The federal trial court in Indianapolis has ordered the Indiana Public Schools to allow a transgender 10-year-old girl, identified in court papers as “A.M.,” to play on the girls’ softball team, finding she is likely to be able to prove that her federal rights under Title IX take priority over a recent Indiana law which would forbid her to do so.
District Judge Jane Magnus-Stinson’s July 26 order will be immediately appealed to the US Court of Appeals for the Seventh Circuit by Indiana Attorney General Todd Rokita, who intervened on behalf of the state to defend its new law.
Judge Magnus-Stinson’s opinion explains that A.M. announced to her family when she was four years old that she is a girl, and she has lived as a girl ever since. She was diagnosed with gender dysphoria at age 6, dresses as a girl, and obtained a new birth certificate with her female name and gender marker. Her parents have supported her in all this, and her mother sues on her behalf.
In light of her early female identification, she has always been known to her schoolmates as a girl. Her parents informed her teachers and school administrators that she is a transgender girl, but her identity as such has not been shared with her classmates. Last season, while in the fourth grade, she played softball as a girl. Nobody complained and there was no indication that she enjoyed any special advantage because of being born male. If anything, she turned out to be one of the less talented members of her team. At age 10, she is taking puberty blockers and, according to her Complaint, has not experienced any aspects of male puberty. She looks forward to getting feminizing hormones when her doctor determines that she is ready for them.
The new Indiana law took effect on July 1, 2022, after the end of the school softball season. A.M. looked forward to continuing to play softball as a fifth grader, but she was informed by the school that she may not, because the law provides: “A male, based on a student’s biological sex at birth in accordance with the student’s genetics and reproductive biology, may not participate on an athletic team or sport designated under this section as being a female, women’s, or girls’ athletic team or sport.” The statute authorizes a “student or parent” to submit a grievance to the school for a violation of this provision. Nobody has submitted a grievance about A.M.’s participation thus far, probably because the teachers and administration have maintained confidentiality and none of the parents or other students knew her as other than a girl.
A.M. went to federal court claiming a violation of her rights under Title IX and the Equal Protection Clause of the 14th Amendment, asking for a preliminary injunction so she can participate in girls’ softball while the case is pending. The Indianapolis Public Schools and its superintendent, the named defendants, have taken no position on whether the court should issue a preliminary injunction. Apparently, if not for the new statute, they would be happy to let A.M. continue to play softball with the other girls. But the state of Indiana has intervened as a defendant on being informed that the validity of its new law is being challenged, and it is the party opposing the injunction.
Both A.M. and the state offered expert testimony, but the judge ended up deciding that apart from some background information, what the experts had to say was not particularly relevant to the legal issues to be decided on the motion for a preliminary injunction. In light of the Supreme Court’s 2020 Bostock decision, which found that discriminating on the basis of transgender status is a form of sex discrimination, taken together with a binding precedent — a Seventh Circuit ruling from several years earlier, Whitaker v. Kenosha Unified School District, involving a transgender boy who was wrongly barred from using the boys’ restrooms at his high school — the court found that this case was “not even close.” Title IX forbids sex discrimination by schools that receive federal funds, which the Indianapolis schools do, and excluding A.M. from girls’ softball because she is transgender is sex discrimination in violation of Title IX, so A.M. is strongly likely to win this case on the merits, which is the first thing she has to show to get a preliminary injunction.
After noting that the statute applies only to transgender girls, not transgender boys, the court found a clear case of sex discrimination. “The singling out of transgender females is unequivocally discrimination on the basis of sex,” she wrote, “regardless of the policy argument as to why that choice was made.”
Furthermore, A.M. made a strong showing that she would suffer irreparable harm if not granted preliminary relief. “A.M.’s mother has identified significant emotional harm that she believes A.M. will suffer if she cannot play on the girls’ softball team, including that it will undermine her social transition and potentially cause her the trauma of being ‘outed’ as not ‘really’ a girl,” wrote Magnus-Stinson. “The court finds that this emotional harm could not be addressed adequately through a remedy at law.” (“Remedy at law” is legalese for money damages.)
The court also found that “there is no evidence of concrete harm to IPS or the State that would occur if an injunction issues,” finding as “speculative” the argument that “biological girls will be forced to compete against transgender girls who have an advantage.” Most importantly, in issuing this order, the court is dealing only with A.M., a rising fifth grader. “Indeed,” she wrote, “A.M. played on the girls’ softball team last season, and the State has not set forth any evidence that this harmed anyone.” Nobody complained, and the school was only acting because of the new state law. The court also found no evidence that the public would be harmed, either. All factors weighed in favor of issuing the preliminary injunction.
Because she granted the preliminary injunction solely on the basis of Title IX, the judge found it unnecessary to rule on A.M.’s constitutional claim.
A.M. is represented by Kenneth J. Falk, Gavin M. Rose, and Stevie J. Pactor of the ACLU of Indiana.
Judge Magnus-Stinson was appointed to the District Court by President Barack Obama.