Court Deals Blow to Law Banning Transgender Girl Athletes

This school year, a fifth-grade transgender girl can play on her school’s girls’ softball team, thanks to a preliminary injunction entered by a federal court. A recently enacted Indiana state law would have prohibited the 10-year-old from playing the sport because of her assigned sex at birth. Similar laws have been enacted across the country. A U.S. district court held that banning the student from playing on her team because she is transgender runs afoul of Title IX of the Education Amendments of 1972.

On May 24, 2022, the Indiana legislature passed Indiana Code § 20-33-13-4 over the governor’s veto. The statute states that male students (based on their sex assigned at birth) “may not participate on an [public school-based] athletic team or sport designated … as being a female, women’s, or girls’ athletic team or sport.” The school district informed the plaintiff’s mother that her daughter could not play on the girls’ softball team in the current academic year, even though she played on the team the previous year.

The mother filed an action, A.M. v. Indianapolis Public Schools, on her daughter’s behalf, in the U.S. District Court for the Southern District of Indiana. The action alleges that Indiana Code § 20-33-13-4 violates Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment by discriminating against the plaintiff and all transgender female students.

Known as a Girl to Nearly Everyone

Before the age of four, the plaintiff informed her mother and her family that she was a girl. She has been living as a girl since that age, using her preferred female name, and dressing as a girl both in public and private. Her classmates only know her as a girl, although teachers and school administrators know she is transgender.

The plaintiff was diagnosed with gender dysphoria at age six. The condition causes her to suffer anxiety, depression, and suicidal thoughts. The plaintiff has been taking a puberty blocker for the past year, which prevents her from experiencing the physiological changes of a male undergoing puberty. In late 2021, Indiana courts granted the plaintiff’s petition to change both her name to her preferred female name, and the gender marked on her birth certificate from male to female.

Court Applies Bostock Definition of Sex Discrimination

Like most courts, in the Court of Appeals for the Seventh Circuit preliminary injunctions are only ordered when a plaintiff demonstrates that she will suffer irreparable harm in the absence of the order, existing remedies are inadequate, and she has a likelihood of success on the merits. If she meets her burden, the court then weighs the harm the plaintiff will suffer without the injunction against the harm the defendant will suffer from the injunction. The court also considers whether the injunction is in the public interest.

Title IX states that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” The plaintiff asserted that the Indiana law violates Title IX because transgender girls are “subjected to different rules, sanctions, and treatment than non-transgender students.”

Relying on Bostock v. Clayton County, the district court found that the plaintiff demonstrated a strong likelihood of success on the merits. In Bostock, the U.S. Supreme Court held that discrimination in violation of Title VII of the Civil Rights Act “based on homosexuality or transgender status necessarily entails discrimination on the basis of sex.” Although the Court did not specifically apply this definition to Title IX, the Court of Appeals for the Seventh Circuit has “looked to Title VII when construing Title IX.”

The plaintiff met her burden of showing the lack of an adequate remedy at law through the immense emotional harm the plaintiff would suffer if prevented from playing on the girls’ softball team or if forced to “out” herself as transgender. The court also found that the emotional distress and potential trauma that the plaintiff would suffer in the absence of a preliminary injunction constitutes irreparable harm.

While the defendant argued that biological girls would endure a harm if forced to compete against transgender girls, the court found this assertion to be speculative. The plaintiff, after all, had played on the girls’ softball team in the previous season yet it did not cause anyone harm. For this reason, the court also determined that the public interest is served by a preliminary injunction. The defendant has appealed the decision to the Seventh Circuit.

Guarded Optimism about Higher Court Success

ABA Litigation Section leaders were unsurprised by the district court’s decision. “The issue is that she identifies as a female and wants to play a sport where females play. The language of Title IX is straightforward where sex discrimination is concerned,” explains Helen E. Casale, Plymouth Meeting, PA, cochair of the Litigation Section’s LGBT Law & Litigator Committee.

Section leaders expressed guarded optimism about appellate review of the decision. “I think that couching the decision in the language of Title IX is the least bad option of getting conservative justices on board,” observes Nicholas L. Brancolini, Beverly Hills, CA, cochair of the Section’s LGBT Law & Litigator Committee. “It will be easier to get them to support the straightforward language of an act of Congress than to affirm a Constitutional right to being a transgender person.”

Brancolini notes that the purpose and benefit of youth sports is socialization. “The Indiana law is not about protecting the integrity of competition,” he maintains. “At certain levels of competitive performance, there is a conversation that needs to be had about how transgender people compete, but it needs to be had by people who are operating in good faith. The practical impact of this law is to harass transgender children.”