In the

       United States Court of Appeals
                      for the Seventh Circuit
                         ____________________
No. 23-2568
D.P., a minor, by her mother and next friend, A.B.,1
                                                Plaintiff-Appellee,

                                      v.

MUKWONAGO AREA SCHOOL DISTRICT and JOSEPH KOCH,
                                    Defendants-Appellants.
                         ____________________

                Appeal from the United States District Court
                   for the Eastern District of Wisconsin.
                No. 2:23-cv-00876 — Lynn Adelman, Judge.
                         ____________________

       ARGUED FEBRUARY 15, 2024 — DECIDED JUNE 12, 2025
                   ____________________

    Before SYKES, Chief Judge, and EASTERBROOK and KIRSCH, Cir-
cuit Judges.
   SYKES, Chief Judge. D.P. is a transgender girl attending middle
school in the Mukwonago Area School District in southeastern


1 The parties referred to the plaintiffs as Jane Doe #1 and #2. In accordance

with Rule 5.2(a)(3) of the Federal Rules of Civil Procedure, we refer to the mi-
nor plaintiff by her initials and do the same for her mother, who brings this
suit on her behalf.
2                                                  No. 23-2568

Wisconsin. With her mother, she challenges a new district policy
that requires her to use the boys’ bathroom and locker room or a
gender-neutral alternative. She alleges that the policy violates her
rights under Title IX of the Education Amendments of 1972 and
the Fourteenth Amendment’s Equal Protection Clause.
     Along with their complaint, D.P. and her mother filed an
emergency motion for a temporary restraining order and a pre-
liminary injunction barring enforcement of the policy during the
litigation. They argued that the policy is plainly unlawful under
binding circuit precedent—namely Whitaker v. Kenosha Unified
School District No. 1 Board of Education, 

 (7th Cir.
2017). The school district responded to the motion four days later.
Two days after receiving the response, the judge entered a tem-
porary restraining order prohibiting district officials from enforc-
ing the new policy against D.P. The judge also advised the parties
that he would address the motion for a preliminary injunction
soon.
    And he did. Five days after issuing the temporary order and
without holding a hearing, the judge entered an order converting
the restraining order to a preliminary injunction barring the
school district from enforcing the policy against D.P. during the
pendency of the suit. He agreed with the plaintiffs that the case
is squarely controlled by Whitaker.
    The school district appealed, focusing primarily on the
judge’s decision to forgo a hearing before issuing the preliminary
injunction. The school district also urges us to overrule Whitaker
and a more recent case—A.C. v. Metropolitan School District of
Martinsville, 

 (7th Cir. 2023)—reaffirming Whitaker.
    We reject these arguments and affirm. An evidentiary hearing
is not always required prior to the issuance of a preliminary in-
junction. Though the procedural rules contemplate a hearing, see
No. 23-2568                                                   3

Fed. R. Civ. P. 65(a)(2), the court may proceed without one if the
opponent’s response does not suggest the existence of factual dis-
putes that might affect the resolution of the motion. Here the
school district neither requested a hearing nor identified material
factual issues in need of resolution, so the judge reasonably dis-
pensed with a hearing and moved directly to decision. On the
merits, we decline to revisit Whitaker and Martinsville.
                         I. Background
    D.P., a transgender girl, attends middle school in the
Mukwonago Area School District. Before the district adopted the
new policy at the center of this case, she used the girls’ bathroom
at school without incident.
    In April 2023, near the end of D.P.’s fifth-grade year, school
officials began receiving calls and emails from parents raising
concerns about her use of the girls’ bathroom. In response the
school district began considering a new policy that would require
transgender students to use a designated transgender bathroom
or a single-occupancy, gender-neutral alternative. D.P.’s mother
objected that such a policy would single out and stigmatize her
daughter. After a public hearing on the issue at a school-board
meeting on May 22, the school district sent an email to parents
and students on May 23 announcing that the board would de-
velop a policy on the issue over the summer. But in the meantime,
it “affirm[ed]” its position that “students should use the locker
rooms and bathrooms of their sex at birth.”
    During the summer break, D.P. was enrolled in a summer-
school program set to begin on June 19. Three days before the
start of summer classes, her mother received an email from the
school superintendent reiterating the district’s position regard-
ing bathroom use. The email stated that D.P. could use the boys’
bathroom or a gender-neutral alternative but not the girls’
4                                                  No. 23-2568

bathroom. Once summer school began, school officials moni-
tored D.P.’s bathroom use. When she used the girls’ bathroom,
they removed her from class and contacted her mother.
   On June 26 the school board reaffirmed the position it had
taken in the May 23 email and adopted a formal policy—known
as Policy 5514—requiring students to “use restroom and locker
room facilities on District property and at District-sponsored
events according to each student’s original sex assigned at birth.”
The policy permits exceptions: it states that “requests for an ex-
ception or accommodation to this policy shall be considered on a
case-by-case basis in consultation with the student, the student’s
parents,” and educational and mental-health professionals as ap-
propriate.
    The next day, June 27, attorneys for D.P. and her mother
wrote to Superintendent Joseph Koch objecting that the new pol-
icy violated D.P.’s rights under Title IX of the Education Amend-
ments of 1972, 

 et seq., and the Equal Protection
Clause. Citing our decision in Whitaker, the lawyers explained
that their clients were prepared to file a federal lawsuit against
the district seeking temporary and permanent injunctive relief,
damages, and attorneys’ fees. To resolve the dispute without lit-
igation, they demanded that the school district immediately re-
scind the new policy and permit D.P. and other transgender
students to use bathrooms and locker rooms corresponding to
their gender identity. The letter requested a response within 24
hours.
    The school district responded the next day by letter from its
counsel stating that the district was providing D.P. with “support
and accommodations,” such as “support from a trusted adult”
and “the option to use the boys’ restroom or a gender-neutral re-
stroom.” The letter also explained that the district was “not
No. 23-2568                                                      5

summarily rejecting” the demands in the June 27 letter but that it
wanted to “first engage with the family and carry out the pro-
cesses outlined in its policy.”
    Two days later D.P. and her mother filed suit challenging the
new policy. The date was June 30—the Friday before the start of
an unofficial four-day weekend associated with the July Fourth
holiday, which fell on a Tuesday that year. The complaint alleged
claims under Title IX and the Equal Protection Clause and named
the school district and Superintendent Koch as defendants. (Koch
was sued only in his official capacity, which is the same as suing
the school district itself, see Bridges v. Dart, 

, 478 n.1
(7th Cir. 2020), so we say no more about him.)
     D.P. and her mother also filed an emergency motion seeking
a temporary restraining order and a preliminary injunction, with
a supporting brief and exhibits reflecting the development of the
new policy and the correspondence between the parties. They no-
tified the school district of the suit and the motion via email that
same day, attaching copies of all the pleadings.
    The school district filed a response to the motion on July 4 but
made no evidentiary submission of its own and neither requested
an evidentiary hearing nor disputed the evidence submitted by
the plaintiffs. D.P. and her mother filed a reply brief the next day.
    On July 6 the judge issued the requested temporary restrain-
ing order barring the school district from denying D.P. access to
the girls’ bathroom or imposing discipline if she used those facil-
ities. The judge reasoned that D.P.’s case is materially identical to
Whitaker. He also informed the parties that he was reviewing the
motion for a preliminary injunction and would “issue a separate,
more detailed opinion on the motion soon.”
    Five days later—on July 11—and without holding an eviden-
tiary hearing, the judge converted the temporary restraining
6                                                     No. 23-2568

order to a preliminary injunction prohibiting the district from en-
forcing the policy during the pendency of the case; he also issued
a standalone injunction order specifying the terms of the injunc-
tion as required by Rule 65. In his decision the judge noted that
the plaintiffs had supported their motion with a brief, a declara-
tion, and various exhibits related to the new policy and that the
school district had filed a response but submitted no additional
evidence, relying instead on the plaintiffs’ exhibits.
    Expanding on the reasoning in his temporary order, the judge
concluded that D.P.’s claims were highly likely to succeed under
Whitaker, which he viewed as indistinguishable from this case. He
also determined that D.P. would suffer irreparable harm without
preliminary relief and that the balance of harms weighed
strongly in her favor. Finally, he held that the public interest also
favored a preliminary injunction enjoining enforcement of the
policy for the duration of the litigation.
    Three weeks later we reaffirmed Whitaker in Martinsville, 75
F.4th at 771. This appeal followed.
                           II. Discussion
    The school district asks us to vacate the preliminary injunc-
tion and permit it to enforce Policy 5514 while D.P.’s suit pro-
ceeds. To win a preliminary injunction, D.P. had the burden to
establish that she is likely to succeed on the merits of her suit and
would suffer irreparable harm in the absence of interim relief.
Winter v. Nat. Res. Def. Council, Inc., 

 (2008). In addi-
tion to these threshold requirements, she also had to demonstrate
that the balance of equitable considerations tipped in her favor
and that a preliminary injunction would be consistent with the
public interest. 

   The district judge applied this familiar framework. And alt-
hough a preliminary injunction is an extraordinary remedy, our
No. 23-2568                                                      7

review of his decision is mostly deferential: we review factual
findings for clear error, legal conclusions de novo, and equitable
balancing for abuse of discretion. Martinsville, 75 F.4th at 767.
    This appeal centers on a claim of procedural error: the school
district argues that the judge was required to hold an evidentiary
hearing before ruling on the motion for a preliminary injunction.
On the merits, the school district maintains that Whitaker and
Martinsville are distinguishable from this case, or alternatively,
should be overruled. Finally, in an argument raised for the first
time in its reply brief, the district contends that the judge jumped
the gun by ruling on the motion for a preliminary injunction be-
fore the plaintiffs filed proof of service of process.
    We begin with this last contention and reject it for several rea-
sons. First, it comes too late. We have repeatedly held that argu-
ments raised for the first time in a reply brief are waived.
Thorncreek Apartments III, LLC v. Mick, 

 (7th Cir.
2018). Waiver aside, the argument is meritless. Rule 65 provides
that a preliminary injunction may issue “only on notice to the ad-
verse party.” FED. R. CIV. P. 65(a)(1). By its terms, the rule requires
notice; formal service of process is not a prerequisite. H-D Mich.,
LLC v. Hellenic Duty Free Shops S.A., 

 (7th Cir.
2012) (“Rule 65 allows emergency injunctive relief before service
of process ….”); Whirlpool Corp. v. Shenzhen Sanlida Elec. Tech. Co.,

 (5th Cir. 2023) (“[A] preliminary injunction re-
quires only notice, not perfected service of process.”). FED. R. CIV.
P. 65(d)(2).
    Here the plaintiffs provided immediate notice of the motion
by sending the complaint, the motion, and all other pleadings to
the school district’s counsel by email on June 30, the same day the
suit was filed. The school district acknowledges that it had actual
8                                                    No. 23-2568

notice of the motion, as indeed it must. After all, it filed a 15-page
brief in response four days later.
    Still, the school district argues that because formal service of
process was not accomplished and certified until July 17—six
days after the judge entered the preliminary injunction—the
judge could not have been certain that Rule 65’s notice require-
ment had been satisfied. This is an odd argument. There is no
possible uncertainty here. The school district’s response brief re-
peatedly cited the plaintiffs’ motion and discussed the support-
ing evidence the plaintiffs had submitted with it. And the judge
noted the procedural history—including of course the school dis-
trict’s response—in his decision and order. The school district’s
argument about notice and service of process is both waived and
meritless.
   We turn now to the school district’s primary argument on ap-
peal, which concerns the judge’s decision to forgo a hearing be-
fore granting D.P.’s motion for a preliminary injunction. Rule 65
contemplates an evidentiary hearing before the issuance of a pre-
liminary injunction. Subsection (a)(2) of the rule provides:
       Before or after beginning the hearing on a motion for
       a preliminary injunction, the court may advance the
       trial on the merits and consolidate it with the hear-
       ing. Even when consolidation is not ordered, evi-
       dence that is received on the motion and that would
       be admissible at trial becomes part of the trial rec-
       ord and need not be repeated at trial.
FED. R. CIV. P. 65(a)(2) (emphases added).
   We have said that “[a]n evidentiary hearing is required if the
nonmoving party raises genuine issues of material fact in re-
sponse to a motion for a preliminary injunction.” Promatek Indus.,
Ltd. v. Equitrac Corp., 

 (7th Cir. 2002). On the
No. 23-2568                                                    9

other hand, we have also explained that the court “need not con-
duct an evidentiary hearing unless one is called for as a result of
a fact issue created by the response to a motion for a preliminary
injunction.” Dexia Crédit Loc. v. Rogan, 

 (7th Cir.
2010). The decision to hold or forgo an evidentiary hearing is a
discretionary judgment reviewable only for abuse of discretion.
Medeco Sec. Locks, Inc. v. Swiderek, 

, 38–39 (7th Cir.
1981).
    The district judge did not abuse his discretion by skipping an
evidentiary hearing in this case. There were no factual issues to
resolve because the school district never disputed D.P.’s factual
submissions. On the contrary, the school district expressly relied
on the factual submissions in D.P.’s motion and never submitted
its own evidence.
    The school district complains that it had no opportunity to do
otherwise because the judge ruled so rapidly—over a long holi-
day weekend—without convening a hearing to entertain possible
evidentiary submissions. This objection implies that the judge
had a duty to offer the parties a hearing when neither side re-
quested one. Not so. The judge was not required to check with
the school district to see if it wanted to (or could) offer evidence
contradicting D.P.’s factual submissions. Rather, “the party seek-
ing the evidentiary hearing must demonstrate that it has and in-
tends to introduce evidence that if believed will so weaken the
moving party’s case as to affect the judge’s decision on whether
to issue the injunction.” Promatek, 

 (internal quota-
tion marks omitted).
   The school district never requested a hearing, nor did it alert
the court to evidence that, if received, would weaken D.P.’s case
and affect the judge’s decision whether to grant her motion for a
10                                                  No. 23-2568

preliminary injunction. With no factual disputes before him, the
judge reasonably determined that a hearing was unnecessary.
    On the merits, the school district challenges the judge’s con-
clusion that D.P.’s claims are likely to succeed based on our deci-
sion in Whitaker. As we’ve explained, we reaffirmed Whitaker in
Martinsville three weeks after the judge issued the requested pre-
liminary injunction. Like this case, Whitaker and Martinsville were
appeals from preliminary injunctions entered against school dis-
tricts in lawsuits brought by adolescent transgender students
who challenged school policies prohibiting them from using
bathrooms corresponding to their gender identity. See Martins-
ville, 75 F.4th at 764–66; Whitaker, 858 F.3d at 1040–43. In Whitaker
we held that the plaintiff, age 17, was likely to succeed on his
claims under Title IX and the Equal Protection Clause because the
school district’s transgender bathroom policy was a form of un-
lawful sex discrimination. Whitaker, 858 F.3d at 1047–54. We
reached the same conclusion in Martinsville in consolidated ap-
peals involving similar claims by transgender students ages 13 to
15. 75 F.4th at 770–74.
    The school district insists that D.P.’s case is distinguishable
because she is slightly younger than the plaintiffs in those cases
(she was 11 when the case was filed) and because the plaintiffs in
those cases had medical conditions that required frequent bath-
room use. See Martinsville, 75 F.4th at 765–66; Whitaker, 

. The district also says this case is different because the
school board adopted a formal policy that expressly permits case-
by-case exceptions (unlike the informal policies at issue in Whit-
aker and Martinsville) and because the parents of other students
objected to D.P.’s bathroom use (not so in Martinsville).
   These slight differences do not undermine the district judge’s
conclusion that D.P is likely to succeed on her claims based on
No. 23-2568                                                           11

binding circuit precedent. Our decisions in Whitaker and Martins-
ville did not turn on the plaintiffs’ ages, hormone treatments, or
medical conditions. And we struggle to see how either the exist-
ence of a formal policy with the possibility of case-by-case excep-
tions or the presence of parental complaints affects the legal
analysis of D.P.’s claims. To the extent that this argument is di-
rected at the equitable balancing of relative harms or the assess-
ment of the public interest, these modest distinctions are not
substantial enough to warrant disturbing the judge’s discretion-
ary judgment.
    The school district argues in the alternative that our precedent
is wrong and should be overruled. We declined an invitation to
overrule Whitaker in Martinsville, 75 F.4th at 770–71. Judge Easter-
brook concurred in the judgment only, explaining that he too was
disinclined to overrule Whitaker because the existing circuit con-
flict on this issue will remain until the Supreme Court or Con-
gress steps in. Id. at 775 (Easterbrook, J., concurring). But he did
not endorse Whitaker; rather, he explained that in his view, the
Eleventh Circuit’s decision in Adams v. St. Johns County School
Board, 

 (11th Cir. 2022) (en banc), “is closer to the
mark.” 

 This panel agrees.
   Accordingly, for the reasons explained in Judge Easterbrook’s
concurring opinion in Martinsville, we decline the invitation to
overrule Whitaker and Martinsville.2
                                                                 AFFIRMED




2 The Supreme Court’s forthcoming decision United States v. Skrmetti, 

 (2024), No. 23-477, 

 (U.S. June 24, 2024), may affect
the analysis of D.P.’s claims, but for now our circuit precedent remains con-
trolling.