FILE – Protesters stand outside of the Senate chamber at the Indiana Statehouse on Feb. 22, 2023, in Indianapolis. Republican Governors in Indiana and Idaho have signed into law bills banning gender-affirming care for minors early April 2023, making those states the latest to prohibit transgender health care this year. (AP Photo/Darron Cummings, File)
A federal appeals court ruled 2-1 Wednesday to uphold Indiana’s transgender medical ban.
In April 2023, Republican Indiana Gov. Eric Holcomb, whose term ends in January, signed SB 480 into law, which bans most forms of gender-affirming care for minors including hormone treatments, puberty blockers and surgeries. Under the law, any physician or other practitioner who knowingly provides or helps another physician or practitioner provide gender transition procedures to a minor is subject to discipline by the medical oversight board and could face other civil enforcement actions. Minors already receiving gender affirming care prior to the law would have had until December 31, 2023, to cease treatment. The law was set to go into effect on July 1, 2023.
The ACLU challenged the law on behalf of four Indiana families with transgender youth and Dr. Catherine Bast, medical director at Mosaic Health & Healing Arts. The plaintiffs in the case expressed fear about what would happen to their children if they were prevented from getting gender-affirming medical care.
“Starting around the age of two years old, our daughter began telling us who she is,” said Beth Clawson, one of the plaintiffs. “When she was three-and-a-half years old, after researching gender dysphoria and consulting with both her therapist and pediatrician, she socially transitioned. That means we started using she/her pronouns and letting her dress as a girl. That was seven years ago, and she hasn’t wavered at all in knowing who she is.”
In June 2023, before the law took effect, U.S. District Judge James Patrick Hanlon, a Donald Trump appointee, issued a preliminary injunction blocking the law’s enforcement. The following February the U.S. Court of Appeals for the Seventh Circuit issued a stay of Hanlon’s ruling, thereby allowing the law to take effect.
The Seventh Circuit issued a final ruling in the matter Wednesday in which it said Hanlon erred in finding that the plaintiffs in the case would suffer irreparable harm if the ban went into effect.
The two-judge majority consisted of U.S. Circuit Judges Kenneth Francis Ripple, a Ronald Reagan appointee, and Michael B. Brennan, also a Trump appointee.
Joe Biden appointee U.S. Circuit Judge Candace Jackson-Akiwumi dissented.
The court rejected the equal protection claim against the statute. Brennan wrote for the majority, which ruled that the law did not create a sex-based classification subject to heightened constitutional scrutiny. Rather, Brennan said, “It bars gender transition procedures regardless of whether the patient is a boy or a girl: Nobody may receive the treatment the state has chosen to regulate. So, sex does not indicate on what basis treatment is prohibited. The law does not create a class of one sex and a class of another and deny treatment to just one of those classes.”
Brennan also found that, “there is no evidence that SEA 480 is a pretext designed to discriminate against transgender people,” reasoning that the law still allows transgender individual to receive other kinds of health care that do not involve gender transition.
Brennan also argued that there is no basis to treat transgender people as a suspect or even quasi-suspect class, because there is insufficient history of transgender people being denied participation in the political process — as would be required by relevant prcedent. He wrote:
In addition, transgender people have not been relegated “to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Rodriguez, 411 U.S. at 28. They have never been denied the right to “hold office, serve on juries, or bring suit in their own names,” nor have they been denied the right to vote because they are transgender.
Likewise, the panel majority also rejected the plaintiffs’ due process claim, finding that there is no constitutionally-protected right to receive gender-affirming medical care. Lastly, the court rejected the First Amendment challenge to the portion of the law that prohibits doctors from “aiding and abetting” the provision of gender-affirming care on the basis that it was unclear that the law prohibited anything other than speech coincident with unlawful conduct.
Jackson-Akiwumi focused her lengthy dissent entirely on the First Amendment issue. On the equal protection and due process claims, the judge simply said, “On the critically important due process and equal protection questions before us, I dissent for largely the same compelling reasons explained by dissenting judges around the country.”
Jackson-Akiwumi wrote that the “initial, and largest, fault” with the majority’s opinion was its “unexplained silence” on the threshold issue of how the law in question restricts physicians in Indiana from “aiding and abetting” those outside the state who are unrestricted by the ban. Because the law cannot prohibit physicians outside the state from providing gender-affirming care, “there can be no ‘speech integral to unlawful conduct”” to provide information or a referral to those physicians, said the judge.
“My colleagues appear moved by the good intentions that Indiana contends underpin SEA 480’s aiding and abetting provision,” acknowledged Jackson-Akiwumi, but noted, “But it is axiomatic that a state cannot ensnare free speech just because it means well.”
“We are disappointed and are considering our options,” Kenneth Faulk, Legal Director of the ACLU in Indiana, wrote in an emailed statement.
In a post on X, Indiana Attorney General Todd Rokita, also a Republican, called the decision “a huge win for Hoosiers” that “will help protect our most precious gift from God — our children.”
In response to request for comment, a representative from the Indiana ACLU said that in an email Thursday that the organization was weighing its options.
You can read the full ruling here.
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