United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Defendants Board of Education
of Talbot County (the “Board”), Kelly L.
Griffith, and Tracy Elzey's Motion to Dismiss for Failure
to State a Claim (ECF No. 36) and Plaintiff M.A.B.'s
Motion for Preliminary Injunction (ECF No. 41). This action
arises from Defendants' decision to require M.A.B., a
transgender boy, to use restrooms and locker rooms for girls.
The Motions are ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2016). For
the reasons outlined below, the Court will deny the Motion to
Dismiss. In addition, the Court will deny without prejudice
the Motion for Preliminary Injunction.
is a fifteen-year-old boy who attends high school at St. Michaels
Middle High School (the “High School”), which is
located in Talbot County, Maryland. (Compl. ¶ 2, ECF No.
1). His birth sex,  which is usually based on “the
appearance of the person's external genitalia, ” is
“female.” (Id. ¶¶ 20, 21). Yet
M.A.B.'s “deeply-held internal sense of his own
gender, ” known as his gender identity, is male.
(Id. ¶¶ 2, 20). “[D]eterminations of
gender, ” unlike determinations of birth sex, are based
on “multiple factors.” (Id. ¶ 21).
These factors include “chromosomes, hormone levels,
internal and external reproductive organs, and gender
identity, ” with gender identity being the
“primary determinant” among them. (Id.
¶¶ 21, 22).
M.A.B. was designated female at birth but has a male gender
identity, that designation does not accurately reflect his
gender identity-giving him the status of a transgender boy.
(Id. ¶ 20). As a result, he also has had
feelings of gender dysphoria since early childhood.
(Id. ¶¶ 2, 26). Gender dysphoria and
“the status of being transgender” are “not
synonymous, ” though “they are correlated.”
(Id. ¶ 24). Gender dysphoria is the
“clinically significant distress” experienced by
transgender individuals. (Id. ¶ 23). Treatment
for gender dysphoria includes “social transitioning,
” which consists of “living consistent with
one's gender identity . . . in all aspects of one's
life, including when accessing single-sex spaces like
restrooms and locker rooms.” (Id. ¶ 25).
M.A.B. was in the sixth grade, he “arrived at the clear
realization” that he was a boy. (Id.
¶¶ 2, 26). M.A.B. received a clinical diagnosis of
gender dysphoria in 2014, and has been seeing a medical
professional regularly for his gender dysphoria and process
of gender transition. (Id. ¶ 26). When M.A.B.
turned thirteen, therefore, he began to socially transition
to life as male, including going by “a more
traditionally masculine chosen first name.”
(Id. ¶ 28). The Board and the High School
“took several steps” to assist M.A.B.'s
social transition. (Id. ¶ 30). They addressed
him by his new name, addressed him with male pronouns, and
conducted a professional development workshop for its staff
in 2015 on the topic of transgender students. (Id.).
M.A.B. later legally changed his name. (Id. ¶
28). Since his transition began, M.A.B. “has been
generally accepted and recognized as male” by his peers
at the High School. (Id. ¶ 29).
aiding M.A.B.'s social transition in some ways,
Defendants prohibited M.A.B. from using the High School's
boys' locker rooms, and initially, its boys'
restrooms. (Id. ¶ 31). Instead, the Board
“designated” three of the High School's
single-use restrooms as “gender neutral” and
required M.A.B. to use them when he needed to use the
restroom or change his clothes. (Id. ¶ 32).
After the United States Court of Appeals for the Fourth
Circuit issued its opinion in G.G. ex rel. Grimm v.
Gloucester County School Board., 822 F.3d 709 (4th Cir.
2016), Defendants permitted M.A.B. to use the boys'
restrooms. (Id. ¶¶ 31, 45). Since M.A.B.
began using the boys' restrooms, no male students at the
High School have voiced “any discomfort” about
M.A.B.'s access. (Id. ¶ 49). In fact, many
of M.A.B.'s peers “congratulated him” on the
Board's decision to allow M.A.B. access. (Id.).
Board, however, continued to prohibit M.A.B. from using the
boys' locker rooms. (Id. ¶¶ 31, 45).
It maintained its decision to require M.A.B. to use the
restrooms it designated as gender neutral whenever M.A.B. had
to change his clothes (the
“Policy”). (Id. ¶¶ 32, 45). Unlike
the locker rooms, the designated restrooms the Board requires
M.A.B. to use do not have benches or showers. (Id.
¶ 36). Meanwhile, the boys' locker rooms have
partitioned stalls for changing clothes and partitioned
stalls that have toilets and stall doors. (Id.
Board requires only M.A.B., and no other student, to change
clothes in the designated restrooms. (Id. ¶
37). This has resulted M.A.B. experiencing humiliation and
embarrassment, as well as alienation from his peers.
(Id. ¶ 38). He has received “weird
looks” from other students when using the designated
restrooms to change. (Id.). M.A.B., then, “has
tried to use them as infrequently and inconspicuously as
designated restrooms are “remotely located” from
the boys' and girls' locker rooms and the gymnasium.
(Id. ¶ 35). The designated restrooms also do
not have lockers. (Id. ¶ 36). So, M.A.B. has to
go to his student locker, which is far away from the
designated restrooms, before changing his clothes, and his
physical education teacher gives him extra time to change.
(Id. ¶¶ 40, 41). Thus, when M.A.B. took
physical education class in 2015, substitute teachers unaware
of the Policy forced him to explain why he was tardy to
class. (Id. ¶ 41). This required M.A.B. to
disclose his transgender status to avoid disciplinary action.
(Id.). The “stigma and impracticality”
of changing his clothes in the designated restrooms led
M.A.B. to attend physical education class without changing
when he thought he would not sweat very much. (Id.
¶ 42). At times, his physical education teacher
penalized M.A.B.'s grade for not changing his clothes.
by and through his parents and next friends L.A.B. and
L.F.B., filed the present action on July 19, 2016 against the
Board, Kelly L. Griffith in her official capacity as
Superintendent of Talbot County Public Schools, and Tracy
Elzey in her official capacity as Principal of the High
School. (ECF No. 1). In his four-count Complaint, he alleges
claims under: Title IX of the Education of Amendments of
1972, 20 U.S.C. § 1681 et seq. (2018)
(“Title IX”) (Count I); the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution (Count II); Article 24 of the Maryland
Declaration of Rights (Count III); and Article 46 of the
Maryland Declaration of Rights (Count IV). (Id.
¶¶ 51-75). M.A.B. seeks judgment declaring that the
Policy violates his rights under Title IX, the Fourteenth
Amendment, and Articles 24 and 26. (Id. at 17).
M.A.B. also seeks a preliminary injunction requiring
Defendants to allow him to use the High School boys'
locker room on the same terms as other male students.
(Id.). Finally, M.A.B. seeks nominal and
compensatory damages, costs, and attorneys' fees.
now move to dismiss all counts against them for failure to
state a claim upon which relief may be granted under Federal
Rule of Civil Procedure 12(b)(6), filing their Motion on
April 18, 2017. (ECF No. 36). M.A.B. filed an Opposition on
May 22, 2017. (ECF No. 40). Defendants filed a Reply on June
5, 2017. (ECF No. 42). M.A.B. also moves for a preliminary
injunction under Rule 65, filing his Motion on May 22, 2017.
(ECF No. 41). Defendants filed an Opposition on June 5, 2017.
(ECF No. 43). M.A.B. filed a Reply on June 19, 2017. (ECF No.
Rule 12(b)(6) Standard of Review
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint, ” not to “resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” King v.
Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44
(4th Cir. 1999)). A complaint fails to state a claim if it
does not contain “a short and plain statement of the
claim showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), or does not “state a claim to
relief that is plausible on its face, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly,
550 U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of Am., N.A., 917 F.Supp.2d
445, 449 (D.Md. 2013) (quoting Walters v. McMahen,
684 F.3d 435, 439 (4th Cir. 2012)), aff'd sub
nom., Goss v. Bank of Am., NA, 546 Fed.Appx.
165 (4th Cir. 2013).
considering a Rule 12(b)(6) motion, a court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th
Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). But, the court need not accept unsupported or
conclusory factual allegations devoid of any reference to
actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at
Rule 12(b)(6) Analysis
threshold matter, Defendants argue that the Court must
dismiss all of M.A.B.'s claims against the Board because
the Board enjoys sovereign immunity under the Eleventh
Amendment to the United States Constitution. The Court
Eleventh Amendment provides: “The Judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State.” U.S.
Const. amend. XI. The Supreme Court of the United States has
construed the Eleventh Amendment as also protecting states
from federal court suits brought by the state's own
citizens. Lee-Thomas v. Prince George's Cty. Pub.
Schs., 666 F.3d 244, 248 (4th Cir. 2012) (quoting
Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S.
299, 304 (1990)). Eleventh Amendment immunity extends to
“state agents and instrumentalities.”
Id. (quoting Regents of the Univ. of Cal. v.
Doe, 519 U.S. 425, 429 (1997)). As a matter of Maryland
law, county school boards of education are state
instrumentalities, and therefore are generally entitled to
immunity under the Eleventh Amendment. See, e.g.,
Farrell v. Bd. of Educ., No. GLR-16-2262, 2017 WL
1078014, at *3 (D.Md. Mar. 21, 2017) (citing Lewis v. Bd.
of Educ., 262 F.Supp.2d 608, 612 (D.Md. 2003)).
there are exceptions. One exception is when a state waives
its Eleventh Amendment immunity from suit in a federal court.
Lee-Thomas, 666 F.3d at 249. The Maryland
legislature enacted a statute that waived a county board of
education's Eleventh Amendment immunity “for all
claims in the amount of $100, 000 or less.” Md.Code
Ann., Cts. & Jud. Proc. § 5-518(c) (West 2018). As
interpreted by the Court of Appeals of Maryland, §
5-518(c) waives a county board of education's Eleventh
Amendment immunity to suit from a plaintiff's
discrimination claim under a federal law. Bd. of Educ. v.
Zimmer-Rubert, 973 A.2d 233, 243 (Md. 2009). The Court
of Appeals later clarified that its interpretation of §
5-518(c) in Zimmer-Rubert applies to all “tort
or insurable” claims. Beka Indus., Inc. v.
Worcester Cty. Bd. of Educ., 18 A.3d 890, 896 (Md.
2011). Under Maryland law, the definition of “tortious
act or omission” encompasses constitutional torts.
See Espina v. Jackson, 112 A.3d 442, 450 (Md. 2015)
(holding that under Maryland's Local Government Tort
Claims Act, “tortious acts or omissions” includes
constitutional torts); see also, e.g., Green v.
N.B.S., Inc., 976 A.2d 279, 287 (Md. 2009) (“[T]he
term ‘tort' as defined by Blacks encompasses all
‘civil wrong.'” (citation omitted)).
M.A.B. brings two sets of causes of action against the Board
and the other Defendants: (1) a discrimination claim under
Title IX (Count I); and (2) claims under the Fourteenth
Amendment to the United States Constitution and associated
Maryland Declaration of Rights provisions (Counts II-IV).
Because § 5-518(c) waives a county board of
education's Eleventh Amendment immunity from
discrimination claims under federal law and the constitution,
the Court concludes that such immunity does not apply to
M.A.B.'s claims against the Board. Accordingly, the Court
will not dismiss M.A.B.'s claims against the Board on
Eleventh Amendment immunity grounds.
move to dismiss all of M.A.B.'s remaining claims for
failure to state a claim under Title IX and the Fourteenth
Amendment and associated state constitutional provisions. At
bottom, the Court concludes that M.A.B. sufficiently states a
claim under both sets of causes of action. The Court
addresses each set in turn.
contend that the Court should interpret Title IX narrowly to
only prohibit discrimination on the basis of birth sex.
M.A.B. replies that the Court should interpret Title IX more
broadly to include discrimination on the basis of transgender
status. In short, the Court agrees with M.A.B.'s
interpretation of Title IX and concludes that M.A.B. has
sufficiently stated a claim of sex discrimination.
34 C.F.R. § 106.33 (2017) and Transgender
IX provides, in relevant part: “[n]o person . . .
shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to
discrimination under any education program or activity
receiving Federal financial assistance.” 20 U.S.C.
§ 1681(a) (2018). To allege a violation of Title IX,
M.A.B. must show: “(1) that he was excluded from
participation in an education program because of his sex; (2)
that the educational institution was receiving federal
financial assistance at the time of his exclusion; and (3)
that the improper discrimination caused [M.A.B.] harm.”
G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd.
(Grimm I), 822 F.3d 709, 718 (4th Cir. 2016),
vacated, 137 S.Ct. 1239 (2017).
IX does not prohibit all distinctions on the basis of sex.
Id. Under one of Title IX's implementing
regulations, 34 C.F.R. § 106.33 (2017), Title IX permits
separating toilets, locker rooms, and shower facilities on
the basis of sex as long as they are
“comparable.” Grimm I observed that
“[b]y implication, ” then, § 106.33 permits
schools to exclude those with a birth sex of female from male
facilities and vice-versa. 822 F.3d at 720.
maintain that because § 106.33 refers to males and
females unambiguously, the Court must interpret Title IX to
apply only to discrimination on the basis of birth sex, and
does not prohibit discrimination on the basis of transgender
status. The Court disagrees.
Grimm I observed, the Court's “inquiry is
not ended” by § 106.33's reference to males
and females. Id. “Although the regulation may
refer unambiguously to males and females, it is silent as to
how a school should determine whether a transgender
individual is a male or female for the purpose of access to
sex-segregated restrooms.” Id.; see also
Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd.
of Educ., 858 F.3d 1034, 1047 (7th Cir. 2017)
(“Neither [Title IX] nor [its] regulations define the
term ‘sex.' Also absent from the statute is the
term ‘biological, ' which [the defendant school
district] maintains is a necessary modifier.”).
Fourth Circuit went on to hold that a January 7, 2015 opinion
letter by the Department of Education's Office for Civil
Rights, which interpreted the regulation to require access to
sex-segregated facilities be based on gender identity (the
“2015 Opinion Letter”), is entitled to deference
under Auer v. Robbins, 519 U.S. 452 (1997).
Id. But on February 22, 2017, after the Fourth
Circuit decided Grimm I, the Department of Education
and the Department of Justice issued a guidance document
withdrawing the 2015 Opinion Letter. U.S. Dep't of Just.
Civil Rights Div. & U.S. Dep't of Educ. Office for
Civil Rights, Dear Colleague Letter (Feb. 22, 2017),
with the 2015 Opinion Letter no longer in effect, Grimm
I no longer resolves how § 106.33 applies to a
Fourth Circuit has not spoken on how § 106.33 applies to
a transgender person since Grimm I. And the Supreme
Court has never addressed the issue. It is well-settled
within the Fourth Circuit, however, that case law
interpreting Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended, 42 U.S.C.
§§ 2000e et seq. (2018), guides courts in
evaluating a Title IX claim. Grimm I, 822 F.3d at
718 (citing Jennings v. Univ. of N.C. , 482 F.3d
686, 695 (4th Cir. 2007)). Accordingly, the Court turns to Title
VII precedent for guidance.
Title VII and Transgender Status
Supreme Court has never addressed how Title VII applies to
transgender individuals. Nevertheless, other Supreme Court
cases interpreting Title VII provide helpful guidance. In
Price Waterhouse v. Hopkins, the Supreme Court held
that plaintiff Hopkins, a woman who was denied partnership in
an accounting firm, had an actionable claim against that firm
because the firm denied her a promotion for failing to
conform to gender stereotypes. 490 U.S. 228, 250-53 (1989).
Various firm partners described Hopkins as “macho,
” in need of “a course in charm school, ”
“a lady using foul language, ” and someone who
had been “a tough-talking somewhat masculine hard-nosed
manager.” Id. at 235. Partners advised her
that she could improve her chances for partnership if she
were to “walk more femininely, talk more femininely,
dress more femininely, wear make-up, have her hair styled,
and wear jewelry.” Id. (internal quotation
for a plurality, Justice Brennan held that “[i]n the
specific context of sex stereotyping, ” these comments
were sufficient to show that the accounting firm “acted
on the basis of gender” when it denied Hopkins a
promotion. Id. at 250. In doing so, six members of
the Court agreed that Title VII barred not only
discrimination because Hopkins was a woman, but also for
“sex stereotyping” because she failed to act
according to the gender stereotype of a woman. Id.
at 250-51; id. at 258-61 (White, J., concurring);
id. at 272-73 (O'Connor, J., concurring). Thus,
Price Waterhouse establishes that Title VII's
prohibition on discrimination because of sex includes-more
broadly-gender stereotyping. See id. at 251
(“[W]e are beyond the day when an employer could
evaluate employees by assuming or insisting that they matched
the stereotype associated with their group.”).
Price Waterhouse, the Supreme Court confirmed this
broader interpretation of Title VII in Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
There, the Court held that Title VII's prohibition of sex
discrimination is broad enough to include same-sex harassment
claims. Id. at 79. Justice Scalia, writing for a
unanimous Court, observed that “statutory prohibitions
often go beyond the principal evil to cover reasonably
comparable evils, and it is ultimately the provisions of our
laws rather than the principal concerns of our legislators by
which we are governed.” Id.
Fourth Circuit has not applied Price Waterhouse in
the context of claims brought by transgender persons, or
gender stereotyping claims more generally, under Title VII.
But see G.G. v. Gloucester Cty. Sch. Bd. (Grimm
II), 654 Fed.Appx. 606, 606- 07 (4th Cir. 2016) (Davis,
J., concurring) (observing that the Supreme Court “has
expressly recognized” that “failure to
conform” to gender stereotypes constitutes sex
discrimination under Title VII (citing Price
Waterhouse, 490 U.S. at 250-51)). Still, this Court has
concluded that discrimination on the basis of transgender
status constitutes gender stereotyping because “by
definition, transgender persons do not conform to gender
stereotypes.” Finkle v. Howard Cty., 12
F.Supp.3d 780, 787-88 (D.Md. 2014). As a result, transgender
discrimination is per se actionable sex discrimination under
Title VII based on Price Waterhouse. Id.
Court's conclusion is in accord with the First, Sixth,
Ninth, and Eleventh Circuits, which have all recognized that
claims of discrimination on the basis of transgender status
is per se sex discrimination under Title VII or other federal
civil rights laws based on Price Waterhouse. See
EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., ___
F.3d ___, 2018 WL 1177669, at *5-12 (6th Cir. Mar. 7, 2018)
(Title VII); Glenn v. Brumby, 663 F.3d 1312, 1316-19
(11th Cir. 2011) (Title VII); Rosa v. Park W. Bank &
Tr. Co., 214 F.3d 213, 215-16 (1st Cir. 2000) (Equal
Credit Opportunity Act); Schwenk v. Hartford, 204
F.3d 1187, 1201-03 (9th Cir. 2000) (Gender Motivated Violence
Act); see also Smith v. City of Salem, 378 F.3d 566,
575 (6th Cir. 2004) (holding that “sex stereotyping
based on a person's gender non-conforming behavior”
is unlawful under Title VII); Grimm II, 654
Fed.Appx. at 607 (Davis, J., concurring) (noting that
Glenn, Rosa, Schwenk, and
Smith “have all recognized that discrimination
against a transgender individual based on that person's
transgender status is discrimination because of sex under
federal civil rights statutes”).
addition, more generally, the First, Second, Third, Seventh,
and Ninth Circuits have all recognized that an allegation of
gender stereotyping is actionable sex discrimination under
Title VII based on Price Waterhouse. See Hively
v. Ivy Tech Cmty. Coll., 853 F.3d 339, 351-52 (7th Cir.
2017) (en banc); Christiansen v. Omnicom Grp., Inc.,
852 F.3d 195, 200-01 (2d Cir. 2017) (per curiam); Prowel
v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir.
2009); Nichols v. Azteca Rest. Enters., Inc., 256
F.3d 864, 874-75 (9th Cir. 2001); Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir.
1999). What is more, no Court of Appeals has held
on the basis of the Supreme Court's holding in Price
Waterhouse, subsequent opinions of several Courts of
Appeals, and this Court's opinion in Finkle, the
Court concludes that allegations of gender stereotyping are
cognizable as sex- discrimination claims under Title VII, and
consequently, Title IX. The Court further concludes, on the
basis of Finkle and several Courts of Appeals
decisions, that claims of discrimination on the basis of
transgender status are per se actionable under a gender
The Policy under a ...