FFRF signs on to brief against Indiana’s discriminatory trans sports ban

AM v Indianapolis brief photo

The Freedom From Religion Foundation has signed on to an amicus brief challenging a new Indiana law that discriminates against transgender school athletes.

The National Women’s Law Center and its law firm partner, Hogan Lovells, have filed a friend-of-the-court brief before the 7th U.S. Circuit Court of Appeals in A.M. v. Indianapolis in support of the plaintiff, a 10-year-old transgender girl who was kicked off her elementary school softball team after a sports ban targeting transgender girls and young women took effect in the summer of 2022. A.M. and her family, represented by the ACLU, won a preliminary district court injunction finding that the anti-trans ban on sports participation likely violates Title IX. The state of Indiana has appealed.

Indiana’s House Enrolled Act 1041, which was briefly in effect in July, forces Indiana public schools to bar any student from participating on a female sports team if the student is deemed to be “male, based on a student’s biological sex at birth in accordance with the student’s genetics and reproductive biology.” As the district court properly recognized, this type of sex discrimination violates both the text and the purpose of Title IX. It also contravenes the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

A.M., a 10-year-old girl who was assigned male at birth, has lived as a girl since before she was 4 years old. Indiana has legally recognized that A.M. is a girl by changing her gender marker to female on her birth certificate and changing her legal first name to her chosen female name. A.M. has been diagnosed with gender dysphoria. Last school year, A.M. played on her elementary school’s girls’ softball team, which helped alleviate the distress of gender dysphoria that A.M. suffers from and allowed her to experience life more fully as the girl she is. HEA 1041, if allowed to go into effect, will deny A.M. the ability to rejoin the girls’ softball team and deprive her, and students like her, of the equal educational opportunities guaranteed by federal civil rights law and the U.S. Constitution.

The National Women’s Law Center brief that FFRF has signed on to highlights how inclusive school policies (such as the local Indianapolis policy displaced by an anti-trans statewide ban) are consistent with Title IX and a key part of creating gender equity in education. The inequities girls face in K-12 sports are not due to inclusion of transgender girls and women. The law will impact all women — not just women and girls who are transgender — and will be particularly harmful to Black and brown women and girls.

The Indiana law threatens opportunities for girls and women who seek to play school team sports, the National Women’s Law Center amicus brief emphasizes. “Banning certain students from sports teams, merely because of who they are, does not promote fairness or safety for cisgender girls; instead, exclusionary policies like those required by HEA 1041 only serve to harm transgender students, as well as cisgender women and girls who do not conform to sex stereotypes,” it states. Besides, appellants’ claimed concerns about maintaining the “fairness” and “safety” of girls’ sports rest on harmful and inaccurate sex stereotypes. Athletes come in all shapes, sizes and physiological makeups. These differences may be advantageous or disadvantageous based on their sport.

And the Indiana law creates a discriminatory ban that will harm women and girls who are transgender, as well as intersex and otherwise gender nonconforming, the brief maintains. “Participation in sports generally provides students with a supportive network and social status that can minimize feelings of difference and isolation, a benefit that is especially crucial for transgender student athletes because this can help to foster acceptance and positive peer relationships,” states the brief.

Plus, women and girls of color will be disproportionately targeted and harmed by the new Indiana law. Exclusion of transgender women and girls has a far-reaching impact and can adversely affect other women and girls, as well. Black and brown girls and women — who are routinely targeted for not conforming to society’s expectations of white femininity — are particularly vulnerable to harm from the types of exclusionary policies the state of Indiana is asking the court to impose. Serena Williams is perhaps the most prominent woman of color to experience this policing but far from the only.

There are other problems with the Indiana law, too, the brief points out. It forces schools to discriminate on the basis of sex in violation of Title IX and the Equal Protection Clause. Since its enactment 50 years ago, Title IX has dramatically advanced women’s and girls’ participation in school athletics. (It mandates 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 education program or activity receiving Federal financial assistance.”) HEA 1041 also compels schools to violate the Equal Protection Clause by prohibiting women and girls who are transgender from playing on sports teams consistent with their gender identity.

For reasons such as this, the 7th U.S. Circuit Court of Appeals should affirm the district court’s preliminary injunction order, the National Women’s Law Center is urging in its amicus brief. The Freedom From Religion Foundation completely agrees.

As usual, there is a divide between white evangelical Protestants — who are least accepting of trans individuals — and religiously unaffiliated Americans, which is the only group by religious identification (including 71 percent of atheists and 65 percent of agnostics) that feels society isn’t accepting enough of people who are transgender. 

“We clearly see that these discriminatory laws are driven by religious ideology,” comments Dan Barker, FFRF co-president.

The National Women’s Law Center is a nonprofit legal advocacy organization that fights for gender justice — in the courts, in public policy, and in our society — working across issues that are central to the lives of women and girls—especially women of color, LGBTQI people, and low-income women and families.

The Freedom From Religion Foundation is the country’s largest freethought organization, with 39,000 nonreligious members and several chapters all across the country.

Freedom From Religion Foundation

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