822 F.3d 709 (4th Cir. 2016)
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,
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
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
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.
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.
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
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.
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
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
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
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
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.
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.
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
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.
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
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.
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
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.
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
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
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.
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.
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
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
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.
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.”).
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
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
dictionary, “the morphological, physiological, and behavioral
peculiarities”—included in the term “sex.”
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]
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
Urban Development, and the Office of Personnel Management).
None of the Christopher grounds for withholding Auer deference
are present in this case.
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.
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
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
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
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.
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
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.
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
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.
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.
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.
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.
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.
For the foregoing reasons, the judgment of the district
court is
REVERSED IN PART, VACATED IN PART, AND REMANDED.
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.
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.
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
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).
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
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
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.
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.
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.
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