On April 19, 2016, in G. G. v. Gloucester County School Board, the US Court of Appeals for the Fourth Circuit held that the district court abused its discretion when it used a strict evidentiary standard in assessing a motion for preliminary injunction ( (4th Cir. Apr. 19, 2016)).

G.G. is a transgender boy seeking to use the boys' restroom at his high school. He first had the approval of the school administration to use the boys' restroom and did so without incident for about seven weeks. The local school board, however, then passed a policy banning G.G. from the boys' restroom, limiting the use of the facilities to one's corresponding biological gender.

On June 11, 2015, G.G. sued the local school board for violations of Title IX of the Education Amendments Act of 1972 and the equal protection clause of the US Constitution, arguing that he was being discriminated against on the basis of his sex. G.G. also sought a preliminary injunction allowing him to use the boys' restroom. The district court dismissed G.G.'s Title IX claim, reasoning that Title IX prohibits discrimination on the basis of sex and not on the basis of other concepts like gender, gender identity, or sexual orientation. The court also denied his request for a preliminary injunction, finding that he did not make the required showing that the balance of equities was in his favor. G.G. appealed.

As to the denial of preliminary injunction, the Fourth Circuit reviewed the district court's decision for abuse of discretion. It found that the district court misstated the evidentiary standard governing preliminary injunction hearings by requiring that the court may consider only admissible evidence. In assessing the balance of hardships, the district court refused to consider the two declarations G.G. submitted, one from G.G. himself and one from a medical expert who explained the harms G.G. would suffer as a result of his exclusion from the boys' restroom, because they contained inadmissible evidence, including hearsay. Following University of Texas v. Camenisch, the Fourth Circuit found that preliminary injunctions were governed by less strict rules of evidence (451 U.S. 390, 395 (1981)). Although admissible evidence may be more persuasive than inadmissible evidence in the preliminary injunction hearing, it was erroneous for the district court to reject G.G.'s proffered evidence because it might be inadmissible at a subsequent trial.

Additionally, the court joined seven of the circuit courts in deciding that the fact that evidence is hearsay goes to weight, not preclusion. These circuit courts also permit district courts to rely on hearsay evidence for the limited purpose of determining whether to award a preliminary injunction. Because preliminary injunction proceedings are informal, district courts are permitted to look at hearsay or other inadmissible evidence. The Fourth Circuit therefore concluded that the district court abused its discretion when its denied preliminary injunction without considering G.G.'s proffered evidence. The court vacated the district court's denial of preliminary injunction and remanded.

The court also reversed its dismissal of G.G.'s Title IX claim.