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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA request by the state for the entire 7th Circuit Court of Appeals to hear a case challenging a new Indiana law that prohibits transgender girls from participating in K-12 girls’ sports has been denied.
On Monday, the federal appellate court denied the state of Indiana’s petition for an initial en banc hearing concerning A.M., by her mother and next friend, E.M., v. Indianapolis Public Schools; Superintendent, Indianapolis Public Schools, in her official capacity. No judge in active service requested a vote on the petition for initial hearing en banc, the one-page order states.
The state filed the petition earlier this month after Indiana Southern District Court Judge Jane Magnus-Stinson issued a preliminary injunction allowing a 10-year-old transgender girl to continue participating on her school-sponsored softball team.
House Enrolled Act 1041, the law in question, went into effect July 1, after the Indiana Legislature overrode Republican Gov. Eric Holcomb’s veto. A lawsuit was immediately filed after the override against Indianapolis Public Schools by the American Civil Liberties of Indiana on behalf of A.M.
In the case, the plaintiff alleged the new law violates the child’s rights under Title IX of the Education Amendments of 1972 as well as the equal protection clause
In her injunction, Magnus-Stinson grappled with the lawfulness of Indiana Code § 20-33-13-4, which she wrote “raises controversial issues regarding the boundaries of Title IX and whether and how those boundaries should stretch and shift in an ever-changing world.”
On the discrimination claims, A.M pointed to Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1730 (2020), and Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), to support her arguments. Magnus-Stinson looked to the same cases in entering the injunction against IPS.
The state, as intervenor, filed a notice of appeal one day after the injunction was entered.
Indiana Attorney General Todd Rokita and his office have supported HEA 1041 since its inception, even sending a representative to testify on the bill during the legislative session. He has recently called efforts by the Biden administration to provide guidance on transgender issues “transgender extremism.”
Rokita has also noted that the injunction applies only to A.M.’s specific case against IPS, so HEA 1041 remains law in Indiana.
In the en banc petition, the state wrote the appeal “involves an exceptionally important question that deserves en banc consideration: whether Title IX permits States to limit participation on girls’ sports teams to students whose sex is female regardless of gender identity.”
The state answered its own question with a “no,” pointing to O’Connor v. Board of Education of School District No. 23, 645 F.2d 578 (7th Cir. 1981).
In its petition, the state also suggested Whitaker warrants revisiting because it is “wrong.”
“Whitaker cannot be reconciled with Title IX’s text,” the en banc petition argued. “Under Title IX, no person may ‘on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination.’ 20 U.S.C. § 1681(a). ‘Sex’ when Title IX was enacted meant biological sex, not gender identity.”
Magnus-Stinson heavily relied on Whitaker in issuing her injunction.
“The need for clear guidance in sports is especially urgent,” according to the en banc petition. “Under Title IX, schools must ensure that girls are not ‘excluded from participation in’ or ‘denied the benefits of’ school athletics. … Traditionally, schools have achieved Title IX’s objective of equal opportunities for women by limiting girls’ teams to biological females to avoid the ‘substantial risk that boys would dominate the girls’ programs.’ O’Connor, 449 U.S. at 1307 (Stevens, J., in chambers).
“Under the district court’s understanding of Whitaker, however, schools must permit biological males who identify as girls — but who possess male advantages in height, strength, lung capacity, etc. — (to) play on girls’ teams” the petition continued. “That places schools in an untenable position. It threatens to throw open girls’ sports to any biological male who does not conform to a male stereotype, such as boys who are less competitive or aggressive.”
No hearings in the 7th Circuit case, 22-2332, are currently scheduled.
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