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A U.S. District Court judge in Indianapolis rejected the American Civil Liberties Union of Indiana’s motion for a preliminary injunction to stop Indiana government from denying gender changes on birth certificates for transgender Hoosiers.
Judge Matthew Brookman’s ruling on Friday said he rejected the ACLU’s request because the organization is unlikely to prevail on arguments that Indiana Gov. Mike Braun and the state’s vital records director violated the Fourteenth Amendment rights of two transgender Hoosiers when the state refused to process state court-ordered gender marker changes to their birth certificates.
The Department of Health stopped processing such court orders after an executive order by the governor earlier this year, which formally defined terms like “sex” and “gender” to be synonymous.
The plaintiffs, L.A. and Jane Doe, filed suit against Braun and vital records director Larry Ervin in March, alleging that they had violated the equal protection clause and the due process clause of the Fourteenth Amendment.
Ken Falk, legal director for the ACLU of Indiana, told The Lawyer that the ACLU is disappointed by the ruling and is considering its options at this time.
According to court documents, both L.A. and Jane Doe were born in Indiana and received birth certificates listing their sex as “male.” However, they both now identify as female.
“This ruling is a win for truth, reason and, of course, common sense,” Indiana Attorney General Todd Rokita said in written remarks “Biological sex is an undeniable fact, not a feeling to be rewritten on official documents. Indiana will continue standing firm in protecting the integrity of birth certificates, ensuring they reflect reality, not ideology.”
In the Monday order, the court stated that the plaintiffs are unlikely to succeed on the merits of their equal protection claim, saying Braun’s executive order and Ervin’s policy to halt the changing of gender markers on birth certificates applies to everyone “equally across the board,” and that neither males nor females may acquire amended birth certificates “listing a new category—their gender identity—instead of their sex.”
The court also rejected the ACLU’s stance that transgender Hoosiers are protected class.
Citing Segovia v. United States (2018), the court stated that a person’s transgender identification, unlike race or national origin, is not a similarly “immutable characteristic determined solely by the accident of birth.” And, in citing S.A. Indep. Sch. Dist. v. Rodriguez (1973), transgender individuals have not been relegated “to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”
“At bottom, the Policy (by Ervin) does not discriminate based on sex; males cannot change their birth certificate marker to female, and females cannot change theirs to male,” wrote District Court Judge Matthew Brookman in the order. “And recent caselaw indicates that transgender individuals are not a protected class.”
The court also ruled that the plaintiffs are unlikely to succeed on their due process claim, concluding that Braun’s order and Ervin’s policy do not infringe on a previously identified substantive right to privacy and that the right to avoid the disclosure of a person’s transgender status, which the plaintiffs argue for, is “not fundamental.”
Still, the court said the plaintiffs have the standing to pursue their claims. The court found the plaintiffs had established a real, concrete injury when the state failed to follow through on state trial court orders requiring the Indiana Department of Health to change the gender markers on their birth certificates.
The court also determined that the plaintiffs established causation and redressability because their injuries likely were caused by the governor’s executive order.
The case is L.A., Jane Doe v. Mike Braun, Larry K. Ervin, 25-CV-oo596.
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