Injunction to stop law banning transgender health care to be decided soon by federal judge

The American Civil Liberties Union of Indiana pressed its case Wednesday for a preliminary injunction to halt a ban on transgender medical treatment for children and teens, as a federal judge heard testimony from the group and state officials that support the new law, which is slated to go into effect next month.

An order on the injunction against Senate Enrolled Act 480 is expected to come soon, along with a decision on the American Civil Liberties Union of Indiana’s motion to strike the state’s motion to exclude opinions of plaintiffs’ experts.

Judge Patrick Hanlon of the U.S. District Court of the Southern District of Indiana heard arguments from the state of Indiana and the ACLU of Indiana.

SEA 480 is scheduled to go into effect July 1.

It bans medicinal and surgical gender-affirming care for minors.

It also prohibits any physician or practitioner from providing gender transition procedures to anyone under the age of 18 and aiding or abetting another physician or practitioner to do so and established civil enforcement actions.

Shortly after Gov. Eric Holcomb signed the bill into law, the ACLU of Indiana filed its lawsuit on April 5.

The lawsuit alleged SEA 480 violated the First and 14^th Amendments, Medicaid Act and the Affordable Care Act.

The parties’ arguments

Ken Falk with the ACLU of Indiana started off his arguments discussing the group’s expert testimony and studies submitted as evidence.

He noted that since 2018, Riley Hospital for Children has treated minors with gender dysphoria and 900 children have sought that care.

“It is vitally necessary,” Falk said.

He also discussed the symptoms the children that are part of the lawsuit have experienced, including depression, anxiety and self-harm.

He called the law “odd,” and said the care works for children.

“We think this is a clear violation of rights,” Falk said. “There is no justification for this law.”

He explained the First Amendment claim of the ACLU lawsuit is from the aiding or abetting portion of SEA 480, alleging it violates a physician’s free speech rights. He also said it violates the parents’ rights.

Falk said therapy itself doesn’t work and that waiting to treat children with gender dysphoria is like having a kid with cancer or bipolar disorder and waiting for them to turn 18 before they receive treatment.

He pointed to medical organizations like the American Medical Association, American Psychiatric Association and Endocrine Society, that support the gender-affirming medical care for cases of gender dysphoria.

Indiana Solicitor General Tom Fisher argued that the gender-affirming care to minors was dangerous and noted reviews from Norway, Sweden and the United Kingdom.

“I think what we’ve done is reasonable,” Fisher said.

He pointed to psychotherapy as an alternative for puberty blockers and hormone therapy. Fisher questioned “how much risk is too much” when it comes to the puberty blockers and hormone therapy. He said minors lack bone density and the treatment is harmful for their fertility.

Falk had said during his argument that the patients are informed of every risk before proceeding and it takes a while to be diagnosed with gender dysphoria.

Hanlon acknowledged that medical interventions have risks.

He also pointed to gender dysphoria being recognized in the Diagnostic and Statistical Manual of Mental Disorders and asked Fisher if he thought there would be harm if untreated.

Fisher responded saying “perhaps” but that there isn’t enough evidence.

He said that there aren’t enough studies or evidence to show that the care works.

During Falk’s rebuttal, he noted that no country has banned gender-affirming care and that every medicine has potential downsides and upsides.

“How do you do research, your honor, if you can’t do it,” Falk asked in response to randomized control trials and studies.

What’s next?

Hanlon told the parties he will get an order out as soon as he can.

If the preliminary injunction is granted, it’ll halt the ban on gender-affirming care for minors.

If it isn’t granted, the ACLU of Indiana will continue with the class certification of the lawsuit that is still currently pending. The state believed the injunction would only apply to the four children in the lawsuit, whereas the ACLU of Indiana believed it applies to all Hoosier children.

“The legislature thought this was an important enough issue that it enacted a law,” Fisher said.

Falk said people are talking about moving out of state and that children are regressing and panicking,  knowing they may not be able to continue the care they have been receiving.

“It is not an experiment,” Falk said. “It is malpractice for a doctor to not provide this gender-affirming care to adolescence.”  The case is K.C., a minor child by her parents and next friends Nathaniel and Beth Clawson; M.W., a minor child by his parents and next friends Ryan and Lisa Welch; Ryan and Lisa Welch; A.M., a minor child by her mother and next friend Emily Morris; Emily Morris; M.R., a minor child by his parents and next friend, Maria Rivera; Maria Rivera; Catherine Bast, M.D.; Mosaic Health and Healing Arts, Inc.; all plaintiffs on their own behalf and on behalf of classes and sub-classes similarly situated v. the Individual Members of The Medical Licensing Board of Indiana, in their official capacities; Executive Director, Indiana Professional Licensing Agency, in her official capacity; Attorney General of Indiana , in his official capacity; Secretary, Indiana Family and Social Services Administration, in her official capacity; Indiana Family and Social Services Administration, 1:23-CV-595.