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The state has filed an appellant brief with the 7th Circuit Court of Appeals and is requesting that the court vacate a district court injunction that preliminarily enjoined a law that would have banned gender transition procedures for Indiana minors two days before it was scheduled to go into effect.
In June, Judge James P. Hanlon of the U.S. District Court for the Southern District of Indiana signed an injunction order against Senate Enrolled Act 480. The law, which was scheduled to take effect July 1, banned physicians from providing gender transition procedures for minors, and from aiding or abetting another physician to do so.
The American Civil Liberties Union of Indiana filed its lawsuit — K.C., et al. v. The Individual Members of the Medical Licensing Board of Indiana, in their official capacities, et al., 23-2366 — against the new law just after it was signed by Gov. Eric Holcomb in April.
The ACLU of Indiana claimed that the new law violated the First and 14th Amendments, Medicaid Act and the Affordable Care Act.
Hanlon acknowledged in his order that the state has a “strong interest in enforcing democratically enacted laws. And Defendants have shown that there are important reasons underlying the State’s regulation of gender transition procedures for minors.”
The state is appealing the preliminary injunction to the 7th Circuit, requesting that the appellate court vacate the injunction.
“Given the known harms and unproven benefits of these medical interventions for gender dysphoria in minors, Indiana may constitutionally prohibit them,” the appellate brief stated.
The state cited Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2268 (2022) in its brief on its claim that states have broad discretion on how they choose to regulate medical procedures.
“States are under no constitutional imperative to authorize experimental treatments for gender dysphoria,” the brief stated.
The brief lists four issues, with the first being whether, consistent with the 14th Amendment’s equal protection clause, Indiana may prohibit physicians from providing minors with puberty blockers and hormones for purposes of gender transitions.
“The district court’s theory that S.E.A. 480 unjustifiably discriminates based on sex ignores that S.E.A. 480 prohibits both sexes from accessing gender-transition procedures. And the significant uncertainties the court identified surrounding gender-transition procedures for minors justifies S.E.A. 480’s ban on them regardless,” the brief stated.
Secondly, the state asserts in the brief, that consistent with the First Amendment, Indiana may prohibit medical providers from aiding or abetting gender-transition procedures.
“And if S.E.A. 480’s regulation of conduct is constitutional, then the district court’s rationale falls apart. Thus, at a minimum, the court should not have enjoined S.E.A. 480’s aiding-and-abetting provision as applied to surgeries because the court declined to address them,” the brief stated. “Finally, even under strict scrutiny, S.E.A. 480 survives. Its aiding-and-abetting prohibition is necessary to advance compelling state interests in preventing harm to minors and regulating the medical profession.”
Next, the brief questions whether the equities and public interest preclude a preliminary injunction against a democratically adopted measure that protects minors from unproven, dangerous, and potentially irreversible medical interventions.
“So even if there is some evidence of benefit, the district court overstepped by enjoining S.E.A. 480’s enforcement in the face of evidence that gender-transition procedures carry significant risks that cannot be undone and will cause irreversible changes to minors,” the brief stated.
It argued that the district court needed evidence that procedures would provide more benefit than harm to “all” minors rather than “some.”
Lastly, the state questions whether the district court erred in enjoining application of SEA 480 to anyone in all circumstances without first certifying a class or finding there is no set of circumstances in which SEA 480 can be constitutionally applied.
“Under the district court’s injunction, however, Indiana cannot enforce S.E.A. 480 against providers who fall below standards to which plaintiffs have no constitutional objection,” the brief stated.
It argued that the district court has violated the principle the 7th Circuit has held in Doe v. Rokita, 54 F.4th 518 (7th Cir. 2022), twice by awarding relief to nonparties and by enjoining in all circumstances.
The brief cites data from Sweden, Finland, Norway and the United Kingdom to show a rise in diagnoses of gender dysphoria and referrals for minors.
It also lists several people who have reported regretting pursuing transition procedures as teenagers.
“Detransition rates among youth have not been exhaustively studied. But an evaluation of 952 adolescents observed that 26% of those who started hormonal interventions before age 18 discontinued them, including 36% of natal females,” the brief stated.
The state argues in its brief that the equal protection clause allows the state to “protect children from unproven, risky, and often permanent gender-transition procedures that threaten children’s health and wellbeing.”
“Even the district court recognized significant uncertainty surrounds gender-transition procedures. That uncertainty justifies regulatory intervention to protect affected children. Indiana need not permit indiscriminate use of experimental procedures on children—or even permit children to be the subject of controlled experiments—merely because other jurisdictions do,” the brief stated.
The ACLU of Indiana declined to comment on the state’s appellant brief.
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