“No-Hearing Where No-Fact-Dispute” Doctrine & Continued Protection for Transgender Students
Commentary on Jane Doe (D.P.) v. Mukwonago Area School District, Court of Appeals for the Seventh Circuit (2025)

1. Introduction

In Jane Doe (D.P.) v. Mukwonago Area School District, the Seventh Circuit was asked to decide whether a district judge erred by issuing a preliminary injunction—without first holding an evidentiary hearing—blocking enforcement of a school-board policy that forced an eleven-year-old transgender girl to use the boys’ or a single-occupancy restroom. The defendants also asked the appellate court to overrule two of its earlier decisions—Whitaker (2017) and A.C. v. Martinsville (2023)—both of which had recognized that such policies likely violate Title IX and the Equal Protection Clause. The case therefore presented two clusters of issues:

• Procedural: When, if ever, must a trial court hold an evidentiary hearing before granting a preliminary injunction under Rule 65?
• Substantive: Do bathroom restrictions on transgender students constitute sex discrimination under Title IX and the Equal Protection Clause?

The appellate court answered the first with a new, crisply articulated rule—no hearing is necessary where the non-movant neither requests one nor identifies any material factual dispute—and reaffirmed its prior substantive holdings protecting transgender students. The opinion, authored by Chief Judge Sykes and joined by Judges Easterbrook and Kirsch, thus both clarifies civil-procedure doctrine within the circuit and further cements the circuit split over transgender bathroom policies.

2. Summary of the Judgment

The Seventh Circuit affirmed the district court’s preliminary injunction in full. Its key holdings are:

1. Under Federal Rule of Civil Procedure 65(a), an evidentiary hearing is not mandatory where (i) the non-moving party fails to ask for one and (ii) raises no genuine factual disputes that could affect the injunction analysis.
2. The district court justifiably found that Whitaker v. Kenosha U.S.D. and A.C. v. Martinsville are “materially indistinguishable,” making D.P. overwhelmingly likely to succeed on the merits of her Title IX and Equal Protection claims.
3. Any argument that notice was insufficient because formal service was not complete is waived when first raised in a reply brief and is, in any event, legally meritless—Rule 65 requires notice, not perfected service.
4. The panel, following its own doctrine of horizontal stare decisis, declines once again to overrule Whitaker despite the Eleventh Circuit’s contrary en banc decision in Adams v. St. Johns Cty. School Board.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017)
  – The first Seventh Circuit case holding that transgender bathroom bans likely violate Title IX and equal protection.
  – Provided the template for likelihood-of-success reasoning: (a) policies classify on the basis of sex; (b) heightened scrutiny applies; (c) no exceedingly persuasive justification existed.
• A.C. v. Metropolitan School District of Martinsville, 75 F.4th 760 (7th Cir. 2023)
  – Reaffirmed Whitaker; clarified that the analysis does not hinge on students’ age (13–15), medical treatment, or the formality of a policy.
• Adams v. St. Johns County School Board, 57 F.4th 791 (11th Cir. 2022) (en banc) – conflicting authority
• Rule-65 Cases on Hearings
  – Promatek Industries v. Equitrac Corp., 300 F.3d 808 (7th Cir. 2002) – evidentiary hearing needed only if the response creates factual issues.
  – Dexia Crédit Local v. Rogan, 602 F.3d 879 (7th Cir. 2010) – judge may decide on the papers if no dispute.
  – H-D Michigan v. Hellenic Duty Free Shops, 694 F.3d 827 (7th Cir. 2012) – Rule 65 relief before service of process is permissible with notice.

3.2 The Court’s Legal Reasoning

A. Procedural Reasoning — “No-Hearing Where No-Fact-Dispute” Rule
The Seventh Circuit parsed Rule 65(a)(2)’s language (“may advance the trial” and evidence “received on the motion”) and its own precedents to crystallize a simple test:

If the opposing party (i) does not request a hearing and (ii) does not identify any material factual dispute, the court acts within its discretion in deciding the motion on the papers.

The school district filed only a legal brief; it offered zero affidavits, declarations, or exhibits of its own; and it never asked for a hearing. Under Promatek and Dexia, the district judge was therefore entitled to “move directly to decision” five days after issuing a temporary restraining order.

B. Substantive Reasoning — Likelihood of Success
Echoing Whitaker and Martinsville, the panel found the case “squarely controlled.” Key points:

1. Classification by Sex: Forcing transgender students to use restrooms inconsistent with their gender identity is a sex-based classification.
2. Heightened Scrutiny: Such classifications trigger intermediate scrutiny under the Equal Protection Clause and Title IX. The school district must prove an “exceedingly persuasive justification.”
3. Justifications Rejected: Privacy concerns and administrative convenience were found too speculative or could be met through less-restrictive means (e.g., privacy stalls, single-user facilities).
4. Title IX Interpretation: The statute’s prohibition on sex discrimination, as informed by Bostock and agency guidance, encompasses discrimination based on transgender status.

C. Equitable Factors
The court agreed with the district judge that:

• Irreparable Harm: Exclusion from appropriate restrooms causes psychological distress and stigmatization.
• Balance of Harms: Minimal, if any, harm to the school district versus substantial harm to D.P.
• Public Interest: Upholding anti-discrimination norms outweighs administrative or political discomfort.

3.3 Impact of the Judgment

Procedural Impact

• District courts within the Seventh Circuit now have explicit appellate blessing to decide preliminary-injunction motions without evidentiary hearings when the record is uncontested and the opponent stays silent on factual issues. This may streamline urgent civil-rights litigation, intellectual-property disputes, and other contexts where speed is vital.

Substantive Impact

• Further entrenches a circuit split with the Eleventh Circuit (Adams) and parts of the Fourth Circuit, making Supreme Court review increasingly likely.
• Signals to school districts in Illinois, Indiana, and Wisconsin that facially “neutral” restroom policies keyed to sex assigned at birth are almost certainly unlawful under current Seventh Circuit precedent.
• Raises the litigation stakes around forthcoming Supreme Court decision in United States v. Skrmetti (targeting state bans on gender-affirming care). If the Supreme Court construes “sex” differently, that could ripple back into the Title IX context.
• May influence policy-drafting nationwide: The opinion highlights that including a vague case-by-case exception clause is insufficient to salvage an otherwise discriminatory rule.

4. Complex Concepts Simplified

Title IX

A 1972 federal statute prohibiting sex discrimination in education programs receiving federal funds. Courts now widely read “sex” to include gender identity.

Equal Protection Clause

Part of the Fourteenth Amendment; requires states to treat individuals equally under the law unless a classification (such as sex) is justified by a sufficient governmental interest.

Preliminary Injunction

A temporary court order issued early in a lawsuit preventing a party from acting (or requiring action) until the case is resolved. Four factors govern: likelihood of success, irreparable harm, balance of harms, and public interest.

Evidentiary Hearing (Rule 65)

A mini-trial where witnesses testify and evidence is taken before the judge decides whether to grant a preliminary injunction. Not automatic; required only if facts are contested.

Stare Decisis (Horizontal vs. Vertical)

Courts follow their own prior decisions (horizontal) unless an intervening authority (e.g., the Supreme Court) compels change (vertical). Panels cannot overrule earlier panel decisions in the same circuit.

5. Conclusion

The Seventh Circuit’s decision in Jane Doe (D.P.) v. Mukwonago breaks ground procedurally while reiterating substantive protections for transgender students. By articulating the “no-hearing where no-fact-dispute” doctrine, the court gives trial judges flexibility to act swiftly when speed and clarity matter most. Simultaneously, it fortifies a body of circuit precedent—Whitaker and Martinsville—that recognizes restroom restrictions as unlawful sex discrimination. Until the Supreme Court or Congress intervenes, Illinois, Indiana, and Wisconsin schools must accommodate transgender students’ bathroom use consistent with gender identity, and litigants opposing preliminary injunctions must raise concrete fact disputes early or forego an evidentiary hearing. The opinion thus stands at the intersection of civil-procedure efficiency and evolving civil-rights jurisprudence, with ramifications certain to resonate far beyond the Seventh Circuit.