Earlier this year Indiana Governor Eric Holcomb signed into law Senate Enrolled Act 480 (SEA 480), which, effective July 1, 2023, would prohibit health care practitioners from proving gender-affirming procedures to minors, and from “aiding or abetting” another health care provider in providing such care to minors.
The procedures covered by the law are puberty blockers, cross-sex hormones, and surgical alteration, and “aiding and abetting” would include assisting in treatment or making referrals. These procedures are not subject to the legal prohibition unless they are performed for the purpose of gender transition.
If the law went into effect, doctors would risk loss of their licenses if they provided gender-affirming care or helped minors to find health care providers in other states who would provide such care. The statute authorizes any individual to sue, although the normal means of enforcement would be proceedings by the medical licensing board.
Four transgender minors, their parents, and a doctor who provides gender-affirming care to minors, Catherine Bast, filed a federal lawsuit against the members of the Medical Licensing Board of Indiana, which is authorized to enforce SEA 480, as well as the Attorney General of Indiana and the state official in charge of the state’s Medicaid program. The plaintiffs seek to certify a class action on behalf of themselves and similarly situated individuals to have SEA 480 declared unconstitutional and to get an injunction against its enforcement. On filing suit, they sought a preliminary injunction to prevent the law from going into effect on July 1 while the case proceeds to a final judgment.
The plaintiffs and the defendants agreed that gender-affirming surgery is not practiced on minors in Indiana, so the court found that the plaintiffs did not have standing to attack that part of the statutory ban.
However, U.S. District Judge James Patrick Hanlon, who was appointed by President Trump in 2018, found that the plaintiffs have shown “some likelihood of success” on their equal protection and free speech claims. He issued a preliminary injunction on June 16 that will block any enforcement of the law (except as to surgery) until the court issues a final ruling on the merits of the case. See K.C. v. Individual Members of the Medical Licensing Board of Indiana, 2023 U.S. Dist. LEXIS 104870 (S.D. Ind., June 16, 2023). Hanlon’s ruling was consistent with similar awards of preliminary relief against laws banning gender-affirming care for minors in Alabama and Arkansas.
Shortly after the lawsuit was filed by the American Civil Liberties Union (ACLU), the defendants filed a motion to “stay briefing” on the plaintiffs’ motion for class certification until after Judge Hanlon ruled on the motion for preliminary injunction. Clearly, they anticipated that a preliminary injunction would be issued and they wanted to delay class certification so they could argue that such an injunction should be limited to the four plaintiffs and not apply to any other transgender minors or health care providers other than Dr. Bast.
On May 5, Judge Hanlon issued an order in response to the defendants’ motion to delay briefing on. See 2023 WL 3872436. He pointed out that 7th Circuit precedent allows him to issue class-wide preliminary relief as a matter of the court’s equitable powers when the facial unconstitutionality of a statute is at issue, even if a class action has not been formally certified. His June 16 Order blocks enforcement of SEA 480 as to puberty blockers and hormones and the aiding and abetting provision against any person, not just the named plaintiffs.
The court’s decision to award preliminary relief to the plaintiffs was not a ruling on the ultimate merits of their claim that the law is unconstitutional, but winning this relief is an important step, because if the statute goes into effect, minors seeking gender-affirming care would have to go out of state to get it, and those already receiving puberty blockers or cross-sex hormones would have to be weaned off their medication by the end of 2023. Their doctors would be placing their licenses to practice at risk by assisting them.
Judge Hanlon accepted the plaintiffs’ argument that SEA 480 discriminates against transgender minors on the basis of their sex, thus subjecting the law to heightened scrutiny. This means there is a presumption of unconstitutionality, the burden is on the state to show that the challenged law “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”
The defendants argued that the purpose of the law was to protect minors from being subject to “experimental” procedures that could cause irreparable harm to them. They contended that “the prohibited treatments are unsafe and their effectiveness is unproven.” The plaintiffs countered that “there’s no important government interest to justify prohibiting ‘safe, effective, and medically necessary treatment for the health and well-being of adolescents suffering from gender dysphoria.”
“Certainly,” wrote Judge Hanlon, “the proffered state interests are legitimate.” However, he continued, “But heightened scrutiny requires a ‘close means-end fit,’ so it’s not enough for the State’s interest to justify some regulation of gender transition procedures for minors. Instead, the State’s interests must justify SEA 480’s prohibition of gender transition procedures for minors. SEA 480’s scope is broad.” Indiana had decided to ban the procedures outright, however, not just to regulate them.
While acknowledging the defendant’s evidence of various risks attendant on these procedures, wrote Judge Hanlon, “Nevertheless, Plaintiffs argue that these ‘concerns are based on mischaracterizations and distortions about the diagnosis and treatment of gender dysphoria. Maybe Plaintiff will be able to prove that’s true at a trial where Defendants’ experts are subject to cross-examination on the strength of their opinions,” he continued. “But based on the paper record available here, the Court find that Defendants have designated some evidence in support of their position. Even so, heightened scrutiny requires more – the regulation must have an ‘exceedingly persuasive justification,’ and a ‘close means-end fit.’ In other words, the State’s specific means (SEA 480’s broad ban) must fit its ‘ends’ (protecting minors and regulating the medical profession).”
In this case, the Plaintiffs have presented evidence of the harms to transgender minors if they don’t get gender-affirming care, which are assertedly substantial: “prolonging of their dysphoria, and causing additional distress and health risks, such as depression, posttraumatic stress disorder, and suicidality.”
“So,” concluded Judge Hanlon, “while the State has identified legitimate reasons for regulation in this area, the designated evidence does not demonstrate, at least at this stage, that the extent of its regulation was closely tailored to uphold those interests. Plaintiffs have shown some likelihood of success on the merits of their equal protection claim.” And that’s all they need to get preliminary relief, provided the balance of harms and benefits tilts in their favor, which the court found that they did in this case.
The defendants tried to play the trump card of pointing out restrictions on gender-affirming care that have been adopted in several European countries, but that evidence did not persuade the court that Indiana was justified in passing a total ban, since none of the European countries have done so. Rather, they have tightened criteria for providing such care and in some cases restricted it to being provided “in the context of a formal research protocol,” as the English National Health Service has proposed. “Most detrimental to Defendants’ position is that no European country that has conducted a systematic review responded with a ban on the use of puberty blockers and cross-sex hormones as SEA 480 would,” Hanlon observed.
He also found that Dr. Bast’s First Amendment claim was also likely to prevail. The “aiding and abetting” provision is a direct restriction on the speech of health care practitioners, and its justification depends on what the court finally concludes on the minors’ probably valid equal protection claims. Restrictions on speech protected by the First Amendment are subjected to a higher level of scrutiny than sex discrimination claims, placing an even higher burden of justification on the state.
Judge Hanlon’s June 16 ruling should not be a total surprise, since the 7th Circuit Court of Appeals has ruled as early as 2017 in the case of Whitaker v. Kenosha Unified School District, 858 F.3d 1034, that a restroom policy that discriminates against transgender students violates the sex discrimination ban in Title IX of the Education Amendments Act, thus establishing a precedent for the 7th Circuit (which includes Indiana) that such discrimination should be analyzed as sex discrimination under the heightened scrutiny standard.
As for the First Amendment claim, Judge Hanlon had ruled in 2021 on the First Amendment rights of doctors in the context of an Indiana law that required doctors to inform pregnant women who had begun the abortion process using the pill sequence that there was a way to stop the process after the first pill by taking medication that could “reverse” its effect. Hanlon enjoined the state from mandating doctors to provide such information, which he found to be of dubious validity, to their patients.
Because he found the equal protection claims by the minor plaintiffs and the free speech claim by Dr. Bast sufficient to justify a preliminary injunction, Judge Hanlon did not address the plaintiffs’ argument that SEA 480 violates the parents’ due process rights, or issues raised under the Medicaid law and the Affordable Care Act. They will be addressed later in the case when the court issues a final ruling on the merits, unless, of course, the court concludes that it should strike down the statute on equal protection grounds, in which case these other issues would not have to be addressed.
Before the court ruled on the plaintiffs’ motion for preliminary injunction, US Magistrate Judge Kellie M. Barr, assigned to assist Judge Hanlon on the case, issued an order on June 13 that certain documents filed in the case be maintained “under seal” to protect the privacy of the minor plaintiffs, who are identified throughout Judge Hanlon’s decision by their initials rather than their names, as is customary on most litigation involving minors. See 2023 WL 3978425.
Judge Hanlon also granted a motion by sixteen states, led by Arkansas and Alabama, to file an amicus brief in support of Indiana’s law. By no coincidence, they are states that have passed similar laws, and Arkansas and Alabama have been preliminarily enjoined from enforcing theirs.