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The 7th Circuit Court of Appeals denied a motion Thursday for reconsideration of its order lifting an injunction of Indiana’s gender-affirming care ban for minors.
In June 2023, the U.S. District Court for the Southern District Court of Indiana granted the American Civil Liberties Union of Indiana’s request for a preliminary injunction against Senate Enrolled Act 480.
SEA 480 prohibits physicians and other practitioners from knowingly providing gender-transition procedures to a minor, and from aiding or abetting another physician or practitioner to do so. The procedures banned by the statute include the use of puberty-blocking drugs, cross-sex hormone therapy and gender-reassignment surgery.
The law was initially supposed to take effect on July 2023. The law is now in effect following the 7th Circuit’s Feb. 27 order in which it issued a stay.
Ken Falk, legal director of the ACLU of Indiana said the stay has created a difficult situation.
“I think, as we tried to point out in our motion for the court to reconsider, that this is this is highly unusual. I mean, no one asked for a stay. And there is no need for a stay,” Falk said.
The order stated that an opinion would follow, but currently no opinion has been issued.
“This ruling is beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families. As we and our clients consider our next steps, we want all the transgender youth of Indiana to know this fight is far from over and we will continue to challenge this law until it is permanently defeated and Indiana is made a safer place to raise every family,” the ACLU of Indiana released in a statement following the Feb. 27 order.
On March 21, the court denied the ACLU of Indiana’s motion for reconsideration of its order to stay. The court also denied the alternative relief of delaying its stay.
“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,” the 7th Circuit’s March order stated.
Judge Candace Jackson-Akiwumi dissented in the order, stating that she would have granted the the motion for reconsideration
“I would grant Plaintiff-Appellees’ motion for reconsideration of the majority’s stay order because the order is unsolicited and unreasoned, disrupts the status quo, and threatens irreparable harm to transgender minors, their parents, and their medical providers,” Jackson-Akiwumi wrote.
She further noted that the majority did not provide an explanation in the order issuing its stay nor why it decided to continue its stay.
“The order above merely states that the majority has the power to impose the stay and, so, the majority will in fact continue to impose the stay. This leaves stakeholders and reviewing courts in the dark about why the majority remains certain—if the majority is certain—that its stay decision satisfies our jurisprudential standards,” Jackson-Akiwumi wrote.
Jackson-Akiwumi wrote that the court should “exercise caution and explain any decision we make” in this case and others like it.
Next, she noted that the majority had stated the stay was to preserve the status quo but she found their jurisprudence demands a different conclusion.
“The better course of action would have been to address the merits of the appeal promptly, or issue judgment and promise that opinions would follow. Had this route been taken, as Plaintiff-Appellees note in their motion for reconsideration, the parties would have had at least a few weeks’ notice that the status quo would be changing in, at the earliest, 21 days when the mandate issued,” Jackson-Akiwumi wrote.
She wrote that by having the law go into effect immediately it disrupted the status quo because the parties that were receiving care had to abruptly stop.
“Overnight, the stay terminated key parts of transgender care and prohibited families from working with their medical providers to achieve continuity of care out of state,” Jackson-Akiwumi wrote.
Jackson-Akiwumi concluded her final reasoning for dissenting was that had the court looked at the analysis of Nken v. Holder, 556 U.S. 418, 434 (2009) it would have found irreparable harm titling in favor of the plaintiffs.
Indiana Attorney General applauded the order in a post on social media.
“After considering additional briefing, the Seventh Circuit Court of Appeals once again ruled our commonsense state law, banning dangerous and irreversible gender-transition procedures for minors can stay in effect. Another win for Hoosiers!” Rokita posted on X.
What’s next?
With no opinion from the court, neither party know what the legal conclusions are. Falk said that they plan on asking the entire 7th Circuit to review the stay aspect of the case.
The case is still pending before the Southern District Court and is set for trial on April 28, 2025. Judge James Patrick Hanlon granted class certification in the case in January.
Falk noted that there are cases before the U.S. Supreme Court on gender-affirming care that could eventually affect the case.
One case comes from Tennessee, questioning its law banning gender-affirming medical treatments for minors. Similar to Indiana, its district court had enjoined the law and then the 6th Circuit Court of Appeals reversed the injunction. The circuit court also reversed the injunction in Kentucky as well.
Conference has been rescheduled in both cases at this time.
The case is K.C., et al. v. Individual Members of the Medical Licensing Board of Indiana, 23-2366.
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