Rokita asks 7th Circuit to lift injunction against transgender girls’ sports law

To deter others from pursuing similar actions, Indiana Attorney General Todd Rokita has appealed an Indiana Southern District Court injunction allowing a 10-year-old transgender student in Indianapolis to participate on her school’s softball team.

In a 60-page brief filed in the 7^th Circuit Court of Appeals on Tuesday in A.M., by her mother and next friend, E.M. v. Indianapolis Public Schools; Superintendent, Indianapolis Public Schools, 22-2332, Rokita, a Republican, defended House Enrolled Act 1041 and claimed the recent preliminary injunction issued by Judge Jane Magnus-Stinson was erroneous. The state, through Rokita, has intervened in the case.

“Due to the preliminary injunction’s limited scope — it applies only to A.M. and only to girls’ softball — the immediate harm is more limited than it would be under an injunction ‘that ‘reaches beyond A.M. alone,’’” the brief states. “But the district court identified no principle that would preclude any male athlete who identifies as a girl (or who otherwise does not conform to a male stereotype) from obtaining a similar injunction. Upholding the decision below would throw open girls’ sports to members of the male sex with all the advantages being born male confers, depriving women of equal opportunities to compete fairly and safely in sports.”

The lawsuit was filed in May by the American Civil Liberties Union of Indiana, representing A.M., after the Republican supermajority Legislature overrode a veto by Gov. Eric Holcomb against HEA 1041, the law that bans transgender girls from competing in girls’ K-12 sports.

On July 26, Magnus-Stinson concluded the new law “raises controversial issues regarding the boundaries of Title IX and whether and how those boundaries should stretch and shift in an ever-changing world.” She issued a preliminary injunction for A.M.’s case only, meaning HEA 1041 remains in effect in all other respects.

Soon after the injunction was issued, the state requested that the 7^th Circuit hear the case en banc. However, the ask was denied by the federal appellate court after no judge in active service requested a vote on the petition for initial hearing.

In the brief, like the en banc petition, Rokita argues Title IX and the equal protection clause don’t protect A.M.’s “gender identity.”

“Regardless of how they identify, individuals born male retain their male sex and associated male athletic advantages,” the brief states. “It would upend Title IX to privilege gender identity, an unprotected characteristic, at the expense of sex, the protected characteristic.

“The district court relied on Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017), to conclude otherwise,” the brief continues. “But neither case addresses sex-segregated sports under Title IX. And the cases cannot be extended to sports without jeopardizing equal opportunity for women in athletics. “

“… The Equal Protection Clause does not provide an alternative ground for affirmance. The Equal Protection Clause directs that similarly situated persons should be treated alike, which does not require schools to ignore biological differences between males and females that impact athletics. The law has long recognized that ‘sex-based classification[s]’ in school sports are constitutionally permissible.”

The brief further states the error was not harmless.

In a Thursday news release, Rokita again called the efforts to allow transgender girls to participate in girls’ sports “transgender woke-ism.”

“Forcing female student-athletes to compete against males in women’s sports is an absolute assault on girls’ equality of opportunity and even their physical safety,” he said. “Males possess certain physiological advantages that make them faster and stronger, and it’s unconscionable to ignore these scientific realities. The Left must stop sacrificing women’s well-being on the altar of transgender woke-ism.”