Doe v. Madison Metro. Sch. Dist.

• Citation: 2022 WI 65
• Decision Date: 08 July 2022
• Docket Number: 2020AP1032
• Parties: John Doe 1, Jane Doe 1, Jane Doe 3 and Jane Doe 4, plaintiffs-Appellants-petitioners, v. Madison Metropolitan school District, Defendant-Respondent, John Doe 5 and Jane Doe 5, plaintiffs-Appellants, John Doe 6, Jane Doe 6, John Doe 8 and Jane Doe 8, Plaintiffs, Gender Equity Association of James Madison Memorial High school, Gender sexuality Alliance of Madison West High school and Gender sexuality Alliance of Robert M. LaFollette High school, Intervenors-Defendants-Respondents.
• Court: United States State Supreme Court of Wisconsin

2022 WI 65

John Doe 1, Jane Doe 1, Jane Doe 3 and Jane Doe 4, plaintiffs-Appellants-petitioners, John Doe 5 and Jane Doe 5, plaintiffs-Appellants, John Doe 6, Jane Doe 6, John Doe 8 and Jane Doe 8, Plaintiffs,
v.
Madison Metropolitan school District, Defendant-Respondent,

Gender Equity Association of James Madison Memorial High school, Gender sexuality Alliance of Madison West High school and Gender sexuality Alliance of Robert M. LaFollette High school, Intervenors-Defendants-Respondents.

No. 2020AP1032

Supreme Court of Wisconsin

July 8, 2022

ORAL ARGUMENT: May 24, 2022

Circuit Court Dane County L.C. No. 2020CV454 Frank D. Remington Judge

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 399 Wis.2d, 963 N.W.2d PDC No:2021 WI.App. 60 - Published

For the plaintiffs-appellants-petitioners, there were briefs filed by Richard M. Esenberg, Luke N. Berg, Anthony F. LoCoco, Roger G. Brooks and Wisconsin Institute for Law &Liberty, Milwaukee, and Alliance Defending Freedom, Scottsdale. There was an oral argument by Luke N. Berg.

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For the defendant-respondent and interevenors-defendants-respondents, there was a brief filed by Emily M. Feinstein, Adam R. Prinsen, Sarah A. Zylstra, Sarah J. Horner, and Quarles &Brady LLP, Madison, and Boardman &Clark LLP, Madison. There was an oral argument for the defendant-respondent by Sarah A. Zylstra and an oral argument for the intervenors-defendants-respondents by Adam R. Prinsen

An amicus curiae brief was filed by Frederick W. Claybrook, Jr., Matthew M. Fernholz, and Claybrook LLC, Washington, D.C., and Cramer, Multhauf &Hammes, LLP, Waukesha for Wisconsin Family Action, Illinois Family Institute, Minnesota Family Council, Delaware Family Policy Council, Nebraska Family Alliance, Hawaii Family Forum, The Family Foundation, Minnesota-Wisconsin Baptist Convention, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Concerned Women for America, Ethics &Public Policy Center, National Legal Foundation, and Pacific Justice Institute.

An amicus curiae brief was filed by Tamara B. Packard and Pines Bach LLP, Madison, for Madison Teachers Inc.

An amicus curiae brief was filed by Eric G. Pearson, Morgan J. Tilleman, Megan C. Isom, and Foley &Lardner LLP, Milwaukee for the American Academy of Child and Adolescent Psychiatry and the Wisconsin Council of Child and Adolescent Psychiatry.

An amicus curiae brief was filed by Victoria L. Davis Davila, Robert Theine Pledl, Shannon Minter, Asaf Orr, and Davis & Pledl, Milwaukee, and National Center for Lesbian Rights, San Francisco, for Professors of Psychology &Human Development.

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An amicus curiae brief was filed by Daniel R. Suhr and Liberty Justice Center, Chicago, for the Liberty Justice Center.

JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.

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OPINION

BRIAN HAGEDORN, J.

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¶1 This case involves a constitutional challenge by parents to a school district policy. The substantive issues, however, remain pending before the circuit court and are not properly before us. This is an appeal contesting the circuit court's decision to seal and protect the parents' identities from the public and the school district, but not from the attorneys defending the school district's policy. Rather than follow our current law governing confidential litigation, the parents ask us to modify our approach in Wisconsin and adopt new standards modeled after federal law. We decline to do so. Applying Wisconsin law, we determine the circuit court did not erroneously exercise its discretion by requiring disclosure of the parents' identities to opposing attorneys, while allowing the parents to keep their names sealed and confidential as to the public and the district.

¶2 The parents further ask this court to issue an injunction against the underlying policy. But a preliminary injunction motion on this very issue remains pending in the circuit court, has not been decided, and therefore has not been appealed. We are not aware of any procedure by which we could properly address that motion in this court absent an extraordinary exercise of our superintending authority, which the petitioners did not request. What remains is an appeal of the circuit court's decision to grant in part and deny in part a temporary injunction pending appeal, a decision the court of

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appeals affirmed. However, our decision today ends the appeal of the circuit court's decision regarding parent confidentiality. Therefore, any decision addressing the temporary injunction pending appeal is now moot. Accordingly, we do not opine on the merits of the parents' request for temporary injunctive relief. We affirm the court of appeals' decision and remand to the circuit court for further adjudication of the parents' claims.

I. BACKGROUND

¶3 In April 2018, the Madison Metropolitan School District (the District) adopted a document entitled, "Guidance &Policies to Support Transgender, Non-binary &Gender Expansive Students" (the Policy). The Policy contains multiple provisions that animate the parents' claims in this case. We highlight several for context.

• "Students will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender in [District] systems."

• "All [District] staff will refer to students by their affirmed names and pronouns. Staff will also maintain confidentiality and ensure privacy. Refusal to respect a student's name and pronouns is a violation of the [District] Non discrimination policy."

• "School staff shall not disclose any information that may reveal a student's gender identity to others, including parents or guardians and other school staff, unless legally required to do so or unless the student has authorized such disclosure."

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• "All staff correspondence and communication to families in regard to students shall reflect the name and gender documented in [the District system] unless the student has specifically given permission to do otherwise. (This might involve using the student's affirmed name and pronouns in the school setting and their legal name and pronouns with family)."

• "To avoid harmful misgendering or misnaming, teachers should ensure that all information shared with substitute teachers is updated and accurate. For example, make sure attendance rosters, shared include accurate student names and pronouns, keeping in mind that not all students have their affirmed names and genders updated in [the District system]."

¶4 In February 2020, a group of parents sued the District alleging the Policy violated their right to parent their children, citing Article I, Section 1 of the Wisconsin Constitution,^[1] and their right to exercise their religious beliefs under Article I, Section 18 of the Wisconsin Constitution.^[2] Contemporaneous with filing their complaint, the

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parents moved to proceed using pseudonyms. The parents also sought a preliminary injunction pursuant to Wis.Stat. § 813.02 (2019-20).^[3] They asked the circuit court^[4] to prohibit the District from:

(1) enabling children to socially transition to a different gender identity at school by selecting a new "affirmed named and pronouns," without parental notice or consent;

(2) preventing teachers and other staff from communicating with parents that their child may be dealing with gender dysphoria, or that their child has or wants to change gender identity, without the child's consent; and

(3) deceiving parents by using different names and pronouns around parents than at school.

¶5 The District moved to dismiss the complaint and asked the circuit court to postpone the hearing on the injunction until the court decided the motion to dismiss. The circuit court agreed. After hearing argument, the circuit court denied the motion to dismiss.^[5] treasury for the benefit of religious societies, or religious or theological seminaries.

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¶6 The circuit court also granted in part the parents' motion to proceed anonymously. The court agreed with the risks presented by the parents and found "sufficient need to keep the Plaintiffs' names sealed and confidential from the public." The court concluded the parents made a "demonstrable factual showing that . . . would their names be disclosed, they would likely be subject to threats and intimidation, which would be wholly inappropriate and frustrate the orderly functioning of the court case." It held, however, that the parents "must disclose their identities to the Court and attorneys for the litigants." The circuit court ordered the parents to file, under seal, an amended complaint listing the names and addresses of the parents accessible to the court and opposing attorneys. And it instructed the parents to circulate a draft protective order, the terms of which were to be negotiated. The parents initially circulated a draft protective order which would limit the disclosure of their names to attorneys of record, excluding their staff and other attorneys at their firms. However, the circuit court concluded this was too narrow and directed the preparation of a protective order that other attorneys at the respective law firms and their staff would sign as well.

¶7 The parents sought an interlocutory appeal challenging the order to disclose their identities to the attorneys and moved to stay the order to file an amended complaint under seal. The circuit court granted the stay, and the court of appeals granted the petition for interlocutory appeal.

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¶8 While the petition for interlocutory appeal was pending before the court of appeals, the parents sought an injunction pending appeal with the circuit court under Wis.Stat. § 808.07(2). This motion asked for the same relief requested...