                                          PUBLISHED

                                                              FILED: August 2, 2017

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                            No. 15-2056
                                    (4:15-cv-00054-RGD-DEM)


GAVIN GRIMM,

                        Plaintiff - Appellant,

                v.

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;
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; LEAH FREGULIA; STANFORD PRESCOTT; ADELITA
GRIJALVA; MICHELLE KING; MONICA GARCIA; REF RODRIGUEZ, Ph. D.;
JULIE VITALE, Ph. D.; SAN DIEGO COOPERATIVE CHARTER SCHOOLS;
WENDY RANCK-BUHR, Ph. D.; SAN DIEGO UNIFIED SCHOOL DISTRICT;
CINDY MARTEN; SAN FRANCISCO UNIFIED SCHOOL DISTRICT;
ELDGRIDGE GREER, Ph. D.; ACHIEVEMENT FIRST PUBLIC CHARTER
SCHOOLS; MORGAN BARTH; EMILY BANKS; GREGORY R. MEECE;
CAROLYNE ALBERT-GARVEY; DANIEL F. GOHL; JANICE K. JACKSON,
Ed.D.; KAREN CARNEY; SARAH SHIRK; BETH BAZER, Ed.D.; PAULA
INSLEY MILLER, Ed.D.; CHIMILLE E. DILLARD, Ed.D.; THOMAS WEBER;
CATHERINE FROM; HOWARD COLTER; MATTHEW HANEY; KEN KUNIN;
ROBERT A. MOTLEY; TOMMY CHANG, Ed.D.; CYNDY TAYMORE;
LIZBETH DESELM; DELOIS COOKE SPRYSZAK; CRAIG MCCALLA;
BLAKE PREWITT, Ed.S.; PAMELA RETZLAFF, Ed.D.; WASHOE COUNTY
SCHOOL DISTRICT; JAMES C. MORSE, SR., Ed.D.; THE SCHOOL DISTRICT
OF SOUTH ORANGE AND MAPLEWOOD; THOMAS SMITH, Ed.D.; CRAIG
VAUGHN; ARTHUR DIBENEDETTO; LAS CRUCES PUBLIC SCHOOLS;
HEIDI CARTER; ANTHONY GATTO; ERIC DOSS; PEYTON CHAPMAN;
ZIAD W. MUNSON, Ph. D.; MICHAEL SCHILDER, Ed.D.; SUZANNE
VINCENT; RACHEL SANTA, Ed.D.; KELLIE M HARGIS, Ed.D.; LINDSEY
POLLOCK, Ed.D.; EMILY SUTHERLAND; BRIAN SCHAFFER; MONTPELIER
PUBLIC SCHOOLS; WASHINGTON CENTRAL SUPERVISORY UNION;
ARLINGTON COUNTY SCHOOL BOARD; SHERRI CYRA; LAURA H. LOVE;
JERRY NICHOLSON; JILL GURTNER; WILLIAM DENO; MONICA
SCHOMMER; BRYAN DAVIS, Ph. D.; PARU SHAH, Ph. D.; TIM KENNEY;
THE NATIONAL WOMEN’S LAW CENTER; CONSTITUTIONAL
ACCOUNTABILITY CENTER; SAMUEL R. BAGENSTOS; MARTIN S.
LEDERMAN; MICHAEL C. DORF; LEAH M. LITMAN; AMERICAN
ACADEMY OF PEDIATRICS; AMERICAN PSYCHIATRIC ASSOCIATION;
AMERICAN ACADEMY OF CHILD AND ADOLESCENT PSYCHIATRY;
AMERICAN COLLEGE OF PHYSICIANS; AMERICAN MEDICAL
ASSOCIATION; AMERICAN ACADEMY OF FAMILY PHYSICIANS;
AMERICAN ACADEMY OF NURSING; AMERICAN ACADEMY OF
PHYSICIAN        ASSISTANTS;  AMERICAN       MEDICAL    WOMEN'S
ASSOCIATION; AMERICAN NURSES ASSOCIATION; AMERICAN
PSYCHOANALYTIC ASSOCIATION; ASSOCIATION OF MEDICAL SCHOOL
PEDIATRIC DEPARTMENT CHAIRS; ENDOCRINE SOCIETY; GLMA:
HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; MENTAL
HEALTH AMERICA; NATIONAL ASSOCIATION OF SOCIAL WORKERS;
SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR
PHYSICIAN ASSISTANTS IN PEDIATRICS; THE NATIONAL PTA; GLSEN;
AMERICAN        SCHOOL    COUNSELOR   ASSOCIATION;    NATIONAL
ASSOCIATION OF SCHOOL PSYCHOLOGISTS; MARYLAND PTA; EVIE
PRIESTMAN; CARTER BROWN; KATE BROWN; SYDNEY GREENSTEIN,
a/k/a Siddy; DYLAN KLEIMAN; SARAH LORE; KAYDEN ORTIZ; MAXWELL
PLATT; ROWAN WOOLDRIDGE; INTERACT: ADVOCATES FOR INTERSEX
YOUTH; DEANNA ADKINS, M.D.; MILTON DIAMOND, M.D.; JOEL
FRADER, M.D.; KATRINA KARKAZIS, Ph. D.; AVIVA L. KATZ, M.D.;
ELIZABETH REIS, Ph. D.; JOSHUA SAFER, M.D.; AIS-DSD SUPPORT
GROUP; PFLAG, INC.; TRANS YOUTH EQUALITY FOUNDATION; GENDER
SPECTRUM; GENDER DIVERSITY; AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE; ANTI-DEFAMATION LEAGUE;
BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE; CENTRAL

                                 2
CONFERENCE OF AMERICAN RABBIS; HADASSAH; KESHET; NATIONAL
LGBT BAR ASSOCIATION; RECONSTRUCTIONIST RABBINICAL
ASSOCIATION; UNION FOR REFORM JUDAISM; THE UNITED
SYNAGOGUE OF CONSERVATIVE JUDAISM; WOMEN OF REFORM
JUDAISM; NAACP LEGAL DEFENSE AND EDUCATION FUND, INC.;
NATIONAL EDUCATION ASSOCIATION; AMERICAN FEDERATION OF
TEACHERS, AFL-CIO; NATIONAL ASSOCIATION OF SECONDARY
SCHOOL PRINCIPALS; AMERICAN FEDERATION OF STATE, COUNTY &
MUNICIPAL       EMPLOYEES,     AFL-CIO;  SERVICE    EMPLOYEES
INTERNATIONAL UNION; SCHOOL SOCIAL WORK ASSOCIATION OF
AMERICA; AMERICAN BAR ASSOCIATION; STATE OF NEW YORK;
STATE OF WASHINGTON; STATE OF CALIFORNIA; STATE OF
CONNECTICUT; STATE OF DELAWARE; STATE OF HAWAII; STATE OF
ILLINOIS; STATE OF IOWA; STATE OF MAINE; STATE OF MARYLAND;
COMMONWEALTH OF MASSACHUSETTS; STATE OF NEW MEXICO;
STATE OF OREGON; COMMONWEALTH OF PENNSYLVANIA; STATE OF
RHODE ISLAND; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA;
DISTRICT OF COLUMBIA; AFFIRM, INC.; AIRBNB, INC.; AKAMAI
TEHCNOLOGIES, INC.; AMAZON.COM, INC.; APPLE, INC.; APPNEXUS,
INC.; ASANA, INC.; BLOOMBERG, L.P.; BOX, INC.; RYZAC, INC., d/b/a
Codecademy; CREDO MOBILE, INC.; DROPBOX, INC.; EBAY,
INCORPORATED; FASTLY, INC.; FLIPBOARD, INC.; GENERAL ASSEMBLY
SPACE, INC.; GITHUB, INC.; IBM CORPORATION; INDIEGOGO, INC.;
INTEL CORPORATION; KAISER PERMANENTE; KICKSTARTER, PBC;
KNOTEL, INC.; LINDEN RESEARCH, INC., d/b/a Linden Lab; LINKEDIN
CORPORATION; MAC COSMETICS, INC; MAPBOX, INC.; MARIN
SOFTWARE INC.; MASSMUTUAL LIFE INSURANCE COMPANY; MEETUP,
INC.; MICROSOFT CORPORATION; THE MITCHELL GOLD CO., d/b/a
Mitchell Gold + Bob Williams; MONGODB, INC.; NETAPP, INC.; NEXT
FIFTEEN COMMUNICATIONS CORP; NEXTDOOR.COM, INC.; NIO;
PANDORA MEDIA, INC.; PAYPAL HOLDINGS, INC.; POSTMATES INC.;
REPLACEMENTS, LTD.; RETAILMENOT, INC.; SALESFORCE.COM, INC.;
SHUTTERSTOCK, INC.; SLACK TECHNOLOGIES, INC.; SPOTIFY USA INC.;
SUGARCRM INC; THE OUTCAST AGENCY; THE GAP, INC.; TUMBLR, INC.;
TWILIO, INC.; TWITTER, INCORPORATED; WARBY PARKER; WEEBLY,
INC.; WILLIAMS-SONOMA, INCORPORATED; XEROX CORPORATION;
YAHOO! INCORPORATED; YELP, INC.; ZENDESK, INC.; A BETTER
BALANCE: THE WORK & FAMILY LEGAL CENTER; CENTER FOR
REPRODUCTIVE RIGHTS; FUTURES WITHOUT VIOLENCE; GIRLS INC.;
HARVARD LAW GENDER VIOLENCE POLICY WORKSHOP; KNOW YOUR
IX; LEGAL AID AT WORK; NATIONAL COUNCIL OF JEWISH WOMEN;
NATIONAL ORGANIZATION FOR WOMEN FOUNDATION; NATIONAL
WOMEN’S POLITICAL CAUCUS; NEW VOICES FOR REPRODUCTIVE

                                  3
JUSTICE; PUBLIC JUSTICE; STOP SEXUAL ASSAULT IN SCHOOLS; THE
NATIONAL CRITTENTON FOUNDATION; THE WOMEN'S LAW PROJECT;
WOMEN’S SPORTS FOUNDATION; ARNE DUNCAN; JOHN B. KING, JR.;
CATHERINE ELIZABETH LHAMON; JAMES COLE, JR.; MATHEW S.
NOSANCHUK; PATRICIA SHIU; M. PATRICIA SMITH; DAVID MICHAELS;
DAVID LOPEZ; JOCELYN SAMUELS,

                   Amici Supporting Appellant,

STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS;
STATE OF GEORGIA; STATE OF KANSAS; STATE OF LOUISIANA; STATE
OF MISSISSIPPI; STATE OF MISSOURI; STATE OF NEBRASKA; STATE OF
OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF
TENNESSEE; STATE OF TEXAS; STATE OF UTAH; STATE OF WEST
VIRGINIA; MATTHEW G. BEVIN, Governor, Commonwealth of Kentucky;
JUDITH REISMAN, Ph. D.; THE CHILD PROTECTION INSTITUTE; EAGLE
FORUM EDUCATION AND LEGAL DEFENSE FUND; FOUNDATION FOR
MORAL LAW; NORTH CAROLINA VALUES COALITION; FAMILY
RESEARCH COUNCIL; ALLIANCE DEFENDING FREEDOM; WOMEN’S
LIBERATION FRONT; FAMILY POLICY ALLIANCE; CITIZENS UNITED;
CITIZENS UNITED FOUNDATION; PUBLIC ADVOCATE OF THE UNITED
STATES; UNITED STATES JUSTICE FOUNDATION; CONSERVATIVE
LEGAL DEFENSE AND EDUCATION FUND; THE BECKET FUND FOR
RELIGIOUS LIBERTY; PAUL R. MCHUGH, M.D.; PAUL HRUZ, Ph. D., M. D.;
LAWRENCE MAYER, Ph. D.,

                   Amici Supporting Appellee.



                                     ORDER


      Gavin Grimm, a transgender boy, commenced this action against the Gloucester

County School Board in July 2015, alleging that the School Board’s policy of assigning

students to restrooms based on their biological sex violated Title IX and the Equal

Protection Clause of the Fourteenth Amendment. Shortly thereafter, the district court

issued a memorandum opinion and order dated September 17, 2015, (1) dismissing


                                          4
Grimm’s claim under Title IX for failure to state a claim, and (2) denying his motion for a

preliminary injunction based on alleged violations of Title IX and the Equal Protection

Clause. 132 F. Supp. 3d 736, 753 (E.D. Va. 2015).

       In a decision dated April 19, 2016, we reversed the district court’s dismissal of

Grimm’s Title IX claim, relying on a guidance document issued by the U.S. Department

of Education and U.S. Department of Justice. We also remanded the order denying the

injunction, finding that the district court had applied the incorrect evidentiary standard in

evaluating Grimm’s motion for a preliminary injunction. 822 F.3d 709 (4th Cir. 2016).

Based on our ruling on Grimm’s Title IX claim, the district court issued an order dated

June 23, 2016, granting Grimm’s motion for a preliminary injunction and requiring the

School Board to allow Grimm to use bathrooms designated for males. 2016 WL 3581852

(E.D. Va. June 23, 2016).

       The School Board filed a petition for a writ of certiorari to review our April 2016

decision, and the Supreme Court granted the petition. 137 S. Ct. 369 (2016) (mem.).

       After the Supreme Court calendared the case for argument, the new Administration

issued a guidance document on February 22, 2017, that withdrew the prior

Administration’s guidance document regarding the treatment of transgender students, and

the Court then vacated our April 2016 decision and remanded the case to us “for further

consideration in light of the [new] guidance document issued by the Department of

Education and Department of Justice.” 137 S. Ct. 1239 (2017) (mem.). In turn, we vacated

the district court’s June 23, 2016 preliminary injunction. 853 F.3d 729 (4th Cir. 2017)

(mem.).

                                             5
        Because the Supreme Court vacated our April 2016 decision and we thereafter

vacated the district court’s June 2016 preliminary injunction, we now have before us on

appeal the district court’s original memorandum opinion and order dated September 17,

2015.

        To account for intervening events from when Grimm first filed his appeal, the

parties have submitted supplemental briefs that address several issues that were not before

us when we previously heard the case or before the district court when it issued its

September 17, 2015 memorandum opinion and order. In its supplemental briefing, the

School Board contends that this case has become moot because, after our April 2016

decision, Grimm apparently graduated from high school on June 10, 2017. The School

Board argues that, absent any allegation of a “particular intention to return to school after

graduation,” this change of status deprives Grimm of a continued interest in the litigation,

rendering the case moot. Supp. Reply Br. of Sch. Bd. at 4; see also Supp. Br. of Sch. Bd.

at 18–20. The School Board states further that its bathroom policy does not necessarily

apply to alumni, and that the issue of whether the policy is applicable to alumni is not yet

ripe for adjudication. In his briefing, Grimm challenges these contentions, arguing that his

possible “future attendance at alumni and school-community events” establishes a concrete

interest in obtaining an injunction, Supp. Br. of Pl.-Appellant at 19, and that the School

Board’s “noncommittal statement” regarding the enforceability of its policy “falls far short

of a representation that the Board will voluntarily cease discriminating against [him].”

Supp. Reply Br. of Pl.-Appellant at 4. The School Board thus suggests an absence of our

jurisdiction, while Grimm contends that we continue to have jurisdiction.

                                             6
       Of course, at any stage of litigation, a federal court must have jurisdiction to resolve

the merits of a dispute, as an absence of jurisdiction deprives a court of the power to act.

See Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“[A]n actual controversy must be extant

at all stages of review, not merely at the time the complaint is filed”); DeFunis v. Odegaard,

416 U.S. 312, 316 (1974) (“The inability of the federal judiciary ‘to review moot cases

derives from the requirement of Art. III of the Constitution’” (quoting Liner v. Jafco, Inc.,

375 U.S. 301, 306 n.3 (1964))). Because our power may be at issue, we are not free simply

to avoid the question of whether the case has become moot and proceed to decide the case

on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–95 (1998).

Jurisdiction, when questioned or when questionable, must always be determined first, as it

is “always an antecedent question.” Id. at 101.

       Thus, a crucial threshold question arises in this appeal whether “one or both of the

parties plainly lack a continuing interest” in the resolution of this case such that it has

become moot. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 192 (2000). While our jurisdiction is thus questioned, the facts on which our

jurisdiction could be decided are not in the record before us. Because all of the prior

litigation was conducted while Grimm was a student, the parties have presented us with

nothing more than unsupported assertions regarding Grimm’s continued connection to his

high school and the applicability of the School Board’s policy. And our own “analysis of

these matters . . . cannot be achieved simply by reviewing the plaintiffs’ pleadings and the

limited record on appeal.” Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 536 (4th

Cir. 2014) (remanding to allow for factfinding related to whether the case presented a

                                              7
nonjusticiable political question). Accordingly, we conclude that it is necessary to remand

this case to the district court to determine, in the first instance, whether this case has become

moot by reason of Grimm’s graduation — a resolution that will likely “require factual

development of the record by the district court and possibly additional jurisdictional

discovery.” Id.; see also 28 U.S.C. § 2106.

       Accordingly, we remand this to the district court for the limited purpose of

resolving, in the first instance, whether this case has become moot.

       Entered at the direction of Judge Niemeyer, with the concurrence of Judge Duncan

and Judge Floyd.

                                            For the Court

                                            /s/ Patricia S. Connor, Clerk




                                               8
