                           UNPUBLISHED

                                               FILED:   July 12, 2016


                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                       ___________________

                           No. 16-1733
                     (4:15-cv-00054-RGD-DEM)
                       ___________________

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

                     Plaintiff - Appellee,

          v.

GLOUCESTER COUNTY SCHOOL BOARD,

                     Defendant - Appellant.

                       ___________________

                            O R D E R
                       ___________________

     Upon consideration of submissions relative to the motion of

appellant for stay pending appeal, the court denies the motion.

     Entered at the direction of Judge Floyd.    Senior Judge Davis

wrote an opinion concurring in the denial of a stay pending the

filing of, and action on, a petition for certiorari.           Judge

Niemeyer wrote an opinion dissenting from the denial of a stay

pending appeal.

                              For the Court

                              /s/ Patricia S. Connor, Clerk
DAVIS, Senior Circuit Judge, concurring in the denial of a stay
pending the filing of, and action on, a petition for certiorari:

      I vote to deny the motion for stay.

      In Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989),

plaintiff Ann Hopkins received comments from partners describing

her as “macho,” suggesting that she “overcompensated for being a

woman,” and “advis[ing] her to take a course at charm school”

during her bid for partnership.          Price Waterhouse, 490 U.S. 228,

235 (1989) (citations omitted).      Hopkins was told that to improve

her   chances   of   attaining   partnership,    she   should   “walk   more

femininely, talk more femininely, dress more femininely, wear

make-up, have her hair styled, and wear jewelry.”           Id. (citation

omitted).   Rejecting Price Waterhouse’s insinuation that acting in

reliance on sex stereotyping was not prohibited by Title VII, the

Supreme Court unequivocally stated otherwise:

      [W]e are beyond the day when an employer could evaluate
      employees by assuming or insisting that they matched
      the stereotype associated with their group, for “[i]n
      forbidding    employers    to   discriminate    against
      individuals because of their sex, Congress intended to
      strike at the entire spectrum of disparate treatment
      of men and women resulting from sex stereotypes.”

Id. at 251 (second alteration in original) (quoting Los Angeles

Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, n.13 (1978)).

The Supreme Court has expressly recognized that claims based on an

individual’s failure to conform to societal expectations based on

that person’s gender constitute discrimination “because of sex”

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under Title VII.       Id. at 250–51 (plurality); Price Waterhouse, 490

U.S. at 272-73 (O’Connor, J., concurring); Price Waterhouse, 490

U.S. at 260-61 (White, J., concurring).

       The First, Sixth, Ninth, and Eleventh Circuits have all

recognized that discrimination against a transgender individual

based    on    that   person’s     transgender     status      is   discrimination

because of sex under federal civil rights statutes and the Equal

Protection Clause of the Constitution.               See Glenn v. Brumby, 663

F.3d 1312, 1316–19 (11th Cir. 2011) (holding that terminating an

employee because she is transgender violates the prohibition on

sex-based      discrimination      under     the   Equal      Protection      Clause

following the reasoning of Price Waterhouse); Smith v. City of

Salem, Ohio, 378 F.3d 566, 573–75 (6th Cir. 2004) (holding that

transgender employee had stated a claim under Title VII based on

the reasoning of Price Waterhouse); Rosa v. Park W. Bank & Trust

Co.,    214   F.3d    213,   215–16   (1st    Cir.    2000)     (holding   that   a

transgender individual could state a claim for sex discrimination

under the Equal Credit Opportunity Act based on Price Waterhouse);

Schwenk   v.    Hartford,    204    F.3d   1187,     1201–03    (9th   Cir.   2000)

(holding that a transgender individual could state a claim under

the Gender Motivated Violence Act under the reasoning of Price

Waterhouse).

       On this long-settled jurisprudential foundation, our friend’s

assertion that the majority opinion issued when this case was
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previously before us is “unprecedented” misses the mark.                 In any

event, as regards the standards for a stay, the dissent contains

its own rebuttal.     Contrary to the dissent’s assertion that “the

School Board has constructed three unisex bathrooms to accommodate

any person who feels uncomfortable using facilities separated on

the basis of sex,” the three unisex bathrooms are in fact available

to “any student” at the school.         Mot. for Stay at 5.

     In short, there is no reason to disturb the district court’s

exercise    of   discretion   in   denying    the   motion    to   stay     its

preliminary injunction.


NIEMEYER, Circuit Judge, dissenting from the denial of a stay
pending appeal:

     I would grant Gloucester County School Board’s motion for a

stay pending appeal.      See Long v. Robinson, 432 F.2d 977 (4th Cir.

1970); cf. Winter v. National Resources Defense Council, Inc., 555

U.S. 7 (2008).    Facially, the district court conducted no analysis

required by Winter for the entry of a preliminary injunction,

relying only on our earlier decision in this case.           And under the

balancing analysis prescribed by Long, I conclude that a stay is

appropriate, based on the following:

     1.     The earlier groundbreaking decision of this court is, as

I have noted previously, unprecedented.             Indeed, it appears to

violate    the   clear,   unambiguous    language    of   Title    IX,    which

explicitly authorizes the provision of various separate facilities
                                4
“on the basis of sex.”       Moreover, the court’s decision applying

deference    under   Auer    v.    Robins,   519    U.S.    452   (1997),    is

questionable, and, even if deference were appropriate, it relies

solely on a letter from the U.S. Department of Education, imposing

an entirely new interpretation of “sex” in Title IX without the

support of any law.    In view of this, it is difficult to understand

how the decision is sustainable.

     2.     By   enforcing   the    injunction     now,    male   students   at

Gloucester High School will be denied the separate facilities

provided by the School Board on the basis of sex, as authorized by

Congress, and thus will be denied bodily privacy when using the

facilities, to the dismay of the students and their parents. These

consequences are likely to cause disruption both in the school and

among the parents.

     3.     While I recognize the sensitivities of G.G.’s gender

transition, I nonetheless conclude that he is unlikely to suffer

substantial injury from a stay of the district court’s injunction,

particularly because the School Board has constructed three unisex

bathrooms to accommodate any person who feels uncomfortable using

facilities separated on the basis of sex.

     4.     The public interest in a final and orderly resolution of

G.G.’s claims before enforcement of this court’s decision is served

by a stay pending appeal.         The changes that this injunction would

require -- and that the Department of Justice and Department of
                               5
Education now seek to impose nationwide on the basis of our earlier

decision -- mark a dramatic departure from the responsibilities

local   school     boards    have   heretofore     understood     and   the

authorizations that Congress has long provided.              These school

boards and the communities they serve would benefit from the

thoughtful   and   final    disposition   of   G.G.’s   claims,   and   from

ultimate guidance from the Supreme Court or Congress, before having

to undertake these sweeping reforms.

     In short, I conclude that the Gloucester County School

Board has adequately made its case for a stay pending appeal,

and I would grant its motion for such a stay.




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