Trans girls’ sports ban: Rokita opposes Title IX changes, female athletes file amici brief supporting the state

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Efforts supporting an Indiana law restricting transgender girls from participating in girls’ K-12 sports continued this week, with Indiana Attorney General Todd Rokita sending a letter to the U.S. Department of Education opposing proposed Title IX rule changes and a group of female athletes from other states filing a brief in support of the ban in the 7th Circuit Court of Appeals.

Rokita, a Republican, led a 19-state “coalition” Monday in sending a letter to Education Secretary Miguel Cardona opposing a proposed rule change to Title IX that would protect athletes based on gender identity.

Rokita argues the administration’s reliance on the U.S. Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is erroneous and “destroys the progress made to protect the rights of girls and women under Title IX over the past fifty years.” The attorney general has continually argued Title IX and the equal protection clause don’t protect an individual’s “gender identity.”

“Worse, your misguided and illegal efforts seek to preempt protections afforded girls and women by individual States,” the letter continues. “Just as we are successfully fighting your gross violation and disregard of federalism and the law in courts, so too will we fight the overreach in your Proposed Rule.”

Additionally, the letter argues the proposed rule attempts “to preempt State laws protecting the rights of girls and women (and) lacks grounding in a clear statement of authority by Congress,” and is a “restriction of the role of parents in directing their children’s education … .

“… (T)he Proposed Rule requires schools to hide information relating to a child’s professed gender identity from parents even as it disclaims any obligation of a grant recipient to ‘[r]estrict any other rights guaranteed against government action by the U.S. Constitution,’” the letter states. “The Department needs to concern itself with everyone’s constitutional rights, not merely those that it prefers.”

Rokita’s letter came a week after he filed a brief in the 7th Circuit requesting that the appellate court lift an injunction against House Enrolled Act 1041, the trans girls’ sports ban, imposed by the Indiana Southern District Court in the case of A.M., by her mother and next friend, E.M. v. Indianapolis Public Schools; Superintendent, Indianapolis Public Schools, 22-2332.

In that case, a 10-year-old transgender Indianapolis Public Schools student sued after HEA 1041 restricted her from participating on her school’s softball team.

On July 26, Indiana Southern District Court Judge Jane Magnus-Stinson issued a preliminary injunction allowing the student to play on the team. However, the injunction only applies to A.M.’s case.

Rokita requested that the 7th Circuit lift the injunction after the appellate court denied his ask that it hear the case en banc.

Relatedly on Tuesday, Alliance Defending Freedom attorneys, representing seven female athletes, filed a friend-of-the-court brief with the 7th Circuit also asking that the injunction be lifted.

Three of the athletes listed in the brief are currently being represented by ADF, a nonprofit legal organization, in cases in Connecticut and Idaho.

The 34-page brief insists the “women have competed against and lost to men in athletic competitions ranging from basketball to track. They have personally suffered the deflating experience of having opportunities stripped away in the name of ‘progress.’ Their experiences underscore the need for separating sports based on biology rather than self-professed identity.”

The amicus brief mirrors Rokita’s arguments regarding Title IX and the equal protection clause.

“The district court interpreted ‘sex’ contrary to its original public meaning and in conflict with Title IX’s structure and purpose,” the brief states. “Its equation of ‘sex’ with gender identity would undermine the half-century advancements Title IX has secured in women’s sports — advancements that benefit female athletes like amici. This Court should reject the district court’s interpretation and reverse.”

The 7th Circuit case has also garnered amici briefs from organizations including Concerned Women for America and Women’s Liberation Front as well as a group of 19 states, all of which are supporting HEA 1041.

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