Court upholds protections for children with gender dysphoria

A federal appeals court last week upheld an Indiana law protecting children with gender dysphoria. In an opinion issued Wednesday, a split three-judge panel of the 7th U.S. Circuit Court of Appeals rejected a lawsuit from the American Civil Liberties Union asking the court to lift a temporary hold on the law.

The law forbids medical practitioners in the state from performing surgical procedures to change minors’ sex characteristics or prescribing them hormone therapy or puberty blockers. It also prevents them from assisting practitioners in other states who were doing so, which could include referring families to providers in states without such protections.

The 7th Circuit’s ruling is “a great day for the protection of young people in Indiana,” said John Bursch, an attorney with Alliance Defending Freedom, which filed a friend-of-the-court brief in support of the law.

“Treating kids who have gender dysphoria with puberty blockers, cross-sex hormones, and transgender surgeries have poor outcomes that cause innumerable health problems, as well as mental health issues,” he said. “The 7th Circuit decision upholds the Indiana law protecting those kids.”

Shortly after legislators passed the law in April 2023, the ACLU sued the state on behalf of a physician and four families who have children who identify as the opposite sex. The physician contended the law violated her free speech rights under the First Amendment by interfering with counsel provided to patients. The parents claimed the law infringed on their constitutional right to oversee their children’s medical care and discriminated against their children on the basis of gender and sex.

In June 2023, a district judge issued a temporary injunction in favor of the ACLU that put a hold on the law while the lawsuit proceeded.

Indiana appealed the ruling. In February, the 7th Circuit heard oral arguments from both sides, and about a week later—in a precursor to Wednesday’s ruling—it issued a stay of the district court’s ruling. This put the law back into effect while the case proceeded.

Last week’s ruling from the 7th Circuit upheld its earlier stay and fully rejected the lower court’s preliminary injunction. While final judgment is still pending from the lower court, the 7th Circuit’s opinion and analysis indicates what that outcome will be, Bursch said.

In the opinion, U.S. Circuit Judge Michael Brennan wrote that the district court erred by issuing the preliminary injunction and failed to recognize the constitutionality of Indiana’s law.

“Appellees ask us to constitutionalize and thus take from Indiana the power to regulate a new and heavily debated medical treatment with unknown risks,” Brennan said. “If we hasten to set one side of the debate into constitutional stone, we will prevent Indiana from responding to tomorrow’s insights. Our Constitution is not so quick to act.”

He added that the law does not discriminate on the basis of gender or sex because it “bars gender transition procedures regardless of whether the patient is a boy or a girl.”

Brennan recognized that while parents have concerns for their children’s health, there are other treatments available for gender dysphoria.

“While it was correct to recognize the record evidence supporting the effectiveness of medical interventions to treat gender dysphoria, the court failed to even discuss other record evidence establishing that psychotherapy and psychosocial support are also effective treatment options,” Brennan concluded. “It might be different if Indiana barred all treatment for gender dysphoria, but [this law] does no such thing.”

In a lengthy dissent, Circuit Judge Candace Jackson-Akiwumi disagreed on all fronts. She argued that, because the law prohibits medical professionals from aiding and abetting out-of-state providers with gender transition treatments, it hinders free speech.

“In the end, it is plain to me that [the law’s] aiding and abetting provision, even if aimed at Indiana’s legitimate interests, has such a tendency to inhibit constitutionally protected expression that it cannot stand,” she wrote.

However, Brennan countered that the law regulated unprotected medical speech, thus the physician had no grounds to bring her case.

Indiana Attorney General Todd Rokita lauded the 7th Circuit’s ruling as a “huge win for Hoosiers.”

“[It] will help protect our most precious gift from God—our children,” Rokita wrote on X. “By rejecting the injunction against our commonsense state law, dangerous and irreversible gender-transition procedures for minors will remain banned in Indiana.”

The 7th Circuit is now the third circuit court in the United States to uphold state laws like Indiana’s, ADF attorney Bursch noted.

The 11th Circuit upheld a similar law in Alabama this August while the 6th Circuit upheld one in Tennessee and Kentucky in 2023 in United States v. Skrmetti. The federal government later appealed the Skrmetti decision, and the U.S. Supreme Court is set to review it in December.

One circuit has ruled against state laws aimed at protecting children, Bursch said. In 2023, the 8th Circuit found a similar law in Arkansas violated the equal protection clause, the due process clause, and the First Amendment.

Lawsuits like these have been on the rise because states are stepping up to protect children, Bursch said. Currently, 26 states have laws against medical and surgical attempts to alter a minor’s biological sex characteristics.

These medical procedures have been proven to be dangerous for minors from years of research conducted in Europe, Bursch said.

“We know from their research that these interventions just are not good for kids,” he said. “At very best, they don’t help. At worst, they cause all kinds of harm and exasperate problems that already exist.”