Gavin Grimm v. Glouscester County School Board

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

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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.).

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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.

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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

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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.