Minors do not have a constitutional right to receive puberty blockers or undergo gender transition surgeries, a federal appeals court has ruled, rejecting a challenge to an Indiana state law that bans such procedures, even if parents desire it for their children.
On Nov. 13, a divided three-judge panel of the U.S. Seventh Circuit Court of Appeals sided with Indiana's state government, overturning an injunction blocking the law entered by an Indianapolis federal judge.
The 2-1 decision was authored by Seventh Circuit Judge Michael B. Brennan. Judge Kenneth F. Ripple concurred.
Seventh Circuit Judge Candace Jackson-Akiwumi dissented, saying the law unconstitutionally works to block doctors' free speech rights by restricting their ability to discuss gender transition treatments.
The case had landed in federal court in 2023, when a group of parents filed suit, allegedly on behalf of their transgender children, along with a doctor and medical practice who allegedly provided the children with so-called "gender affirming care."
Plaintiffs identified on the complaint included Nathaniel and Beth Clawson, of Monroe County, Indiana; Ryan and Lisa Welch, of Marion County, Indiana; Emily Morris, of Marion County; Maria Rivera, of Elkhart County, Indiana; and physician Catherine Bast and her medical practice, Mosaic Health and Healing Arts Inc, of Goshen, Indiana.
The plaintiffs are represented in the action by attorneys with the American Civil Liberties Union, of Indianapolis and New York.
The lawsuit challenged the constitutionality of the new Indiana law, known as Senate Bill 480.
SB480 was enacted in 2023 by Indiana's Republican majority in Indianapolis and signed into law by Gov. Eric J. Holcomb.
Under that legislation, medical practitioners in Indiana are forbidden from performing gender transition therapies or surgeries for children under the age of 18, whether or not their parents request it.
Medical services banned under SB480 include anything that would alter a child's natural physical characteristics, if such alterations are not consistent with their biological sex.
Indiana lawmakers say this would include any surgical procedures, such as removing genitals or breasts. It would also prohibit the use of puberty-blocking drugs or the administration of certain drugs or hormones, if they are used to develop characteristics that are not consistent with a child's sex at birth. For instance, this would ban the administration of testosterone to minors who were born female or estrogen to those born female.
Such therapies would still be allowed if needed to treat other conditions not related to "gender affirming care" or transition.
The law does not prohibit mental health counseling or other non-medical or non-surgical interventions to address gender dysphoria in children.
The parents, however, asserted the law trespassed upon their rights as parents to direct the medical care and upbringing of their children.
Bast also argued the law violated her First Amendment speech rights, as well.
The lawsuit was filed as a class action on behalf of all similar parents, minors and doctors in Indiana.
The lawsuit met initial success in federal district court in Indianapolis, where District Judge James P. Hanlon agreed the parents and Bast had a strong likelihood of proving the law was unconstitutional. Hanlon, who was appointed to the court by then-President Donald Trump, granted an injunction blocking Indiana from enforcing SB480.
On appeal, however, the Seventh Circuit judges said Indiana did not violate the Constitution in enacting SB480 under the long-recognized state authority to regulate the practice of medicine and prohibit certain kinds of medical procedures.
In the decision, the majority rejected the claims that SB480 violated the "the fundamental right of parents to make medical decisions on their children's behalf," noting the parents' rights to steer their children's care is not and has never been absolute under U.S. constitutional law - particularly if they are demanding access to drugs, therapies or surgical procedures that a state or other regulators have prohibited.
They noted courts have held that even adult patients do not have "a constitutional right to obtain a particular type of treatment or to obtain treatment from a particular provider if the government has reasonable prohibited that type of treatment."
"A parent's right to demand care for his child could not be stronger than the child's right to access it," Brennan wrote.
The majority rejected the claims that SB480 violates speech rights, as well. While it does restrict the ability of doctors to discuss gender transition treatments, they said it does so to prohibit doctors from engaging in conduct that was already illegal.
To strike down the law on this basis, they said, would give an opening to other professionals to cite free speech as a way of avoiding complicity in criminal acts. The judges specifically noted it would be akin to allowing an accountant to knowingly prepare a fraudulent tax return or other financial statement in the name of protecting their rights to speech.
Further, the majority noted, the medical procedures and treatments banned by SB480 are not a matter of longstanding tradition, but are rather the subject of intense debate within the medical community, within the country's citizenry and among the states.
The judges noted, for instance, that while Indiana has prohibited such procedures and treatments, Democrat-dominated Illinois has enacted an opposite law making it more difficult for parents to stop their minor children from undergoing such procedures, if the children state a desire to identify as a different gender.
"These constitutional arguments threaten significant consequences," Brennan wrote. "(Plaintiffs) ask us to constitutionalize and thus take from Indiana the power to regulate a new and heavily debated medical treatment with unknown risks. 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. By design, it provides a solution to just a few difficult questions and leaves the rest to the people."
In dissent, Jackson-Akiwumi, an appointee of President Joe Biden, said she agreed the law violated the speech rights of Bast and other physicians.
Jackson-Akiwumi agreed the Constitution does not prevent a law forbidding certain speech used to further the commission of an illegal act.
But she said, in this case, the law overreaches by even forbidding doctors in Indiana to recommend patients to doctors in other states where such procedures and treatments are not banned or restricted.
In her analysis in dissent, she also drew on the accountant analogy.
While the First Amendment doesn't stop states from blocking accountants from encouraging fraudulent tax returns, it does not, she said, forbid that same accountant from "advising a client, 'you can incorporate in Delaware, where you would not have to pay certain state taxes,' even if the failure to pay those same taxes in Indiana would be unlawful."
She said the Indiana state law is more akin to forbidding the latter example and thus, should be considered unconstitutional.
Brennan was appointed by Trump. Ripple was appointed to the court by former President Ronald Reagan.