Johnson, Remus et al v. School District of Rhinelander Board of Education et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
REMUS JOHNSON,
Plaintiff, 	OPINION AND ORDER
v.
23-cv-761-wmc
SCHOOL DIST. OF RHINELANDER
BOARD OF EDUCATION,
Defendant.
Plaintiff Remus Johnson brought this action under 20 U.S.C. §§1681-1688 (“Title
IX”) against defendant School District of Rhinelander Board of Education, claiming that
the District discriminated against Johnson based on gender identity, nonbinary status, and
nonconformity to sex-based stereotypes. Present before the court are defendant’s motions
for summary judgment and to exclude and strike the expert testimony of Dr. David
MacIntyre on the issues of liability and damages. 	(Dkt. ##40, 63, and 67.) 	For the
following reasons, the court will stay the present action and strike the parties trial date and
all pretrial filing deadlines.
In its order on defendant’s motion to dismiss, the court noted that policies
discriminating against a student based on their nonbinary identity appear to violate Title
IX. 	(Dkt. #16.) 	This ruling relied in substantial part on the Seventh Circuit opinion
Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th
Cir. 2017) (abrogated on other grounds), which held that policies that discriminate against
a student based on their gender nonconformance violate Title IX. See also A.C. by M.C. v.
Metro. Sch. Dist. of Martinsville, 75 F.4th 760 (7th Cir. 2023). 	However, at summary
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judgment, defendant argues that since this court’s order the precedential value of Whitaker
and Martinsville has been called into question. (Dkt. 41, at 13-15.) Specifically, defendant
refers this court to the Seventh Circuit’s sua sponte decision vacating its opinion in D.P. by
A.B. v. Mukwonago Area Sch. Dist., No. 23-2568, 2025 WL 1794428 (7th Cir. June 30,
2025) then granting rehearing to consider whether it should overrule Whitaker and
Martinsville. 	Although the Seventh Circuit later dismissed the Mukwonago interlocutory
appeal for lack of jurisdiction after the lower court dissolved an underlying preliminary
injunction, the Seventh Circuit halted further proceedings in a second appeal in Martinsville
until the Supreme Court issues its potentially controlling opinion in West Virginia v. B.P.J.,
No. 24-43 (argued January 13, 2026).
With the Seventh Circuit obviously concerned about the uncertainty in the law,
this court will do the same, staying these proceedings until 14 days after the Supreme
Court’s decision in West Virginia v. B.P.J., at which time the parties must file supplemental
memoranda recommending how the court should proceed with respect to defendant’s
motion for summary judgment.
The parties briefing deadlines for defendant’s motion to strike, dkt. #67, are not
impacted by this order.
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ORDER
IT IS ORDERED that:
1) The trial date and all pre-trial filing requirements in the current scheduling
order (dkt. #26) are STRUCK and this matter is STAYED until 14 days after
the Supreme Court’s decision in West Virginia v. B.P.J., No. 24-43.
2) At that time, the parties SHALL file supplemental memoranda recommending
how the court should proceed with respect to defendant’s motion for summary
judgment. (Dkt. #40.)
Entered this 30th day of March, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
Case: 3:23-cv-00761-wmc Document #: 70 Filed: 03/30/26 Page 3 of 3