CHICAGO (CN) — Indiana took its fight against youth gender-affirming healthcare to the Seventh Circuit on Friday, hoping to overturn a lower court's partial injunction that had mostly blocked a state ban on hormone therapy, puberty blockers and gender reassignment surgery.
Indiana's Republican Governor Eric Holcomb signed the ban into law last April. Before it could take effect in July, U.S. District Judge James Patrick Hanlon in June issued a preliminary injunction against most of its components.
Prompted by a suit against the ban brought by a class of transgender youth and represented by attorneys from the Indiana ACLU, Hanlon blocked the law's prohibition on most gender-affirming medical procedures — though he allowed the ban on gender reassignment surgery to stand. He also blocked a provision of the law which would allow the state to prosecute medical practitioners who help trans youth access those procedures elsewhere.
The state appealed the ruling a month later — 11 days after the law was originally set to take effect. In court on Friday, Indiana's Deputy Solicitor General James Barta argued that the state had a right to regulate medical practitioners' behavior and that the science was on its side.
Outside the courthouse, multiple medical authorities have rejected this claim. The U.S. Department of Health and Human Services, the American Medical Association, the American Academy of Pediatrics and other health organizations have all concluded that transgender minors largely benefit from gender-affirming medical care. But the state, in its appellate documents, disputed these organizations' findings as low-quality and biased.
Instead, Indiana relied on findings from European countries like Sweden, which in recent years has shifted rightward in its evaluation of transgender medical issues.
Barta also cited Hanlon's own ruling, which concluded that "cross-sex hormone therapies prohibited by [the gender-affirming care ban] have risks as well."
"As the district court recognized, children who take hormones for transitioning run real risk of bone damage, stroke, and infertility," Barta said. "Multiple reviews systematic reviews of the scientific literature have found no evidence to support claims of psychological benefits."
An additional 21 Republican-led states, including South Dakota, Missouri, Alabama and Florida, filed amicus briefs alongside Indiana's appeal, echoing Barta and Indiana's position.
But these claims were disputed by attorney Kenneth Falk of the Indiana ACLU, who argued the ban defied the growing medical consensus that hormone therapy and puberty blockers are beneficial to transgender minors.
"The statute here bans the care that is widely recognized as essential to treat transgender dysphoric youth," Falk said. "Despite the state's attempt to say that there is an even dispute on each side, this treatment is endorsed by every major medical organization in the United States."
Falk also said the law illegally discriminated on the basis of sex, noting that even cisgender youth sometimes require hormone therapy.
"You're a doctor, you're sitting in your office, you know that you have a 16-year-old coming to see you for testosterone," Falk said, posing a hypothetical to the judges. "If that youth is a cisgender male, you're fine. If that youth is a transgender male, you violate the law."
For two of the appellate Justices hearing the case — Justice Kenneth Ripple, a Ronald Reagan appointee, and Justice Candace Jackson-Akiwumi, a Joe Biden appointee — another sticking point was the provision allowing Indiana to prosecute medical practitioners who help their patients access gender-affirming care elsewhere. The provision refers to doctors providing such help as "aiding and abetting" breaking the law.
Ripple questioned whether it would allow Indiana to go after doctors who refer in-state patients to care out of state. Only after repeated prodding from both justices, Barta admitted it likely would.
"The focus is on where the physician's conduct is occurring," Barta said. "If it's occurring in Indiana, it's covered by the statute. If the physician's conduct is occurring outside Indiana, that is just not something Indiana regulates."
"Is that a more direct answer to Judge Ripple's question?" Jackson-Akiwumi asked. "He asked you if an Indiana physician... is sitting in Indiana — which is a distinction you made — and in his office or her office in Indiana refers a patient for gender transitioning procedure, now out of state because it's banned in Indiana, is that aiding and abetting?"
"I think that would fall within the statute," Barta responded.
Rounding out the panel was the historically conservative justice Michael Brennan, a Donald Trump appointee.
Compared to his colleagues, Brennan was more critical of Falk's arguments than he was to Barta's, particularly on the issue of sex discrimination.
"I get back to that DSM-5 criteria for gender dysphoria," Brennan said at one point, referencing the Diagnostic and Statistical Manual of Mental Disorders used by the American Psychiatric Association to diagnose conditions.
"It's not sex-based; it's gender-based," Brennan continued. "The questions that are being inquired — a strong desire to be... treated as the other gender, [a] strong conviction [that] one has typical feelings or reactions of the other gender — it's not grounded in anything about maleness or femaleness."
Falk agreed as to the issue of gender dysphoria itself but countered that treating gender dysphoria inevitably involved the question of a patient's biological sex — opening the way for potential discrimination in treatment.
"The state has drawn a line between transgender persons and non-transgender youth," Falk said.
The panel took the case under advisement but did not say when they would issue a ruling.
Enacted and proposed laws like the one the appellate panel considered Friday have grown increasingly common in conservative areas of the United States. Some high-profile transgender advocates, including journalist Erin Reed, have dubbed this trend "trans panic" — an allusion to similar "gay panics" throughout U.S. history.
Among those gay panics were the "Lavender Scare" of the 1950s and '60s that accompanied McCarthyism and the anticommunist Red Scare, the notion of a "gay plague" that exacerbated the AIDS crisis of the 1980s, and hostility to the notion of marriage equality throughout the '90s, 2000s and early 2010s.
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