A.M., by her mother and next friend, E.M. v. Indianapolis Public Schools, No: 1:22-cv-01075-JMS-DLP; Federal District Court, Southern District of Indiana
By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG
A.M. is a 10-year-old transgender girl and a rising fifth grader at an elementary school within Indianapolis Public Schools (“IPS”). Last school year, A.M. played on an IPS girls softball team, but IPS informed A.M.’s mother that A.M. will not be able to play on the girls’ softball team this year because of Indiana Code Section 20-33-13-4. The law, which took effect on July 1, 2022, prohibits a male (based on an individual’s sex assigned at birth) from participating on an athletic team designated as being a female, women’s, or girls’ athletic team. A.M.’s mother filed suit on behalf of her daughter.
PROCEDURAL HISTORY
A.M.’s mother alleged the Indiana state law violates Title IX and the Equal Protection Clause of the Fourteenth Amendment by discriminating against A.M. and all transgender female students. Additionally, A.M.’s mother filed a Motion for Preliminary Injunction, seeking to stop enforcement of the Indiana state law so her daughter may play softball this school year.
IPS did not take a position regarding the Motion for Preliminary Injunction, so the State of Indiana (“the State”) intervened to oppose A.M.
SUMMARY OF FACTS
A.M. finished fourth grade in the spring of 2022. She will be attending the same elementary school for her fifth-grade year. When A.M. was four years old, she informed her mother and other family members that she was a girl. Since that time, A.M. has been living as a girl, uses a female name, and dresses and appears as a girl. Very few people outside of A.M.’s family know that A.M. was assigned male at birth. Although her teachers are aware that A.M. is transgender, her classmates know her only as a girl. A.M. uses the girls’ restrooms at the school, too. In the fall of 2021, a Marion County court entered an order changing the gender marker on A.M.’s birth certificate from male to female and changed her first name to her female first name.
A.M. was diagnosed with gender dysphoria when she was six years old. Gender dysphoria has caused A.M. to be suicidal, depressed, anxious, angry about her body, and “afraid she will not be able to be a girl.”[1] Further, A.M. has been taking puberty blockers and has not experienced any of the physiological changes an adolescent male would experience during puberty.
A.M. has enjoyed playing softball and reported that playing softball helps to lessen the distressing symptoms of gender dysphoria and allows her to experience life more fully as a girl. Softball participation has resulted in a better self-image and confidence for A.M.
IPS staff have informed A.M.’s mother that her daughter will not be able to play on the girls’ softball team for the upcoming school year. The school has a boys’ baseball team, but she cannot play on it, as she is not a boy, and no one at school recognizes her as anything but a girl. A.M.’s mother believes forcing her daughter to play on the boys’ team would undermine her core identity as a girl. A.M.’s social transition is also essential to moderate symptoms of gender dysphoria. Additionally, A.M.’s mother believes that denying her daughter the opportunity to participate on the girls’ team will “out” A.M. to her classmates as some who is “not really a girl.”[2] The effects would be traumatic.
FINDINGS AND SIGNFICANT ISSUES
To obtain a preliminary injunction, the following elements are required:
- There is some likelihood of success on the merits of the claim.
- Traditional legal remedies are inadequate.
- A party will suffer irreparable harm in the period before resolution of their claim.
Next, the court must weigh the harm that A.M. will suffer, absent an injunction, against the harm to the defendant from an injunction. The court must also consider whether an injunction is in the public interest.
Likelihood of Success on the Merits
A.M. argued that she will succeed on the merits of her Title IX claim because discrimination on the basis of a student’s transgender status constitutes discrimination on the basis of sex under Title IX. A.M. asserted she is being treated differently than her cisgender classmates because they can play on the girls’ softball team and she cannot. A.M. pointed to the fact that the state changed her gender marker on her birth certificate and recognizes she is a girl. Further, since she is taking puberty blockers, she “is indistinguishable from other girls her age and she has no competitive or physiological advantages over her teammates or opponents and is not particularly accomplished at the sport.”[3]
The State argued that Title IX drafters understood sex as a binary concept, and Title IX does not apply to gender identity. Rather than violate Title IX, the state law at issue here supported the goals of Title IX by providing equal opportunities to both sexes. Additionally, the State argued that A.M.’s position would create an untenable situation for schools because Title IX requires schools to create equal opportunities for girls in athletics, but “access of biological males to girls’ sports threatens those opportunities and places Title IX in tension with itself.”[4]
A.M. responded to the State’s arguments and insinuations, in part, by arguing that “it is insulting to [A.M.] and other transgender persons to imply that persons will casually choose or switch gender identities,” and that “the State presents no evidence that such a practice is an actual problem in need of a solution.”[5] A.M. also pointed out that numerous athletic organizations, including the Indiana High School Athletics Association, have found ways to accommodate transgender athletes.
The court focused much of its analysis on applying Bostock to this case.[6] Although the Supreme Court noted their decision in Bostock did not extend to other anti-discrimination statutes, the court here asserted that the Supreme Court did not foreclose the application of Bostock to Title IX. The court also relied upon a decision from the Court of Appeals for the Seventh Circuit that held discriminating against an individual on the basis of their transgender status violated Title IX.[7] As a result, the court held that A.M. established a strong likelihood that she will succeed on the merits of her Title IX claim.
Adequacy of Traditional Legal Remedies
A.M.’s mother argued that a court could not offer an adequate remedy for the injury A.M. would suffer because “the emotional harm…could not be fully rectified by an award of damages.” A.M.’s mother identified significant emotional harm that she believes her daughter will suffer if she cannot play on the girls’ softball team. Since traditional legal remedies cannot address emotional harm, the court determined that A.M. satisfied this element.
Likelihood of Irreparable Harm Absent an Injunction
A.M. asserts that she will suffer the irreparable harm of having her social transition disrupted and being outed as a transgender girl. The State responds that there are many activities enabling a social transition and, citing their expert, that “there is little evidence that transition improves the mental well-being of children.”[8] Citing A.M.’s mother’s concerns about the trauma her daughter may experience, the Court determined that A.M. satisfied this element.
Balance of Harms & Public Interest
A.M. points out that “it is difficult to theorize” the possible harm that would occur from “maintaining the status quo so that A.M. may continue to play with the other girls on the softball team.” Given that A.M. previously played on the team with no harm done, there is no harm that would occur if the court granted an injunction. The State replied that the injunction would “inflict harm to the governance process” and also “could force biological girls to compete against students who identify as girls but retain all the biological advantages of boys.”[9]
The court took note of the harm A.M. would suffer without an injunction, whereas the State showed no evidence of concrete harm to IPS or the State. The harm the State identifies is speculative. The State identified no harm from A.M.’s previous season and no athletic advantage to justify their position. As such, the court determined that the balance of harms and the public interest were in favor of granting the injunction.
Taken together, A.M. met all the requirements for an injunction, so the court granted the Motion for Preliminary Injunction. The court did not review the Equal Protection claim because the Title IX claim was sufficient to grant the motion.
KEY TAKEAWAYS
- Although there may be outliers, federal courts are increasingly interpreting Title IX to prohibit discrimination based on gender identity. Given the parallels between Title VII and Title IX, federal courts appear comfortable extending Bostock’s holding to Title IX cases. Additionally, the Department of Education, in its July 2022 Notice of Proposed Rulemaking, previewed its decision to interpret Title IX as inclusive of gender identity. Whether the mandate comes from the courts or from the Department, recipients should develop policies and procedures to address discrimination based on gender identity.
- Federal laws and regulations, like Title IX, take precedence over state laws. When federal law conflicts with state law, federal law wins. With states increasingly passing legislation related to sex, gender, and gender identity, especially in the realm of athletics or education, Title IX lawsuits will likely follow. Where courts find state laws in conflict with Title IX, Title IX wins.
- Speculative harm may work for political arguments, but courts require evidence. Solutions in search of a problem may play well on politicized TV news stations, but in the balance of harms, courts look for specific and identifiable harm. Here, the harm to A.M. was clear and concrete, whereas the State identified harms that were unsubstantiated and pretextual.
- By its posture during the case, it seems clear that IPS was a defendant in name only and was either neutral or supportive of A.M.’s rights, caught in the middle between State law and the legal claims of a transgender student. If and when courts begin to actually strike down these trans-exclusionary state laws, Title IX will likely become a powerful tool for doing so.
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[1] A.M., by her mother and next friend, E.M. v. Indianapolis Public Schools, No: 1:22-cv-01075-JMS-DLP, at page 5.
[2] Id., at page 6.
[3] Id., at page 7.
[4] Id.
[5] Id.
[6] Bostock held that Title VII’s prohibition on discrimination on the basis of sex applied to gender identity.
[7] Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. Of Educ., 858 F.3d 1034 (7th Cir. 2017). The Seventh Circuit includes the Southern District of Indiana, making Whitaker binding authority on this decision.
[8] A.M., by her mother and next friend, E.M. at page 10.
[9] Id. at 11.