School district must face 'deliberate indifference' claim by gender-confused girl alleging assault

A Virginia school district that allegedly socially transitioned a "gender-nonconfirming" 14-year-old girl into a boy's identity, hid it from her legal parents, told her to use the boys' restroom even after boys started threatening her, and "pressured her to recant" those threat claims, will have to defend itself again in trial court.

A split panel of the 4th U.S. Circuit Court of Appeals reinstated the lawsuit by Michele Blair, who with her husband adopted their granddaughter Sage at age 2 from foster care, where she had been placed after her father's death and mother's inability to raise her.

But it dismissed all but her Title IX "deliberate indifference" claim against the Appomattox County School Board, Superintendent Annette Bennett and its staff and contract counselors, and a dissent accused the majority of "push[ing] past the boundaries" set by the Supreme Court in student-on-student sexual harassment cases.

While the school board was "not entirely unresponsive" to Sage's threat claims, giving her access to the nurse's restroom, that falls short of "reasonably calculated" efforts to end her harassment, simply addressing it "in piecemeal," wrote President Clinton-nominated Judge Roger Gregory, joined by President Biden nominee Judge DeAndrea Benjamin.

The court record shows "no indication" the board took action against the boys on the bus who allegedly "threatened her with sexual violence," another group of males who "jacked" Sage against the wall and threatened her with violence, or students who "threatened to shoot" her "and told her they knew where she lived," the majority says.

"In fact, the direct opposite happened" when school counselor Dena Olsen and deputy sheriff Daniel Gunter allegedly interrogated her and tried to get her to take back her claims that the boys were threatening her, Gregory wrote. Olsen had first told Sage to use the boys' restroom and to go back when other girls reportedly complained about her in the girls' restroom.

Even after being told to use the nurse's restroom, Sage "continued to be so fearful for her and her family’s life that she 'suffered a psychotic breakdown' and opted to run away from home to save her family," the majority said. 

President Reagan nominee Judge Harvie Wilkinson blasted the Democratic nominees for reinstating deliberate indifference while agreeing with them on other dismissals.

"That S.B. was experiencing problems of identity is much to be regretted, but all the uncertainty surrounding this parent-student-teacher triangle presented a situation which Solomon himself would be hard pressed to resolve," he wrote, using the initials for Sage in the ruling. (She is no longer a minor and is now a named plaintiff with her grandmother.)

"Given what they knew about what was happening, the school employees’ actions were not unreasonable – much less clearly so," Wilkinson said.

Blair's lawyers at the Children and Parental Rights Campaign called the decision an "historic milestone in protecting students under Title IX." 

They believe it's "the first court of appeals ruling to uphold a cause of action for student-on-student sexual harassment when gender identity is a factor," spokesperson Matt Chastain told Just the News in an email.

“While we are disappointed that the court did not reinstate the parental rights claims, this Title IX victory is a critical step toward justice for S.B. and Michele,” lead attorney Mary Elizabeth McAlister said.

The ruling uses female pronouns for Sage because her "current gender identification" is unknown, a footnote says. Asked for her current gender identity, Chastain said Sage "is (and always was) female" and identifies that way now.

Lawyers for the board and counselors didn't respond to queries.

One vote shy of SCOTUS hearing hidden school transitions

The case drew national attention two years ago for the school district's decision to hide Sage's gender identity from Blair even as the harassment escalated: Sage ran away from home and was allegedly kidnapped, raped and drugged by "multiple men in four different states" before her rescue by federal authorities.

Baltimore public defender Aneesa Khan fought Sage's return to Michele Blair and her husband, though, for not being "sufficiently affirming" of the girl's gender identity, so Sage was put in a juvenile facility for adolescent males, where she was "again sexually assaulted, exposed to drugs, and denied medical and mental health care," Blair's lawsuit said.

The Gavel Project, which raised money to help Blair sue the defendants, gave a lengthy and graphic summary three years ago, from the harassment of Sage to her running away, kidnapping, FBI rescue and juvenile delinquency proceedings.

"Given that S is around 100 pounds soaking wet, it’s not hard to imagine what happened to her in the male housing facility" at the direction of Judge Robert Kershaw, who ordered "reasonable accommodations for [Sage's] transgender male identification," the group said.

The ordeal prompted state legislation, known as "Sage's Law," to prevent a similar situation from happening. It passed the Virginia House but not Senate in 2023.

President Clinton-nominated U.S. District Judge Norman Moon dismissed Khan as a defendant for lack of personal jurisdiction, then dismissed the whole case, because while Sage and Michele Blair "undoubtedly suffered terrible events," Blair did not "allege elements necessary for liability and to connect the acts of Defendants with the harms suffered by her" and Sage.

Weeks before Moon closed the case, it was cited in an unsuccessful petition to the Supreme Court seeking legal standing for Wisconsin parents to challenge an "explicit" policy by the Eau Claire Area School District "to usurp parental decisionmaking authority over a major health-related decision [social transitions] — and to conceal this from the parents."

Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh wanted to hear the case, one vote shy of accepting it. 

"I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions," which in this case reportedly implicate "more than 1,000 districts" with secret gender transition plans, Alito wrote in dissent, joined by Thomas.

'You are supposed to keep your students safe'

The 4th Circuit rebuked Judge Moon's analysis of deliberate indifference, which had cited the "extremely limited scope of events – less than two weeks" from Sage's harassment to running away in August 2021, "involving the rights of one family," and Blair's failure to allege "continued inaction by ACSB in the face of widespread, documented abuse."

School counselor Olsen had told Sage she could use the boys' bathroom after a teacher overheard the girl tell a friend she wanted to be addressed with male pronouns, according to the panel's allegations summary. The same day, boys started harassing Sage on the bus, including threats to "sodomize her until she ‘liked boys'" and hang her by her hair out the window.

She told Olsen and contract counselor Avery Via about the incident, but when reviewing surveillance video, Olsen and the assistant principal didn't see or hear the threats, which were allegedly confirmed by witnesses. 

The girl said her grandparents didn't support her gender identity, according to Olsen and Via, but Blair said they didn't know of Sage's identity and that Olsen withheld all details about what happened on the bus, just calling it an "incident." Olsen also used Sage's given name with Blair while staff "consistently" called her "Draco," her preferred name.

When Sage returned to the girls' restroom, Olsen directed her to go back to the boys' restroom because "her female classmates were uncomfortable" with her in there, the panel summary says. Sage kept getting threatened, with rape and "knife violence," and assaulted with nonconsensual touch and shoving.

Olsen did not "check on" the girl's welfare but rather called Sage into her office "to discuss gender identity" eight of the 12 days school had been in session, encouraging her to "embrace" being a boy. Via showed her "internet sites, apps, and social media networks that promoted transgender ideas, indicating she could find friends there."

The counselors finally let Sage use the nurse's restroom when she told them about the boys' restroom harassment, but Olsen and deputy sheriff Gunter warned her the next day she could be sued if she kept calling boys "rapists," by which she meant inappropriate touching, and accusing "innocent males of threatening her."

This section includes long quote blocks, suggesting Sage was recording the meeting. She retorted: "Any time you have called me in here for something, I didn’t want to tell you about any of it …  You are supposed to keep your students safe. If you hear something about rape, you have to do something."