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Multiple amici have filed briefs urging the 7th Circuit Court of Appeals to overturn an injunction against a new Indiana law that prohibits doctors from performing gender-transition procedures on minors.
Briefs have been filed this month by the Alliance Defending Freedom, the Family Research Council and a group of 21 states, all supporting the state defendants in the appeal involving Senate Enrolled Act 480.
SEA 480 would ban physicians from performing gender-transition procedures on minors and from aiding or abetting another physician to do so. The law was set to take effect on July 1 but was preliminarily enjoined in June.
The injunction came after American Civil Liberties Union of Indiana filed a lawsuit — K.C., et al. v. The Individual Members of the Medical Licensing Board of Indiana, in their official capacities, et al., 23-2366 — in April, mere hours after Republican Gov. Eric Holcomb signed the bill into law.
Indiana Attorney General Todd Rokita’s office is appealing the injunction to the 7th Circuit, filing an appellants’ brief earlier this month.
Also submitting briefs to the appellate court this month were the three amici supporting the state. No other amici briefs had been filed at Indiana Lawyer deadline.
In its brief, the Alliance Defending Freedom, a nonprofit conservation legal organization, says it is “deeply concerned about the use of puberty blockers and cross-sex hormones for children with gender dysphoria.”
“Indiana seeks to protect children from unproven drug treatments that risk permanent harm. It enacted the Minors Protection Act to regulate puberty blockers and cross-sex hormones for children experiencing gender dysphoria,” the brief says. “… At minimum, the State found that using these drugs is reckless because they are experimental, unsupported by high-quality evidence, and pose unknown risks. Respondents challenge this protection, seeking a constitutional right to inject children with experimental drugs.”
ADF is presenting two main arguments: first, that rational-basis review applies, and the Indiana Minors Protection Act satisfies both rational-basis and intermediate scrutiny.
“This Court should reject prioritizing Plaintiffs’ anecdotal evidence over this evidence-based science,” ADF argues. “Plaintiffs would have this Court override evidence-based science and declare the Minors Protection Act unconstitutional to allow experimental treatments that European countries — the world leaders in treating gender dysphoria — have concluded are inconclusive at best and harmful at worst. American kids deserve better.”
Second, ADF argues that state legislatures should be allowed to “decide this difficult medical issue rife with uncertainty and so avoid miring courts further in constitutionalized medicine.”
“Here, Indiana has enacted the Minors Protection Act to safeguard children from potentially dangerous and experimental drug treatments. Evidence strongly suggests that Indiana’s caution is warranted,” the brief states.
ADF goes on to argue that when the U.S. Supreme Court overturned the federal right to abortion via Dobbs v. Jackson Women’s Health Organization, the majority expressed “regret” about the tremendous “turmoil” that Roe v. Wade had inflicted.
“This Court should avoid similar turmoil by deferring to reasonable legislative judgment here,” the brief states.
For their part, the states supporting Indiana — Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, Utah and West Virginia — called the plaintiffs’ reliance on standards from the World Professional Association for Transgender Health and the Endocrine Society “nonsense.”
“One could scarcely dream up a more radical organization to outsource the regulation of medicine to than WPATH (whose members are almost entirely responsible for the Endocrine Society Guidelines),” the states argue.
They went on to argue that the laws prohibiting pediatric gender-transition procedures do not trigger heightened scrutiny.
“And the laws (wrongly) described as discriminating against transgender individuals are recent enactments grappling with tough policy questions about how to protect children from significant harms arising from the recent spike in transgender identification,” the states’ brief says. “To the extent that regulating to prevent those harms requires zeroing in on gender dysphoric individuals most likely to be at risk from them, such a classification is a ‘sensible ground for differential treatment,’ not the sort of irrelevant grouping that warrants heightened review.”
Further, “Even if the district court was right to apply heightened scrutiny, it was wrong to find that Indiana’s law fails such review,” the states’ brief continues.
Finally, the Family Research Council — which describes itself as a “nonprofit research and educational organization that seeks to advance faith, family, and freedom in public policy from a biblical worldview” — is arguing that “(c)onstitutional law should not be outsourced to medical interest groups.”
“These groups have put ideology above patients and scientific evidence,” the FRC brief says. “This Court should discount their views.
“… Meanwhile, the studies the groups cite are deeply flawed,” the brief continues.
According to a report from CNN, Idaho, North Dakota, Oklahoma, Alabama and Florida have made providing gender-transition care to minors a felony, although the laws in North Dakota, Oklahoma and Florida have exceptions. Iowa, Mississippi and Indiana have passed laws banning physicians from providing such care or aiding or abetting it.
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