2022 WI 65

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP1032

COMPLETE TITLE: 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.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 399 Wis. 2d, 963 N.W.2d

PDC No:2021 WI App 60 - Published

OPINION FILED: July 8, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: May 24, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dane 

JUDGE: Frank D. Remington 

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.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were 

briefs filed by Richard M. Esenberg, Luke N. Berg, Anthony F. 
2

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. 

For the defendant-respondent and interevenors-defendantsrespondents, 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-defendantsrespondents 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, MinnesotaWisconsin 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 

Dávila, Robert Theine Pledl, Shannon Minter, Asaf Orr, and Davis 
3

& Pledl, Milwaukee, and National Center for Lesbian Rights, San 

Francisco, for Professors of Psychology & Human Development. 

An amicus curiae brief was filed by Daniel R. Suhr and 

Liberty Justice Center, Chicago, for the Liberty Justice Center. 
2022 WI 65

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP1032

(L.C. No. 2020CV454)

STATE OF WISCONSIN : IN SUPREME COURT

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.

FILED

JUL 8, 2022

Sheila T. Reiff

Clerk of Supreme Court

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.
No. 2020AP1032 

2

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 BRIAN HAGEDORN, J. 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 
No. 2020AP1032 

3

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] Nondiscrimination 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."
No. 2020AP1032 

4

 "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 

 

1 Article I, Section 1 of the Wisconsin Constitution 

provides: "All people are born equally free and independent, 

and have certain inherent rights; among these are life, liberty 

and the pursuit of happiness; to secure these rights, 

governments are instituted, deriving their just powers from the 

consent of the governed."

2 Article I, Section 18 of the Wisconsin Constitution 

states:

The right of every person to worship Almighty God 

according to the dictates of conscience shall never be 

infringed; nor shall any person be compelled to 

attend, erect or support any place of worship, or to 

maintain any ministry, without consent; nor shall any 

control of, or interference with, the rights of 

conscience be permitted, or any preference be given by 

law to any religious establishments or modes of 

worship; nor shall any money be drawn from the 
No. 2020AP1032 

5

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 court4 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.

3 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version unless otherwise indicated.

4 The Honorable Frank D. Remington of the Dane County 

Circuit Court presided.

5 The circuit court also granted intervention to the Gender 

Equity Association of James Madison Memorial High School, the 

Gender Sexuality Alliance of Madison West High School, and the 

Gender Sexuality Alliance of Robert M. La Follette High School.

We refer to the District and the Intervenors-Defendants 

collectively as the District.
No. 2020AP1032 

6

¶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.
No. 2020AP1032 

7

¶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 in the parents' original preliminary injunction 

motion. Two months after the court of appeals granted 

interlocutory appeal, the circuit court granted in part and 

denied in part the parents' motion for an injunction pending 

appeal. The circuit court enjoined the District

from applying or enforcing any policy, guideline, or 

practice reflected or recommended in its document 

entitled "Guidance & Policies to Support Transgender, 

Non-binary & Gender-Expansive Students" in any manner 

that allows or requires District staff to conceal 

information or to answer untruthfully in response to 

any question that parents ask about their child at 

school, including information about the name and

pronouns being used to address their child at school.

The circuit court added that its "injunction does not create an 

affirmative obligation to disclose information if that 

obligation does not already exist at law and shall not require 

or allow District staff to disclose any information that they 

are otherwise prohibited from disclosing to parents by any state 

or federal law or regulation." The circuit court denied the 

other injunctive relief requested by the parents. It reasoned 

that the parents had not demonstrated they were likely to 

succeed on appeal and, without knowing any specifics about the 

parents bringing the claim, the parents were unable to 

demonstrate they would suffer irreparable harm.
No. 2020AP1032 

8

¶9 Having not received all they hoped for from the 

circuit court, the parents turned to the court of appeals. They 

moved for injunctive relief under Wis. Stat. § 808.07(2)(a) and 

cited Wis. Stat. § (Rule) 809.12, the ordinary authority for 

appealing the denial of a motion for relief pending appeal. In 

the alternative, they also sought injunctive relief under the 

general temporary injunction statute, Wis. Stat. § 813.02, along 

with Wis. Stat. § (Rule) 809.14, which specifies how to move an 

appellate court for relief.

¶10 The court of appeals denied the parents' motion for 

injunctive relief pending appeal, concluding the circuit court 

did not erroneously exercise its discretion. The parents then 

sought relief from this court on their motion for relief pending 

appeal while the court of appeals was still considering the 

merits of the confidentiality question. We denied the petition 

for review. Several months later, the court of appeals issued a 

decision on the confidentiality issue affirming the circuit 

court. Doe 1 v. Madison Metro. Sch. Dist., 2021 WI App 60, 399 

Wis. 2d 102, 963 N.W.2d 832. The parents then turned to this 

court again, and we granted their petition for review.

II. CONFIDENTIALITY

¶11 The main question before us is a narrow one: Did the 

circuit court err in ordering the parents to file a sealed 

complaint with their names and addresses which would be viewed 

by the court and attorneys alone? The parents' argument rests 

largely on its request that we reexamine, overrule, and 
No. 2020AP1032 

9

reformulate the law on anonymous litigation in Wisconsin to more 

closely resemble their description of the approach in federal 

courts. We decline to do so. We begin with the relevant law as 

it now exists.

A. Legal Standards

¶12 The ordinary rule in Wisconsin and everywhere is that 

those availing themselves of the legal system should do so 

openly. See, e.g., State ex rel. La Crosse Trib. v. Cir. Ct. 

for La Crosse Cnty., 115 Wis. 2d 220, 241-42, 340 N.W.2d 460 

(1983); Doe v. Village of Deerfield, 819 F.3d 372, 376-77 (7th 

Cir. 2016); 67A C.J.S. Parties §§ 173-74 (2022). While we 

protect certain vulnerable legal participants, such as children 

and crime victims, the business of courts is public business, 

and as such is presumed to remain open and available to the

public. See Wis. Stat. § 757.14 ("The sittings of every court 

shall be public and every citizen may freely attend the 

same . . . except if otherwise expressly provided by law."); 

Wis. Stat. § (Rule) 809.81(8) ("Every notice of appeal or other 

document that is filed in the court and that is required by law 

to be confidential shall refer to individuals only by one or 

more initials or other appropriate pseudonym or designation."); 

Wis. Stat. § (Rule) 809.86 (directing that, in certain types of 

cases, the identity of crime victims should not be disclosed). 

Openness is the rule; confidentiality is the exception.

¶13 This principle plays out from the commencement of a 

lawsuit. Litigation in Wisconsin begins with the filing of a 
No. 2020AP1032 

10

summons and complaint, which must contain "the names and 

addresses of the parties to the action, plaintiff and 

defendant." Wis. Stat. § 801.09(1). These documents are filed 

with the clerk of the circuit court, who is required to "open to 

the examination of any person all books and papers required to 

be kept in his or her office and permit any person so examining 

to take notes and copies of such books, records, papers, or 

minutes therefrom." Wis. Stat. § 59.20(3)(a). We have 

described this as "a legislative declaration granting those 

persons who properly come under its umbrella 'an absolute right 

of inspection subject only to reasonable administrative 

regulations.'" State ex rel. Bilder v. Township of Delavan, 112 

Wis. 2d 539, 553, 334 N.W.2d 252 (1983) (quoting State ex rel. 

J. Co. v. Cnty. Ct. for Racine Cnty., 43 Wis. 2d 297, 308, 168 

N.W.2d 836 (1969)) (interpreting Wis. Stat. § 59.14(1) (1979-

80), predecessor to § 59.20(3)(a)). This reflects "a basic 

tenet of the democratic system that the people have the right to 

know about operations of their government, including the 

judicial branch." Id. at 553.

¶14 In Bilder, we identified three exceptions to the right 

codified in Wis. Stat. § 59.20(3)(a). First, documents may be 

closed to the public when another statute so requires or 

authorizes. Id. at 554. Second, the same applies if disclosure 

would infringe on a constitutional right. Id. at 555. And 

third, "when the administration of justice requires it," a court 

may employ its inherent power under the constitution "to 

preserve and protect the exercise of its judicial function of 
No. 2020AP1032 

11

presiding over the conduct of judicial proceedings." Id. at 

556.

¶15 With respect to the court's inherent power, many of 

the cases, including Bilder, focus on the public records nature 

of requests for confidentiality. See WISC-TV—Channel 3/Madison 

v. Mewis, 151 Wis. 2d 122, 442 N.W.2d 578 (Ct. App. 1989); Krier 

v. EOG Env't, Inc., 2005 WI App 256, 288 Wis. 2d 623, 707 

N.W.2d 915. But the court's ability "to preserve and protect 

the exercise of its judicial function of presiding over the 

conduct of judicial proceedings" is not limited to public 

records requests. Bilder, 112 Wis. 2d at 556. Instead, the 

inherent authority of courts includes those powers "necessary 

for the courts to function as courts." State v. Schwind, 2019 

WI 48, ¶12, 386 Wis. 2d 526, 926 N.W.2d 742. We see no reason 

why the inherent authority of courts would not also reach other 

interests implicated by the openness of judicial proceedings, 

including the potential for threats and harassment alleged in 

this case. These interests go to the core of the judiciary's 

duty to preside over and conduct judicial proceedings, as the 

circuit court recognized.

¶16 Seven years ago, this court adopted by rule a set of 

procedures governing the redaction and sealing of documents. 

See Wis. Stat. § 801.21; S. Ct. Order 14-04, 2015 WI 89 (issued 

Aug. 27, 2015, eff. July 1, 2016). While not enacted in the 

same way as other laws, the legislature has prescribed that our 

rules function as statutes. See Rao v. WMA Sec., Inc., 2008 

WI 73, ¶35, 310 Wis. 2d 623, 752 N.W.2d 220. The underlying 
No. 2020AP1032 

12

assumption of § 801.21 is that court filings are public. The 

procedures we adopted provide a mechanism for protecting certain 

documents or information in these otherwise public records.

¶17 The basic procedure we created was to require a 

"party seeking to protect a court record" to "file a motion to 

seal part or all of a document or to redact specific information 

in a document."6 Wis. Stat. § 801.21(2). Sealing and redacting 

are different. "'Seal' means to order that a portion of a 

document or an entire document shall not be accessible to the 

public." § 801.21(1)(b). "'Redact' means to obscure individual 

items of information within an otherwise publicly accessible 

document." § 801.21(1)(a). A party filing a motion under 

§ 801.21 can file the material under temporary seal until a 

court rules on the motion, and the movant is required to 

"specify the authority for asserting that the information should 

be restricted from public access." § 801.21(2).

¶18 The circuit court then determines "whether there are 

sufficient grounds to restrict public access according to 

applicable constitutional, statutory, and common law." Wis. 

Stat. § 801.21(4). Section 801.21 does not provide substantive 

reasons to protect a document; that law is found elsewhere. For 

example, Wis. Stat. § 801.19 defines protected information that 

must be omitted or redacted from circuit court records——

including passport and social security numbers. § 801.19(1)(a). 

 

6 We also specified that the court may act on its own 

initiative to "order sealing or redaction of any part of the 

court record or transcript." Wis. Stat. § 801.21(6).
No. 2020AP1032 

13

And Wis. Stat. § 801.20(1) requires the director of state courts 

to "maintain a list of commonly-filed documents made 

confidential by statutes, court rules and case law." When the 

law provides grounds for redacting or sealing a document, the 

court must "use the least restrictive means that will achieve 

the purposes of this rule and the needs of the requester." 

§ 801.21(4). A comment to the rule stresses this "section is 

intended to make it clear that filing parties do not have the 

unilateral right to designate any filing as confidential and 

that permission from the court is required." S. Ct. Order 14-

04, § 7.

¶19 In sum, Wisconsin law has a strong presumption in 

favor of openness for judicial proceedings and records. But it 

can be overcome by specific statutory or constitutional rights, 

and in some circumstances, by the inherent power the 

constitution vests in the judicial branch. The general 

procedure this court has adopted involves redacting or sealing 

documents or portions of documents, and any restriction on 

public access must use the least restrictive means possible.

B. Analysis

¶20 Here, the circuit court concluded the parents may 

file their complaint under seal protecting their names and 

identities from the public. It did so after finding the risks 

to the parents and their children were legitimate. The court 

also ordered that the sealed, unredacted complaint would be 

accessible only to the circuit court and to defense counsel 
No. 2020AP1032 

14

following the adoption of a signed protective order. 

Essentially, the narrow question in this case centers on the 

parents' argument that granting defense counsel access to the 

sealed complaint should be reversed. They assert that they and 

their children face a serious risk of harm, their identities are 

irrelevant to their legal claims, and disclosing their 

identities to opposing counsel could result in that information 

being leaked. At bottom, the parents want to litigate with 

total anonymity, except with respect to the circuit court, or 

alternatively, with respect to the circuit court and a small 

subset of attorneys at one of the firms defending the District's 

policy.

¶21 Perhaps recognizing the weakness of their argument 

under existing law, the parents come with a bigger ask. Drawing 

on federal case law, they ask us to adopt a new multifactor 

balancing test. The parents focus our attention on several 

factors with an established history of relevance in federal 

courts: the plaintiffs are parents of minor children; the case 

implicates deeply held beliefs likely to provoke an intense 

emotional response; and release of their identities poses 

significant risks of harassment and retaliation.7 They further 

ask us to conduct our review de novo, giving no deference to the 

circuit court. 

 

7 Reference to federal law in this area is not improper. 

Wisconsin courts have looked to federal cases for guidance on 

sealing documents. See WISC-TV—Channel 3/Madison v. Mewis, 151 

Wis. 2d 122, 134-35, 442 N.W.2d 578 (Ct. App. 1989).
No. 2020AP1032 

15

¶22 In response, the District argues that none of these 

concerns would warrant withholding the parents' identities from 

attorneys in the case, each of whom would be duty-bound by court 

order to keep the parents' identities confidential. Defense 

counsel says their strategy and ability to litigate these claims 

could shift depending on each parent's unique circumstances. 

This would impact, they assert, legal defenses they might 

advance, as well as the scope of any temporary or permanent 

relief ordered. The parents disagree, and say their identities 

are irrelevant to their claims.

¶23 We begin with the standard of review. The court of 

appeals in this case and in prior cases has held that the 

circuit court's order should be reviewed for an erroneous 

exercise of discretion. Doe 1, 399 Wis. 2d 102, ¶18, (citing 

Krier, 288 Wis. 2d 623, ¶23). We agree. Under that standard, a 

court must still determine whether the appropriate standard of 

law was applied. Thus, a court incorrectly construing a statute 

to support sealing a document could be reversed for applying an 

improper standard of law. Krier, 288 Wis. 2d 623, ¶23 ("An 

erroneous exercise of discretion occurs if . . . the trial court 

applied the wrong legal standards."). But once the proper law 

is identified and employed, the judgment call in determining 
No. 2020AP1032 

16

whether to keep information confidential is rightly within the 

circuit court's discretion.8 Id.

¶24 In this case, the circuit court's decision to withhold 

the parents' identities from the public and the District, but 

not the District's attorneys, was well within its discretion. 

As the District identified, resolving the parents' claims 

through the courts could depend on a number of significant legal 

questions which can be evaluated only if the District's 

attorneys know the parents' identities.

¶25 Of no minor importance, the District's attorneys 

stressed their independent ethical responsibilities under our 

rules. For example, attorneys must avoid conflicts of interest. 

See, e.g., SCR 20:1.7(a) ("[A] lawyer shall not represent a 

client if the representation involves a concurrent conflict of 

interest."). Among other circumstances, a conflict of interest 

arises if "the representation of one client will be directly 

adverse to another client," or if the representation involves 

"the assertion of a claim by one client against another client 

represented by the lawyer." SCR 20:1.7(a)(1), (b)(3). At oral 

argument, the District expressed concern that its attorneys 

cannot know if their representation of the District creates a 

conflict of interest with any of the parents without knowing who 

the parents are. Already in this case two of the parents 

 

8 We observe that discretionary review appears to be the 

standard approach in federal courts as well. See, e.g., Doe v. 

Village of Deerfield, 819 F.3d 372, 376 (7th Cir. 2016) 

(reviewing "a motion for leave to proceed anonymously" "for 

abuse of discretion only").
No. 2020AP1032 

17

voluntarily withdrew from the suit because the parents' counsel 

determined their participation created a conflict of interest 

for the District's attorneys. The parents suggest they can 

police any potential conflicts, but our rules of ethics place 

that independent responsibility on the attorneys representing 

the District. See ABA Comment [2] SCR 20:1.7 (noting that 

resolving a conflict of interest problem "requires the lawyer" 

to take certain steps); ABA Comment [4] SCR 20:1.7 ("If a 

conflict arises after representation has been undertaken, the 

lawyer ordinarily must withdraw from representation, unless the 

lawyer has obtained the informed consent of the 

client . . . ."). At the very least, this is a significant 

consideration regarding the parents' request to proceed without 

revealing their identities to opposing counsel. The circuit 

court exercised its discretion in this case in a way that 

facilitates the District's attorneys' ability to follow their 

ethical duties.

¶26 The parents' identities may also have implications for 

the substantive issues in this case. Although the parents' 

bring a facial challenge against the Policy, arguing it is 

unconstitutional in every circumstance, facts specific to the 

parents or their children could influence the availability and 

scope of judicial relief. For example, the parents raise a free 

exercise of religion claim under Article I, Section 18 of the 

Wisconsin Constitution. But without knowing the parents' 

identities, how can the District's attorneys inquire whether the 

parents have a sincerely held religious belief regarding this 
No. 2020AP1032 

18

aspect of their children's upbringing? Individual parents in 

this case might also have differing beliefs which could affect 

the evaluation of their claims. Additionally, it could be that 

various factual wrinkles alter the nature of the alleged 

violation of the right to parent one's child as well as the 

scope of relief the parents could be entitled to. For example, 

it is unclear if the constitutional right asserted would apply 

in the same way to a parent whose child has turned 18 but is 

still attending District schools. The same could be true of a 

parent whose parental rights have been terminated by a court or 

a parent who has ceded certain decisions to another parent 

pursuant to a custody arrangement. If there is an 

Individualized Educational Program in place for the child, that 

could again complicate whether a particular parent is entitled 

to relief. See Wis. Stat. § 115.787. Finally, the District 

noted other legal defenses——including ripeness, mootness, and 

lack of standing——which it asserts it cannot advance without 

knowing the parents' identities. Each of these variables may 

influence whether the parents are entitled to judicial relief, 

or how far such relief should extend.9

¶27 The parents make an earnest plea that the risk of 

harassment and retaliation is real. The problem with their 

argument is that the circuit court agreed and protected their 

 

9 We do not decide that any of these considerations should 

or will impact the claims. Rather, based on this briefing, we 

conclude these concerns could impact the arguments the District 

might reasonably make. And therefore, they weigh in favor of 

affirming the circuit court's exercise of discretion.
No. 2020AP1032 

19

identities. Therefore, the crux of the parent's continued worry 

is their fear that the attorneys on the other side will 

intentionally or unintentionally violate the court's protective 

order and expose them to the risks they identify. Attorneys are 

duty-bound to follow court orders, however. We have no evidence 

that any of the law firms defending the District's policy have 

violated a protective order in the past or that there is any 

risk of them doing so now. In fact, counsel for the parents 

conceded to the circuit court that there was "no reason to doubt 

that the lawyers in this case will make every effort to preserve 

the plaintiffs' anonymity and follow a court order." 

Nevertheless, the parents essentially make an unfounded 

accusation that the attorneys on the other side will risk their 

law licenses, through carelessness or otherwise. This pure 

speculation lacks merit. Each attorney is an officer of the 

court subject to strict ethical rules in the maintenance of 

confidential information. Each would need to agree to a 

protective order——the specifics of which have not yet been 

negotiated. The parents present no reason to think the order to 

keep their identities private as to the District and the general 

public will not be followed.

¶28 Furthermore, we observe the circuit court's exercise 

of discretion was a proper application of the statutory test. 

Wisconsin Stat. § 801.21(4) directs that if "there are 

sufficient grounds to restrict public access" to court records, 

"the court will use the least restrictive means that will 

achieve the purposes of this rule and the needs of the 
No. 2020AP1032 

20

requester." The circuit court concluded some protection for the 

parents' identities was warranted and decided to shield their 

names from public view and the District's view. But the court 

did not see the same danger in disclosing the parents' names to 

the District's attorneys. We see no error in this conclusion.

¶29 Although the parents frame their arguments around 

whether Wisconsin permits totally anonymous litigation, we do 

not decide that question because we need not. We leave for 

another day whether a future litigant can proceed anonymously in 

a case. Instead, we conclude that the circuit court's decision 

to allow the parents to proceed pseudonymously, but not to 

prevent opposing attorneys from knowing their identity, was well 

within the circuit court's discretion.

III. INJUNCTION

¶30 Finally, the parents ask us to provide injunctive 

relief on the underlying Policy. As best we can tell, this 

request stems from two different statutory bases——Wis. Stat. 

§ 808.07(2)(a) and Wis. Stat. § 813.02——following several 

motions the parents filed with the circuit court and court of 

appeals. Given the posture of this case, it is not appropriate 

to grant the parents' requested temporary relief.

¶31 We first address the request for temporary injunctive 

relief under Wis. Stat. § 808.07(2)(a). That statute provides: 

"During the pendency of an appeal" circuit courts and appellate 

courts are permitted to: "1. Stay execution or enforcement of a 

judgment or order; 2. Suspend, modify, restore or grant an 
No. 2020AP1032 

21

injunction; or 3. Make any order appropriate to preserve the 

existing state of affairs or the effectiveness of the judgment 

subsequently to be entered." § 808.07(2)(a). Notably, any 

injunctive relief granted under § 808.07(2)(a) lasts only 

"[d]uring the pendency of an appeal." Once an appeal ends, an 

injunction issued under § 808.07(2)(a) terminates. In addition, 

Wis. Stat. § (Rule) 809.12 requires that any "person seeking 

relief under s. 808.07 shall" file the motion in circuit court 

first unless impractical. Accordingly, in the ordinary course, 

an appellate court reviews a circuit court's decision on a 

motion seeking relief pending appeal under an erroneous exercise 

of discretion standard. Werner v. A.L. Grootemaat & Sons, Inc., 

80 Wis. 2d 513, 519, 259 N.W.2d 310 (1977). The appellate court 

does not conduct the analysis anew; it looks for a reasonable 

basis to sustain a circuit court's discretionary decision. 

State v. Rhodes, 2011 WI 73, ¶26, 336 Wis. 2d 64, 799 

N.W.2d 850.

¶32 Here, the circuit court granted in part and denied in 

part the parents' motion for a temporary injunction pending 

appeal under Wis. Stat. § 808.07(2)(a).10 The court of appeals 

concluded the circuit court properly exercised its discretion 

and declined to grant any further relief. Doe 1 v. Madison 

 

10 As previously noted, the court enjoined the district 

"from applying or enforcing" the policy "in any manner that 

allows or requires District staff to conceal information or to 

answer untruthfully in response to any question that parents ask 

about their child at school, including information about the 

name and pronouns being used to address their child at school."
No. 2020AP1032 

22

Metro Sch. Dist., No. 2020AP1032, unpublished order (Wis. Ct. 

App. Nov. 9, 2020). This is an appeal of the circuit court's 

confidentiality decision, however, which this opinion resolves——

thereby ending the appeal. Even if we thought the lower courts 

erred, any decision to provide further injunctive relief pending 

appeal would immediately be a dead letter by virtue of this 

decision. Therefore, the motion for relief pending appeal is 

moot. See PRN Assocs. LLC v. DOA, 2009 WI 53, ¶25, 317 

Wis. 2d 656, 766 N.W.2d 559 ("An issue is moot when its 

resolution will have no practical effect on the underlying 

controversy."). Addressing these matters now would constitute 

an advisory opinion on an issue that is, albeit in a different 

posture, still pending in the circuit court below. See State ex 

rel. Collison v. City of Milwaukee Bd. of Rev., 2021 WI 48, ¶46, 

397 Wis. 2d 246, 960 N.W.2d 1 (declining to "depart from our 

general practice that this court will not offer an advisory 

opinion"). Accordingly, we decline to provide any relief under 

§ 808.07(2)(a).

¶33 The parents also appear to ask us for injunctive 

relief under Wis. Stat. § 813.02. That section provides in 

relevant part:

When it appears from a party's pleading that the party 

is entitled to judgment and any part thereof consists 

in restraining some act, the commission or continuance 

of which during the litigation would injure the party, 

or when during the litigation it shall appear that a 

party is doing or threatens or is about to do, or is 

procuring or suffering some act to be done in 

violation of the rights of another party and tending 
No. 2020AP1032 

23

to render the judgment ineffectual, a temporary 

injunction may be granted to restrain such act.

§ 813.02(1)(a). The parents assert that they can bring such a 

motion directly to an appellate court under Wis. Stat. § (Rule) 

809.14, which sets forth the procedure for filing motions in 

appellate courts. See § (Rule) 809.14(1) ("A party moving the 

appellate court for an order or other relief in a case shall 

file a motion for the order or other relief.").

¶34 The parents first moved for injunctive relief under 

Wis. Stat. § 813.02 in the circuit court. That motion remains 

before the circuit court pending resolution of this appeal. The 

parents now seem to suggest the circuit court erred by failing 

to address their § 813.02 motion. As best we can tell from the 

record, the circuit court reasoned that it could not address the 

parents' claim for irreparable harm——a central component of the 

temporary injunction standard——without additional information 

gleaned from disclosure of their identities (while still 

concealing that information from the public). Once the parents 

appealed the circuit court's confidentiality decision, the 

circuit court did not believe it had the necessary information 

to decide the motion.

¶35 We decline to address whether the circuit court's 

decision to wait to adjudicate this motion was erroneous. The 

parents have not developed any arguments for how this court 

should determine whether the circuit court erred or whether this 

would be the proper vehicle to address a circuit court's nondecision. Beyond complaining that the motion has not been 
No. 2020AP1032 

24

decided yet, the parents jump right into the merits of their 

plea for injunctive relief, never developing an argument that 

the circuit court committed procedural error. As we have said 

many times, "We do not step out of our neutral role to develop 

or construct arguments for parties; it is up to them to make 

their case." Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 

WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35. With the appeal 

resolved, we expect the circuit court will address the pending 

motion and all other matters put on hold by virtue of this 

appeal.

¶36 The parents also sought a temporary injunction under 

Wis. Stat. § 813.02 from the court of appeals. In that motion, 

the parents stated that they believed there was no meaningful 

difference from the relief they could receive under either 

§ 813.02 or Wis. Stat. § 808.07. The court of appeals addressed 

this motion in a footnote, stating that its decision to uphold 

the circuit court's injunction and not grant any further relief 

would be the same under either statute.11 Doe 1, No. 2020AP1032, 

unpublished order at 6 n.4. But the court of appeals also noted 

 

11 The parents' procedural arguments are difficult to track, 

but for the reasons we explain below, it's not clear the court 

of appeals was correct that the analysis would be the same. We 

understand the parents to be seeking a separate injunction under 

Wis. Stat. § 813.02. If so, and if that is a new, independent 

motion, it presumably would not come with the same deference the 

court of appeals properly gave to the circuit court's decision 

on the parents motion for relief pending appeal under Wis. Stat. 

§ 808.07(2)(a).
No. 2020AP1032 

25

"the parents do not explain why this court would have authority 

to grant injunctive relief under § 813.02."12 Id.

¶37 We observe, as the court of appeals did, that the 

parents provide no authority to support the notion that we 

should decide a motion for temporary injunction under Wis. Stat. 

§ 813.02 in the first instance. This is especially true when 

such a motion is pending and unresolved before the circuit 

court. Allowing this procedural leap-frog would render nugatory 

the discretionary review appellate courts apply when reviewing 

any form of temporary injunctive relief granted or denied by the 

circuit court. A litigant could simply seek the same injunctive 

relief at each level by filing a new motion under § 813.02, and 

thereby sidestep the deferential standard of review appellate 

courts apply in this context.13 While we cannot say such a 

 

12 At oral argument, the parents' counsel stated that the 

circuit court on remand would be bound by the court of appeals' 

decision on the Wis. Stat. § 813.02 motion. We disagree. The 

court of appeals declined to address the parents' motion as a de 

novo matter under § 813.02, instead appearing to view its role 

as reviewing the circuit court's exercise of discretion. On 

remand, the circuit court can, in the first instance, address 

the parents' motion for a temporary injunction filed under 

§ 813.02.

13 See Wis. Ass'n of Food Dealers v. City of Madison, 97 

Wis. 2d 426, 429, 293 N.W.2d 540 (1980) ("The denial of a 

temporary injunction under [Wis. Stat. § 813.02(1)] is a matter 

within the discretion of the trial court, and the sole issue on 

appeal is whether the trial court abused its discretion."); 

Browne v. Milwaukee Bd. of Sch. Dirs., 83 Wis. 2d 316, 336, 265 

N.W.2d 559 (1978) ("The power to grant a temporary injunction 

lies within the discretion of the trial court. The trial 

court's decision concerning an injunction will not be reversed 

unless the discretion has been abused."); Codept, Inc. v. MoreWay N. Corp., 23 Wis. 2d 165, 171, 127 N.W.2d 29 (1964) ("It is 

an elementary rule of law that the granting or refusal of a 
No. 2020AP1032 

26

motion would never be appropriate, we are unable to find any 

support for the proposition that addressing a new motion for 

injunctive relief under § 813.02 would be proper at this 

juncture.

¶38 The original preliminary injunction motion under 

§ 813.02 remains pending in circuit court. Following the 

ordinary rules of litigation and appellate procedure dictates 

allowing the circuit court to address the matter. If authority 

exists for the procedural process advocated by the parents, they 

have not provided it. It seems that the only way this court 

could do what we are being asked to do would be a dramatic and 

unprecedented invocation of our superintending authority over 

lower courts. We were not asked to rely on these extraordinary 

powers, and we will not construct such an argument for the 

parents. See Vos, 393 Wis. 2d 38, ¶24.

¶39 The parents also indicate that the injunction 

arguments would be the same in a subsequent appeal, and propose 

that we should just step in and settle the matter now. This is 

a troubling suggestion. As an initial matter, we do not know 

how arguments may develop as this case proceeds or how the 

circuit court's decision could affect them. But even if the 

 

temporary injunction is a matter lying within the discretion of 

the trial court, and its determination in regard thereto will 

not be upset on appeal unless an abuse of discretion is 

shown."); Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489, 

497, 154 N.W. 998 (1915) ("We conclude that it was within the 

sound discretion of the trial court to refuse the injunction 

prayed for.").
No. 2020AP1032 

27

arguments remained identical, that does not provide a foundation 

for us to opine on legal issues not properly before us. 

Litigation rules and processes matter to the rule of law just as 

much as rendering ultimate decisions based on the law. Ignoring 

the former to reach the latter portends of favoritism to certain 

litigants and outcomes. We do not suggest the constitutional 

claims here are inconsequential. But our adjudication of them 

must be rooted in applying the same rules to everyone. Our 

rules of judicial process matter, and we will follow them.14

¶40 In sum, we decline the parents' request for temporary 

injunctive relief under Wis. Stat. § 808.07(2)(a) because any 

relief we could grant would immediately become moot. We also 

decline the request for temporary injunctive relief under Wis. 

Stat. § 813.02. Such a motion remains pending in the circuit 

court, and the parents have provided no authority to support the 

notion that we can or should grant injunctive relief under 

§ 813.02 in this procedural context. We do not reach the merits 

of the injunction motion at this preliminary stage of the 

litigation.

 

14 The dissent does not claim that the parents' temporary 

injunction request is something we can address in the normal 

course. Instead, it advocates an extraordinary constitutional 

intervention not even argued by the parents, and suggests 

failure to follow its lead constitutes an abdication of the 

court's responsibility. We reject the dissent's sense of 

judicial duty. 
No. 2020AP1032 

28

IV. CONCLUSION

¶41 This is an appeal of a circuit court's decision to 

allow parents challenging the District's Policy to remain 

confidential, but not as to the attorneys for those defending 

the Policy. We conclude the circuit court did not erroneously 

exercise its discretion in drawing this line. The parents 

further ask this court to grant temporary injunctive relief on 

the underlying Policy. But the request for relief pending 

appeal is moot by virtue of this decision, and the underlying 

preliminary injunctive relief sought remains pending before the 

circuit court. Addressing the parents' request for injunctive 

relief is therefore not proper for a case at this preliminary 

stage. We affirm the court of appeals and remand to the circuit 

court to proceed with the adjudication of the parents' claims.

By the Court.——The decision of the court of appeals is 

affirmed and the cause is remanded to the circuit court.
No. 2020AP1032.pdr

1

¶42 PATIENCE DRAKE ROGGENSACK, J. (dissenting). Today 

the majority opinion abdicates the court's responsibility, once 

again, by choosing not to address the critical issue on which 

this case turns: the constitutional right of parents to raise 

their children as they see fit.1 Today, parents' constitutional 

rights, the high burden of proof required to intervene in 

parents' parenting decisions, and the presumption that parents 

act in the best interests of their children are all upended by 

the majority opinion's silence. It fails parents, fails to 

uphold the constitution, and fails to provide parents with due 

process before Madison Metropolitan School District (MMSD), 

acting behind closed doors, overtakes parents' constitutional 

right to parent their own children. 

¶43 The John Doe plaintiffs (hereinafter the parents) have 

children in the MMSD. They sue on behalf of all parents with 

children in MMSD, not on behalf of any particular parent-child 

 

1 This court, in a series of recent decisions, has shown an 

unwillingness to resolve significant legal issues presented to 

us for decision. Hawkins v. Wis. Elections Comm'n, 2020 WI 75, 

¶¶29-83, 393 Wis. 2d 629, 948 N.W.2d 877 (Ziegler, J. 

dissenting); Trump v. Biden, 2020 WI 91, ¶62, 394 Wis. 2d 629, 

951 N.W.2d 568 (Roggensack, C.J. dissenting); Gymfinity, Ltd. v. 

Dane Cnty., No. 2020AP1927-OA, unpublished order (Wis. Dec. 21, 

2020); Trump v. Evers, No. 2020AP1971-OA, unpublished order 

(Wis. Dec. 3, 2020); Wis. Voters All. v. Wis. Elections Comm'n, 

No. 2020AP1930-OA, (Wis. Dec. 4, 2020); Mueller v. Jacobs, 

No. 2020AP1958-OA, unpublished order (Wis. Dec. 3, 2020); 

Zignego v. Wis. Elections Comm'n, No. 2019AP2397, unpublished 

order (Wis. Jan. 13, 2021); Stempski v. Heinrich, 

No. 2021AP1434-OA, unpublished order (Wis. Aug. 27, 2021); Gahl 

v. Aurora Health Care, Inc., No. 2021AP1787, unpublished order 

(Wis. Oct. 25, 2021); State ex rel. Robin Vos v. Cir. Ct. for 

Dane Cnty., No. 2022AP50-W, unpublished order (Wis. Jan. 11, 

2022).
No. 2020AP1032.pdr

2

relationship. As such, any individual parent's name is 

irrelevant to the constitutional analysis. They assert that a 

MMSD guidance policy that affirms a child's gender transition to 

a sexual designation different from the child's sex at birth and 

deceives the child's parents about that choice violates their 

fundamental constitutional rights as parents contrary to Article 

I, Section 1 of the Wisconsin Constitution and the Fourteenth 

Amendment of the United States Constitution. The parents seek 

to enjoin MMSD from continuing to usurp their constitutional 

right to direct the upbringing and education of their children

by requiring MMSD to immediately disclose a child's genderidentity concerns to the parents and by preventing MMSD from 

enabling their children to change gender-identity without 

parental consent. They also seek to go forward in this case 

using pseudonyms. 

¶44 A majority of this court blocks all relief for parents 

by restructuring the pending dispute. The majority says: "The 

main question before us is a narrow one: Did the circuit court 

err in ordering the parents to file a sealed complaint with 

their names and addresses which would be viewed by the court and 

attorneys alone?"2 We accepted more than the question of using 

pseudonyms when we accepted review. 

¶45 The majority opinion's restructuring of the 

controversy denies all parents who have children in a MMSD 

school a forum in which to litigate MMSD's usurpation of their

constitutional right to direct the upbringing of their children. 

 

2 Majority op., ¶11. 
No. 2020AP1032.pdr

3

Both the United States Constitution and the Wisconsin 

Constitution support the conclusion that MMSD's Policies cannot 

deprive parents of their constitutional rights without proof 

that parents are unfit, a hearing, and a court order, in other 

words, without according parents due process. Instead, the 

majority keeps MMSD as the decision-maker of basic healthcare 

choices that may involve gender-identity for children who attend 

a MMSD school. And finally, the majority's non-decision, 

decision participates in MMSD's ability to hide from parents 

what MMSD actually has been doing behind closed schoolhouse 

doors. 

¶46 The circuit court erred when it concluded that it 

could not permit parents to employ pseudonyms in this lawsuit. 

The court of appeals erred in affirming that decision, even 

while noting that the circuit court did have the power to permit 

the use of pseudonyms, contrary to the circuit court's decision. 

¶47 Furthermore, I conclude that we can and should employ 

our constitutional supervisory authority to decide this 

constitutional controversy because it cries for judicial 

resolution. This court, as a court of last resort, should act 

to affirmatively grant parents' request for a temporary 

injunction that enjoins MMSD from: (1) enabling children to 

socially transition to a different gender-identity without 

parental consent; (2) preventing teachers and other staff from 

telling parents that their child may have gender-identity 

concerns; and (3) deceiving parents by using different names and 

pronouns in front of parents than are used at school. For the 
No. 2020AP1032.pdr

4

reasons set out below, I conclude that the circuit court erred 

in not granting the temporary injunction that was requested in 

February of 2020. Because the majority opinion chooses not to 

decide the constitutional controversy that was presented, I 

respectfully dissent. 

I. BACKGROUND

¶48 The parents filed this action for Declaratory Judgment 

in Dane County Circuit Court on February 18, 2020, seeking 

declaration that MMSD violated their constitutional right to 

direct the upbringing of their children through employment of 

MMSD's "Guidance & Policies to Support Transgender, Non-binary & 

Gender-Expansive Students" (hereinafter MMSD Policies). They 

filed this case anonymously, using pseudonyms due to the 

sensitive nature of their claims. They sought to protect the 

identity of minor children and to protect parents and their 

children from retaliation or harassment for raising a 

controversial issue. 

¶49 The parents also sought a temporary injunction 

prohibiting MMSD from enabling children to socially transition 

to a different gender-identity at school by selecting a new 

"affirmed name and pronouns" without parental notice and 

consent. MMSD moved to dismiss the complaint because parents 

had not provided their names and addresses. 

¶50 The circuit court did not rule on the parents' request 

for a temporary injunction. However, the circuit court found:

[A]s a factual matter, I believe the plaintiffs have 

satisfied the court of the need to preserve their 

confidentiality and, in particular, when analyzed 

against the backdrop of the relevance or irrelevance 
No. 2020AP1032.pdr

5

of their identity on their ability to challenge the 

policy in question. . . . "[A]s a factual matter, 

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 [circuit] court case.[3]

¶51 Although the circuit court denied MMSD's motion to 

dismiss, the circuit court also required the parents to file an 

amended complaint containing their names and addresses, which 

would be accessible to the circuit court and "attorneys for the 

litigants." Because the circuit court found that the parents 

and their children would be subjected to harassment due to their 

positions on the MMSD gender-identity policy, the circuit court 

ordered that the amended complaint was to be filed under seal. 

¶52 The parents appealed the circuit court's requirement 

of identity disclosure, and the court of appeals affirmed. The 

parents petitioned us for review, which we granted. In their 

petition, the parents asked us to review whether they may sue 

anonymously in Wisconsin courts, and they also asked us to 

review whether the circuit court erred by declining to 

temporarily enjoin MMSD's Policies that infringe parents' 

constitutional right to parent their children, which motion for 

a temporary injunction the parents filed on February 19, 2020, 

the day after they filed this action. 

II. DISCUSSION

A. Standard of Review

¶53 We review the circuit court's decision that it lacked 

authority to permit the parents to use pseudonyms in this 

 

3 Circuit Ct. Decision, May 26, 2020, 22.
No. 2020AP1032.pdr

6

litigation for an erroneous exercise of discretion. State v. 

Schwind, 2019 WI 48, ¶2, 386 Wis. 2d 526, 926 N.W.2d 742. 

Whether the circuit court actually lacked such authority 

presents as a question of law that is subject to our independent 

review. State v. Henley, 2010 WI 97, ¶29, 328 Wis. 2d 544, 787 

N.W.2d 350. A court erroneously exercises its discretion when 

it applies an incorrect standard of law to the question 

presented. Krier v. EOG Env't, Inc., 2005 WI App 256, ¶23, 288 

Wis. 2d 623, 707 N.W.2d 915. 

¶54 We review independently whether MMSD's Policies 

interfere with the parents' constitutional right to raise their 

children as they see fit such that their request for a temporary 

injunction should have been granted. State v. Lavelle W., 2005 

WI App 266, ¶2, 288 Wis. 2d 504, 708 N.W.2d 698. Whether this 

court should employ its superintending authority to address the 

parents' request for a temporary injunction is a discretionary 

decision subject to our independent review. State v. Green, 

2022 WI 30, ¶3, 401 Wis. 2d 542, 973 N.W.2d 770. 

B. Pseudonyms in Litigation

¶55 The circuit court was asked to permit parents' use of 

pseudonyms in this litigation. The parents made their motion 

based on concerns that they and their children would be harassed 

and the litigation disrupted if the parents' names were known. 

The circuit court found that their concerns were valid. The 

circuit court said: 

I agree with the plaintiff, Mr. Berg, in terms of 

the factual basis they've demonstrated on the 

legitimacy and sincerity of their concern over the 

release of their identities. And so as a factual 
No. 2020AP1032.pdr

7

matter, I believe the plaintiffs have satisfied the 

court of the need to preserve their confidentiality 

and, in particular, when analyzed against the backdrop 

of the relevance or irrelevance of their identity on 

their ability to challenge the policy in question.[4]

However, the circuit court precluded the use of pseudonyms 

because it concluded that it did not have the authority to 

authorize their use. The circuit court explained: 

I'm bound by Wisconsin law, both in terms of what the 

statutes set forth and the Wisconsin common law as 

established by the Supreme Court. There is no 

precedent for what the plaintiff is asking for in the 

current published appellate case law.[5]

¶56 Here, the circuit required disclosure of the parents' 

names to the court and to all parties' attorneys in the 

litigation. The parents do not object to filing an amended 

complaint that discloses their names for review by the circuit 

court. However, they do object to permitting review by the 

parties' attorneys. They contend that a leak of their 

identities is multiplied by the number of people who have that 

information. Once the parents' identities are disclosed, there 

is no way of undoing that disclosure, and as the circuit court 

found, harassment of the parents and their children and 

disruption of this litigation likely will follow. 

¶57 The circuit court concluded that allowing the parties' 

attorneys to view the amended complaint was acceptable because 

the attorneys could be expected to keep the parents' identities 

confidential. The circuit court did not assess whether any 

 

4 Circuit Ct. Hr'g Tr., May 26, 2020, at 22.

5 Id. 
No. 2020AP1032.pdr

8

remedy could be provided to the parents and their children when 

their identities were disclosed. 

¶58 Litigation conducted anonymously has been permitted in 

very similar circumstances in federal district courts. It has 

been approved by the Fifth, Sixth, Seventh, and Ninth Circuits. 

For example, in Doe ex rel. Doe v. Elmbrook Sch. Dist., 658 F.3d 

710, 721-24 (7th Cir. 2011), the court concluded that the 

district court carefully considered detailed affidavits 

supporting the request to proceed anonymously. Therefore, it 

affirmed the district court's decision. 

¶59 The United States Supreme Court has approved the use 

of pseudonyms in litigation, explaining, "Our decision in Roe v. 

Wade, establishes [] that, despite her pseudonym, we may accept 

as true, for this case, Mary Doe's existence and her pregnant 

state." Doe v. Bolton, 410 U.S. 179, 187 (1973), abrogated by

Dobbs v. Jackson Women's Health Org., No. 19-1392, 2022 WL 

2276808 (U.S. June 24, 2022). However, we do not need to adopt 

federal standards in order to permit litigation by pseudonyms in 

Wisconsin. As I explain below, Wisconsin courts have that 

authority. 

¶60 When justice has required it, we have approved 

limiting public access to judicial records. For example, in 

State ex rel. Bilder v. Delavan Twp., 112 Wis. 2d 539, 334 

N.W.2d 252 (1983), we explained:

The circuit court under its inherent power to preserve 

and protect the exercise of its judicial function of 

presiding over the conduct of judicial proceedings has 

the power to limit public access to judicial records 

when the administration of justice requires it. 
No. 2020AP1032.pdr

9

Id. at 556. We also have recognized that "the inherent power of 

the courts 'in many respects goes beyond those conferred by 

statute.'" Id. The party seeking "to close court records bears 

the burden of demonstrating, with particularity, that the 

administration of justice requires that the court records be 

closed." Id. at 556-57. 

¶61 The command, "when administration of justice so 

requires" is at the core of Wisconsin courts' power to proceed 

as an independent judiciary. This power may require protection 

of some who are involved in Wisconsin's judicial system. Gabler 

v. Crime Victims Rts. Bd., 2017 WI 67, ¶58, 376 Wis. 2d 147, 897 

N.W.2d 384 (explaining that "a concern about possible retraumatization of victims influenced our decision permitting the 

Department of Justice to withhold requested public records" in 

the administration of justice). In Wisconsin, the 

administration of justice permits a court to "make any order 

which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or 

expense" including closing court records. State ex rel. 

Mitsubishi Heavy Indus. Am., Inc. v. Cir. Ct. for Milwaukee 

Cnty., 2000 WI 16, ¶40, 233 Wis. 2d 1, 605 N.W.2d 868. 

¶62 The court of appeals, in its review of the circuit 

court's order that permitted review of the parents names by the 

attorneys for all parties to this litigation, disagreed with the 

circuit court's assessment of its own power. It concluded that 

the circuit court had the power to permit the parents to use 

pseudonyms in this litigation rather than requiring their actual 
No. 2020AP1032.pdr

10

names. Doe v. Madison Metro. Sch. Dist., 2021 WI App 60, ¶31 

n.8, 399 Wis. 2d 102, 963 N.W.2d 823. It said, "Wisconsin 

circuit courts have the power to enter as restrictive a 

protective order as is warranted, taking into account the facts 

and circumstances of a particular case and the public interest 

or the administration of justice." Id. 

¶63 However, the court of appeals nevertheless "decline[d] 

to adopt" the use of pseudonyms rather than the statutory 

procedure set out in Wis. Stat. § 801.21(2). Id., ¶31. The 

court of appeals did not evaluate whether a remedy could be 

provided to the parents and their children when a disclosure of 

their identities occurred. It seemed to presume that no such 

leak would occur. 

¶64 The circuit court and the court of appeals appear not 

to have realistically considered what likely will occur with 

regard to the parents' identities in today's tell-all world. 

Even the United States Supreme Court, an institution that has 

historically demanded the highest levels of integrity and 

confidentiality, has been subject to unauthorized leaks. These 

leaks have consequences. One need look no further than this 

case for examples. Following the leak of the Supreme Court's 

draft opinion in regard to abortion, Wisconsin Family Action, an 

amicus in this case, had its offices vandalized and attacked 

with Molotov cocktails.6 Here, the circuit court found that the 

 

6 Press Release, Wisconsin Family Action, Historical 

Mothers' Day 2022 Attack on Wisconsin Family Action, 

https://wifamilyaction.org/mothers-day-attack-wfa.
No. 2020AP1032.pdr

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parents and their children likely would be subjected to 

harassment if parental identities were disclosed.7

¶65 The judicial system has no remedy for a violation of 

the confidentiality of an amended complaint that identifies the 

parents when filed under seal as the circuit court ordered. 

Unnecessary harm will be inflicted on parents and minor 

children. There is no compelling reason to ignore the very real 

possibility of a leak of the parents' identities and the 

inability of the court to fashion a remedy for the disclosure. 

In the interests of the administration of justice, the circuit 

court should have permitted the use of pseudonyms. Gabler, 376 

Wis. 2d 147, ¶58; Bilder, 112 Wis. 2d at 556; Mitsubishi Heavy 

Indus. Am., 233 Wis. 2d 1, ¶40. 

¶66 I agree with the conclusion of the court of appeals 

that the circuit court erred when it applied the wrong legal 

standard to the parents' motion to proceed by pseudonyms. In so 

doing, the circuit court erroneously exercised its discretion. 

Krier, 288 Wis. 2d 623, ¶23. The circuit court had the power to 

permit the use of pseudonyms, as the court of appeals explained. 

Doe 1, 399 Wis. 2d 102, ¶31 n.8. I conclude the circuit court 

erred, and the court of appeals did so as well, in requiring the 

parents to disclose their identities to the attorneys for the 

other parties to the litigation. Neither court evaluated or 

appreciated that there is no remedy for leaks of parental 

identities. Both courts acknowledged that disclosure of 

identities likely would lead to harassment of the parents and 

 

7 Circuit Ct. Decision, May 26, 2020, 22.
No. 2020AP1032.pdr

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their children and disruption of this litigation, but they 

neglected to recognize or evaluate how that would affect the 

administration of justice. Stated otherwise, their neglect 

affected the core of our independence as courts: the 

administration of justice. It was error to fail to evaluate the 

effect on the parents and the minor children were identities 

disclosed. 

C. Constitutional Right to Parent

¶67 The constitutional right of parents to direct the 

raising of their children is at the heart of this lawsuit. It 

is that constitutional right that the majority opinion 

intentionally disregards.8 Schools do not have the right to 

parent our children on gender-identity issues. Yet, a majority 

of this court greets parents' pleas to temporarily enjoin MMSD 

with silence, which silence permits schools to make genderidentity decisions for children in a MMSD school without 

parental knowledge or consent. 

¶68 Furthermore, as we consider the constitutional right 

to parent that is raised in the Petition for Review, it is 

important to note that a part of the problem we face here is of 

the circuit court's own making. On February 19, 2020, the 

parents moved for Temporary Injunction to enjoin MMSD's Policies 

while this litigation is pending. They sought to prohibit MMSD 

from:

 

8 "It is emphatically the province and duty of the judicial 

department to say what the law is. Those who apply the rule to 

particular cases, must of necessity expound and interpret that 

rule." Marbury v. Madison, 1 Cranch 137, 177 (1803). 
No. 2020AP1032.pdr

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(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.

The parents asserted in their motion that some of the "policies 

violate parents' constitutional rights to direct the upbringing 

of their children." They asserted that "[w]hether a child with 

gender dysphoria should socially transition to a different 

gender identity is a significant and controversial healthcare 

decision that falls squarely within parental decision-making 

authority." 

¶69 More than two years have passed without a decision by 

the circuit court on the parents' motion for a Temporary 

Injunction. If the circuit court had addressed the pending 

motion, the losing party could have appealed that decision years 

ago. The litigation could have returned to the circuit court to 

decide whether the identities of the parents were irrelevant, as 

the parents contend because they sue on behalf of all parents to 

raise their children as they see fit, or relevant identities, as 

MMSD alleges. The administration of justice is affected by the 

circuit court's non-decision because by not deciding, the 

circuit court has effectively denied the motion for a temporary 

injunction and the circuit court also has denied the parents' 

opportunity to appeal an adverse ruling. 

¶70 The Petition for Review, raised the issue of temporary 

injunction standards, contending that "the lower courts' 
No. 2020AP1032.pdr

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decisions are directly 'in conflict with' this Court's 

'controlling' precedents as to proper application of the 

temporary injunction standards . . . ."9 The Petition for Review 

did so, recognizing that the circuit court and court of appeals 

had decided motions for injunction pending appeal, and also 

recognizing that the standard for whether to grant a temporary 

injunction, Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 

513, 519, 259 N.W.2d 310 (1977), and a stay pending appeal, 

State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225 

(1995), employ similar tests. 

¶71 The parents moved for an injunction pending appeal 

pursuant to Wis. Stat. § 808.07(2)(a), which the majority 

opinion denied because its decision ends the appeal and 

therefore any injunction pending appeal that it would grant 

would also end with its decision.10 The parents also renewed 

their request for a temporary injunction pursuant to Wis. Stat. 

§ 813.02. 

¶72 The majority opinion ignores this part of the Petition 

for Review, claiming that the parents have not provided a legal 

theory by which the majority could reach the failure of the 

circuit court to address the motion for a temporary injunction 

that has been pending for more than two years.11 By its 

decision, the majority opinion chooses to duck the significant 

question of constitutional law that was raised in the Petition 

 

9 Petition for Review, Aug. 13, 2021, 3. 

10 Majority op., ¶40. 

11 Id., ¶¶38, 39. 
No. 2020AP1032.pdr

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for Review, which I address below. The majority opinion also 

chooses to ignore the circuit court's failure to meet its 

obligations under SCR 70.36(1)(b),12 which required a decision on 

the motion for a temporary injunction within 180 days. The 

majority opinion does so as it also chooses to ignore our 

obligation to supervise all Wisconsin courts. Wis. Const. art. 

VII, § 3.13

¶73 As I begin, I remind the reader that under our 

constitutional supervisory authority, we have the power to 

decide whether parts of MMSD's Policies should be enjoined, as 

was requested in the Petition for Review. This court is vested 

with "superintending and administrative authority over all 

courts." Koschkee v. Evers, 2018 WI 82, ¶8, 382 Wis. 2d 666, 

913 N.W.2d 878 (quoting Wis. Const. art. VII, § 3). This 

superintending authority is "as broad and as flexible as 

necessary to insure the due administration of justice in the 

courts of this state." Id. (quoting In re Kading, 70 Wis. 2d 

508, 520, 235 N.W.2d 409 (1975)). Further, this power is not 

 

12 Supreme Court Rule 70.36 requires circuit court judges to 

"decide each matter submitted for decision within 90 days of the 

date on which the matter is submitted to the judge in final 

form." Judges may file for extensions with the chief judge of 

the judicial administrative district. However, even this 

extension, which must be requested and granted within five days 

of the overrunning the original 90 day timeline, is available 

for "one additional period of 90 days." SCR 70.36(1)(a). Any 

further extension must be granted by the Supreme Court and will 

be done only "for specific matters as exigent circumstances may

require." SCR 70.36(1)(b).

13 Article VII, Section 3 of the Wisconsin Constitution 

provides: "The supreme court shall have superintending and 

administrative authority over all courts." 
No. 2020AP1032.pdr

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strictly limited to situations in which it was previously used, 

continuing supervision is required in response to changing needs 

and circumstances. Koschkee, 382 Wis. 2d 666, ¶8. 

¶74 In Koschkee, we considered our authority over the 

practice of law, in and out of court as connected with the 

exercise of judicial power and the administration of justice. 

Id., ¶9. We employed our supervisory authority because we 

concluded that the "necessities of justice" required us to do 

so. Id., ¶12. We used it to conclude that "Evers and DPI are 

entitled to counsel of their choice and are not required to be 

represented by DOJ." Id. Here, we should exercise our 

supervisory authority over a circuit court's failure to decide a 

motion that has been pending for more than two years contrary to 

SCR 70.36 and contrary to the administration of justice. 

¶75 The pending motion is for a temporary injunction. In 

Wisconsin, courts may grant a temporary injunction to restrain a 

party's actions:

When it appears from a party's pleading that the party 

is entitled to judgment and any part thereof consists 

in restraining some act, the commission or continuance 

of which during the litigation would injure the party, 

or when during the litigation it shall appear that a 

party is doing or threatens or is about to do, or is 

procuring or suffering some act to be done in 

violation of the rights of another party and tending 

to render the judgment ineffectual.

Wis. Stat. § 813.02(1)(a). The motion for temporary injunction 

should have been decided years ago. In its present undecided 

state, there is no decision from which to appeal, and yet the 

circuit court's failure to decide the pending motion for a 

temporary injunction stands in the way of the administration of 
No. 2020AP1032.pdr

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justice in this litigation. This is so because by failing to 

decide the pending motion, the circuit court effectively denied 

it and also denied the parents the opportunity to appeal an 

unfavorable ruling. 

¶76 In order to fully understand this dissent, it is 

important to appreciate the fundamental constitutional right 

upon which these proceedings are grounded. Therefore, a review 

of long-standing protections for the relationship of parent and 

child will be helpful. 

¶77 For hundreds of years, parents' right to direct the 

upbringing and education of their children has been a 

fundamental and protected right under Article I, Section 1 of 

the Wisconsin Constitution and the Due Process Clause of the 

Fourteenth Amendment. Michels v. Lyons, 2019 WI 57, ¶15, 387 

Wis. 2d 1, 927 N.W.2d 486; Jackson v. Benson, 218 Wis. 2d 835, 

879, 578 N.W.2d 602 (1998); Wis. Indus. Sch. for Girls v. Clark 

Cnty., 103 Wis. 651, 668-70, 79 N.W. 422 (1899). 

¶78 As many Supreme Court decisions have shown, the Due 

Process Clause of the Fourteenth Amendment of the United States 

Constitution protects parents' right to decide the upbringing of 

their own children. Meyer v. Nebraska, 262 U.S. 390, 403 (1923) 

(concluding that parents possessed the right to direct whether 

their children would study German in elementary school under the 

Fourteenth Amendment); Pierce v. Soc'y of the Sisters of the 

Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925) 

(concluding that the state requirement that children must attend 

public schools was contrary to the parents' Fourteenth Amendment 
No. 2020AP1032.pdr

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liberty interest of directing the upbringing and education of 

their children). 

¶79 The United States Supreme Court has continually 

reinforced the primacy of parents when making decisions 

concerning the upbringing of their children, considering the 

right as "established beyond debate as an enduring American 

tradition." Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972);

see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It 

is cardinal with us that the custody, care and nurture of the 

child reside first in the parents, whose primary function and 

freedom include preparation for obligations the state can 

neither supply nor hinder."). When it comes to a decision on 

"whether to expose their child[] to certain . . . ideas[,]" the 

parents, not the government, "should be the ones to choose." In 

re Custody of Smith, 969 P.2d 21, 31 (Wash. 1998), aff'd sub 

nom. Troxel v. Granville, 530 U.S. 57 (2000).

¶80 Serving as a foundation of this right is the 

presumption that parents "possess what a child lacks in 

maturity, experience, and capacity for judgment required for 

making life's difficult decisions." Parham v. J.R., 442 U.S. 

584, 602 (1979). Furthermore, natural bonds of affection "lead 

parents to act in the best interests of their children." Id.

(citing 1 W. Blackstone, Commentaries, at *447.). Of course, 

this presumption may be rebutted. However, "[t]he state's power 

to displace parental discretion is limited . . . and must be 

justified on a case-by-case basis." Schleifer by Schleifer v. 
No. 2020AP1032.pdr

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City of Charlottesville, 159 F.3d 843, 861 (4th Cir. 1998) 

(Michael, J., dissenting). 

¶81 In Troxel v. Granville, which involved a Washington 

statute that permitted visitation rights "at any time" if 

visitation was in the "best interests of the child[,]" the 

Supreme Court held the statute was an unconstitutional 

interference with the fundamental right of parents to rear their 

children. Troxel, 530 U.S. at 67-78. The court explained that 

"[t]he liberty interest at issue in this case——the interest of 

parents in the care, custody, and control of their children——is 

perhaps the oldest of the fundamental liberty interests 

recognized by this Court." Id. at 65. The court reasoned that 

"there is a presumption that fit parents act in the best 

interests of their children" and providing grandparents greater 

access to grandchildren, despite the decision of the parent, is

an unconstitutional interference with parental rights. Id. at 

68. 

¶82 Recently, courts in other jurisdictions have addressed 

the same subject matter as MMSD's incursion on parental rights 

in the matter before us. In Eknes-Tucker v. Marshall, No. 2:22-

cv-184-LCB, 2022 WL 1521889, at *4 (M.D. Ala. May 13, 2022), the 

District Court for the Northern Division of Alabama decided that 

parents, not the state, are the proper decision-makers for

medical treatment their child may receive involving genderidentity and transgender treatment. Id. There, the parents of 

transgender children challenged and sought to enjoin enforcement 

of a newly-passed "Vulnerable Child Compassion and Protection 
No. 2020AP1032.pdr

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Act" (the Act), which banned certain medical procedures used for 

the treatment of gender dysphoria in minors.14

¶83 Parent plaintiffs claimed that the Act violated "their 

constitutional right to direct the medical care of their 

children under the Due Process Clause of the Fourteenth 

Amendment." Id. at *7. In determining whether enforcement of 

the Act should be enjoined during the lawsuit, the court 

concluded that parents had a high likelihood of success on the 

merits of their constitutional claim under the Fourteenth 

Amendment. Id. The court reiterated that a "parent's right 'to 

make decisions concerning the care, custody, and control of 

their children' is one of 'the oldest of the fundamental liberty 

interests' recognized by the Supreme Court." Id. at *7 (quoting 

Troxel, 530 U.S. at 65–66). Furthermore, "[e]ncompassed within 

this right is the more specific right to direct a child's 

medical care." Eknes-Tucker, 2022 WL 1521889, at *7 (citing 

Bendiburg v. Dempsey, 909 F.2d 463, 470 (11th Cir. 1990) 

(recognizing "the right of parents to generally make decisions 

concerning the treatment to be given to their children"). 

¶84 Against this backdrop, the court reasoned that parents 

likely would succeed on the merits of their claim because the 

Act "prevents Parent Plaintiffs from choosing that course of 

treatment for their children by criminalizing the use of 

 

14 Gender dysphoria "is a clinically diagnosed incongruence 

between one's gender identity and assigned gender. If 

untreated, gender dysphoria may cause or lead to anxiety, 

depression, eating disorders, substance abuse, self-harm, and 

suicide." Eknes-Tucker v. Marshall, No. 2:22-cv-184-LCB, 2022 

WL 1521889, at *1 (M.D. Ala. May 13, 2022).
No. 2020AP1032.pdr

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transitioning medications to treat gender dysphoria in minors, 

even at the independent recommendation of a licensed 

pediatrician." Eknes-Tucker, 2022 WL 1521889, at *7. 

¶85 When a government action "directly and substantially 

implicates a fit parent's fundamental liberty interest in the 

care and upbringing of his or her child, [governmental action]

is subject to strict scrutiny review." Michels, 387 Wis. 2d 1, 

¶22. "Ordinarily, where a fundamental liberty interest 

protected by the substantive due process component of the 

Fourteenth Amendment is involved, the government cannot infringe 

on that right 'unless the infringement is narrowly tailored to 

serve a compelling state interest.'" Johnson v. City of 

Cincinnati, 310 F.3d 484, 502 (6th Cir. 2002) (quoting

Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). The MMSD 

has identified no compelling state interest upon which MMSD 

contends the Policies are based. 

¶86 The parents renewed their request for a temporary 

injunction in their Petition for Review, and they ask us to 

grant them relief. The pending status of the parents' motion 

before the circuit court is not a deterrent to our 

superintending authority, which is grounded in our 

constitutional obligation to supervise all Wisconsin courts. In 

the exercise of our superintending authority and in order to 

afford the administration of justice in this litigation, we 

should grant the temporary injunction under the undisputed facts 

and the law presented herein. 
No. 2020AP1032.pdr

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¶87 I begin by noting that the granting of a temporary 

injunction required the parents to show: "(1) a reasonable 

probability of success on the merits; (2) a lack of an adequate 

remedy at law; (3) that the movant will suffer irreparable harm 

in the absence of an injunction; and (4) that a balancing of the 

equities favors issuing the injunction." Wisconsin Legislature 

v. Evers, No. 2020AP608-OA, unpublished order (Wis. Apr. 6, 

2020) (order granting leave to commence an original action and 

enjoining Executive Order No. 74); see also Kocken v. Wis.

Council 40, 2007 WI 72, ¶22, 301 Wis. 2d 266, 732 N.W.2d 828 

(listing requirements for injunctive relief to be a "finding a 

likelihood of success on the merits, a likelihood of irreparable 

harm, and an inadequate remedy at law."); Spheeris Sporting 

Goods, Inc. v. Spheeris on Capitol, 157 Wis. 2d 298, 306, 459 

N.W.2d 581 (Ct. App. 1990) (explaining a movant must show a 

reasonable probability of success on the merits, an inadequate 

remedy at law, and irreparable harm); Grootemaat, 89 Wis. 2d at 

520. 

¶88 The administration of justice often requires 

significant judicial effort. But that is what the people of 

Wisconsin elected us to provide. We are expected not to shirk 

our responsibilities when hard legal disputes are presented. 

This case is grounded in the contention that MMSD has usurped 

fundamental parental rights, some of which relate to healthcare 

decisions for their children. The administration of justice 

requires that we not ignore the parents' plea for a judicial 

decision, as the majority opinion has done. 
No. 2020AP1032.pdr

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¶89 The parents satisfy each factor necessary to success 

on their motion for a temporary injunction. First, they have 

shown a strong likelihood of success on the merits of their 

claim that MMSD's Policies interfere with their constitutional 

right to raise their children as they think best. The lack of a 

temporary injunction also keeps MMSD in charge of enabling 

healthcare choices without parental consent for children who 

have gender-identity issues. The constitutional presumption is 

that parents will act in the best interest of their child. 

Troxel, 530 U.S. at 69. Allowing a school to reassign a child's 

gender, flips this constitutional presumption on its head by 

assuming that parents will not act in their child's best 

interest. Both the United States Constitution and the Wisconsin 

Constitution support the conclusion that MMSD's Policies cannot 

deprive parents of their constitutional rights without proof 

that parents are unfit, a hearing, a court order, and without 

according parents due process. Instead, under MMSD's explicit 

guidelines, parents are affirmatively excluded from decisionmaking unless their child consents.15

 

15 MMSD's Policies affirmatively hide information from 

parents that relates to their children. For example, "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." MMSD 

Policies, 9. "Staff will respect student confidentiality 

throughout the investigation, be careful not to 'out' students 

while communicating with family/peers, and involve the targeted 

student throughout the intervention process." Id., 11. "In 

MMSD with the permission of our students, we will strive to 

include families along the journey to support their LGBTQ+ 

youth." Id., 16. "Students will be called by their affirmed 

name and pronouns regardless of parent/guardian permission to 
No. 2020AP1032.pdr

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¶90 Parents have the constitutional right to direct the 

upbringing and education of their children. Article I, Section 

1 of the Wisconsin Constitution provides fundamental protection 

for that parental right. Jackson, 218 Wis. 2d at 879 

(explaining that "Wisconsin has traditionally accorded parents 

the primary role in decisions regarding the education and 

upbringing of their children."). We have interpreted Article I, 

Section 1 of the Wisconsin Constitution as affording the same 

protections as are provided by the Fourteenth Amendment. Mayo 

v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78, ¶35, 

383 Wis. 2d 1, 914 N.W.2d 678. The right of parents to decide 

on the upbringing of their children has been so long established

as "beyond debate as an enduring American tradition." Yoder, 

406 U.S. at 232-33. 

¶91 What is occurring in Wisconsin schools has been 

occurring in other schools around the country. Parents are 

bringing their concerns to court, and courts around the country 

have confirmed that parental constitutional rights are violated 

when they are prevented from being involved in gender-identity 

concerns of their children. Eknes-Tucker, 2022 WL 1521889, at 

*7. Accordingly, I conclude that parents have shown a strong 

likelihood of success on the merits of their claim.

¶92 Second, parents have no remedy at law. Without an 

injunction to temporarily enjoin MMSD from implementing its 

policies, MMDS will continue to enforce them. Parents will not 

be told that their child is socially transitioning to a sex 

 

change their name and gender in MMSD systems." Id., 18. 
No. 2020AP1032.pdr

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different from that noted at birth without the child's consent, 

yet social transitioning is a healthcare choice for parents to 

make. Without an injunction, the parents have no way of 

becoming involved in such a fundamental decision. 

¶93 Third, without an injunction the parents will suffer 

irreparable harm. The MMSD Policies are on-going and continue 

to invade parents' constitutional right to parent their 

children. Many courts consider the on-going infringement of a 

constitutional right enough and require no further showing of 

irreparable injury. See e.g., Awad v. Ziriax, 670 F.3d 1111, 

1131 (10th Cir. 2012). We should do so as well. 

¶94 Fourth, the balance of equities favors the parents, 

who are ready, willing and able to parent their children. The 

public interest is served by validation of parental 

constitutional rights and any harm alleged by MMSD from parental 

involvement in decision-making for their children runs directly 

contrary to the presumption that parents act in the best 

interests of their children. Troxel, 530 U.S. at 69. 

Furthermore, because MMSD's Policies are carried out by school 

officials who are state actors, whose conduct described in the 

MMSD Policies infringes on the parents' constitutional right to 

make important choices for their children, the school officials 

must yield to the constitution. Gruenke v. Seip, 225 F.3d 290, 

307 (3d Cir. 2000) (explaining that "[i]t is not educators, but 

parents who have primary rights in the upbringing of children. 

School officials have only a secondary responsibility and must 

respect these rights."). 
No. 2020AP1032.pdr

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¶95 The parents brought a motion for a temporary 

injunction to enjoin MMSD from: (1) enabling children to 

socially transition to a different gender-identity without 

parental consent; (2) preventing teachers and other staff from 

telling parents that their child may have gender-identity 

concerns; and (3) deceiving parents by using different names and 

pronouns in front of parents than are used at school. The 

parents have satisfied all the necessary criteria for a 

temporary injunction. 

III. CONCLUSION

¶96 In conclusion, to be clear, although I address the 

question of pseudonym use, the heart of this case is the 

fundamental, constitutional presumption that parents have the 

right to raise their children according to their beliefs of what 

is in the child's best interests. Parental names are not 

relevant to vindicating that constitutional right. Here, the 

circuit court erred when it concluded that it could not permit 

the parents to employ pseudonyms in this lawsuit. The court of 

appeals erred in affirming that decision, even while noting that 

the circuit court did have the power to permit the use of 

pseudonyms. The majority opinion errs by concluding that there 

is no authority for anonymous litigation in Wisconsin.16 

¶97 Furthermore, I conclude that we can and should employ 

our constitutional supervisory authority to decide this 

constitutional controversy because it cries for judicial 

resolution. This court, as a court of last resort, should act 

 

16 Majority op., ¶¶15-20. 
No. 2020AP1032.pdr

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affirmatively to grant the parents' request for a temporary 

injunction that enjoins MMSD from: (1) enabling children to 

socially transition to a different gender-identity without 

parental consent; (2) preventing teachers and other staff from 

telling parents that their child may have gender-identity 

concerns; and (3) deceiving parents by using different names and 

pronouns in front of parents than are used at school. 

¶98 The majority opinion defends abdication of its 

responsibility to address parents' constitutional arguments by 

attacking the dissent's support of parental rights. For the 

reasons set out above, I conclude that the circuit court erred 

in not granting the temporary injunction that was requested in 

February of 2020. Because the majority opinion chooses not to 

decide the controversy presented, I respectfully dissent. 

¶99 I am authorized to state the Chief Justice ANNETTE 

KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this 

dissent.
No. 2020AP1032.pdr

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