CHICAGO (CN) — A federal appellate panel on Tuesday issued an order that will allow Indiana to resume enforcement of its ban on gender-affirming medical care for minors, at least temporarily.
The five-sentence stay from a three-judge panel of the Seventh Circuit lifts a lower court's injunction that had blocked enforcement of Indiana's prohibition against most forms of youth gender-affirming medical care, including hormone therapy and puberty blockers, pending a final decision in the class action that seeks to overturn the prohibition entirely.
The order promises a final judgment in the case "will follow," but does not say when.
News of the stay came as a blow to civil and transgender rights advocates, who have continued to fight against the state's ban on youth gender-affirming care since it became law last year.
“This ruling is beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families," the Indiana ACLU said in a joint statement with the national ACLU about the decision.
Indiana's Republican Governor Eric Holcomb signed the ban into law last April. But before it could take effect in July, U.S. District Judge James Patrick Hanlon issued a preliminary injunction against most of its components last June.
Prompted by a class action against the state, brought by several medical professionals and a class of transgender Indiana youth, 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 that would allow the state to prosecute medical practitioners who help trans youth access those procedures elsewhere. The state said medical practitioners doing so would be "aiding and abetting" violations of the law, but Hanlon was persuaded that the provision infringed on doctors' First Amendment rights.
"Plaintiffs ... have some likelihood of success on their First Amendment challenge to [the law's] aiding and abetting provision, as applied to the speech they have shown to be regulated by that provision," Hanlon wrote.
Attorneys for the state and the Indiana ACLU, representing the medical practitioners and transgender minors, presented oral arguments on the issue to the Seventh Circuit earlier this month.
Before the appellate panel — consisting of Justices Kenneth Ripple, a Ronald Reagan appointee, Candace Jackson-Akiwumi, a Joe Biden appointee, and Michael Brennan, a Donald Trump appointee — on Feb. 16, Indiana's Deputy Solicitor General James Barta argued the state had a right to regulate medical practitioners' behavior and the science was on its side.
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.
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 discriminates 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."
With a final verdict on the ban pending, the Indiana ACLU recommitted itself Tuesday to a protracted legal fight.
"As we and our clients consider our next steps, we want all the transgender youth of Indiana to know this fight is far from over and we will continue to challenge this law until it is permanently defeated and Indiana is made a safer place to raise every family,” the civil rights group said.
The Seventh Circuit is also currently reviewing a second anti-LGBTQ law out of Indiana. Last week, the appellate court heard arguments in a case over the state's "don't say gay" law that prohibits instruction on human sexuality to students in prekindergarten through third grade.
In that case, an Indiana public school teacher is asking the appellate court to overturn what she considers to be a discriminatory and unconstitutionally vague law.
Laws like these before the Seventh Circuit are becoming increasingly common in conservative areas of the U.S. 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, such as the "Lavender Scare" of the 1950s and 1960s 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 1990s, 2000s and early 2010s.
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