It’s not often that federal appeals court justices throw up their hands and say an issue is above their pay grade.
But that was the action taken by three justices on Chicago’s 7th Circuit Court of Appeals who were challenged by a Wisconsin school board to overturn a controversial precedent.
“We declined an invitation to overrule (Whitaker vs. Kenosha Unified School District) … because the existing circuit conflict on this issue will remain until the (U.S.) Supreme Court or Congress steps in,” wrote Justice Diane Sykes.
What’s the issue that the nation’s 13 federal appeals courts are so at odds on that they’re passing the buck?
It’s a sexual-discrimination issue, a relatively new one that resonates sharply in our current political atmosphere. It involves transgender students who wish to use the public school bathrooms reserved for the gender (girls, boys) whose identify they embrace.
Public schools, among other institutions, are grappling with this issue across the country. At some point, given the conflicting legal opinions that govern the 13 federal circuits, a higher power is going to have to break the tie and establish a uniform national policy.
The lawsuit was brought by “D.P., a transgender girl attending middle school in Mukwonago Area School District” in Wisconsin, and D.P.’s mother, who was identified as “A.B.”
There is a substantial backstory to this controversy. But the bottom line is that, in response to “calls and emails from parents” about D.P.’s use of the girls bathroom, the district established a new policy.
It required D.P. to either “use the boys’ bathroom and locker room or a gender-neutral alternative.”
D.P.’s mother filed a lawsuit alleging that the school’s policy violated D.P.’s “rights under Title IX of the Education Amendments in 1972 and the Fourteenth Amendment’s Equal Protection Clause.”
U.S. Judge Lynn Adelman first issued a preliminary injunction blocking the school district from enforcing its new policy. He followed that with a permanent injunction.
Challenging the judge’s procedural approach rather than the merits of the judge’s decision, the school district appealed.
The district argued that the judge erred when he ruled against the district without holding a hearing.
Error? Absolutely not in this case. When there are no facts at issue, a judge is not required to hold a hearing.
In this case, the school district “expressly relied on the factual submissions in D.P.’s motion and never submitted its own evidence.”
Adelman found those undisputed facts showed the district acted in violation of gender-discrimination law. The appellate court agreed he acted within the rules.
“An evidentiary hearing is not always required prior to the issuance of a preliminary injunction. Though the procedural rules contemplate a hearing, the court may proceed without one if the opponent’s response does not suggest the existence of a factual dispute that might affect the resolution of the motion,” Sykes wrote in an 11-page decision.
D.P.’s fight with the school district occurred in 2023. The appeals court ruled earlier this month.
In a footnote, Sykes wrote that a “forthcoming” U.S. Supreme Court decision “may affect the analysis of D.P.’s claims.”
The case she cited is United States v. Skrmetti, which concerns whether a ban on gender-affirming care for minors under the age of 18 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
