“Notice, Not Service” and “No Hearing Without a Fact Dispute”: Seventh Circuit Affirms Paper-Record Preliminary Injunction and Reaffirms Whitaker’s Control Over Transgender Student Bathroom Policies

Introduction

In D.P. v. Mukwonago Area School District, the Seventh Circuit affirmed a preliminary injunction that bars the Mukwonago Area School District from enforcing a policy requiring a transgender middle-school girl to use either the boys’ bathroom or a single-occupancy gender-neutral facility. The case sits at the intersection of Title IX, the Equal Protection Clause, and Rule 65 injunction practice. The panel (Chief Judge Sykes, with Judges Easterbrook and Kirsch) addressed two principal issues:

Procedure: Whether a district court may issue a preliminary injunction without an evidentiary hearing and before formal service of process; and
Merits: Whether existing circuit precedent (Whitaker and A.C. v. Martinsville) controls challenges to school bathroom policies that restrict transgender students’ access to facilities matching their gender identity.

The defendants—the school district and the superintendent (official capacity)—argued the district court erred procedurally by acting quickly over a holiday weekend without a hearing, and urged the Seventh Circuit to overrule Whitaker or distinguish it. The panel rejected those arguments and affirmed, holding that a hearing is not required absent material factual disputes raised by the nonmovant, and that Rule 65 requires notice—not formal service of process—for a preliminary injunction. On the merits, the court held that Whitaker and Martinsville control, and any differences identified by the district (student age, parental complaints, and a formal policy with case-by-case exceptions) do not alter the analysis.

Summary of the Opinion

The Seventh Circuit affirmed the district court’s grant of a preliminary injunction:

No evidentiary hearing required: A district court may decide a preliminary injunction motion on the papers when the nonmoving party neither requests a hearing nor identifies material factual disputes. The school district did neither.
Notice, not service: Rule 65(a)(1) requires only notice—not perfected service of process—before issuing a preliminary injunction. The district had actual notice and responded on the merits.
Merits controlled by precedent: Whitaker (2017) and Martinsville (2023) govern transgender bathroom access cases in the circuit; minor factual variations identified by the district do not undermine the district court’s likelihood-of-success finding.
Refusal to overrule: The panel declined to revisit or overrule Whitaker or Martinsville, noting both binding circuit precedent and Judge Easterbrook’s prior observation that any circuit conflict persists until addressed by the Supreme Court or Congress. The panel signaled agreement with the critique of Whitaker in principle but adhered to stare decisis.
Outcome: Preliminary injunction affirmed; the school may not enforce its policy against D.P. while the litigation proceeds.

Analysis

Precedents Cited and Their Influence

Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017): Whitaker held that a school policy barring a transgender student from using facilities matching his gender identity likely violates both Title IX and the Equal Protection Clause, treating the policy as unlawful sex discrimination. In D.P., the court treated Whitaker as squarely controlling on the likelihood-of-success analysis.
A.C. v. Metropolitan School District of Martinsville, 75 F.4th 760 (7th Cir. 2023): Martinsville reaffirmed Whitaker in consolidated appeals involving younger students (13–15). D.P. relies on the same framework. The panel emphasized that Whitaker/Martinsville did not turn on student age, hormone treatment, or medical conditions; thus D.P.’s age (11) is not a material distinction.
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008): Provides the four-part preliminary injunction standard (likelihood of success, irreparable harm, balance of equities, and public interest). The Seventh Circuit applied this standard and reviewed the district court’s determinations under deferential and mixed standards (clear error for facts, de novo for law, abuse of discretion for balancing).
Federal Rule of Civil Procedure 65 and implementing Seventh Circuit doctrine:
- Rule 65(a)(1): Requires notice—not formal service—before issuing a preliminary injunction. Cited: H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 842 (7th Cir. 2012); aligned with Whirlpool Corp. v. Shenzhen Sanlida Elec. Tech. Co., 80 F.4th 536, 543 (5th Cir. 2023).
- Rule 65(a)(2): Contemplates but does not mandate an evidentiary hearing; Seventh Circuit precedent limits the hearing requirement to situations where the nonmovant raises genuine issues of material fact. Cited: Promatek Indus., Ltd. v. Equitrac Corp., 300 F.3d 808, 814 (7th Cir. 2002); Dexia Crédit Local v. Rogan, 602 F.3d 879, 884 (7th Cir. 2010); Medeco Sec. Locks, Inc. v. Swiderek, 680 F.2d 37, 38–39 (7th Cir. 1981).
- Rule 65(d): Requires a separate, specific injunction order stating terms; the district court complied.
Thorncreek Apartments III, LLC v. Mick, 886 F.3d 626, 636 (7th Cir. 2018): Arguments raised for the first time in a reply brief are waived. The district’s service-of-process objection was both waived and meritless.
Bridges v. Dart, 950 F.3d 476, 478 n.1 (7th Cir. 2020): Official-capacity suits are effectively suits against the entity itself, explaining why Superintendent Koch was not analyzed separately.
Adams v. School Board of St. Johns County, 57 F.4th 791 (11th Cir. 2022) (en banc): Recognized as creating a circuit conflict with Whitaker/Martinsville. The panel expressly noted agreement with Judge Easterbrook’s view that Adams is “closer to the mark,” but adhered to binding Seventh Circuit precedent.

Legal Reasoning

1) Procedural Holdings Under Rule 65

The court articulated and applied two clear procedural rules:

No evidentiary hearing absent material fact disputes raised by the nonmovant: Although Rule 65(a)(2) “contemplates” a hearing, Seventh Circuit law requires one only if the nonmoving party raises genuine issues of material fact that might affect the outcome. Here, the school district:
- Did not request a hearing;
- Submitted no evidence contradicting the plaintiffs’ factual showing; and
- Explicitly relied on the plaintiffs’ submissions.
Given that posture, deciding the motion on the papers was within the district court’s discretion. The court rejected the notion that a judge must sua sponte offer a hearing or delay decision, even over a holiday weekend, to allow a nonmovant to assemble evidence it neither proffered nor described.
“Notice, not service” for preliminary injunctions: Rule 65(a)(1) requires notice to the adverse party; perfecting service of process is not a prerequisite to issuing a preliminary injunction. The school district had immediate, actual notice by email on the filing date and filed a substantive response four days later. The panel characterized the service objection—first raised in reply—as both waived and baseless.

2) Merits: Title IX and Equal Protection Claims Under Whitaker and Martinsville

On likelihood of success, the panel held that Whitaker and Martinsville are controlling. The legal backdrop in the Seventh Circuit treats transgender bathroom exclusions as a form of sex discrimination under Title IX and triggers heightened scrutiny under the Equal Protection Clause. The school district’s attempts to distinguish those cases failed:

Student age: The plaintiffs in Whitaker and Martinsville were 13–17; D.P. was 11 when the suit was filed. The court stated that neither decision hinged on age; the governing legal principles apply equally in middle school.
Medical or restroom-frequency issues: Although some earlier plaintiffs had medical needs that required frequent restroom use, the holdings in Whitaker and Martinsville did not depend on those facts.
Formal policy with case-by-case exceptions: The district argued its formal policy (Policy 5514) with a case-by-case exception mechanism meaningfully differed from the informal policies in Whitaker and Martinsville. The court “struggle[d] to see” how that structure changed the legal analysis.
Parental complaints: The district emphasized parent objections to D.P.’s restroom use. The court found this irrelevant to the core legal analysis and, at most, a minor factor in equitable balancing insufficient to disturb the injunction.

The district alternatively urged the court to overrule Whitaker. The panel declined, adhering to circuit stare decisis and noting it had already rejected such an invitation in Martinsville. While acknowledging Judge Easterbrook’s view that the Eleventh Circuit’s Adams decision is “closer to the mark,” the panel emphasized that only the Supreme Court or the en banc court (or Congress) can resolve the circuit conflict.

The court also noted that the Supreme Court’s forthcoming decision in United States v. Skrmetti could affect the legal landscape, but until then, Whitaker and Martinsville remain controlling.

Impact

A. Immediate Practical Effects

Injunction practice in the Seventh Circuit:
- District courts may decide preliminary injunction motions on the papers when the nonmovant does not request a hearing or identify material factual disputes.
- Practitioners opposing injunctive relief must promptly request a hearing and articulate the specific factual disputes and proof that could change the outcome. Silence is perilous.
- Courts may issue preliminary injunctions upon actual notice to the adverse party; perfected service is not required. Parties seeking urgent relief can move swiftly so long as notice is given.
Substantive law for K–12 schools in IL/IN/WI: Whitaker and Martinsville remain binding. Policies requiring restroom use according to sex assigned at birth—and restricting transgender students to boys’ facilities or single-user alternatives—are likely unlawful under Title IX and the Equal Protection Clause in the Seventh Circuit. Adding case-by-case exceptions or pointing to parental complaints does not insulate such policies at the preliminary-injunction stage.

B. Strategic and Doctrinal Signals

Panel’s candid signal about circuit split: The panel expressly noted agreement with the critique of Whitaker reflected in Judge Easterbrook’s Martinsville concurrence and the Eleventh Circuit’s Adams decision, yet declined to depart from binding circuit law. This underscores both the gravity of the split and the likelihood that ultimate resolution will come from the Supreme Court or en banc review.
Potential effect of Supreme Court developments: The opinion flags United States v. Skrmetti as potentially relevant. While the precise impact remains to be seen, parties should monitor Supreme Court guidance on sex discrimination, transgender status, and standards of review; if the governing framework shifts, parties may seek to modify or dissolve preliminary injunctions.

Complex Concepts Simplified

Title IX: A federal law prohibiting sex-based discrimination in education programs receiving federal funding. The Seventh Circuit’s current law treats exclusion of transgender students from facilities matching their gender identity as sex discrimination.
Equal Protection Clause: The Fourteenth Amendment requires states to treat similarly situated persons alike. Policies classifying based on sex typically receive heightened scrutiny; the government must show an “exceedingly persuasive justification.”
Preliminary Injunction (PI): A temporary court order issued early in a case to preserve the status quo. The movant must show likely success on the merits, irreparable harm without relief, that the balance of harms favors an injunction, and that the injunction is in the public interest (Winter v. NRDC).
Temporary Restraining Order (TRO) vs. PI: A TRO is short-term emergency relief; a PI lasts through the litigation. This case involved a TRO quickly converted to a PI.
Rule 65 Notice vs. Service of Process: For a preliminary injunction, Rule 65 requires only that the adverse party receive notice of the motion; the court may act even if formal service of process has not yet been completed.
Evidentiary Hearing on a PI: Not automatic. It is required only when the nonmovant identifies genuine disputes of material fact whose resolution could change the decision. If no such disputes are raised, a court may rule on the papers.
Standards of Appellate Review: On appeal from a PI: factual findings are reviewed for clear error; legal conclusions de novo; and the ultimate balancing and grant/denial for abuse of discretion.
Official-Capacity Suit: Suing an official in their official capacity is effectively suing the governmental entity; here, the superintendent’s official-capacity status meant the district was the real party.
Circuit Split: Different federal circuits disagree on a legal question. Here, the Eleventh Circuit’s Adams diverges from the Seventh Circuit’s Whitaker/Martinsville on transgender student bathroom policies.
Waiver in Appellate Practice: Arguments raised for the first time in a reply brief are typically considered waived and will not be addressed.

Conclusion

D.P. v. Mukwonago Area School District delivers two clarifying procedural principles for preliminary injunctions in the Seventh Circuit: (1) a district court may grant a preliminary injunction without an evidentiary hearing when the nonmovant fails to request one or to flag material factual disputes; and (2) Rule 65 requires only notice—not completed service of process—before issuing a preliminary injunction. On the merits, the court reaffirmed that Whitaker and Martinsville control transgender student bathroom access disputes in this circuit, rejecting distinctions based on age, parental objections, or the presence of a formal policy with case-by-case exceptions.

The decision’s most notable subtext is its candid acknowledgment of the circuit split and a sympathetic nod to the contrary approach in the Eleventh Circuit’s Adams, alongside a firm adherence to circuit precedent. Until the Supreme Court or the en banc Seventh Circuit reorients the legal framework, Whitaker and Martinsville remain the governing law in Illinois, Indiana, and Wisconsin. Practically, school districts within the Seventh Circuit should expect that policies restricting transgender students from facilities aligned with their gender identity will likely be enjoined at the preliminary stage. Procedurally, litigants should heed the court’s message: if you oppose emergency relief, raise concrete factual disputes and ask for a hearing—quickly—or the court may rule on the papers.