holding that "plaintiffs' unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request"
How later courts described this case
- holding that "plaintiffs' unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request"
- noting that a party concedes a point by failing to respond to it in their response brief
- holding there was no adequate remedy at law where transgender male had shown that he would suffer prospective emotional harm absent an injunction allowing him to use male restrooms at school
- "[T]his court has looked to Title VII when construing Title IX."
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
A.M., by her mother and next friend, E.M., )
)
Plaintiff, )
)
v. ) No. 1:22-cv-01075-JMS-DLP
)
INDIANAPOLIS PUBLIC SCHOOLS and )
SUPERINTENDENT, INDIANAPOLIS PUBLIC SCHOOLS, )
)
Defendants. )
ORDER
Indiana Code § 20-33-13-4, which took effect just a few weeks ago on July 1, 2022,
explicitly prohibits a male, based on an individual's sex at birth, from participating on an athletic
team that is designated as being a female, women's, or girls' athletic team. Plaintiff A.M. is a ten-
year-old transgender girl whose birth-assigned sex was male. Since informing her family before
she was four years old that she was a girl, she has been living as a girl and has consistently used
her preferred female first name and dressed and appeared as a girl. A.M. has been diagnosed with
gender dysphoria,1 receives medical treatment, and is currently taking a puberty blocker. In 2021,
an Indiana state court entered an order changing the gender marker on A.M.'s birth certificate to
female and changing her legal first name to her preferred female first name. A.M. is a rising fifth
grader at one of the elementary schools within Defendant Indianapolis Public Schools ("IPS"), and
her classmates know her only as a girl. Last school year, she played on an IPS girls' softball team,
1 As discussed more fully below, gender dysphoria occurs when a transgender person experiences
a constant sense of distress because of the incongruence between their experienced gender and
their birth-assigned sex. [Filing No. 8-1 at 4.]
1
but IPS has informed A.M.'s mother that because of Indiana Code § 20-33-13-4, A.M. will not be
able to play on the girls' softball team this year.
A.M., by her mother and next friend, E.M., initiated this litigation against IPS and the
Superintendent of IPS ("the Superintendent"), alleging that § 20-33-13-4 violates Title IX, 20
U.S.C. § 1681(a), and the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution by discriminating against A.M. and all transgender-female students. [Filing
No. 1.] She has filed a Motion for Preliminary Injunction, seeking to enjoin the enforcement of §
20-33-13-4 so that she can play on the girls' softball team beginning in mid-August. [Filing No.
8.] IPS and the Superintendent take no position regarding whether the Court should issue a
preliminary injunction, [Filing No. 35], but the State of Indiana ("the State") has intervened in this
case and opposes A.M.'s motion, [Filing No. 27; Filing No. 36]. Additionally, both A.M. and the
State have filed motions to exclude expert opinions offered by the other in connection with the
Motion for Preliminary Injunction, [Filing No. 38; Filing No. 47], and five female athletes have
filed a Motion for Leave to File Brief of Amici Curiae in support of the State's opposition to the
issuance of a preliminary injunction ("the Amici Curiae Motion"), [Filing No. 31]. All of these
motions are now ripe for the Court's adjudication.
I.
EVIDENTIARY MOTIONS
Before addressing A.M.'s Motion for Preliminary Injunction, the Court considers the Amici
Curiae Motion, [Filing No. 31], the State's Motion to Exclude Opinions of Fortenberry, [Filing No.
38], and A.M.'s Motion to Exclude Expert Testimony, [Filing No. 47]. All of these motions bear
on what evidence the Court will consider in ruling on the Motion for Preliminary Injunction.
2
A. The Amici Curiae Motion
In its Amici Curiae Motion, the State seeks leave to file a Brief of Amici Curiae on behalf
of five female athletes who, the State argues, "bring a unique perspective to this case and to the
public discourse more generally." [Filing No. 31 at 2.] The State asserts that: (1) several of the
proposed amici are female athletes who are materially interested in this case because they are
involved in cases pending elsewhere; (2) all of the proposed amici offer a unique perspective on
how § 20-33-13-4 will affect biological females; and (3) the amicus brief will assist the Court by
offering "ideas, arguments, theories, insights, facts, or data that are not to be found in the parties'
briefs." [Filing No. 31 at 2-4 (quotation and citation omitted).] A.M. did not file a response to the
Amici Curiae Motion.
The Seventh Circuit "has held that whether to allow the filing of an amicus curiae brief is
a matter of 'judicial grace.'" Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 544 (7th
Cir. 2003) (quoting National Organization for Women, Inc. v. Scheidler, 223 F.3d 615, 616 (7th
Cir. 2000)). In deciding whether to permit such a brief, courts should consider "whether the brief
will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not
to be found in the parties' briefs." Voices for Choices, 339 F.3d at 545. "The criterion is more
likely to be satisfied in a case in which a party is inadequately represented; or in which the would-
be amicus has a direct interest in another case that may be materially affected by a decision in this
case; or in which the amicus has a unique perspective or specific information that can assist the
court beyond what the parties can provide." Id. (citing Scheidler, 223 F.3d at 616-17).
The five women who seek to file the amicus brief all wish to bring to the Court's attention
their experiences either participating in athletics before and after the enactment of Title IX,
competing against transgender female athletes, or observing others competing against transgender
3
female athletes. They include Debbie Powers, who played basketball in Indiana before Title IX
was enacted and then coached volleyball after its enactment; Selina Soule, a Connecticut track and
field athlete who lost to two transgender female athletes in her preliminary race at the state
championship and did not qualify for the finals in her event by two spots; Chelsea Mitchell, a
runner who lost to two transgender female athletes more than twenty times; Cynthia Monteleone,
a track coach, athlete, and mother, who watched her daughter lose to a transgender female athlete
at her first high school track meet; and Madison Kenyon, a collegiate track athlete who has
competed against transgender female athletes and who watched her teammate be bumped from
placing in a race by a transgender female athlete. The Court acknowledges these experiences, and
discusses them generally below in connection with its consideration of the public interest involved
in the grant or denial of A.M.'s Motion for Preliminary Injunction. But the Court's duty in deciding
A.M.'s Motion for Preliminary Injunction is to consider the effect of an injunction on the parties
to this litigation – A.M. on the one hand, and IPS and the Superintendent on the other – and not on
the five amici or other hypothetical individuals. The Court finds that the proposed amicus brief
will not aid the Court and does not alter its analysis. Accordingly, the Amici Curiae Motion,
[Filing No. 31], is DENIED.
B. Motions to Exclude
1. The State's Motion to Exclude Opinions of Fortenberry
In its Motion to Exclude Opinions of Fortenberry, the State asks the Court to exclude Dr.
James Fortenberry's opinions on "athletic performance, competitiveness, and transgender athletes"
from consideration in connection with A.M.'s Motion for Preliminary Injunction. [Filing No. 39
at 8.] The State contends that A.M. did not adequately disclose all of the information underlying
Dr. Fortenberry's opinions. [Filing No. 39 at 3-5.] It argues further that Dr. Fortenberry is not an
4
expert on those issues and that his opinions are not reliable because he has not pointed to any
studies or data that support his opinions. [Filing No. 39 at 5-8.]
In her response, A.M. outlines Dr. Fortenberry's experience and argues that his report
adequately identifies the source of his opinions, that his opinions are the same types that are set
forth by the State's experts, and that he is qualified to testify regarding the physical effects of
testosterone-induced puberty on athletic advantage. [Filing No. 49 at 6-14.] A.M. also asserts that
the fact that the State's expert disagrees with Dr. Fortenberry's opinions does not make those
opinions unreliable. [Filing No. 49 at 14-17.]
The State replies that Dr. Fortenberry was obligated to disclose all materials he reviewed,
not only those he actually relied upon. [Filing No. 54 at 3-4.] It also reiterates its arguments that
Dr. Fortenberry is not an expert regarding athletic performance and that his opinions are not
reliable. [Filing No. 54 at 8-14.]
As will be addressed below, the Court relies on the Declaration of Dr. Fortenberry only to
set forth basic background information regarding gender identity and gender dysphoria –
information with which the State's expert does not appear to disagree. [See Filing No. 8-1.]
Because the State does not seek to exclude the only information Dr. Fortenberry provides that is
relied upon by the Court, the State's Motion to Exclude Opinions of Fortenberry is DENIED AS
MOOT. [Filing No. 38.]
2. A.M.'s Motion to Exclude Expert Testimony
A.M. seeks to exclude the expert testimony of Dr. James Cantor and Dr. Emma Hilton in
its entirety, and the expert testimony of Dr. Tommy Lundberg to a certain extent. The Court
considers each expert's testimony in turn.
5
a. Dr. Cantor
A.M. seeks to exclude the opinions of Dr. Cantor, who opines that gender dysphoria in
adults is not the same as in children or adolescents, that many children who experience gender
dysphoria cease to do so during puberty, that there is little evidence that social transition improves
the mental health of gender dysphoric children, and that suicide in transgender individuals is rare.
[See Filing No. 36 at 12-14.] A.M. argues that Dr. Cantor does not discuss any facts or
circumstances specific to her or the facts of this case, but instead that he opines generally regarding
the diagnosis of gender dysphoria and the standard of care. [Filing No. 48 at 8.] She also contends
that Dr. Cantor's opinions are not relevant to the State's purported interests in connection with §
20-33-13-4 – to foster separate athletic opportunities for girls and boys, to promote the safety of
student athletes, and to maintain the integrity of sports – that he is not qualified to offer his
opinions, and that his opinions are unreliable because they conflict with applicable standards of
care and legal precedent. [Filing No. 48 at 8-18.]
In its response, the State argues that Dr. Cantor's opinions are relevant because A.M. asserts
that § 20-33-13-4 is overbroad and does not set forth an as-applied challenge, so Dr. Cantor need
not address A.M.'s medical situation specifically. [Filing No. 57 at 14.] It asserts that Dr. Cantor
is qualified even though he has not treated anyone under the age of 16 because he only seeks to
"provide an overview of the scientific literature relevant to this case." [Filing No. 57 at 15.] The
State highlights Dr. Cantor's qualifications as a "neuroscientist and sex researcher" who completed
"a clinical internship assessing and treating people with a wide range of sexual and gender identity
issues." [Filing No. 57 at 15 (quotation and citation omitted).] The State also takes issue with
A.M.'s assertion that Dr. Cantor's methodology is flawed, noting that he relied on numerous studies
6
for his opinions and that A.M. does not point to additional studies he should have considered but
did not. [Filing No. 57 at 16-18.]
A.M. reiterates many of her arguments in her reply brief. [Filing No. 58.]
The Court can make short shrift of A.M.'s request to exclude Dr. Cantor's opinions. The
main disagreements Dr. Cantor has with Dr. Fortenberry relate to the effects of gender dysphoria
generally and the appropriate treatment. Here, the Court is concerned with the effects of gender
dysphoria on A.M. and the treatment she has had and hopes to receive, and A.M.'s mother has
provided sufficient evidence such that the Court need not and will not look to the dueling testimony
of Dr. Cantor and Dr. Fortenberry on those issues. Consequently, the Court DENIES AS MOOT
A.M.'s Motion to Exclude as it applies to Dr. Cantor's testimony. [Filing No. 47.]
b. Dr. Hilton
A.M. seeks to exclude the opinions of Dr. Hilton, upon whom the State relies for testimony
regarding "sex differences in development and how they affect sporting performance,…[and]
performance gaps between males and females in sports," and for her proposition that puberty
blockers do not completely negate "male athletic advantage." [Filing No. 36 at 14-15.] A.M.
argues that Dr. Hilton is not qualified to opine regarding differences in athletic performance
between transgender women and cisgender women, or on the nature, treatment, or "reversibility"
of gender dysphoria. [Filing No. 48 at 22-26.]
The State argues in its response that Dr. Hilton is qualified because she has a Ph.D. in
developmental biology and extensive "experience in the field," that her research with animals is
applicable to humans, and that she can opine regarding "how biology affects sports performance."
[Filing No. 57 at 6-13.]
7
In her reply, A.M. argues that Dr. Hilton's general experience does not make her qualified
to opine on the specific issues in this case. [Filing No. 58 at 10-15.]
As discussed above, the Court need not, and will not, consider expert evidence regarding
the general effects of or appropriate treatment for gender dysphoria. Additionally, the issue here
is whether A.M. has met her burden of showing that the requirements for the issuance of a
preliminary injunction are present under the circumstances of this case, and the Court – as
discussed more fully below – need not, and will not, consider expert evidence regarding the athletic
performance of transgender athletes in order to resolve that issue. Accordingly, A.M.'s Motion to
Exclude is DENIED AS MOOT as it applies to Dr. Hilton's testimony. [Filing No. 47.]
c. Dr. Lundberg
Finally, A.M. seeks to exclude Dr. Lundberg's opinion that "biological differences between
birth males and birth females affect [athletic] performance before the onset of puberty." [Filing
No. 48 at 31.] A.M. argues that Dr. Lundberg's opinion is flawed for various reasons and "is not
good science." [Filing No. 48 at 26-31.] The state responds that Dr. Lundberg's opinion is
supported by available literature and data, and is consistent with his deposition testimony. [Filing
No. 57 at 2-6.] A.M. argues in her reply that Dr. Lundberg's opinion that males have an athletic
advantage over females even before puberty due to biological differences is based on speculation.
[Filing No. 58 at 16-18.]
Consistent with the Court's findings regarding the testimony of Dr. Fortenberry and Dr.
Hilton, the Court need not consider opinions regarding whether differences between the sexes in
athletic performance exist before the onset of puberty in order to decide A.M.'s Motion for
8
Preliminary Injunction. The Court DENIES AS MOOT A.M.'s Motion to Exclude to the extent
that Dr. Lundberg opines regarding that issue. [Filing No. 47.]2
II.
MOTION FOR PRELIMINARY INJUNCTION
A. Factual Background
1. Gender Identity and Gender Dysphoria
Gender identity refers to one's sense of oneself as being a particular gender. [Filing No. 8-
1 at 4.] Individuals whose gender identities are congruent with the sex that they were assigned at
birth are referred to as "cisgender." [Filing No. 8-1 at 4.] Conversely, transgender and nonbinary
individuals have gender identities that are not the same as their sex as assigned at birth. [Filing
No. 8-1 at 4.] Studies indicate that up to 0.6% of adolescent and adult individuals in Indiana
identify as transgender, but no studies provide reliable estimates of the population proportion of
pre-pubertal children with gender dysphoria. [Filing No. 8-1 at 4.] Gender dysphoria is a
recognized condition – codified in the American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders and the World Health Organization's International
Classification of Diseases – that occurs when a transgender person experiences a constant sense of
distress because of the incongruence between their experienced gender and their birth-assigned
sex. [Filing No. 8-1 at 4.]
2. A.M.
A.M. is ten years old and finished fourth grade at an IPS elementary school in the spring
of 2022. [Filing No. 23 at 1.] She will be attending the same elementary school for her fifth grade
2 The State has filed a Motion for Leave to File Surreply in Opposition to Plaintiff's Motion to
Exclude Expert Testimony. [Filing No. 59.] Because the Court denies as moot A.M.'s Motion to
Exclude, it also DENIES AS MOOT the State's Motion for Leave to File Surreply. [Filing No.
59.]
9
year. [Filing No. 23 at 1.] A.M.'s birth-assigned sex was male, but before she was four years old
she informed her mother and other family members that she was a girl. [Filing No. 23 at 1.] At
that time, A.M. informed her mother that she was having thoughts of mutilating herself to get rid
of her penis. [Filing No. 23 at 1.] Since that time, A.M. has been living as a girl. [Filing No. 23
at 2.] She consistently uses her preferred female first name and consistently dresses and appears
as a girl, both at home and in public. [Filing No. 23 at 2.] Very few people outside of A.M.'s
immediate family know that A.M.'s sex assigned at birth was male. [Filing No. 23 at 2.]
A.M.'s mother has informed A.M.'s teachers and administrators at her school that A.M.'s
sex assigned at birth was male, but her classmates know her only as a girl. [Filing No. 23 at 2.]
The teachers and administrators at her school refer to her by her female first name and allow her
to use the girls' restrooms at the school. [Filing No. 23 at 2.]
A.M. was diagnosed with gender dysphoria by the Riley Gender Clinic when she was six
years old. [Filing No. 23 at 2.] Gender dysphoria has caused A.M. to be suicidal, depressed,
anxious, angry about her body, and afraid that she will not be able to be a girl. [Filing No. 23 at
2.] A.M. has been receiving care at the Gender Health Clinic at Riley Hospital in Indianapolis
since 2018. [Filing No. 23 at 2.] Since August 2021, she has been taking a puberty blocker,
Leuprorelin, to prevent her from going through puberty. [Filing No. 23 at 2.] A.M. is not
experiencing any of the physiological changes that an adolescent male would experience during
puberty. [Filing No. 23 at 3.] A.M. and her mother would like for her to be given estrogen, or
some other appropriate feminizing hormone, when she is old enough so that she can develop
female physical characteristics. [Filing No. 23 at 3.]
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 changing her first name to her preferred female
10
first name. [Filing No. 23 at 3.] Also in 2021, A.M. played on her elementary school's girls'
softball team, which plays in the late summer and fall. [Filing No. 23 at 3.] At that time, her team
played against another IPS school that also had a girls' softball team. [Filing No. 23 at 3.] A.M.
has enjoyed playing softball and did not appear to have a competitive advantage over the other
girls on the team. [Filing No. 23 at 3.] In fact, she was one of the weaker athletes on the team.
[Filing No. 23 at 3.] Playing softball helps to lessen the distressing symptoms of gender dysphoria
that A.M. suffers from and has allowed her to experience her life more fully as a girl. [Filing No.
23 at 3.] Softball participation has resulted in a better self-image and confidence for A.M. [Filing
No. 23 at 3.]
3. Indiana Code § 20-33-13-4
On May 24, 2022, both houses of the Indiana General Assembly approved House Enrolled
Act 1041 over the veto of Governor Eric Holcomb, and it became law as codified at Indiana Code
§ 20-33-13-4. Section 20-33-13-4 applies to the following:
(1) An athletic team or sport that is organized, sanctioned, or sponsored by a school
corporation or public school in which the students participating on the athletic team
or in the sport compete against students participating on an athletic team or in a
sport that is organized, sanctioned, or sponsored by another school corporation,
public school, or nonpublic school.
(2) An athletic team or sport that is organized, sanctioned, or sponsored by a
nonpublic school that voluntarily competes against an athletic team or sport that is
organized, sanctioned, or sponsored by a school corporation or public school.
(3) An athletic team or sport approved or sanctioned by an association for purposes
of participation in a high school interscholastic event.
Ind. Code § 20-33-13-1.
Section 20-33-13-4 provides that:
(a) A school corporation, public school, nonpublic school, or association that
organizes, sanctions, or sponsors an athletic team or sport described in section 1 of
11
this chapter shall expressly designate the athletic team or sport as one (1) of the
following:
(1) A male, men's, or boys' team or sport.
(2) A female, women's, or girls' team or sport.
(3) A coeducational or mixed team or sport.
(b) 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.
Ind. Code § 20-33-13-4 (emphasis added).
Section 20-33-13-5 provides a grievance procedure for students and parents, stating:
(a) A student or parent of a student may submit a grievance to a school corporation,
public school, nonpublic school, or association for a violation of section 4 of this
chapter.
(b) Each school corporation, public school, nonpublic school, and association
described in section 4 of this chapter shall:
(1) establish and maintain a grievance procedure; or
(2) maintain a grievance or protest procedure that the school corporation,
public school, nonpublic school, or association established before July 1,
2022;
for the resolution of a grievance submitted under this section.
Ind. Code § 20-33-13-5.
4. The Effect of Indiana Code § 20-33-13-4 on A.M.
In 2022, there will be four elementary schools, including the elementary school A.M.
attends, that will field girls' softball teams that will compete against each other. [Filing No. 23 at
3.] IPS staff have informed A.M.'s mother that because of § 20-33-13-4, A.M. will not be able to
play on the girls' softball team. [Filing No. 23 at 4.] A.M.'s school has a boys' baseball team, but
she cannot play on it because she is not a boy and no one at school recognizes her as anything but
12
a girl. [Filing No. 23 at 4.] A.M.'s mother believes that forcing A.M. to play on the boys' team
would undermine her core identity as a girl and her social transition that is essential to moderate
the symptoms of her gender dysphoria, and would be so traumatic that she would not play on the
boys' team. [Filing No. 23 at 4.] Additionally, denying her the opportunity to participate on the
girls' team will "out" her to her classmates as someone who is not "really" a girl, which would be
extremely traumatic for her, would undermine her social transition, and would injure her. [Filing
No. 23 at 4.] A.M. would like to be able to play girls' team sports as she progresses through school.
[Filing No. 23 at 4.]
B. Standard of Review
"A preliminary injunction is an extraordinary remedy." Whitaker By Whitaker v. Kenosha
Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). It is "'an exercise of a
very far-reaching power, never to be indulged in except in a case clearly demanding it.'" Cassell
v. Snyders, 990 F.3d 539, 544 (7th Cir. 2021) (quoting Girl Scouts of Manitou Council, Inc. v. Girl
Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008)). "[A] party requesting a
preliminary injunction must generally show reasonable diligence." Benisek v. Lamone, 138 S. Ct.
1942, 1944 (2018) (holding that "plaintiffs' unnecessary, years-long delay in asking for preliminary
injunctive relief weighed against their request").
The purpose of a preliminary injunction is to preserve the parties' positions until a trial on
the merits can be held. GEFT Outdoors, LLC v. City of Westfield, 922 F.3d 357, 371 (7th Cir.
2019). "To determine whether a situation warrants such a remedy, a district court engages in an
analysis that proceeds in two distinct phases: a threshold phase and a balancing phase." Valencia
v. City of Springfield, Ill., 883 F.3d 959, 965 (7th Cir. 2018) (quotation and citation omitted).
13
In the "threshold phase," a party seeking a preliminary injunction must show that: "(1) it
will suffer irreparable harm in the period before the resolution of its claim; (2) traditional legal
remedies are inadequate; and (3) there is some likelihood of success on the merits of the claim."
HH-Indianapolis, LLC v. Consol. City of Indianapolis & Cnty. of Marion, Ind., 889 F.3d 432, 437
(7th Cir. 2018) (citation omitted). "If the plaintiff fails to meet any of these threshold requirements,
the court must deny the injunction." GEFT Outdoors, LLC, 922 F.3d at 364 (quotation and citation
omitted). "However, if the plaintiff passes that threshold 'the court must weigh the harm that the
plaintiff will suffer absent an injunction against the harm to the defendant from an injunction, and
consider whether an injunction is in the public interest.'" Id. (quoting Planned Parenthood of Ind.
& Ky., Inc. v. Comm'r of Ind. State Dep't of Health, 896 F.3d 809, 816 (7th Cir. 2018)).
C. Discussion
A.M. argues that § 20-33-13-4 violates both Title IX and the Equal Protection Clause of
the Fourteenth Amendment. The Court first considers whether A.M. has met the standard for the
issuance of a preliminary injunction as to her Title IX claim.
1. Title IX Claim
a. Likelihood of Success on the Merits
In support of her Motion for Preliminary Injunction, A.M. argues 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. [Filing No. 24 at 17.] A.M. points
to Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), and
Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020), to support her argument. [Filing No. 24 at
17-19.] A.M. asserts that, under § 20-33-13-4, she is being treated differently than her cisgender
classmates because they can play on the girls' softball team and she cannot, based solely on the
14
fact that she is a transgender girl. [Filing No. 24 at 20.] A.M. points to the fact that the State of
Indiana changed the gender marker on her birth certificate and recognizes that she is a girl, and
that because 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." [Filing No. 24 at 20.] A.M. asserts that because she, as a
transgender female, is being subjected to different rules, sanctions, and treatment than non-
transgender students, § 20-33-13-4 violates Title IX. [Filing No. 24 at 21.]
In its response, the State argues that "[t]he statutory context of Title IX confirms that its
drafters understood sex as a binary concept." [Filing No. 36 at 19.] It asserts that Whitaker is
distinguishable because the Seventh Circuit applied the wrong standard to the likelihood of success
on the merits analysis, determining that the plaintiff had a "better than negligible" chance of
succeeding rather than requiring a "strong showing" of success on the merits. [Filing No. 36 at
20-21.] The State also argues that the Seventh Circuit in Whitaker did not address "the interplay
between Title IX's ban on sex discrimination and its requirement that schools provide equal
opportunities to girls." [Filing No. 36 at 21.] It further contends that Bostock involved Title VII,
and that the Supreme Court expressly refused to "prejudge any…question" about what "other
federal or state laws" addressing "sex discrimination" require. [Filing No. 36 at 22 (quotation and
citation omitted).] The State asserts that § 20-33-13-4 actually promotes the same goals as Title
IX by providing equal opportunities to both sexes. [Filing No. 36 at 22.] It further argues that §
20-33-13-4 restricts a male, based on a student's biological sex at birth, from participating in a
girls' athletic sport, but A.M. claims discrimination based on her status as transgender – a status
that, it argues, Title IX does not govern. [Filing No. 36 at 22.] The State argues that changing
A.M.'s birth certificate does not change her biological sex at birth, "which is [§ 20-33-13-4's] only
15
concern." [Filing No. 36 at 23.] It contends that A.M. is then left with a claim of discrimination
based on gender identity, which Title IX does not address. [Filing No. 36 at 23.] The State also
asserts that Title IX does not govern opportunities for "high and low testosterone individuals,
however that might be defined," and that A.M.'s individual athletic performance "says nothing
about Title IX." [Filing No. 36 at 24.] Finally, the State argues that A.M.'s position creates an
untenable situation for schools because Title IX requires schools to create equal opportunities for
girls in athletics, but "[a]ccess of biological males to girls' sports threatens those opportunities and
places Title IX in tension with itself." [Filing No. 36 at 24-25.]
In her reply, A.M. argues that Whitaker remains good law, and that the Seventh Circuit's
application of the "better than negligible" standard does not affect its holding that discriminating
against a transgender student based on his or her transgender status is discrimination on the basis
of sex and is prohibited by Title IX. [Filing No. 50 at 5-7.] She asserts that although the Supreme
Court in Bostock did not address the propriety of sex-segregated athletics under Title IX, it did
hold that discriminating against an individual for being transgender constitutes sex discrimination.
[Filing No. 50 at 8.] A.M. argues that the State asks the Court to ignore the Seventh Circuit's
holding in Whitaker, and that Title IX "does not purport to define transgender students by their sex
assigned at birth or by other physiological characteristics" in any event. [Filing No. 50 at 10.]
A.M. takes issue with the State's argument that she wants participation in girls' sports to be
determined by self-identification, testosterone, and athletic skill, 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." [Filing No. 50 at 11.] A.M. notes that IPS does not claim that allowing
A.M. to play on the girls' softball team would place it in a difficult position and that, instead, IPS
16
has no issue with letting her play. [Filing No. 50 at 11.] Finally, A.M. points to "numerous athletic
organizations that have found ways to accommodate transgender persons and that would allow
A.M. to participate if she had the athletic ability," including the Indiana High School Athletic
Association's ("IHSAA") policy that allows transgender athletes to play sports consistent with their
gender identities if certain standards are met, such as completing one year of hormone treatment
for transgender females. [Filing No. 50 at 12-13.]
"The likelihood of success on the merits is an early measurement of the quality of the
underlying lawsuit." Michigan v. U.S. Army Corps of Eng'rs, 667 F.3d 765, 788 (7th Cir. 2011).
"A plaintiff need not prove beyond a preponderance of the evidence that it will win on the merits,
but it must at least make a 'strong' showing of likelihood of success." Protect Our Parks, Inc. v.
Buttigieg, --- F.4th ----, 2022 WL 2376716, at *4 (7th Cir. July 1, 2022) (citing Ill. Republic Party
v. Pritzker, 973 F.3d 760, 762-63 (7th Cir. 2020)).
Title IX provides 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." 20 U.S.C. § 1681(a). Among other things, an
institution covered by Title IX may not:
(1) Treat one person differently from another in determining whether such person
satisfies any requirement or condition for the provision of such aid, benefit, or
service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services
in a different manner;
(3) Deny any person such aid, benefit, or service; [or]
(4) Subject any person to separate or different rules of behavior, sanctions, or other
treatment.
17
34 C.F.R. § 106.31(b). The parties do not dispute that IPS receives federal funds and is an
institution covered by Title IX. The question is whether A.M. has a strong likelihood of showing
that IPS's and the Superintendent's application of § 20-33-13-4 to prohibit A.M. from playing on
the girls' softball team constitutes discrimination against A.M. based on her sex.
The United States Supreme Court has not yet considered whether "sex" for purposes of
Title IX means just an individual's biological sex at birth, or also includes their gender identity. In
Bostock, however, it considered the meaning of "sex" in the Title VII context, a context that the
Seventh Circuit has found instructive when defining "sex" under Title IX. See Whitaker, 858 F.3d
at 1047 ("[T]his court has looked to Title VII when construing Title IX."); Smith v. Metro. Sch.
Dist. Perry Twp., 128 F.3d 1014, 1023 (7th Cir. 1997) ("[I]t is helpful to look to Title VII to
determine whether the alleged sexual harassment is severe and pervasive enough to constitute
illegal discrimination on the basis of sex for purposes of Title IX."). In Bostock, the Supreme
Court found that an employer violates Title VII by firing an employee based on their status as
homosexual or transgender. In doing so, the Supreme Court stated:
[H]omosexuality and transgender status are inextricably bound up with sex. Not
because homosexuality or transgender status are related to sex in some vague sense
or because discrimination on these bases has some disparate impact on one sex or
another, but because to discriminate on these grounds requires an employer to
intentionally treat individual employees differently because of their sex….
***
At bottom, these cases involve no more than the straightforward application of legal
terms with plain and settled meanings. For an employer to discriminate against
employees for being homosexual or transgender, the employer must intentionally
discriminate against individual men and women in part because of sex. That has
always been prohibited by Title VII's plain terms.
Bostock, 140 S. Ct. at 1742-43. As to the fact that Title VII does not mention homosexuality or
transgender status as a protected characteristic, the Supreme Court "agree[d] that homosexuality
and transgender status are distinct concepts from sex," but found that:
18
[D]iscrimination based on homosexuality or transgender status necessarily entails
discrimination based on sex; the first cannot happen without the second. Nor is
there any such thing as a 'canon of donut holes,' in which Congress's failure to speak
directly to a specific case that falls within a more general statutory rule creates a
tacit exception. Instead, when Congress chooses not to include any exceptions to a
broad rule, courts apply the broad rule…. As enacted, Title VII prohibits all forms
of discrimination because of sex, however they may manifest themselves or
whatever other labels might attach to them.
Id. at 1746-47.
The Supreme Court has not similarly considered whether discrimination based on an
individual's transgender status constitutes discrimination on the basis of sex in the Title IX context,
and the Court acknowledges the Supreme Court's caveat in Bostock that no "other federal or state
laws that prohibit sex discrimination" were before it. 140 S. Ct. at 1753. But the Supreme Court
also did not foreclose the application of its holding to the Title IX context, and the Court finds it
appropriate to look to Bostock for guidance here. Moreover, the Seventh Circuit has considered
whether discrimination based on one's status as transgender constitutes discrimination based on
sex under Title IX. In Whitaker, decided more than three years before Bostock, the Seventh Circuit
found that a school's unwritten policy barring a transgender boy from using the boys' bathroom
violated Title IX. The Seventh Circuit stated:
By definition, a transgender individual does not conform to the sex-based
stereotypes of the sex that he or she was assigned at birth…. A policy that requires
an individual to use a bathroom that does not conform with his or her gender
identity punishes that individual for his or her gender non-conformance, which in
turn violates Title IX. The School District's policy also subjects [plaintiff], as a
transgender student, to different rules, sanctions, and treatment than non-
transgender students, in violation of Title IX.
Whitaker, 858 F.3d at 1048-49. As to the School District's argument in Whitaker that the plaintiff
could not "unilaterally declare" his gender, the Seventh Circuit noted that "[t]his is not a case where
a student has merely announced that he is a different gender. Rather, [plaintiff] has a medically
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diagnosed and documented condition. Since his diagnosis, he has consistently lived in accordance
with his gender identity." Id. at 1050.
Courts within this district have followed Whitaker and Bostock, finding that it is a violation
of Title IX for a public institution to discriminate against an individual on the basis of their
transgender status in the context of prohibiting a transgender student from using the bathroom of
the sex with which he or she identifies. See, e.g., B.E. v. Vigo Cnty. Sch. Corp., --- F. Supp. 3d --
--, 2022 WL 2291763 (S.D. Ind. June 24, 2022) (granting motion for preliminary injunction filed
by transgender male students who were undergoing gender-affirming testosterone therapy, and
who have been prohibited from using male bathrooms at school); A.C. by M.C. v. Metro. Sch. Dist.
of Martinsville, --- F. Supp. 3d ----, 2022 WL 1289352 (S.D. Ind. April 29, 2022) (holding that
transgender male student had established a likelihood of success on the merits of his claim that
school district violated Title IX when it prohibited him from using male bathrooms). The court in
B.E. specifically noted that the fact that the Seventh Circuit applied the "better than negligible"
standard in Whitaker to the issue of whether there was a likelihood of success on the merits does
not affect Whitaker's ultimate holding. B.E., 2022 WL 2291763 at *4 ("[I]t makes sense intuitively
that a court's view is not rendered meaningless merely because it looked through the wrong lens….
That seems particularly true here, where the Whitaker court never indicated that the issue was a
close one or hinted that the low threshold it applied was determinative."). And the court in A.C.
by M.C. stated that Whitaker "remains good law and thus is binding on this court." 2022 WL
1289352, at *6.
Applying Bostock and Whitaker – both of which are binding on this Court – to the facts of
this case leads to a result that is not even a close call: A.M. has established a strong likelihood that
she will succeed on the merits of her Title IX claim. IPS and the Superintendent cannot
20
discriminate against A.M. based on her sex, and § 20-33-13-4 will force them to do just that. A
law that prohibits an individual from playing on a sports team that does not conform to his or her
gender identity "punishes that individual for his or her gender non-conformance," Whitaker, 858
F.3d at 1049, which violates the clear language of Title IX. See also B.P.J. v. West Virginia St.
Bd. of Educ., 550 F. Supp. 3d 347, 356 (S.D. W. Va. 2021) (granting preliminary injunction in
favor of transgender female who wished to join girls' cross country and track teams but was
prohibited by West Virginia law from doing so, and noting "[a]ll other students in West Virginia
secondary schools – cisgender girls, cisgender boys, transgender boys, and students falling outside
of any of these definitions trying to play on the boys' teams – are permitted to play on sports teams
that best fit their gender identity. Under this law, B.P.J. would be the only girl at her school…that
is forbidden from playing on a girls' team and must join the boys' team…. [T]his law both
stigmatizes and isolates B.P.J."). And, notably, § 20-33-13-4 does not prohibit all transgender
athletes from playing with the team of the sex with which they identify – it only prohibits
transgender females from doing so. The singling out of transgender females is unequivocally
discrimination on the basis of sex, regardless of the policy argument as to why that choice was
made. The Court finds that A.M. has established a strong likelihood that she will succeed on the
merits of her Title IX claim.
b. Adequacy of Traditional Legal Remedies
A.M. argues that she has no adequate remedy at law because "the emotional harm identified
by [A.M.] could not be fully rectified by an award of damages." [Filing No. 24 at 29 (quotation
and citation omitted).] The State does not address the adequacy of traditional legal remedies
requirement in its response brief, [see Filing No. 36], nor does A.M. address it in her reply brief,
[Filing No. 50].
21
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. [Filing No. 23 at 4.]
The Court finds that this emotional harm could not be addressed adequately through a remedy at
law. See Whitaker, 858 F.3d at 1046 (holding there was no adequate remedy at law where
transgender male had shown that he would suffer prospective emotional harm absent an injunction
allowing him to use male restrooms at school). A.M. has sustained her burden of showing that
there is no adequate remedy at law for the harm she would suffer absent a preliminary injunction.
c. Likelihood of Suffering Irreparable Harm Absent an Injunction
A.M. argues that a violation of Title IX constitutes irreparable harm per se. [Filing No. 24
at 28.] She also asserts that she will suffer the irreparable harm of having her social transition
disrupted and being "outed" as a transgender girl. [Filing No. 24 at 28-29.]
The State responds that there are many activities that "enable social transition," and relies
on its expert witness, Dr. Cantor, for the proposition that "there is little evidence that transition
improves the mental well-being of children." [Filing No. 36 at 36 (quotation and citation omitted).]
In her reply, A.M. reiterates her argument that denying an injunction would force her to
disclose that she is a transgender girl, which would be "an irreparable event that would be
extremely traumatizing for her." [Filing No. 50 at 19-20.]
"A finding of irreparable harm to the moving party, if the injunction is denied, is 'a
threshold requirement for granting a preliminary injunction.'" DM Trans, LLC v. Scott, 38 F.4th
608, 617 (7th Cir. 2022) (quoting Life Spine, Inc. v. Aegis Spine, Inc., 8 F.4th 531, 539 (7th Cir.
2021)). Establishing a likelihood of irreparable harm "requires more than a mere possibility of
harm. It does not, however, require that the harm actually occur before injunctive relief is
22
warranted. Nor does it require that the harm be certain to occur before a court may grant relief on
the merits." Whitaker, 858 F.3d at 1045 (quotations and citations omitted). The Seventh Circuit
has instructed that "[h]arm is irreparable if legal remedies available to the movant are inadequate,
meaning they are seriously deficient as compared to the harm suffered." DM Trans, LLC, 38 F.4th
at 618.
As discussed above, A.M.'s mother has explained that although teachers and administrators
at A.M.'s school know that A.M.'s sex at birth was male, she is known at school only as a female,
is referred to by her female first name, and uses the girls' restrooms at school. [Filing No. 23 at
2.] She explains further that A.M.'s gender dysphoria has caused A.M. to be suicidal, depressed,
anxious, and angry. [Filing No. 23 at 2.] A.M.'s mother believes that playing softball helped "to
lessen the distressing symptoms of [A.M.'s] gender dysphoria and allowed her to experience her
life more fully as a girl," which has "resulted in a better self-image and confidence." [Filing No.
23 at 4.] A.M.'s mother notes that prohibiting A.M. from playing on the girls' softball team will
"out" her to her classmates as someone who is not "really" a girl, and "[t]his will be extremely
traumatic for her and will also undermine her social transition and will injure her." [Filing No. 23
at 4.] The Court finds that A.M. has sustained her burden of showing that she would suffer
irreparable harm absent an injunction.
d. Balance of Harms
A.M. argues that the balance of harms favors entering a preliminary injunction, stating that
"[i]t is difficult to theorize what possible harm can occur in maintaining the status quo so that A.M.
may continue to play with the other girls on the softball team." [Filing No. 24 at 29.] She asserts
that an injunction will only force IPS to conform its conduct to Title IX, which it cannot claim is
harmful. [Filing No. 24 at 29.]
23
In response, the State argues that issuing an 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." [Filing No. 36 at 37.]
A.M. asserts in her reply that "no harm has occurred by allowing A.M. to play on her
softball team and this is all that will occur when the preliminary injunction is granted." [Filing
No. 50 at 20.]
Once the plaintiff has met her burden of showing that she has a likelihood of success on
the merits, that she has no adequate remedy at law, and that she will suffer irreparable harm absent
an injunction, "the court must weigh the harm that the plaintiff will suffer absent an injunction
against the harm to the defendant from an injunction, and consider whether an injunction is in the
public interest." Planned Parenthood of Ind. and Ky., Inc., 896 F.3d at 816. The Seventh Circuit
"employs a sliding scale approach," where "'[t]he more likely the plaintiff is to win, the less heavily
need the balance of harms weigh in [her] favor; the less likely [she] is to win, the more need it
weigh in [her] favor.'" Id. (quoting Valencia, 883 F.3d at 966).
As the Court has already recognized, A.M. has presented evidence that the harm she would
face absent an injunction is substantial. On the other side of the scale, there is no evidence of
concrete harm to IPS or the State that would occur if an injunction issues. The harm the State
suggests could occur – that biological girls will be forced to compete against transgender girls who
allegedly have an athletic advantage – is speculative, and there is no evidence in the record that
allowing A.M. to play on the girls' softball team will make this harm a reality. Indeed, A.M. played
on the girls' softball team last season, and the State has not set forth any evidence that this harmed
anyone. There is no evidence that other players complained about A.M. being on the team due to
an athletic advantage, or that she actually has an athletic advantage. Given the strong likelihood
24
that A.M. will succeed on the merits of her Title IX claim, the State would need to show that the
balance of harms significantly weighs in IPS's or the State's favor. Planned Parenthood of Ind.
and Ky., Inc., 896 F.3d at 816. It has not done so, and the Court finds that the balance of harms
weighs in favor of issuing a preliminary injunction.
e. Public Interest
Finally, A.M. argues that the public interest would be furthered by issuing an injunction
because "an injunction in favor of…the rights secured by Title IX is always in the public interest."
[Filing No. 24 at 29-30.]
The State reiterates its balance-of-harms arguments – that an injunction would harm the
governance process and could harm others by "forc[ing] biological girls to compete against
students who identify as girls but retain all the biological advantages of boys." [Filing No. 36 at
37.]
In her reply, A.M. also relies on her balance-of-harms arguments, noting that no harm has
occurred from A.M. playing on the girls' softball team thus far. [Filing No. 50 at 20.]
After finding that the plaintiff has satisfied the threshold requirements for a preliminary
injunction, the Court must also consider "whether an injunction is in the public interest." Planned
Parenthood of Ind. and Ky., 896 F.3d at 816. Again, the State has not presented any tangible
evidence that the public will be harmed by the issuance of an injunction in this case. The State
relies on situations where high school female athletes in other states have had to compete against
transgender females, to the detriment of their athletic goals. The State warns of dire consequences
if an injunction issues that "reaches beyond A.M. alone." [Filing No. 36 at 37.] The Supreme
Court in Bostock acknowledged similar "policy appeals" set forth by employers arguing that Title
VII should not be applied to protect homosexual and transgender employees, noting:
25
[T]he employers are left to abandon their concern for expected applications and fall
back to the last line of defense for all failing statutory interpretation arguments:
naked policy appeals. If we were to apply the statute's plain language, they
complain, any number of undesirable policy consequences would follow…. Gone
here is any pretense of statutory interpretation; all that's left is a suggestion we
should proceed without the law's guidance to do as we think best. But that's an
invitation no court should ever take up. The place to make new legislation, or
address unwanted consequences of old legislation, lies in Congress.
Bostock, 140 S. Ct. at 1753.
Following the Supreme Court's lead, the Court declines the State's invitation to delve into
the "what ifs." Here, in this case, the public interest lies in enjoining IPS and the Superintendent
from applying a statute that discriminates against A.M. based on her status as a transgender female
in violation of Title IX. See B.E., 2022 WL 2291763, at *7 (finding it was in the public interest to
issue injunction prohibiting school district from implementing policy requiring transgender boys
to use girls' restrooms). The State has not presented any countervailing legal right that should
outweigh A.M.'s right to be protected by Title IX.
f. Security
A.M. argues in support of her Motion for Preliminary Injunction that the Court should not
require a bond because the issuance of a preliminary injunction "will not impose any monetary
injuries on IPS." [Filing No. 24 at 30.] IPS and the Superintendent do not discuss the bond
requirement in their response brief.
Federal Rule of Civil Procedure 65(c) provides that a court may issue a preliminary
injunction "only if the movant gives security in an amount that the court considers proper to pay
the costs and damages sustained by any party found to have been wrongfully enjoined." But if
"there's no danger that the opposing party will incur any damages from the injunction," a court
may choose not to require a bond. Habitat Educ. Ctr. v. U.S. Forest Serv., 607 F.3d 453, 458 (7th
Cir. 2010). Because IPS and the Superintendent do not address A.M.'s argument in their response,
26
the Court presumes that they do not object to A.M.'s request that the Court not require a bond. See
Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 395 (7th Cir. 2012) (noting that a party concedes a
point by failing to respond to it in their response brief). Consequently, and because IPS and the
Superintendent have not shown that they will incur any damages if an injunction issues in any
event, the Court will not require A.M. to post a bond.
In sum, A.M. has established that she has a strong likelihood of succeeding on the merits
of her claim that IPS's and the Superintendent's application of § 20-33-13-4 to prohibit her from
playing on the girls' softball team violates Title IX. She has also established that she would suffer
irreparable harm for which there is no adequate legal remedy, and that both the balance of harms
and the public interest favor issuing an injunction. Consequently, A.M.'s Motion for Preliminary
Injunction, [Filing No. 8], is GRANTED and the Court will not require A.M. to post a bond.
2. Equal Protection Claim
A.M. also alleges that prohibiting her from playing on the girls' softball team pursuant to §
20-33-13-4 violates her rights under the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution. [Filing No. 1 at 13.] "[F]ederal courts are supposed to do what
they can to avoid making constitutional decisions, and strive doubly to avoid making unnecessary
constitutional decisions." ISI Int'l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th
Cir. 2001). Because the Court has found that A.M. is entitled to a preliminary injunction on her
Title IX claim, it will not consider whether she is entitled to a preliminary injunction on her Equal
Protection claim.
IV.
CONCLUSION
A.M.'s challenge to the lawfulness of § 20-33-13-4 raises controversial issues regarding
the boundaries of Title IX and whether and how those boundaries should stretch and shift in an
27
ever-changing world. But "the limits of the drafters’ imagination supply no reason to ignore the
law's demand. When the express terms of a statute give us one answer and extratextual
considerations suggest another, it's no contest. Only the written word is the law, and all persons
are entitled to its benefit." Bostock, 140 S. Ct. at 1737. A.M. has shown — along with satisfying
the other requirements for the issuance of a preliminary injunction — that she has a likelihood of
succeeding on the merits of her claim that § 20-33-13-4 violates Title IX. Accordingly, the Court
GRANTS A.M.'s Motion for Preliminary Injunction, [8]. The Court also DENIES the Motion for
Leave to File Brief of Amici Curiae From Five Female Athletes in Support of Defendant-
Intervenor the State of Indiana, [31], DENIES AS MOOT the State's Motion to Exclude Opinions
of Fortenberry, [38], DENIES AS MOOT A.M.'s Motion to Exclude Expert Testimony, [47], and
DENIES AS MOOT the State's Motion for Leave to File Surreply in Opposition to Plaintiff's
Motion to Exclude Expert Testimony, [59]. IPS and the Superintendent are PRELIMINARILY
ENJOINED until further order of this Court from applying Indiana Code § 20-33-13-4 to prohibit
A.M. from playing on the girls’ softball team. The injunction shall issue in a separate Order.
Date: 7/26/2022 oa Monee nam
(Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution via ECF only to all counsel of record
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