg, Sexuality and Gender Law Clinic, COLUMBIA
LAW SCHOOL, New York, New York; Erin E. Buzuvis, WESTERN NEW
ENGLAND UNIVERSITY SCHOOL OF LAW, Springfield, Massachusetts,
for Amici The National Women’s Law Center, Legal Momentum, The
Association of Title IX Administrators, Equal Rights Advocates,
Gender Justice, The Women’s Law Project, Legal Voice, Legal Aid
Society-Employment Law Center, Southwest Women’s Law Center, and
California Women’s Law Center.      Jennifer Levi, GAY & LESBIAN
ADVOCATES   &   DEFENDERS,   Boston,   Massachusetts;   Thomas   M.
Hefferon, Washington, D.C., Mary K. Dulka, New York, New York,
Christine Dieter, Jaime A. Santos, GOODWIN PROCTER LLP, Boston,
Massachusetts; Shannon Minter, Asaf Orr, NATIONAL CENTER FOR
LESBIAN RIGHTS, San Francisco, California, for Amici The World
Professional Association for Transgender Health, Pediatric
Endocrine Society, Child and Adolescent Gender Center Clinic at
UCSF Benioff Children’s Hospital, Center for Transyouth Health
and Development at Children’s Hospital Los Angeles, Gender & Sex
Development Program at Ann & Robert H. Lurie Children's Hospital
of Chicago, Fan Free Clinic, Whitman-Walker Clinic, Inc., GLMA:
Health Professionals Advancing LGBT Equality, Transgender Law &
Policy Institute, Michelle Forcier, M.D. and Norman Spack, M.D.
David Dinielli, Rick Mula, SOUTHERN POVERTY LAW CENTER,
Montgomery, Alabama, for Amici Gender Benders, Gay, Lesbian &
Straight Education Network, Gay-Straight Alliance Network,
iNSIDEoUT, Evie Priestman, ROSMY, Time Out Youth, and We Are
Family.    James Cole, Jr., General Counsel, Francisco Lopez,
Vanessa Santos, Michelle Tucker, Attorneys, Office of the
General   Counsel,   UNITED   STATES   DEPARTMENT   OF   EDUCATION,
Washington, D.C.; Gregory B. Friel, Deputy Assistant Attorney
General, Diana K. Flynn, Sharon M. McGowan, Christine A. Monta,
Attorneys, Civil Rights Division, Appellate Section, UNITED


                                3
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
United States of America. Alan Wilson, Attorney General, Robert
D. Cook, Solicitor General, James Emory Smith, Jr., Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Amicus State of South
Carolina; Mark Brnovich, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona, for Amicus State
of Arizona; Jim Hood, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF MISSISSIPPI, Jackson, Mississippi, for Amicus State
of Mississippi; Patrick Morrisey, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Amicus State of West Virginia; Amicus Paul R.
LePage, Governor, State of Maine, Augusta, Maine; Robert C.
Stephens, Jr., Jonathan R. Harris, COUNSEL FOR THE GOVERNOR OF
NORTH CAROLINA, Raleigh, North Carolina, for Amicus Patrick L.
Mccrory, Governor of North Carolina.         Mary E. McAlister,
Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, Horatio
G. Mihet, LIBERTY COUNSEL, Orlando, Florida, for Amici Liberty
Center for Child Protection and Judith Reisman, PhD. Jeremy D.
Tedesco, Scottsdale, Arizona, Jordan Lorence, Washington, D.C.,
David A. Cortman, J. Matthew Sharp, Rory T. Gray, ALLIANCE
DEFENDING FREEDOM, Lawrenceville, Georgia, for Amici The Family
Foundation of Virginia, John Walsh, Lorraine Walsh, Mark
Frechette, Jon Lynsky, Bradly Friedlin, Lisa Terry, Lee Terry,
Donald Caulder, Wendy Caulder, Kim Ward, Alice May, Jim Rutan,
Issac Rutan, Doretha Guju, Rodney Autry, James Larsen, David
Thornton, Kathy Thornton, Joshua Cuba, Claudia Clifton, Ilona
Gambill, and Tim Byrd.    Lawrence J. Joseph, Washington, D.C.,
for Amicus Eagle Forum Education and Legal Defense Fund.




                               4
FLOYD, Circuit Judge:

      G.G., a transgender boy, seeks to use the boys’ restrooms

at his high school.             After G.G. began to use the boys’ restrooms

with the approval of the school administration, the local school

board   passed     a     policy       banning       G.G.   from   the    boys’         restroom.

G.G. alleges that the school board impermissibly discriminated

against him in violation of Title IX and the Equal Protection

Clause of the Constitution.                   The district court dismissed G.G.’s

Title     IX    claim     and        denied    his     request     for       a    preliminary

injunction.        This        appeal    followed.         Because      we       conclude     the

district       court    did     not     accord       appropriate     deference           to   the

relevant       Department       of    Education       regulations,       we       reverse     its

dismissal of G.G.’s Title IX claim.                        Because we conclude that

the   district         court    used     the     wrong     evidentiary           standard      in

assessing G.G.’s motion for a preliminary injunction, we vacate

its   denial      and     remand       for     consideration       under         the    correct

standard.        We therefore reverse in part, vacate in part, and

remand the case for further proceedings consistent with this

opinion.



                                               I.

      At the heart of this appeal is whether Title IX requires

schools    to    provide        transgender          students     access         to    restrooms

congruent with their gender identity.                       Title IX provides: “[n]o


                                                5
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).          The

Department           of        Education’s        (the       Department)               regulations

implementing Title IX permit the provision of “separate toilet,

locker room, and shower facilities on the basis of sex, but such

facilities provided for students of one sex shall be comparable

to such facilities for students of the other sex.”                                     34 C.F.R. §

106.33.        In        an    opinion    letter      dated       January         7,    2015,       the

Department’s Office for Civil Rights (OCR) interpreted how this

regulation         should       apply     to    transgender           individuals:           “When   a

school elects to separate or treat students differently on the

basis of sex . . . a school generally must treat transgender

students       consistent          with    their      gender      identity.”                J.A.   55.

Because       this       case    comes     to    us   after       dismissal         pursuant         to

Federal Rule of Civil Procedure 12(b)(6), the facts below are

generally as stated in G.G.’s complaint.



                                                 A.

       G.G.     is       a    transgender       boy    now       in    his       junior     year     at

Gloucester High School.                  G.G.’s birth-assigned sex, or so-called

“biological sex,” is female, but G.G.’s gender identity is male.

G.G.     has    been          diagnosed    with       gender          dysphoria,        a    medical


                                                 6
condition      characterized   by    clinically       significant     distress

caused by an incongruence between a person’s gender identity and

the person’s birth-assigned sex.           Since the end of his freshman

year, G.G. has undergone hormone therapy and has legally changed

his name to G., a traditionally male name.                   G.G. lives all

aspects of his life as a boy.             G.G. has not, however, had sex

reassignment surgery. 1

     Before beginning his sophomore year, G.G. and his mother

told school officials that G.G. was a transgender boy.                     The

officials were supportive and took steps to ensure that he would

be treated as a boy by teachers and staff.                  Later, at G.G.’s

request,      school   officials    allowed    G.G.    to    use    the   boys’

restroom. 2     G.G. used this restroom without incident for about

seven weeks.      G.G.’s use of the boys’ restroom, however, excited

the interest of others in the community, some of whom contacted




     1 The World Professional Association for Transgender Health
(WPATH) has established Standards of Care for individuals with
gender dysphoria.    J.A. 37.     These Standards of Care are
accepted as authoritative by organizations such as the American
Medical Association and the American Psychological Association.
Id. The WPATH Standards of Care do not permit sex reassignment
surgery for persons who are under the legal age of majority.
J.A. 38.

     2  G.G. does not participate in the school’s physical
education programs. He does not seek here, and never has sought,
use of the boys’ locker room. Only restroom use is at issue in
this case.



                                      7
the Gloucester County School Board (the Board) seeking to bar

G.G. from continuing to use the boys’ restroom.

      Board Member Carla B. Hook (Hook) added an item to the

agenda     for   the    November    11,     2014     board    meeting        titled

“Discussion of Use of Restrooms/Locker Room Facilities.”                      J.A.

15.      Hook proposed the following resolution (hereinafter the

“transgender restroom policy” or “the policy”):

            Whereas the GCPS [i.e., Gloucester County
            Public   Schools]  recognizes  that   some
            students question their gender identities,
            and

            Whereas the GCPS encourages such students to
            seek support, advice, and guidance from
            parents, professionals and other trusted
            adults, and

            Whereas the GCPS seeks to provide a safe
            learning environment for all students and to
            protect   the  privacy   of   all  students,
            therefore

            It shall be the practice of the GCPS to
            provide male and female restroom and locker
            room facilities in its schools, and the use
            of said facilities shall be limited to the
            corresponding    biological    genders,    and
            students with gender identity issues shall
            be   provided   an   alternative   appropriate
            private facility.

J.A. 15-16; 58.

      At the November 11, 2014 meeting twenty-seven people spoke

during    the    Citizens’   Comment       Period,    a   majority      of    whom

supported    Hook’s    proposed    resolution.       Many    of   the   speakers

displayed hostility to G.G., including by referring pointedly to


                                       8
him as a “young lady.”        J.A. 16.         Others claimed that permitting

G.G. to use the boys’ restroom would violate the privacy of

other students and would lead to sexual assault in restrooms.

One commenter suggested that if the proposed policy were not

adopted,    non-transgender        boys   would     come      to   school   wearing

dresses in order to gain access to the girls’ restrooms.                      G.G.

and his parents spoke against the proposed policy.                     Ultimately,

the Board postponed a vote on the policy until its next meeting

on December 9, 2014.

     At     the   December    9    meeting,       approximately       thirty-seven

people spoke during the Citizens’ Comment Period.                     Again, most

of those who spoke were in favor of the proposed resolution.

Some speakers threatened to vote the Board members out of office

if   the    Board   members       voted       against   the    proposed     policy.

Speakers again referred to G.G. as a “girl” or “young lady.”

J.A. 18.     One speaker called G.G. a “freak” and compared him to

a person who thinks he is a “dog” and wants to urinate on fire

hydrants.     Id.   Following this second comment period, the Board

voted 6-1 to adopt the proposed policy, thereby barring G.G.

from using the boys’ restroom at school.

     G.G. alleges that he cannot use the girls’ restroom because

women and girls in those facilities “react[] negatively because

they perceive[] G.G. to be a boy.”                  Id.       Further, using the

girls’ restroom would “cause severe psychological distress” to


                                          9
G.G. and would be incompatible with his treatment for gender

dysphoria.       J.A. 19.           As a corollary to the policy, the Board

announced    a    series       of    updates       to    the     school’s    restrooms      to

improve general privacy for all students, including adding or

expanding partitions between urinals in male restrooms, adding

privacy strips to the doors of stalls in all restrooms, and

constructing       single-stall         unisex          restrooms    available      to     all

students.        G.G. alleges that he cannot use these new unisex

restrooms because they “make him feel even more stigmatized . .

. .   Being required to use the separate restrooms sets him apart

from his peers, and serves as a daily reminder that the school

views him as ‘different.’”                   Id.         G.G. further alleges that,

because of this stigma and exclusion, his social transition is

undermined and he experiences “severe and persistent emotional

and social harms.”         Id.       G.G. avoids using the restroom while at

school   and      has,    as    a     result       of     this    avoidance,       developed

multiple urinary tract infections.



                                              B.

      G.G.   sued    the       Board    on    June       11,     2015.      G.G.   seeks    an

injunction allowing him to use the boys’ restroom and brings

underlying       claims    that      the     Board       impermissibly       discriminated

against him in violation of Title IX of the Education Amendments

Act of 1972 and the Equal Protection Clause of the Constitution.


                                              10
On July 27, 2015, the district court held a hearing on G.G.’s

motion for a preliminary injunction and on the Board’s motion to

dismiss   G.G.’s     lawsuit.         At    the   hearing,   the   district   court

orally dismissed G.G.’s Title IX claim and denied his request

for a preliminary injunction, but withheld ruling on the motion

to dismiss G.G.’s equal protection claim.                     The district court

followed its ruling from the bench with a written order dated

September 4, 2015 denying the injunction and a second written

order dated September 17, 2015 dismissing G.G.’s Title IX claim

and expanding on its rationale for denying the injunction.

     In     its    September      17,      2015   order,     the   district   court

reasoned that Title IX prohibits discrimination on the basis of

sex and not on the basis of other concepts such as gender,

gender    identity,      or    sexual      orientation.      The   district   court

observed that the regulations implementing Title IX specifically

allow schools to provide separate restrooms on the basis of sex.

The district court concluded that G.G.’s sex was female and that

requiring    him    to   use    the     female    restroom   facilities   did   not

impermissibly discriminate against him on the basis of sex in

violation of Title IX.            With respect to G.G.’s request for an

injunction, the district court found that G.G. had not made the

required showing that the balance of equities was in his favor.

The district court found that requiring G.G. to use the unisex

restrooms during the pendency of this lawsuit was not unduly


                                            11
burdensome     and   would    result   in    less    hardship      than    requiring

other     students   made    uncomfortable     by    G.G.’s       presence    in    the

boys’ restroom to themselves use the unisex restrooms.

      This appeal followed.         G.G. asks us to reverse the district

court’s dismissal of his Title IX claim, grant the injunction he

seeks,     and,   because    of   comments    made     by   the    district    judge

during the motion hearing, to assign the case to a different

district judge on remand.          The Board, on the other hand, asks us

to   affirm   the    district     court’s    rulings    and   also     asks    us    to

dismiss     G.G.’s   equal    protection     claim—on       which    the     district

court has yet to rule—as without merit.                 The United States, as

it did below, has filed an amicus brief supporting G.G.’s Title

IX claim in order to defend the government’s interpretation of

Title IX as requiring schools to provide transgender students

access to restrooms congruent with their gender identity.



                                       II.

      We turn first to the district court’s dismissal of G.G.’s

Title IX claim. 3     We review de novo the district court’s grant of




      3We decline the Board’s invitation to preemptively dismiss
G.G.’s equal protection claim before it has been fully
considered by the district court. “[W]e are a court of review,
not of first view.” Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct.
1326, 1335 (2013) (citation and quotation marks omitted).     We
will not proceed to the merits of G.G.’s equal protection claim
(Continued)


                                       12
a motion to dismiss.            Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir.

2014).       “To      survive    a    motion      to   dismiss,     a   complaint    must

contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.”                               Ashcroft v.

Iqbal,    556      U.S.   662,       678    (2009)      (citations      and    quotations

omitted).

      As noted earlier, Title IX provides: “[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).     To    allege   a

violation of Title IX, G.G. must allege (1) that he was excluded

from participation in an education program because of his sex;

(2)   that      the    educational         institution        was   receiving     federal

financial assistance at the time of his exclusion; and (3) that

the improper discrimination caused G.G. harm. 4                         See Preston v.




on appeal without          the       benefit   of      the   district    court’s    prior
consideration.

      4The Board suggests that a restroom may not be educational
in nature and thus is not an educational program covered by
Title IX.    Appellee’s Br. 35 (quoting Johnston v. Univ. of
Pittsburgh, 97 F. Supp. 3d 657, 682 (W.D. Pa. 2015)).        The
Department’s regulation pertaining to “Education programs or
activities” provides:

          Except as provided in this subpart, in
          providing any aid, benefit, or service to a
(Continued)


                                             13
Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th

Cir. 1994) (citing Cannon v. Univ. of Chi., 441 U.S. 677, 680

(1979)).    We look to case law interpreting Title VII of the

Civil Rights Act of 1964 for guidance in evaluating a claim

brought under Title IX.     Jennings v. Univ. of N.C., 482 F.3d

686, 695 (4th Cir. 2007).

     Not all distinctions on the basis of sex are impermissible

under Title IX.    For example, Title IX permits the provision of



           student, a recipient shall not, on the basis
           of sex:

           (1)   Treat  one  person  differently from
           another in determining whether such person
           satisfies any requirement or condition for
           the provision of such aid, benefit, or
           service;

           (2) Provide different aid, benefits,        or
           services   or  provide   aid,   benefits,   or
           services in a different manner;

           (3) Deny any person any such aid, benefit,
           or service;

           . . .

           (7) Otherwise limit any person in the
           enjoyment    of    any   right, privilege,
           advantage, or opportunity.

34 C.F.R. § 106.31(b).     We have little difficulty concluding
that access to a restroom at a school, under this regulation,
can be considered either an “aid, benefit, or service” or a
“right, privilege, advantage, or opportunity,”      which, when
offered by a recipient institution, falls within the meaning of
“educational program” as used in Title IX and defined by the
Department’s implementing regulations.



                                14
separate    living      facilities    on      the    basis      of     sex:    “nothing

contained   [in    Title    IX]    shall     be     construed     to    prohibit       any

educational   institution         receiving       funds   under      this     Act,    from

maintaining separate living facilities for the different sexes.”

20 U.S.C. § 1686.          The Department’s regulations implementing

Title IX permit the provision of “separate toilet, locker room,

and shower facilities on the basis of sex, but such facilities

provided for students of one sex shall be comparable to such

facilities provided for students of the other sex.”                           34 C.F.R.

§ 106.33.         The    Department        recently       delineated          how     this

regulation should be applied to transgender individuals.                             In an

opinion letter dated January 7, 2015, the Department’s Office

for Civil Rights (OCR) wrote: “When a school elects to separate

or treat students differently on the basis of sex . . . a school

generally must treat transgender students consistent with their

gender identity.” 5      J.A. 55.


     5 The opinion letter cites to OCR’s December 2014 “Questions
and Answers on Title IX and Single-Sex Elementary and Secondary
Classes and Extracurricular Activities.” This document, denoted
a “significant guidance document” per Office of Management and
Budget regulations, states: “All students, including transgender
students and students who do not conform to sex stereotypes, are
protected from sex-based discrimination under Title IX. Under
Title IX, a recipient generally must treat transgender students
consistent with their gender identity in all aspects of the
planning, implementation, enrollment, operation, and evaluation
of single-sex classes.” Office of Civil Rights, Dept. of Educ.,
Questions and Answers on Title IX and Single-Sex Elementary and
Secondary Classes and Extracurricular Activities 25 (2014)
(Continued)


                                        15
                                        A.

       G.G., and the United States as amicus curiae, ask us to

give   the    Department’s     interpretation          of    its    own   regulation

controlling weight pursuant to Auer v. Robbins, 519 U.S. 452

(1997).      Auer requires that an agency’s interpretation of its

own ambiguous regulation be given controlling weight unless the

interpretation     is    plainly     erroneous    or    inconsistent       with    the

regulation or statute.         Id. at 461.       Agency interpretations need

not    be    well-settled      or    long-standing          to     be   entitled      to

deference.      They must, however, “reflect the agency’s fair and

considered judgment on the matter in question.”                     Id. at 462.       An

interpretation may not be the result of the agency’s fair and

considered judgment, and will not be accorded Auer deference,

when the interpretation conflicts with a prior interpretation,

when   it    appears    that   the   interpretation         is     no   more   than    a




available    at    http://www2.ed.gov/about/offices/list/ocr/docs
/faqs-title-ix-single-sex-201412.pdf.

     The dissent suggests that we ignore the part of OCR’s
opinion letter in which the agency “also encourages schools to
offer the use of gender-neutral, individual-user facilities to
any student who does not want to use shared sex-segregated
facilities,” as the Board did here.     Post at 66.    However,
because G.G. does want to use shared sex-segregated facilities,
the agency’s suggestion regarding students who do not want to
use such shared sex-segregated facilities is immaterial to the
resolution of G.G.’s claim.       Nothing in today’s opinion
restricts any school’s ability to provide individual-user
facilities.



                                        16
convenient litigating position, or when the interpretation is a

post    hoc   rationalization.            Christopher          v.    Smithkline       Beecham

Corp., 132 S. Ct. 2156, 2166 (2012) (citations omitted).

       The    district      court    declined       to    afford      deference       to   the

Department’s interpretation of 34 C.F.R. § 106.33.                             The district

court    found     the    regulation      to       be    unambiguous      because       “[i]t

clearly allows the School Board to limit bathroom access ‘on the

basis of sex,’ including birth or biological sex.”                                    G.G. v.

Gloucester Cty. Sch. Bd., No. 4:15cv54, 2015 WL 5560190, at *8

(E.D.   Va.    Sept.      17,    2015).       The       district     court     also     found,

alternatively,           that     the     interpretation             advanced      by      the

Department        was    clearly    erroneous           and   inconsistent        with     the

regulation.        The district court reasoned that, because “on the

basis of sex” means, at most, on the basis of sex and gender

together, it cannot mean on the basis of gender alone.                            Id.

       The United States contends that the regulation clarifies

statutory ambiguity by making clear that schools may provide

separate restrooms for boys and girls “without running afoul of

Title IX.”         Br. for the United States as Amicus Curiae 24-25

(hereinafter        “U.S.       Br.”).         However,        the     Department          also

considers     §    106.33       itself   to   be    ambiguous        as   to    transgender

students because “the regulation is silent on what the phrases

‘students of one sex’ and ‘students of the other sex’ mean in

the context of transgender students.”                         Id. at 25.        The United


                                              17
States       contends         that   the    interpretation         contained       in    OCR’s

January 7, 2015 letter resolves the ambiguity in § 106.33 as

that regulation applies to transgender individuals.



                                                B.

       We     will       not    accord     an    agency’s        interpretation         of   an

unambiguous         regulation       Auer       deference.         Thus,     our     analysis

begins       with    a    determination         of     whether    34   C.F.R.      §    106.33

contains       an    ambiguity.            Section      106.33     permits    schools        to

provide “separate toilet, locker room, and shower facilities on

the basis of sex, but such facilities provided for students of

one    sex    shall      be    comparable       to   such    facilities      provided        for

students of the other sex.”                34 C.F.R. § 106.33.

       “[D]etermining whether a regulation or statute is ambiguous

presents       a     legal      question,       which       we   determine      de      novo.”

Humanoids Grp. v. Rogan, 375 F.3d 301, 306 (4th Cir. 2004).                                  We

determine ambiguity by analyzing the language under the three-

part framework set forth in Robinson v. Shell Oil Co., 519 U.S.

337    (1997).            The    plainness        or    ambiguity      of    language        is

determined by reference to (1) the language itself,                                    (2) the

specific context in which that language is used, and (3) the

broader context of the statute or regulation as a whole.                                Id. at

341.




                                                18
       First,      we   have      little    difficulty     concluding   that     the

language itself—“of one sex” and “of the other sex”—refers to

male and female students.                Second, in the specific context of

§ 106.33, the plain meaning of the regulatory language is best

stated by the United States: “the mere act of providing separate

restroom facilities for males and females does not violate Title

IX . . . .”        U.S. Br. 22 n.8.         Third, the language “of one sex”

and “of the other sex” appears repeatedly in the broader context

of 34 C.F.R. § 106 Subpart D, titled “Discrimination on the

Basis of Sex in Education Programs or Activities Prohibited.” 6

This repeated formulation indicates two sexes (“one sex” and

“the       other   sex”),   and     the    only    reasonable     reading   of   the

language used throughout the relevant regulatory section is that

it references male and female.                    Read plainly then, § 106.33

permits schools to provide separate toilet, locker room, and

shower       facilities     for    its     male   and    female   students.       By

       6For example, § 106.32(b)(2) provides that “[h]ousing
provided . . .   to students of one sex, when compared to that
provided to students of the other sex, shall be as a whole:
proportionate in quantity . . . and [c]omparable in quality and
cost   to  the  student”;   §  106.37(a)(3)  provides   that an
institution generally cannot “[a]pply any rule . . . concerning
eligibility [for financial assistance] which treats persons of
one sex differently from persons of the other sex with regard to
marital or parental status”; and § 106.41(b) provides that
“where [an institution] operates or sponsors a team in a
particular sport for members of one sex but operates or sponsors
no such team for members of the other sex . . . members of the
excluded sex must be allowed to try-out for the team offered . .
. .”



                                            19
implication,       the     regulation         also     permits      schools      to    exclude

males from the female facilities and vice-versa.

        Our inquiry is not ended, however, by this straightforward

conclusion.       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.        We

conclude that the regulation is susceptible to more than one

plausible reading because it permits both the Board’s reading—

determining maleness or femaleness with reference exclusively to

genitalia—and            the         Department’s           interpretation—determining

maleness or femaleness with reference to gender identity.                                     Cf.

Dickenson-Russell Coal Co. v. Sec’y of Labor, 747 F.3d 251, 258

(4th Cir. 2014) (refusing to afford Auer deference where the

language of the regulation at issue was “not susceptible to more

than     one    plausible        reading”          (citation      and    quotation        marks

omitted)).       It is not clear to us how the regulation would apply

in a number of situations—even under the Board’s own “biological

gender”      formulation.             For     example,      which       restroom      would     a

transgender        individual          who      had     undergone        sex-reassignment

surgery use? What about an intersex individual?                               What about an

individual       born    with        X-X-Y    sex     chromosomes?           What     about    an

individual       who     lost    external          genitalia      in    an    accident?       The

Department’s interpretation resolves ambiguity by providing that


                                               20
in the case of a transgender individual using a sex-segregated

facility,    the   individual’s       sex     as   male    or    female    is   to   be

generally     determined       by   reference       to    the    student’s      gender

identity.



                                         C.

       Because we conclude that the regulation is ambiguous as

applied      to     transgender         individuals,            the    Department’s

interpretation is entitled to Auer deference unless the Board

demonstrates      that   the   interpretation        is   plainly      erroneous     or

inconsistent with the regulation or statute.                     Auer, 519 U.S. at

461.    “Our review of the agency’s interpretation in this context

is therefore highly deferential.”                  Dickenson-Russell Coal, 747

F.3d at 257 (citation and quotation marks omitted).                       “It is well

established that an agency’s interpretation need not be the only

possible     reading     of    a    regulation—or        even    the   best     one—to

prevail.”     Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337

(2013).      An agency’s view need only be reasonable to warrant

deference.     Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702

(1991) (“[I]t is axiomatic that the [agency’s] interpretation

need not be the best or most natural one by grammatical or other

standards.     Rather, the [agency’s] view need be only reasonable

to warrant deference.”).




                                         21
      Title IX regulations were promulgated by the Department of

Health,   Education,     and     Welfare      in      1975    and     were   adopted

unchanged by the Department in 1980.               45 Fed. Reg. 30802, 30955

(May 9, 1980).       Two dictionaries from the drafting era inform

our analysis of how the term “sex” was understood at that time.

The first defines “sex” as “the character of being either male

or female” or “the sum of those anatomical and physiological

differences   with    reference    to    which     the      male    and   female   are

distinguished . . . .”         American College Dictionary 1109 (1970).

The second defines “sex” as:

           the sum of the morphological, physiological,
           and   behavioral    peculiarities   of   living
           beings      that      subserves      biparental
           reproduction with its concomitant genetic
           segregation and recombination which underlie
           most   evolutionary    change,  that   in   its
           typical dichotomous occurrence is usu[ally]
           genetically controlled and associated with
           special   sex    chromosomes,   and   that   is
           typically    manifested    as   maleness    and
           femaleness . . . .

Webster’s Third New International Dictionary 2081 (1971).

      Although these definitions suggest that the word “sex” was

understood at the time the regulation was adopted to connote

male and female and that maleness and femaleness were determined

primarily by reference to the factors the district court termed

“biological   sex,”    namely    reproductive         organs,      the    definitions

also suggest that a hard-and-fast binary division on the basis

of   reproductive    organs—although         useful    in    most    cases—was     not


                                        22
universally         descriptive. 7          The    dictionaries,         therefore,     used

qualifiers such as reference to the “sum of” various factors,

“typical dichotomous occurrence,” and “typically manifested as

maleness      and    femaleness.”           Section      106.33       assumes    a   student

population      composed       of    individuals         of    what    has    traditionally

been understood as the usual “dichotomous occurrence” of male

and female where the various indicators of sex all point in the

same       direction.      It       sheds    little      light      on   how    exactly   to

determine the “character of being either male or female” where

those indicators diverge.                   We conclude that the Department’s

interpretation of how § 106.33 and its underlying assumptions

should apply to transgender individuals is not plainly erroneous

or inconsistent with the text of the regulation.                             The regulation

is silent as to which restroom transgender individuals are to

use when a school elects to provide sex-segregated restrooms,

and the Department’s interpretation, although perhaps not the

intuitive       one,      is        permitted       by        the     varying     physical,

psychological, and social aspects—or, in the words of an older




       7
       Modern definitions of “sex” also implicitly recognize the
limitations of a nonmalleable, binary conception of sex.     For
example, Black’s Law Dictionary defines “sex” as “[t]he sum of
the peculiarities of structure and function that distinguish a
male from a female organism; gender.”     Black’s Law Dictionary
1583 (10th ed. 2014). The American Heritage Dictionary includes
in the definition of “sex” “[o]ne’s identity as either female or
male.” American Heritage Dictionary 1605 (5th ed. 2011).



                                              23
dictionary,      “the      morphological,        physiological,          and    behavioral

peculiarities”—included in the term “sex.”



                                            D.

       Finally,         we      consider         whether           the         Department’s

interpretation of § 106.33 is the result of the agency’s fair

and considered judgment.            Even a valid interpretation will not

be   accorded       Auer     deference    where    it     conflicts       with     a    prior

interpretation, where it appears that the interpretation is no

more    than    a     convenient     litigating         position,         or    where     the

interpretation is a post hoc rationalization.                         Christopher, 132

S. Ct. at 2166 (citations omitted).

       Although the Department’s interpretation is novel because

there    was    no    interpretation       as    to    how    §    106.33       applied    to

transgender individuals before January 2015, “novelty alone is

no reason to refuse deference” and does not render the current

interpretation        inconsistent        with    prior      agency      practice.        See

Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2263

(2011).     As the United States explains, the issue in this case

“did not arise until recently,” see id., because schools have

only    recently      begun      citing     §    106.33      as     justification         for

enacting new policies restricting transgender students’ access

to restroom facilities.             The Department contends that “[i]t is

to      those       ‘newfound’      policies          that        [the     Department’s]


                                            24
interpretation of the regulation responds.”                      U.S. Br. 29.        We

see no reason to doubt this explanation.                       See Talk Am., Inc.,

131 S. Ct. at 2264.

     Nor is the interpretation merely a convenient litigating

position.        The    Department        has     consistently         enforced    this

position since 2014.        See J.A. 55 n.5 & n.6 (providing examples

of OCR enforcement actions to secure transgender students access

to restrooms congruent with their gender identities).                         Finally,

this interpretation cannot properly be considered a post hoc

rationalization        because     it     is     in     line   with     the     existing

guidances and regulations of a number of federal agencies—all of

which provide that transgender individuals should be permitted

access   to     the    restroom    that        corresponds      with    their     gender

identities. 8     U.S. Br. 17 n.5 & n.6 (citing publications by the

Occupational      Safety     and        Health        Administration,     the     Equal

Employment Opportunity Commission, the Department of Housing and

     8 We disagree with the dissent’s suggestion that the result
we reach today renders the enforcement of separate restroom
facilities impossible because it “would require schools to
assume   gender    identity   based   on   appearances,   social
expectations, or explicit declarations of identity.”     Post at
65.   Accepting the Board’s position would equally require the
school to assume “biological sex” based on “appearances, social
expectations, or explicit declarations of [biological sex].”
Certainly, no one is suggesting mandatory verification of the
“correct” genitalia before admittance to a restroom.         The
Department’s vision of sex-segregated restrooms which takes
account of gender identity presents no greater “impossibility of
enforcement” problem than does the Board’s “biological gender”
vision of sex-segregated restrooms.



                                           25
Urban      Development,   and    the    Office   of   Personnel    Management).

None of the Christopher grounds for withholding Auer deference

are present in this case.



                                           E.

      We conclude that the Department’s interpretation of its own

regulation,       §   106.33,   as    it   relates    to   restroom   access    by

transgender individuals, is entitled to Auer deference and is to

be accorded controlling weight in this case. 9                 We reverse the

district court’s contrary conclusion and its resultant dismissal

of G.G.’s Title IX claim.



                                           F.

        In many respects, we are in agreement with the dissent.                We

agree that “sex” should be construed uniformly throughout Title

IX   and    its   implementing       regulations.     We   agree   that   it   has

indeed been commonplace and widely accepted to separate public


      9 The Board urges us to reach a contrary conclusion
regarding the validity of the Department’s interpretation,
citing Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher
Educ., 97 F. Supp. 657 (W.D. Pa. 2015).     Although we recognize
that the Johnston court confronted a case similar in most
material facts to the one before us, that court did not consider
the Department’s interpretation     of § 106.33.      Because the
Johnston   court  did   not  grapple   with   the   questions  of
administrative law implicated here, we find the Title IX
analysis in Johnston to be unpersuasive.




                                           26
restrooms, locker rooms, and shower facilities on the basis of

sex.        We   agree    that    “an    individual    has   a    legitimate    and

important interest in bodily privacy such that his or her nude

or partially nude body, genitalia, and other private parts” are

not involuntarily exposed. 10            Post at 56.    It is not apparent to

us, however, that the truth of these propositions undermines the

conclusion we reach regarding the level of deference due to the

Department’s interpretation of its own regulations.

       The Supreme Court commands the use of particular analytical

frameworks       when    courts    review    the   actions   of    the   executive

agencies.        G.G. claims that he is entitled to use the boys’

restroom     pursuant     to     the    Department’s   interpretation      of   its

regulations implementing Title IX.                 We have carefully followed

the Supreme Court’s guidance in Chevron, Auer, and Christopher

and have determined that the interpretation contained in the OCR

letter is to be accorded controlling weight.                 In a case such as


       10
       We doubt that G.G.’s use of the communal restroom of his
choice threatens the type of constitutional abuses present in
the cases cited by the dissent. For example, G.G.’s use—or for
that matter any individual’s appropriate use—of a restroom will
not involve the type of intrusion present in Brannum v. Overton
Cty. Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008) (involving the
videotaping of students dressing and undressing in school locker
rooms), Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604
(6th Cir. 2005) (involving the indiscriminate strip searching of
twenty male and five female students), or Supelveda v. Ramirez,
967 F.2d 1413, 1416 (9th Cir. 1992) (involving a male parole
officer forcibly entering a bathroom stall with a female parolee
to supervise the provision of a urine sample).



                                           27
this,     where    there    is   no   constitutional    challenge      to   the

regulation    or   agency    interpretation,   the     weighing   of   privacy

interests or safety concerns 11—fundamentally questions of policy—

is a task committed to the agency, not to the courts.

     The Supreme Court’s admonition in Chevron points to the

balance courts must strike:

            Judges are not experts in the field, and are
            not part of either political branch of the
            Government. Courts must, in some cases,
            reconcile competing political interests, but
            not on the basis of the judges' personal
            policy preferences. In contrast, an agency
            to which Congress has delegated policy-
            making   responsibilities    may,    within   the
            limits of that delegation, properly rely
            upon the incumbent administration's views of
            wise policy to inform its judgments. While
            agencies are not directly accountable to the
            people, the Chief Executive is, and it is
            entirely   appropriate   for    this    political
            branch of the Government to make such policy
            choices—resolving the competing interests

     11 The dissent accepts the Board’s invocation of amorphous
safety concerns as a reason for refusing deference to the
Department’s interpretation. We note that the record is devoid
of any evidence tending to show that G.G.’s use of the boys’
restroom creates a safety issue.    We also note that the Board
has been, perhaps deliberately, vague as to the nature of the
safety concerns it has—whether it fears that it cannot ensure
G.G.’s safety while in the restroom or whether it fears G.G.
himself is a threat to the safety of others in the restroom. We
are unconvinced of the existence of danger caused by “sexual
responses prompted by students’ exposure to the private body
parts of students of the other biological sex.”      Post at 58.
The same safety concern would seem to require segregated
restrooms for gay boys and girls who would, under the dissent’s
formulation, present a safety risk because of the “sexual
responses prompted” by their exposure to the private body parts
of other students of the same sex in sex-segregated restrooms.



                                       28
             which Congress itself either inadvertently
             did not resolve, or intentionally left to be
             resolved by the agency charged with the
             administration of the statute in light of
             everyday realities.


Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837, 865-66 (1984).         Not only may a subsequent administration

choose to implement a different policy, but Congress may also,

of course, revise Title IX explicitly to prohibit or authorize

the course charted here by the Department regarding the use of

restrooms by transgender students.              To the extent the dissent

critiques the result we reach today on policy grounds, we reply

that, our Auer analysis complete, we leave policy formulation to

the political branches.



                                      III.

      G.G. also asks us to reverse the district court’s denial of

the preliminary injunction he sought which would have allowed

him   to   use    the   boys’    restroom    during   the   pendency    of   this

lawsuit.     “To win such a preliminary injunction, Plaintiffs must

demonstrate that (1) they are likely to succeed on the merits;

(2)   they       will   likely    suffer     irreparable    harm   absent     an

injunction; (3) the balance of hardships weighs in their favor;

and (4) the injunction is in the public interest.”                     League of

Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th



                                       29
Cir. 2014) (citation omitted).               We review a district court’s

denial of a preliminary injunction for abuse of discretion.                    Id.

at 235.       “A district court has abused its discretion if its

decision is guided by erroneous legal principles or rests upon a

clearly erroneous factual finding.”                Morris v. Wachovia Sec.,

Inc., 448 F.3d 268, 277 (4th Cir. 2006) (citation and quotations

omitted).      “We do not ask whether we would have come to the same

conclusion as the district court if we were examining the matter

de novo.”       Id. (citation omitted).            Instead, “we reverse for

abuse of discretion if we form a definite and firm conviction

that the court below committed a clear error of judgment in the

conclusion it reached upon a weighing of the relevant factors.”

Id. (citations and quotations omitted).

       The    district    court   analyzed        G.G.’s    request    only    with

reference to the third factor—the balance of hardships—and found

that the balance of hardships did not weigh in G.G.’s favor.

G.G. submitted two declarations in support of his complaint, one

from   G.G.    himself    and   one   from    a   medical    expert,   Dr.    Randi

Ettner, to explain what harms G.G. will suffer as a result of

his    exclusion   from    the    boys’      restroom.      The   district    court

refused to consider this evidence because it was “replete with

inadmissible evidence including thoughts of others, hearsay, and

suppositions.”     G.G., 2015 WL 5560190, at *11.




                                        30
      The    district    court      misstated       the    evidentiary       standard

governing preliminary injunction hearings.                      The district court

stated:     “The    complaint    is    no     longer      the     deciding    factor,

admissible evidence is the deciding factor.                      Evidence therefore

must conform to the rules of evidence.”                 Id. at *9.      Preliminary

injunctions,       however,   are     governed     by     less    strict     rules    of

evidence:

            The purpose of a preliminary injunction is
            merely to preserve the relative positions of
            the parties until a trial on the merits can
            be held.    Given this limited purpose, and
            given the haste that is often necessary if
            those positions are to be preserved, a
            preliminary    injunction   is    customarily
            granted on the basis of procedures that are
            less formal and evidence that is less
            complete than in a trial on the merits.

Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also

Elrod v. Burns, 427 U.S. 347, 350 n.1 (1976)                       (taking as true

the   “well-pleaded      allegations        of    respondents’       complaint       and

uncontroverted affidavits filed in support of the motion for a

preliminary injunction”); compare Fed. R. Civ. P. 56 (requiring

affidavits supporting summary judgment to be “made on personal

knowledge, [and to] set out facts that would be admissible in

evidence), with Fed R. Civ. P. 65 (providing no such requirement

in    the   preliminary       injunction         context).         Thus,     although

admissible    evidence    may    be    more      persuasive      than   inadmissible

evidence in the preliminary injunction context, it was error for



                                        31
the district court to summarily reject G.G.’s proffered evidence

because it may have been inadmissible at a subsequent trial.

      Additionally, the district court completely excluded some

of G.G.’s proffered evidence on hearsay grounds.                              The seven of

our   sister      circuits         to    have    considered      the    admissibility       of

hearsay in preliminary injunction proceedings have decided that

the     nature    of     evidence          as    hearsay     goes      to    “weight,      not

preclusion”       and     have      permitted        district    courts       to   “rely    on

hearsay evidence for the limited purpose of determining whether

to award a preliminary injunction.”                        Mullins v. City of New

York, 626 F.3d 47, 52 (2d Cir. 2010); see also Kos Pharm., Inc.

v. Andrx Corp., 369 F.3d 700, 718 (3d Cir. 2004); Ty, Inc. v.

GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir. 1997); Levi

Strauss & Co. v. Sunrise Int’l Trading, Inc., 51 F.3d 982, 985

(11th    Cir.     1995)       (“At       the    preliminary      injunction        stage,    a

district    court       may    rely       on    affidavits      and    hearsay     materials

which     would     not       be        admissible      evidence       for    a    permanent

injunction, if the evidence is appropriate given the character

and   objectives        of    the       injunctive      proceeding.”         (citation      and

internal quotations omitted)); Sierra Club, Lone Star Chapter v.

FDIC, 992 F.2d 545, 551 (5th Cir. 1993) (“[A]t the preliminary

injunction stage, the procedures in the district court are less

formal,     and     the       district          court     may     rely       on    otherwise

inadmissible evidence, including hearsay evidence.”); Asseo v.


                                                32
Pan Am. Grain Co., Inc., 805 F.2d 23, 26 (1st Cir. 1986); Flynt

Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.

1984).     We see no reason for a different rule to govern in this

Circuit.        Because        preliminary            injunction        proceedings      are

informal    ones     designed       to   prevent       irreparable        harm    before     a

later trial     governed       by    the    full       rigor    of    usual    evidentiary

standards,     district        courts       may        look     to,     and     indeed      in

appropriate circumstances rely on, hearsay or other inadmissible

evidence     when    deciding       whether       a    preliminary        injunction        is

warranted.

     Because        the   district       court        evaluated       G.G.’s     proffered

evidence     against      a    stricter         evidentiary          standard     than      is

warranted by the nature and purpose of preliminary injunction

proceedings to prevent irreparable harm before a full trial on

the merits, the district court was “guided by erroneous legal

principles.”         We   therefore        conclude      that     the    district      court

abused   its   discretion        when      it    denied        G.G.’s    request      for    a

preliminary     injunction          without       considering         G.G.’s     proffered

evidence.      We     vacate    the      district       court’s       denial     of   G.G.’s

motion for a preliminary injunction and remand the case to the

district court for consideration of G.G.’s evidence in light of

the evidentiary standards set forth herein.




                                            33
                                               IV.

       Finally,      G.G.    requests         that    we   reassign     this     case   to    a

different district judge on remand.                        G.G. does not explicitly

claim that the district judge is biased.                        Absent such a claim,

reassignment is only appropriate in “unusual circumstances where

both    for    the   judge’s       sake       and    the   appearance     of   justice       an

assignment to a different judge is salutary and in the public

interest,      especially          as    it    minimizes      even    a    suspicion         of

partiality.”         United States v. Guglielmi, 929 F.2d 1001, 1007

(4th Cir. 1991) (citation and internal quotation marks omitted).

In determining whether such circumstances exist, a court should

consider: (1) whether the original judge would reasonably be

expected upon remand to have substantial difficulty in putting

out of his or her mind previously expressed views or findings

determined to be erroneous or based on evidence that must be

rejected, (2) whether reassignment is advisable to preserve the

appearance of justice, and (3) whether reassignment would entail

waste    and     duplication            out    of    proportion      to    any     gain      in

preserving the appearance of fairness.                      Id. (citation omitted).

       G.G.    argues       that    both       the    first    and    second      Guglielmi

factors are satisfied.              He contends that the district court has

pre-existing views which it would be unwilling to put aside in

the face of contrary evidence about medical science generally

and about “gender and sexuality in particular.”                           Appellant’s Br.


                                                34
53.    For    example,    the    court    accepted   the    Board’s    “mating”

concern by noting:

             There    are    only    two    instincts—two.
             Everything   else    is  acquired—everything.
             That is, the brain only has two instincts.
             One is called self-preservation, and the
             other is procreation.     And procreation is
             the highest instinct in individuals who are
             in the latter part of their teen-age years.
             All of that is accepted by all medical
             science, as far as I can determine in
             reading information.

J.A. 85-86.

      The district court also expressed skepticism that medical

science   supported      the    proposition   that   one    could     develop   a

urinary tract infection from withholding urine for too long.

J.A. 111-12.     The district court characterized gender dysphoria

as a “mental disorder” and resisted several attempts by counsel

for G.G. to clarify that it only becomes a disorder when left

untreated.      See J.A. 88-91; 101-02.          The district court also

seemed to reject G.G.’s representation of what it meant to be

transgender, repeatedly noting that G.G. “wants” to be a boy and

not a girl, but that “he is biologically a female.”                   J.A. 103-

04; see also J.A. 104 (“It’s his mind. It’s not physical that

causes that, it’s what he believes.”).               The district court’s

memorandum    opinion,    however,    included   none      of   the   extraneous

remarks or suppositions that marred the hearing.




                                         35
     Reassignment      is   an   unusual   step   at   this   early   stage   of

litigation.     Although the district court did express opinions

about medical facts and skepticism of G.G.’s claims, the record

does not clearly indicate that the district judge would refuse

to   consider   and    credit     sound    contrary    evidence.      Further,

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.

The conduct of the district judge does not at this point satisfy

the Guglielmi standard.          We deny G.G.’s request for reassignment

to a different district judge on remand.



                                      V.

     For the foregoing reasons, the judgment of the district

court is

                      REVERSED IN PART, VACATED IN PART, AND REMANDED.




                                      36
DAVIS, Senior Circuit Judge, concurring:

     I     concur       in    Judge        Floyd’s   fine     opinion.         I    write

separately, however, to note that while I am happy to join in

the remand of this matter to the district court so that it may

consider G.G.’s evidence under proper legal standards in the

first instance, this Court would be on sound ground in granting

the requested preliminary injunction on the undisputed facts in

the record.

                                              I.

     In    order    to       obtain    a    preliminary     injunction,      G.G.    must

demonstrate that (1) he is likely to succeed on the merits, (2)

he is likely to suffer irreparable harm in the absence of an

injunction, (3) the balance of hardships tips in his favor, and

(4) the requested injunction is in the public interest.                            Pashby

v. Delia, 709 F.3d 307, 320 (4th Cir. 2013) (citing Winter v.

Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)).                              The record

before us establishes that G.G. has done so.

                                              A.

     G.G.       alleges      that     by     singling   him      out   for    different

treatment because he is transgender, the Board’s restroom policy

discriminates against him “on the basis of sex” in violation of

Title     IX.      In     light       of    the    weight   of    circuit     authority

concluding that discrimination against transgender individuals

constitutes discrimination “on the basis of sex” in the context


                                              37
of analogous statutes and our holding here that the Department’s

interpretation of 34 C.F.R. § 106.33 is to be given controlling

weight, G.G. has surely demonstrated a likelihood of success on

the merits of his Title IX claim.                        See Price Waterhouse v.

Hopkins, 490 U.S. 228, 250–51 (1989); see also Glenn v. Brumby,

663 F.3d 1312, 1316–19 (11th Cir. 2011); Smith v. City of Salem,

378 F.3d 566, 573–75 (6th Cir. 2004); Rosa v. Park W. Bank &

Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000); Schwenk v.

Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000).

                                            B.

     In support of his claim of irreparable harm, G.G. submitted

an affidavit to the district court describing the psychological

distress he experiences when he is forced to use the single-

stall restrooms or the restroom in the nurse’s office.                        See J.A.

32–33.    His    affidavit       also   indicates    that    he    has      “repeatedly

developed       painful    urinary      tract    infections”      as    a    result   of

holding    his    urine     in   order      to   avoid    using   the    restroom     at

school.    Id.

     An expert declaration by Dr. Randi Ettner, a psychologist

specializing       in     working    with    children      and    adolescents     with

gender dysphoria, provides further support for G.G.’s claim of

irreparable harm.          In her affidavit, Dr. Ettner indicates that

treating a transgender boy as male in some situations but not in

others is “inconsistent with evidence-based medical practice and


                                            38
detrimental       to   the    health      and       well-being      of     the    child”       and

explains why access to a restroom appropriate to one’s gender

identity is important for transgender youth.                               J.A. 39.          With

respect to G.G. in particular, Dr. Ettner states that in her

professional opinion, the Board’s restroom policy “is currently

causing emotional distress to an extremely vulnerable youth and

placing G.G. at risk for accruing lifelong psychological harm.”

J.A. 41.    In particular, Dr. Ettner opines that

     [a]s a result of the School Board’s restroom policy, .
     . . G.G. is put in the humiliating position of having
     to use a separate facility, thereby accentuating his
     ‘otherness,’ undermining his identity formation, and
     impeding his medically necessary social transition
     process.     The shame of being singled out and
     stigmatized in his daily life every time he needs to
     use the restroom is a devastating blow to G.G. and
     places him at extreme risk for immediate and long-term
     psychological harm.

J.A. 42.

     The    Board       offers       nothing         to   contradict          any       of     the

assertions concerning irreparable harm in G.G.’s or Dr. Ettner’s

affidavits.       Instead, its arguments focus on what is purportedly

lacking    from    G.G.’s     presentation           in   support        of   his      claim    of

irreparable       harm,      such    as   “evidence          that    [his        feelings       of

dysphoria, anxiety, and distress] would be lessened by using the

boy[s’]    restroom,”        evidence      from        his    treating        psychologist,

medical     evidence,          and        an        opinion         from         Dr.     Ettner

“differentiating between the distress that G.G. may suffer by



                                               39
not    using       the    boy[s’]       bathroom     during        the    course        of    this

litigation and the distress that he has apparently been living

with since age 12.”                Br. Appellee 42–43.                As to the alleged

deficiency concerning Dr. Ettner’s opinion, the Board’s argument

is belied by Dr. Ettner’s affidavit itself, which, as quoted

above, provides her opinion about the psychological harm that

G.G.    is    experiencing         “[a]s    a    result       of    the    School        Board’s

restroom policy.”              J.A. 42.    With respect to the other purported

inadequacies,           the    absence    of     such   evidence          does    nothing       to

undermine         the    uncontroverted        statements       concerning         the       daily

psychological harm G.G. experiences as a result of the Board’s

policy       or    Dr.    Ettner’s       unchallenged         opinion      concerning          the

significant long-term consequences of that harm.                               Moreover, the

Board offers no argument to counter G.G.’s averment that he has

repeatedly contracted a urinary tract infection as a result of

holding his urine to avoid using the restroom at school.

       The        uncontroverted         facts      before         the     district          court

demonstrate that as a result of the Board’s restroom policy,

G.G. experiences daily psychological harm that puts him at risk

for    long-term         psychological      harm,       and    his       avoidance       of    the

restroom as a result of the Board’s policy puts him at risk for

developing a urinary tract infection as he has repeatedly in the

past.         G.G.       has     thus     demonstrated         that       he     will        suffer

irreparable harm in the absence of an injunction.


                                               40
                                          C.

       Turning to the balance of the hardships, G.G. has shown

that   he   will     suffer   irreparable        harm   without   the   requested

injunction.        On the other end of the scale, the Board contends

that other students’ constitutional right to privacy will be

imperiled by G.G.’s presence in the boys’ restroom.

       As   the    majority   opinion     points     out,   G.G.’s   use   of   the

restroom     does     not     implicate        the   unconstitutional      actions

involved in the cases cited by the dissent.                 Moreover, students’

unintentional exposure of their genitals to others using the

restroom has already been largely, if not entirely, remedied by

the alterations to the school’s restrooms already undertaken by

the Board.        To the extent that a student simply objects to using

the restroom in the presence of a transgender student even where

there is no possibility that either student’s genitals will be

exposed, all students have access to the single-stall restrooms.

For other students, using the single-stall restrooms carries no

stigma whatsoever, whereas for G.G., using those same restrooms

is tantamount to humiliation and a continuing mark of difference

among his fellow students.          The minimal or non-existent hardship

to other students of using the single-stall restrooms if they

object to G.G.’s presence in the communal restroom thus does not

tip the scale in the Board’s favor.                  The balance of hardships

weighs heavily toward G.G.


                                          41
                                           D.

       Finally, consideration of the public interest in granting

or    denying    the   preliminary       injunction        favors     G.G.      Having

concluded that G.G. has demonstrated a likelihood of success on

the    merits    of    his    Title     IX      claim,    denying     the    requested

injunction would permit the Board to continue violating G.G.’s

rights under Title IX for the pendency of this case.                         Enforcing

G.G.’s right to be free from discrimination on the basis of sex

in an educational institution is plainly in the public interest.

Cf. Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th

Cir.    2002)     (citation        omitted)        (observing       that     upholding

constitutional rights is in the public interest).

       The    Board    contends     that     the    public      interest     lies   in

allowing this issue to be determined by the legislature, citing

pending legislation before Congress addressing the issue before

the Court.       But, as discussed above, the weight of authority

establishes that discrimination based on transgender status is

already      prohibited      by   the   language     of    federal     civil    rights

statutes, as interpreted by the Supreme Court.                      The existence of

proposed legislation that, if passed, would address the question

before us does not justify forcing G.G. to suffer irreparable

harm when he has demonstrated that he is likely to succeed on

the merits of his claims under current federal law.




                                           42
                                             II.

      Based on the evidence presented to the district court, G.G.

has   satisfied     all    four    prongs         of   the    preliminary     injunction

inquiry.         When    the   record        before      us     supports   entry     of    a

preliminary       injunction—as         it    amply       does     here—we    have    not

hesitated to act to prevent irreparable injury to a litigant

before us.       See, e.g., League of Women Voters of N.C. v. North

Carolina, 769 F.3d 224, 248 (4th Cir. 2014) (expressly observing

that appellate courts have the power to vacate a denial of a

preliminary      injunction       and    direct         entry    of   an   injunction);

Eisenberg ex rel. Eisenberg v. Montgomery Cty. Pub. Schs., 197

F.3d 123, 134 (4th Cir. 1999) (directing entry of injunction

“because the record clearly establishes the plaintiff’s right to

an    injunction    and    [an     evidentiary]           hearing     would   not     have

altered the result”).

      Nevertheless, it is right and proper that we defer to the

district court in this instance.                       It is to be hoped that the

district court will turn its attention to this matter with the

urgency    the    case    poses.        Under      the    circumstances       here,       the

appropriateness and necessity of such prompt action is plain.

By the time the district court issues its decision, G.G. will

have suffered the psychological harm the injunction sought to

prevent for an entire school year.




                                             43
     With these additional observations, I concur fully in Judge
Floyd’s   thoughtful  and  thorough   opinion  for   the  panel.




                               44
NIEMEYER, Circuit Judge, concurring in part and dissenting in
part:

      I concur in Part IV of the court’s opinion.                            With respect

to whether G.G. stated a claim under Title IX and whether the

district court abused its discretion in denying G.G’s motion for

a   preliminary       injunction,     I     would   affirm       the    ruling       of    the

district court dismissing G.G.’s Title IX claim and denying his

motion for a preliminary injunction.                    I therefore dissent from

the majority’s decision on those issues.

      G.G.,     a     transgender         boy     who     is    16,     challenges          as

discriminatory, under the Equal Protection Clause and Title IX

of the Education Amendments of 1972, his high school’s policy

for assigning students to restrooms and locker rooms based on

biological sex.            The school’s policy provides:                     (1) that the

girls’   restrooms         and   locker    rooms    are    designated         for    use    by

students      who    are     biologically        female;       (2)     that    the    boys’

restrooms and locker rooms are designated for use by students

who are biologically male; and (3) that all students, regardless

of their sex, are authorized to use the school’s three single-

stall unisex restrooms, which the school created to accommodate

transgender         students.        Under       this     policy,       G.G.,       who    is

biologically female but who identifies as male, is authorized to

use   the     girls’    restrooms         and    locker    rooms       and    the    unisex

restrooms.      He contends, however, that the policy discriminates



                                            45
against him because it denies him, as one who identifies as

male, the use of the boys’ restrooms, and he seeks an injunction

compelling      the     high    school    to     allow    him    to     use    the       boys’

restrooms.

        The    district      court    dismissed         G.G.’s     Title       IX       claim,

explaining      that     the    school    complied       with    Title        IX       and   its

regulations,      which      permit   schools      to    provide      separate          living

facilities, restrooms, locker rooms, and shower facilities “on

the basis of sex,” so long as the facilities are “comparable.”

20 U.S.C. § 1686; 34 C.F.R. §§ 106.32(b), 106.33.

      Strikingly, the majority now reverses the district court’s

ruling, without any supporting case law, and concludes that when

Title     IX    and    its     regulations       provide     for      separate          living

facilities, restrooms, locker rooms, and shower facilities on

the basis of sex, the statute’s and regulations’ use of the term

“sex”     means    a    person’s      gender      identity,       not    the        person’s

biological status as male or female.                     To accomplish its goal,

the   majority        relies   entirely     on    a   2015      letter    sent          by   the

Department of Education’s Office for Civil Rights to G.G., in

which the Office for Civil Rights stated, “When a school elects

to separate or treat students differently on the basis of sex

[when    providing       restrooms,      locker       rooms,     shower       facilities,

housing,       athletic      teams,   and      single-sex       classes],          a    school

generally must treat transgender students consistent with their


                                            46
gender    identity.”           (Emphasis         added).       Accepting        that        new

definition of the statutory term “sex,” the majority’s opinion,

for the first time ever, holds that a public high school may not

provide   separate       restrooms        and    locker    rooms    on    the       basis    of

biological sex.          Rather, it must now allow a biological male

student who identifies as female to use the girls’ restrooms and

locker    rooms    and,      likewise,      must       allow   a   biological         female

student who identifies as male to use the boys’ restrooms and

locker    rooms.          This      holding          completely    tramples          on     all

universally accepted protections of privacy and safety that are

based on the anatomical differences between the sexes.                                    And,

unwittingly, it also tramples on the very concerns expressed by

G.G., who said that he should not be forced to go to the girls’

restrooms      because    of     the   “severe         psychological      distress”          it

would inflict on him and because female students had “reacted

negatively”       to   his     presence         in    girls’   restrooms.             Surely

biological males who identify as females would encounter similar

reactions in the girls’ restroom, just as students physically

exposed   to    students       of   the    opposite       biological      sex       would    be

likely    to   experience        psychological          distress.         As    a    result,

schools would no longer be able to protect physiological privacy

as between students of the opposite biological sex.

      This unprecedented holding overrules custom, culture, and

the   very     demands    inherent        in    human     nature    for    privacy          and


                                            47
safety, which the separation of such facilities is designed to

protect.        More     particularly,              it    also      misconstrues       the     clear

language       of   Title    IX    and        its    regulations.               And   finally,     it

reaches an unworkable and illogical result.

       The recent Office for Civil Rights letter, moreover, which

is not law but which is the only authority on which the majority

relies,    states        more   than      the       majority        acknowledges.            In   the

sentence following the sentence on which the majority relies,

the    letter       states     that,     to     accommodate          transgender        students,

schools       are    encouraged         “to    offer          the   use    of    gender-neutral,

individual-user facilities to any student who does not want to

use shared sex-segregated facilities [as permitted by Title IX’s

regulations].”           This appears to approve the course that G.G.’s

school followed when it created unisex restrooms in addition to

the boys’ and girls’ restrooms it already had.

       Title        IX   and      its         implementing           regulations         are      not

ambiguous.          In recognition of physiological privacy and safety

concerns,       they      allow     schools              to    provide      “separate        living

facilities for the different sexes,” 20 U.S.C. § 1686, provided

that    the    facilities         are    “proportionate”              and       “comparable,”      34

C.F.R.    §    106.32(b),         and    to     provide         “separate        toilet,     locker

room, and shower facilities on the basis of sex,” again provided

that     the    facilities         are        “comparable,”           34    C.F.R.      § 106.33.

Because the school’s policy that G.G. challenges in this action


                                                    48
comports with Title IX and its regulations, I would affirm the

district court’s dismissal of G.G.’s Title IX claim.


                                            I

       The relevant facts are not in dispute.                    G.G. is a 16 year-

old who attends Gloucester High School in Gloucester County,

Virginia.     He is biologically female, but “did not feel like a

girl” from an early age.              Still, he enrolled at Gloucester High

School for his freshman year as a female.

       During his freshman year, however, G.G. told his parents

that   he    considered         himself    to    be    transgender,         and    shortly

thereafter,     at        his     request,       he     began        therapy       with    a

psychologist,       who        diagnosed   him        with    gender       dysphoria,      a

condition of distress brought about by the incongruence of one’s

biological sex and gender identity.

       In August 2014, before beginning his sophomore year, G.G.

and his mother met with the principal and guidance counselor at

Gloucester    High    School       to   discuss       his    need,    as   part     of    his

treatment,     to    socially         transition       at    school.         The    school

accommodated    all       of    his   requests.         Officials      changed      school

records to reflect G.G.’s new male name; the guidance counselor

supported G.G.’s sending an email to teachers explaining that he

was to be addressed using his new name and to be referred to

using male pronouns; G.G. was permitted to fulfill his physical



                                           49
education        requirement          through      a    home-bound        program,      as     he

preferred not to use the school’s locker rooms; and the school

allowed G.G. to use a restroom in the nurse’s office “because

[he]     was     unsure      how      other      students      would      react    to    [his]

transition.”           G.G.     was    grateful        for    the   school’s      “welcoming

environment.”           As he stated, “no teachers, administrators, or

staff    at      Gloucester      High      School      expressed     any    resistance        to

calling [him] by [his] legal name or referring to [him] using

male pronouns.”              And he was “pleased to discover that [his]

teachers and the vast majority of [his] peers respected the fact

that [he is] a boy.”

       As      the     school       year      began,      however,        G.G.     found      it

“stigmatizing” to continue using the nurse’s restroom, and he

requested        to    use    the     boys’      restrooms.         The    principal         also

accommodated this request.                    But the very next day, the School

Board    began        receiving       “numerous        complaints      from      parents     and

students about [G.G.’s] use of the boys’ restrooms.”                              The School

Board thus faced a dilemma.                    It recognized G.G.’s feelings, as

he expressed them, that “[u]sing the girls’ restroom[s] [was]

not possible” because of the “severe psychological distress” it

would inflict on him and because female students had previously

“reacted negatively” to his presence in the girls’ restrooms.

It now also had to recognize that boys had similar feelings

caused      by    G.G.’s     use    of     the    boys’      restrooms,     although         G.G.


                                                 50
stated    that    he    continued    using     the    boys’   restrooms       for   some

seven weeks without personally receiving complaints from fellow

students.

     The Gloucester County School Board considered the problem

and, after two public meetings, adopted a compromise policy, as

follows:

     Whereas   the  GCPS   recognizes  that                   some     students
     question their gender identities, and

     Whereas the GCPS encourages such students                         to seek
     support,   advice,    and   guidance    from                      parents,
     professionals and other trusted adults, and

     Whereas the GCPS seeks to provide                     a safe learning
     environment for all students and                      to protect the
     privacy of all students, therefore

     It shall be the practice of the GCPS to provide male
     and female restroom and locker room facilities in its
     schools, and the use of said facilities shall be
     limited to the corresponding biological genders, and
     students with gender identity issues shall be provided
     an alternative appropriate private facility.

Gloucester       High    School     promptly    implemented      the    policy      and

created    three       single-stall    unisex        restrooms   for    use    by   all

students, regardless of their biological sex or gender identity.

     In December 2014, G.G. sought an opinion letter about his

situation from the U.S. Department of Education’s Office for

Civil Rights, and on January 15, 2015, the Office responded,

stating, as relevant here:

     The Department’s Title IX regulations permit schools
     to provide sex-segregated restrooms, locker rooms,
     shower   facilities,  housing,  athletic  teams,  and
     single-sex classes under certain circumstances.  When


                                         51
     a school elects to separate or treat students
     differently on the basis of sex in those situations, a
     school generally must treat transgender students
     consistent with their gender identity.     [The Office
     for Civil Rights] also encourages schools to offer the
     use of gender-neutral, individual-user facilities to
     any student who does not want to use shared sex-
     segregated facilities.

     G.G. commenced this action in June 2015, alleging that the

Gloucester County School Board’s policy was discriminatory, in

violation of the U.S. Constitution’s Equal Protection Clause and

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681

et seq.    He sought declaratory relief, injunctive relief, and

damages.   With his complaint, G.G. also filed a motion for a

preliminary   injunction    “requiring   the   School   Board   to   allow

[him] to use the boys’ restrooms at school.”

     The district court dismissed G.G.’s Title IX claim because

Title IX’s implementing regulations permit schools to provide

separate restrooms “on the basis of sex.”        The court also denied

G.G.’s motion for a preliminary injunction.             As to the Equal

Protection claim, the court has not yet ruled on whether G.G.

failed to state a claim, but, at the hearing on the motion for a

preliminary   injunction,     it   indicated    that    it   “will   hear

evidence” and “get a date set” for trial to better assess the

claim.

     From the district court’s order denying G.G.’s motion for a

preliminary injunction, G.G. filed this appeal, in which he also




                                   52
challenges the district court’s Title IX ruling as inextricably

intertwined with the district court’s denial of the motion for a

preliminary injunction.


                                                II

     G.G.    recognizes            that   persons          who   are     born    biologically

female    “typically”         identify          psychologically           as     female,    and

likewise,       that        persons       who        are     born      biologically        male

“typically”      identify           as    male.             Because       G.G.     was     born

biologically     female       but     identifies           as    male,    he    characterizes

himself as a transgender male.                       He contends that because he is

transgender, the School Board singled him out for “different and

unequal treatment,” “discriminat[ing] against him based on sex

[by denying him use of the boys’ restrooms], in violation of

Title    IX.”         He    argues,       “discrimination           against       transgender

people is necessarily discrimination based on sex because it is

impossible       to        treat     people          differently         based     on      their

transgender status without taking their sex into account.”                                   He

concludes that the School Board’s policy addressing restrooms

and locker rooms thus illegally fails to include transgender

persons on the basis of their gender identity.                                 In particular,

he concludes that he is “prevent[ed] . . . from using the same

restrooms as other students and relegat[ed] . . . to separate,

single-stall facilities.”



                                                53
      As noted, the School Board’s policy designates the use of

restrooms and locker rooms based on the student’s biological sex

-- biological females are assigned to the girls’ restrooms and

unisex restrooms; biological males are assigned to the boys’

restrooms and unisex restrooms.               G.G. is thus assigned to the

girls’ restrooms and the unisex restrooms, but is denied the use

of   the   boys’    restrooms.      He    asserts,   however,   that    because

neither he nor the girls would accept his use of the girls’

restroom,    he    is   relegated   to   the   unisex   restrooms,     which   is

stigmatizing.

      The School Board contends that it is treating all students

the same way, as it explains:

      The School Board’s policy does not discriminate
      against any class of students.     Instead, the policy
      was developed to treat all students and situations the
      same.    To respect the safety and privacy of all
      students, the School Board has had a long-standing
      practice of limiting the use of restroom and locker
      room facilities to the corresponding biological sex of
      the students.    The School Board also provides three
      single-stall   bathrooms  for  any    student   to  use
      regardless of his or her biological sex.      Under the
      School Board’s restroom policy, G.G. is being treated
      like every other student in the Gloucester Schools.
      All students have two choices. Every student can use
      a restroom associated with their anatomical sex,
      whether they are boys or girls.     If students choose
      not to use the restroom associated with their
      anatomical sex, the students can use a private,
      single-stall restroom. No student is permitted to use
      the restroom of the opposite sex.     As a result, all
      students, including female to male transgender and
      male to female transgender students, are treated the
      same.



                                         54
       While G.G. has pending a claim under the Equal Protection

Clause (on which the district court has not yet ruled), only his

preliminary injunction challenge and Title IX claim are before

us at this time.

       Title IX provides:

       No person in the United States 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)    (emphasis   added).          The   Act,    however,

provides, “Notwithstanding anything to the contrary contained in

this chapter, nothing contained herein shall be construed to

prohibit any educational institution receiving funds under this

Act,     from      maintaining     separate    living      facilities        for   the

different sexes.”           Id. § 1686 (emphasis added); see also 34

C.F.R.    §     106.32(b)    (permitting      schools     to    provide     “separate

housing       on    the   basis   of   sex”   as   long    as     the   housing     is

“proportionate” and “comparable” (emphasis added)).                         Similarly,

implementing Regulation 106.33 provides for particular separate

facilities, as follows:

       A recipient may provide separate toilet, locker room,
       and shower facilities on the basis of sex, but such
       facilities provided for students of one sex shall be
       comparable to such facilities provided for students of
       the other sex.

34 C.F.R. § 106.33 (emphasis added).                Thus, although Title IX

and its regulations provide generally that a school receiving



                                         55
federal funds may not discriminate on the basis of sex, they

also     specify         that    a   school        does     not    violate       the    Act   by

providing,          on    the   basis      of    sex,     separate      living    facilities,

restrooms, locker rooms, and shower facilities.

       While G.G. only challenges the definition and application

of the term “sex” with respect to separate restrooms, acceptance

of his argument would necessarily change the definition of “sex”

for    purposes          of   assigning     separate        living      facilities,      locker

rooms, and shower facilities as well.                        All are based on “sex,” a

term that must be construed uniformly throughout Title IX and

its implementing regulations.                     See Sullivan v. Stroop, 496 U.S.

478, 484 (1990) (“[T]he normal rule of statutory construction

[is] that identical words used in different parts of the same

act are intended to have the same meaning” (internal quotation

marks and citations omitted)); In re Total Realty Mgmt., LLC,

706 F.3d 245, 251 (4th Cir. 2013) (“Canons of construction . . .

require that, to the extent possible, identical terms or phrases

used in different parts of the same statute be interpreted as

having        the        same   meaning. This             presumption       of     consistent

usage . . . ensure[s] that the statutory scheme is coherent and

consistent” (alterations in original) (internal quotation marks

and citations omitted)); see also Kentuckians for Commonwealth

Inc.     v.     Riverburgh,          317        F.3d    425,      440    (4th    Cir.     2003)

(“[B]ecause a regulation must be consistent with the statute it


                                                  56
implements, any interpretation of a regulation naturally must

accord    with     the    statute      as        well”    (quoting          John     F.      Manning,

Constitutional         Structure           and     Judicial           Deference         to      Agency

Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 627 n.78

(1996))).

      Across     societies           and     throughout          history,          it     has     been

commonplace        and     universally             accepted           to     separate           public

restrooms, locker rooms, and shower facilities on the basis of

biological sex in order to address privacy and safety concerns

arising     from    the     biological             differences             between      males      and

females.       An individual has a legitimate and important interest

in bodily privacy such that his or her nude or partially nude

body,    genitalia,       and    other       private          parts    are    not       exposed     to

persons of the opposite biological sex.                                Indeed, courts have

consistently       recognized         that        the     need      for      such       privacy     is

inherent in the nature and dignity of humankind.                                See, e.g., Doe

v.    Luzerne      Cnty.,       660        F.3d        169,    176-77        (3d     Cir.        2011)

(recognizing        that        an    individual              has     “a      constitutionally

protected privacy interest in his or her partially clothed body”

and     that    this     “reasonable             expectation           of    privacy”           exists

“particularly while in the presence of members of the opposite

sex”); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 494 (6th

Cir. 2008) (explaining that “the constitutional right to privacy

. . . includes the right to shield one’s body from exposure to


                                                  57
viewing     by    the       opposite        sex”);    Beard    v.    Whitmore       Lake    Sch.

Dist., 402 F.3d 598, 604 (6th Cir. 2005) (“Students of course

have a significant privacy interest in their unclothed bodies”);

Sepulveda        v.    Ramirez,        967    F.2d    1413,       1416    (9th     Cir.    1992)

(explaining that “[t]he right to bodily privacy is fundamental”

and    that      “common          sense,     decency,       and     [state]       regulations”

require recognizing it in a parolee’s right not to be observed

by    an   officer          of   the   opposite       sex   while        producing    a    urine

sample);      Lee      v.    Downs,     641    F.2d    1117,      1119     (4th    Cir.    1989)

(recognizing that, even though inmates in prison “surrender many

rights of privacy,” their “special sense of privacy in their

genitals”        should          not   be     violated      through        exposure       unless

“reasonably           necessary”       and    explaining          that    the     “involuntary

exposure of [genitals] in the presence of people of the other

sex may be especially demeaning and humiliating”).

       Moreover, we have explained that separating restrooms based

on    “acknowledged              differences”        between      the     biological       sexes

serves to protect this important privacy interest.                                See Faulkner

v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (noting “society’s

undisputed approval of separate public rest rooms for men and

women based on privacy concerns”).                          Indeed, the Supreme Court

recognized, when ordering an all-male Virginia college to admit

female students, that such a remedy “would undoubtedly require

alterations necessary to afford members of each sex privacy from


                                                58
the other sex.”          United States v. Virginia, 518 U.S. 515, 550

n.19 (1996).      Such privacy was and remains necessary because of

the   inherent    “[p]hysical      differences           between    men   and    women,”

which, as the Supreme Court explained, are “enduring” and render

“the two sexes . . . not fungible,” id. at 533 (distinguishing

sex from race and national origin), not because of “one’s sense

of oneself as belonging to a particular gender,” as G.G. and the

government as amicus contend.

      Thus, Title IX’s allowance for the separation, based on

sex, of living facilities, restrooms, locker rooms, and shower

facilities rests on the universally accepted concern for bodily

privacy that is founded on the biological differences between

the   sexes.      This    privacy   concern         is    also     linked   to    safety

concerns   that    could    arise    from     sexual       responses      prompted      by

students’ exposure to the private body parts of students of the

other biological sex.        Indeed, the School Board cited these very

reasons    for   its    adoption    of   the    policy,       explaining         that   it

separates restrooms and locker rooms to promote the privacy and

safety of minor children, pursuant to its “responsibility to its

students   to    ensure    their    privacy     while       engaging      in    personal

bathroom functions, disrobing, dressing, and showering outside

of the presence of members of the opposite sex.                                [That the

school    has    this    responsibility]       is    particularly         true    in    an




                                         59
environment         where     children        are    still       developing,          both

emotionally and physically.”

      The need to protect privacy and safety between the sexes

based on physical exposure would not be present in the same

quality and degree if the term “sex” were to encompass only a

person’s     gender      identity.         Indeed,   separation       on   this    basis

would function nonsensically.                A biological male identifying as

female could hardly live in a girls’ dorm or shower in a girls’

shower     without      invading    physiological         privacy    needs,     and    the

same would hold true for a biological female identifying as male

in a boys’ dorm or shower.                G.G.’s answer, of course, is that he

is   not    challenging       the   separation,      on    the   basis     of   sex,   of

living facilities, locker rooms, and shower facilities, but only

of restrooms, where the risks to privacy and safety are far

reduced.         This effort to limit the scope of the issue apparently

sways      the    majority,    as    it    cabins    its    entire    discussion       to

“restroom access by transgender individuals.”                       Ante at 26.        But

this effort to restrict the effect of G.G.’s argument hardly

matters when the term “sex” would have to be applied uniformly

throughout        the   statute     and    regulations,     as     noted   above      and,

indeed, as agreed to by the majority.                See ante at 26.

      The        realities    underpinning       Title      IX’s     recognition       of

separate living facilities, restrooms, locker rooms, and shower

facilities are reflected in the plain language of the statute


                                            60
and regulations, which is not ambiguous.                        The text of Title IX

and its regulations allowing for separation of each facility “on

the   basis    of    sex”    employs       the    term    “sex”      as    was     generally

understood at the time of enactment.                    See Thomas Jefferson Univ.

v. Shalala, 512 U.S. 504, 512 (1994) (explaining that courts

should   not    defer       to   an    agency’s        interpretation         of    its   own

regulation     if     an    “alternative          reading    is      compelled       by   the

regulation’s        plain    language       or    by    other     indications        of   the

Secretary’s intent at the time of the regulation’s promulgation”

(emphasis      added)       (internal        quotation          marks      and      citation

omitted)); see also Auer v. Robbins, 519 U.S. 452, 461 (1997)

(discussing dictionary definitions of the regulation’s “critical

phrase” to help determine whether the agency’s interpretation

was   “plainly      erroneous         or   inconsistent      with       the    regulation”

(internal quotation marks and citation omitted)).                             Title IX was

enacted in 1972 and the regulations were promulgated in 1975 and

readopted in 1980, and during that time period, virtually every

dictionary     definition        of    “sex”      referred      to   the    physiological

distinctions        between      males      and     females,         particularly         with

respect to their reproductive functions.                     See, e.g., The Random

House College Dictionary 1206 (rev. ed. 1980) (“either the male

or female division of a species, esp. as differentiated with

reference      to     the     reproductive          functions”);           Webster’s      New

Collegiate Dictionary 1054 (1979) (“the sum of the structural,


                                             61
functional, and behavioral characteristics of living beings that

subserve      reproduction        by     two        interacting       parents       and    that

distinguish     males      and    females”);          American      Heritage    Dictionary

1187 (1976) (“The property or quality by which organisms are

classified      according          to     their         reproductive          functions”);

Webster’s Third New International Dictionary 2081 (1971) (“the

sum    of     the     morphological,            physiological,          and     behavioral

peculiarities        of    living        beings        that     subserves       biparental

reproduction        with    its      concomitant            genetic    segregation          and

recombination which underlie most evolutionary change . . .”);

The American College Dictionary 1109 (1970) (“the sum of the

anatomical and physiological differences with reference to which

the male and the female are distinguished . . . ”).                                   Indeed,

although the contemporaneous meaning controls our analysis, it

is notable that, even today, the term “sex” continues to be

defined based on the physiological distinctions between males

and females.         See, e.g., Webster’s New World College Dictionary

1331   (5th    ed.    2014)      (“either      of     the    two    divisions,       male    or

female, into which persons, animals, or plants are divided, with

reference      to    their       reproductive          functions”);       The        American

Heritage    Dictionary        1605      (5th    ed.    2011)       (“Either    of    the    two

divisions, designated female and male, by which most organisms

are classified on the basis of their reproductive organs and

functions”); Merriam-Webster’s Collegiate Dictionary 1140 (11th


                                               62
ed. 2011) (“either of the two major forms of individuals that

occur in many species and that are distinguished respectively as

female or male esp. on the basis of their reproductive organs

and   structures”).        Any    new    definition      of    sex   that         excludes

reference    to     physiological       differences,     as    the     majority          now

attempts     to    introduce,     is    simply     an    unsupported         reach       to

rationalize a desired outcome.

      Thus, when the School Board assigned restrooms and locker

rooms on the basis of biological sex, it was clearly complying

precisely    with    the   unambiguous        language   of    Title    IX        and    its

regulations.

      Despite     the   fact     that   the     majority      offers    no        case   to

support     the    definition     of    “sex”     as    advanced       by     G.G.       and

supported by the government as amicus, the majority nonetheless

accepts that the meaning of the term “sex” in Title IX and its

regulations refers to a person’s “gender identity” simply to

accommodate G.G.’s wish to use the boys’ restrooms.                         But, it is

not immediately apparent whether G.G., the government, and the

majority contend that the term “sex” as used in Title IX and its

regulations       refers   (1)    to    both     biological      sex        and    gender

identity; (2) to either biological sex or gender identity; or

(3) to only “gender identity.”            In his brief, G.G. seems to take

the position that the term “sex” at least includes a reference

to gender identity.        This is the position taken in his complaint


                                         63
when he alleges, “Under Title IX, discrimination ‘on the basis

of   sex’   encompasses     both   discrimination        based     on   biological

differences between men and women and discrimination based on

gender nonconformity.”         The government seems to be taking the

same position, contending that the term “sex” “encompasses both

sex -- that is, the biological differences between men and women

--   and    gender    [identity].”       (Emphasis      in    original).          The

majority, however, seems to suggest that the term “sex” refers

only to gender identity, as it relies solely on the statement in

the Office for Civil Rights’ letter of January 7, 2015, which

said,   “When    a    school   elects    to    separate      or   treat       students

differently on the basis of sex [for the purpose of providing

restrooms,      locker    rooms,   and       other    facilities],        a    school

generally must treat transgender students consistent with their

gender identity.”         (Emphasis added).          But, regardless of where

G.G., the government, and the majority purport to stand on this

question, the clear effect of their new definition of sex not

only tramples the relevant statutory and regulatory language and

disregards the privacy concerns animating that text, it is also

illogical and unworkable.

      If the term “sex” as used in the statute and regulations

refers to both biological sex and gender identity, then, while

the School Board’s policy is in compliance with respect to most

students,     whose      biological     sex    aligns     with     their       gender


                                        64
identity, for students whose biological sex and gender identity

do not align, no restroom or locker room separation could ever

be    accomplished      consistent         with       the     regulation           because    a

transgender      student’s     use    of       a   boys’    or    girls’          restroom    or

locker room could not satisfy the conjunctive criteria.                                    Given

that G.G. and the government do not challenge schools’ ability

to    separate   restrooms     and     locker        rooms       for    male       and   female

students,     surely    they   cannot       be      advocating         an    interpretation

that places schools in an impossible position.                              Moreover, such

an interpretation would deny G.G. the right to use either the

boys’    or   girls’     restrooms,        a       position      that       G.G.    does     not

advocate.

       If the position of G.G., the government, and the majority

is that the term “sex” means either biological sex or gender

identity,     then     the   School     Board’s         policy         is    in    compliance

because it segregates the facilities on the basis of biological

sex, a satisfactory component of the disjunctive.

       Therefore, when asserting that G.G. must be allowed to use

the   boys’   restrooms      and     locker        rooms    as    consistent         with    his

gender identity, G.G., the government, and the majority must be

arguing that “sex” as used in Title IX and its regulations means

only gender identity.          But this construction would, in the end,

mean that a school could never meaningfully provide separate

restrooms and locker rooms on the basis of sex.                                    Biological


                                           65
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.

      Moreover, enforcement of any separation would be virtually

impossible.        Basing restroom access on gender identity would

require schools to assume gender identity based on appearances,

social expectations, or explicit declarations of identity, which

the     government      concedes     would     render   Title    IX      and   its

regulations nonsensical:

      Certainly a school that has created separate restrooms
      for boys and girls could not decide that only students
      who dress, speak, and act sufficiently masculine count
      as boys entitled to use the boys’ restroom, or that
      only students who wear dresses, have long hair, and
      act sufficiently feminine may use the girls’ restroom.

Yet, by interpreting Title IX and the regulations as “requiring

schools     to     treat     students     consistent      with   their     gender

identity,”       and   by   disallowing    schools   from   treating     students

based on their biological sex, the government’s position would

have precisely the effect the government finds to be at odds

with common sense.

      Finally, in arguing that he should not be assigned to the

girls’ restrooms, G.G. states that “it makes no sense to place a




                                          66
transgender boy in the girls’ restroom in the name of protecting

student privacy” because “girls objected to his presence in the

girls’ restrooms because they perceived him as male.”                               But the

same argument applies to his use of the boys’ restrooms, where

boys felt uncomfortable because they perceived him as female.

In any scenario based on gender identity, moreover, there would

be no accommodation for the recognized need for physiological

privacy.

     In    short,       it     is    impossible     to    determine        how    G.G.,    the

government, and the majority would apply the provisions of Title

IX   and    the        implementing       regulations           that      allow    for     the

separation of living facilities, restrooms, locker rooms, and

shower facilities “on the basis of sex” if “sex” means gender

identity.

     The Office for Civil Rights letter, on which the majority

exclusively relies, hardly provides an answer.                            In one sentence

it   states       that       schools     “generally           must    treat      transgender

students consistent with their gender identity,” whatever that

means,     and    in     the    next    sentence,        it    encourages        schools    to

provide     “gender-neutral,            individual-user              facilities     to     any

student     who     does       not     want    to    use        shared     sex-segregated

facilities.”           While the first sentence might be impossible to

enforce without destroying all privacy-serving separation, the

second     sentence       encourages      schools,        such       as   Gloucester      High


                                              67
School,      to   provide    unisex      single-stall           restrooms     for   any

students who are uncomfortable with sex-separated facilities, as

the school in fact provided.

      As it stands, Title IX and its implementing regulations

authorize     schools   to     separate,      on    the    basis     of    sex,   living

facilities,       restrooms,    locker     rooms,         and    shower    facilities,

which must allow for separation on the basis of biological sex.

Gloucester High School thus clearly complied with the statute

and   regulations.          But,   as   it    did     so,       it   was   nonetheless

sensitive to G.G.’s gender transition, accommodating virtually

every wish that he had.            Indeed, he initially requested and was

granted the use of the nurse’s restroom.                    And, after both girls

and boys objected to his using the girls’ and boys’ restrooms,

the school provided individual unisex restrooms, as encouraged

by the letter from the Office for Civil Rights.                            Thus, while

Gloucester High School made a good-faith effort to accommodate

G.G. and help him in his transition, balancing its concern for

him with its responsibilities to all students, it still acted

legally in maintaining a policy that provided all students with

physiological privacy and safety in restrooms and locker rooms.

      Because the Gloucester County School Board did not violate

Title   IX    and   Regulation      106.33     in    adopting        the   policy   for

separate restrooms and locker rooms, I would affirm the district




                                         68
court’s decision dismissing G.G.’s Title IX claim and therefore

dissent.

       I also dissent from the majority’s decision to vacate the

district     court’s      denial          of    G.G.’s         motion      for    a     preliminary

injunction.       As    the   Supreme           Court         has    consistently        explained,

“[a]   preliminary        injunction            is       an    extraordinary          remedy”    that

“may only be awarded upon a clear showing that the plaintiff is

entitled     to    such    relief,”            and       “‘[i]n      exercising       their     sound

discretion, courts of equity should pay particular regard for

the public consequences in employing the extraordinary remedy.’”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22-24 (2008)

(quoting      Weinberger           v.     Romero-Barcelo,               456      U.S.    305,    312

(1982)).       Given the facts that the district court fully and

fairly      summarized        in    its        opinion,             including     the     hardships

expressed both by G.G. and by other students, I cannot conclude

that we can “form a definite and firm conviction that the court

below committed a clear error of judgment,” Morris v. Wachovia

Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006) (quotation marks

and    citation        omitted),         particularly               when   we     are    only    now

expressing        as   binding          law    an    evidentiary           standard       that   the

majority asserts the district court violated.

       As   noted,      however,         I     concur         in    Part   IV    of    the   court’s

opinion.




                                                    69
