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Indiana’s ban on gender-affirming care for minors will stay in place, the 7th Circuit Court of Appeals ruled Wednesday in reversing a district court’s order that would have prevented the state’s law from going into effect.
The circuit court had allowed the ban to go into effect in a Feb. 27 order.
The court, by its 2-1 vote, completely vacated the district court’s temporary injunction against the ban and remanded the case for further proceedings.
Judge Kenneth Ripple and Judge Michael Brennan voted in favor, with Judge Candace Jackson-Akiwumi dissenting.
The decision comes after Indiana’s Southern District Court issued a preliminary injunction on the newly enacted Senate Enrolled Act 480 last summer.
The law bans medical practitioners from providing gender transition procedures to minors.
According to the Associated Press, when asked Thursday for comment, including whether the ACLU of Indiana would appeal the decision, spokesperson Laura Forbes replied, “We are weighing our options.”
Indiana Attorney General Todd Rokita, a conservative Republican, said Wednesday in a post on X, formerly known as Twitter, that the ruling “is a huge win for Hoosiers and will help protect our most precious gift from God — our children.”
“By rejecting the injunction against our commonsense state law, dangerous and irreversible gender-transition procedures for minors will remain banned in Indiana,” he added.
The law was enacted in April 2023, and, shortly after, a group of transgender children, their parents, and a physician from Mosaic Health and Healing Arts, Inc. sued Indiana officials for enforcing the law.
They claimed the law violated the Equal Protection Clause, the First Amendment’s Free Speech Clause and the Affordable Care Act.
The district court, in turn, granted the ACLU of Indiana’s request for a preliminary injunction in June 2023 that extended to two of the law’s prohibitions: puberty-blocking drugs and hormone therapy.
The injunction did not extend to the third prohibition, gender reassignment surgery, because no provider performs gender reassignment surgery in Indiana.
In March, the circuit court denied the ACLU’s motion for reconsideration of its order to stay, writing, “This court’s February 27, 2024, stay allows us to consider the state law without altering Indiana’s ability to regulate the practice of medicine through a duly enacted law. The state law would be in effect now but for the injunction. And any physician or patient who proceeded in reliance on the district court’s preliminary injunction did so understanding that the injunction was subject to reversal or to stay at any time by this court.”
In its November 2024 opinion, the circuit court said SEA 480 does not violate the 14th Amendment’s equal protection clause because the law does not classify based on sex.
“The only way SEA 480 implicates sex at all is that the medical treatment at issue is sex specific—it denies each sex access to the other’s hormones. A physician could, if not for SEA 480, prescribe two medical treatments: one exclusively to girls with gender dysphoria—testosterone; and one exclusively to boys with gender dysphoria—estrogen,” the court wrote.
In response to the appellees’ claim that SEA 480 infringes the parent plaintiffs’ authority to make medical decisions for their kids because the law doesn’t include a provision allowing the treatment if the parent does, the court states that the appellees’ evaluation of the law is too broad.
“Although appellees argue we should not evaluate the right at issue as narrowly as the ‘specific medical procedure,’ that is precisely what the Court did in Dobbs. It did not have to uproot cases speaking generally of the ‘sacred … right of every individual to the possession and control of his own person.’ Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891). Rather, the Court recognized that access to a specific medical procedure—abortion—is not a fundamental right. Dobbs, 597 U.S. at 240,” the court wrote.
Further, the court stated that the medical procedures SEA 480 blocks are not a right that is “deeply rooted in [our] history and tradition” because the procedures do not have a long history.
The first report of a minor transgender patient being treated with puberty blockers was in 1998 in the Netherlands, and the first treatment guidelines for minors with gender dysphoria by the Endocrine Society came out in 2009.
Since SEA 480 does not infringe on a fundamental right, the court wrote, it must be reviewed on a rational basis. The court noted that the law is supported on a rational basis because it protects minors from being subjected to uncertain medical treatment.
In responding to appellees claims that SEA 480 violated the free speech clause, the court wrote that, “SEA 480’s secondary liability clause applies to speech by physicians that aids or abets another physician’s provision of gender transition procedures to a minor,” meaning it doesn’t stretch further than speech that intends to bring about particular unlawful conduct.
The court concluded by saying an injunction on the law causes “significant harm” to the state and the public interest.
“SEA 480 is a duly enacted law. Indiana’s voters have decided, through their representatives, legislative and executive, that medical interventions are too risky and novel to be safe treatments for children with gender dysphoria. The people of Indiana have a substantial interest in the effectiveness of that decision. Because appellees have not shown a likelihood of success, and because their harms are not irreparable, we conclude that the balance of harms favors Indiana,” the court wrote.
Jackson-Akiwumi dissented on the basis of SEA 480’s violation of the First Amendment, arguing the issue is whether a law construed to prohibit medical providers from aiding and abetting out-of-state providers for gender transition treatment to minors violates the First Amendment.
The dissenting judge wrote that since the law doesn’t reach out-of-state physicians or practitioners who offer transition treatment, an Indiana physician or provider doesn’t violate SEA 480 by giving their patients information about these out-of-state parties.
“Provider-Plaintiffs are free to discuss out-of-state treatment options and make referrals to out-of-state providers, full stop. We therefore need not reach the constitutional question. But the majority opinion does. Even if we did have to reach that question, the aiding and abetting provision of SEA 480 is unconstitutional,” she wrote.
The case is K.C. et al v. Individual Members of the Medical Licensing Board of Indiana et al, No. 23-2366.
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