Judge dismisses lawsuit challenging Madison Schools gender identity policy; appeal planned

The parent is represented by the Wisconsin Institute for Law and Liberty and the Alliance Defending Freedom, both conservative law firms, which on Monday filed a notice of appeal of the decision.

The parent, only identified in the ruling as Jane Doe 4, is the last of 14 parents who initially sued the district in 2020 over a policy that’s part of a guidance document on student gender identity. The policy covered topics that include communication with the families of transgender and nonbinary students about their identities.

“Because she presents no evidence that she predicts, anticipates, or will actually suffer any individual harm, Jane Doe has no standing and her complaint must be dismissed,” wrote Circuit Judge Frank Remington. “Jane Doe’s claim must be dismissed because she fails to show why she anticipates that the district’s policies will cause even a trifling individual injury.”

Remington’s Nov. 23 decision does not directly address the merits of the policy but spends a great number of its 33 pages discussing what is considered legal standing, as expressed in recent state and federal court decisions.

Ignoring Doe’s lack of standing, Remington wrote, would be ignoring his own “limited and modest role in constitutional governance” and telling people he knows what’s best for them.

Remington wrote that while he doesn’t doubt her “genuine motive and keen interest in this case,” she is someone who was brought into the case to “invoke a court ruling upon” the matter. Many parents could believe, he wrote, that they or their children will be harmed by the policy, but they’re not part of the case.

“That is not to say that Jane Doe’s claims are not important — they just are equally important to every other member of the public who also disapproves of their local school board,” Remington wrote. “That our Constitution does not allow this court to take a side may leave the parties unsatisfied.”

Remington wrote that the sealed deposition testimony of Jane Doe 4 showed no evidence that the district’s policy has applied to her child because she “didn’t see any cause to believe my (child) was transgender,” no evidence the policy harms her when applied to other people, and no evidence the policy will ever apply to her child.

Asked about discussions concerning gender identity with her child, according to the deposition, she said, “I don’t think (the child’s) real interested in the topic,” and said she doesn’t believe her child has an interest in exploring the child’s own gender identity.

The issue of whether the 14 parents who initially sued in 2020 could do so anonymously went to the state Supreme Court, which ruled 4-3 in July that the parents’ identities must be disclosed to attorneys involved in the case, but not to the public. All but one parent has now dropped out of the case.

The American Civil Liberties Union and the ACLU of Wisconsin, which represented Madison school groups that intervened in the case to defend the district’s policy with pro bono help from Quarles & Brady, praised the ruling.

“Wednesday’s ruling recognizes that this case was never about the religious or parental rights of the parents recruited to be plaintiffs by WILL and ADF,” ACLU of Wisconsin legal director Larry Dupuis said in a statement.

“It was manufactured by those who play on fear and ignorance about gender identity and who would risk the safety of transgender students to advance their ideology. (The Madison School District’s) guidance protects the safety and emotional well-being of transgender and gender-expansive students by respecting their decision to not immediately share their use of different names or pronouns with parents who may be hostile toward the LGBTQ+ community.”

On Monday, WILL asked Remington for an order barring the district from implementing the policy while it appeals the ruling, citing its belief in the likelihood that it will find success on appeal and the probability that the policy “creates a risk of irreparable harm to (Doe) and her child.”