Indiana’s Transgender and Gender Diverse Student Legislation

Implications of Anti-Trans Legislation

Trans students only comprise 1.8% of the student population in U.S. high schools; however, numerous legislative efforts in Indiana seek to restrict trans students’ rights in schools and access to educational opportunities, including restrictions on participation in school sports teams, proposed restrictions in school bathroom access, and “outing” laws that require schools to notify parents of requested changes to name or pronoun usage. Indiana’s restrictions on gender-affirming care for trans youth also affect trans students’ health and well-being, including at school.

This anti-trans legislation has potentially harmful consequences for schools and students. Studies of primary and secondary schools have reported that trans students are more likely to experience bullying and unsafe conditions at school, with negative effects on their ability to concentrate, their educational aspirations, their educational attainment, and their emotional and physical health and wellness. However, preventing serious harm is possible when society and schools are inclusive of trans students. Positive academic and emotional outcomes occur when trans students receive support and affirmation from caregivers and schools. A 2018 study found that when trans youth are affirmed in the use of their chosen name in multiple contexts, including school, depression and suicidal behavior decreased.

Current Indiana Anti-Trans Legislation

In recent years, there has been an increase in the number of bills proposed in Indiana targeting trans students. The Movement Advancement Project (MAP) tracks over 50 LGBTQ+ laws and policies across the U.S. and gave Indiana and 22 other states/territories the lowest possible rating for LGBTQ policy climate. In 2023, Indiana lacks a nondiscrimination law/policy or anti-bullying law/policy for trans students and is the only state in the U.S. that explicitly prohibits local governments from banning conversion therapy (IC 25-23.6-2-8.5). Instead, Indiana law limits the rights of trans students by preventing trans girls from participating in sports consistent with their gender identity (IC 20-33-13-4) and requiring written parental notification within 5 days any time a student requests to be called a different name or use a different “pronoun, title, or word to identify the student” (IC 20-33-7.5-2). For example, if Jennifer asks a teacher to refer to her as “Jen,” the school must notify Jennifer’s parents. Although school counselors and psychologists have a professional and legal duty of confidentiality with students, Indiana has explicit exceptions written into its law if trans students reveal a desire for different names/pronouns with counselors/psychologists; the law states this type of communication is not “privileged and protected from disclosure” (IC 20-28-10-17; IC 20-28-12-5).

Additionally, an Indiana statute passed in 2023 that prohibits health care professionals from providing or referring people under 18 for gender-affirming health care, including referrals to gender affirming surgeries (IC 25-1-22); however, a federal district court blocked a portion of the law, and the case is on appeal. As of this writing, the district court’s June 2023 preliminary injunction remains in effect. 

Potential Indiana Bills

In 2023, more bills were proposed that failed to be enacted; however, Indiana citizens can anticipate that additional anti-trans legislation will be proposed in future legislative sessions. For example, voters may see attempts to expand the “Don’t Say Gay” statute (IC 20-30-17-2) to all grades, not just PK-3, and additional language to restrict discussion of gender identity and sexual orientation in classrooms. There also could be a proposed expansion of the “Forced Outing” law (IC 20-33-7.5-2) which could include penalties for schools/educators. HB 1346, which failed in 2023, might be re-proposed, seeking to prohibit schools from requiring staff or students to use trans students/employees’ pronouns or names. 

Federal Cases Affecting Indiana

Several federal courts have determined that Title IX of the Educational Amendments of 1972 prohibits public schools from discriminating on the basis of both sex and gender identity. An Indiana federal district court granted a 10-year-old trans girl’s motion for a preliminary injunction after Indianapolis Public Schools informed her she could no longer play on the softball team due to the recent passage of IC 20-33-13-4. The court reasoned that the student had established a strong likelihood that she would prevail on the merits of her Title IX claim. Although Martinsville and Vigo County school systems denied trans students restroom and locker room access consistent with their gender identity, the 7th Circuit Court of Appeals affirmed that this access must be permitted. This decision’s reasoning aligns with other circuits including the 4th Circuit and 9th Circuit. However, in 2022, the 11th Circuit decided against a trans student. 

As a result of this circuit split and the need for national clarity, Martinsville and Vigo County schools appealed their case to the U.S. Supreme Court. In 2024, the Court declined to hear the case which means the question remains whether Title IX requires all U.S. schools to permit students access consistent with their gender identity. However, because the 7th Circuit decision stands, Indiana schools must permit students access to restroom and locker room access consistent with their gender identity. 

Authors

Janet R. Decker, J.D., Ph.D., is an associate professor of Education Law at Indiana University School of Education and a Faculty Affiliate of CEEP.

Amy Pickard, Ph.D., is an assistant professor of Adult Education at Indiana University School of Education and a Faculty Affiliate of CEEP.