K.C. v. Individual Members of the Medical Licensing Board

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2366

K.C., et al.,

Plaintiffs-Appellees,

v.

INDIVIDUAL MEMBERS OF THE MEDICAL LICENSING BOARD OF

INDIANA, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division

No. 1:23-cv-00595-JPH-KMB — James P. Hanlon, Judge.

____________________

ARGUED FEBRUARY 16, 2024 — DECIDED NOVEMBER 13, 2024

____________________

Before RIPPLE, BRENNAN, and JACKSON-AKIWUMI, Circuit

Judges.

BRENNAN, Circuit Judge. Indiana enacted a law prohibiting

its physicians from altering a child’s sex characteristics

through medication or surgery as treatment for gender dys-

phoria. Some children who would receive the treatment if not

for the law argue that Indiana has deprived them of equal pro-

tection of the laws based on their sex or transgender status.

2 No. 23-2366

The parents argue it infringes a fundamental right to oversee

their children’s medical care because the law makes their con-

sent legally irrelevant. And a physician argues Indiana’s deci-

sion to extend enforcement to those who facilitate the banned

treatment regulates her speech based on its content. The dis-

trict court found that these arguments were likely to succeed

and that a preliminary injunction was warranted. The state

has appealed.

Courts have long permitted states to hold closely the

power to regulate the practice of medicine. This power is

strongest when the safety and effectiveness of the treatment

is uncertain, as is true here. This appeal calls us to decide

whether the Constitution says a regulation of the treatments

for gender dysphoria is a step too far, withdrawing the ques-

tion from the people forever.

I.

A. Clinical treatment of minors with puberty blockers

and hormone therapy

At issue here are two medical treatments: puberty block-

ers, which delay the onset of puberty, and hormone therapy,

which introduces one of the primary sex hormones into the

body’s endocrine system. For years, physicians working with

children have used these treatments for disorders of sex de-

velopment or puberty. More recently, physicians have begun

using them to treat childhood gender dysphoria.

Used in their traditional setting, puberty blockers and hor-

mone therapy correct a pubertal or hormonal abnormality.

For example, puberty blockers are a common treatment for

central precocious puberty, which occurs when puberty be-

gins too early. See Kanthi Bangalore Krishna et al., Use of

No. 23-2366 3

Gonadotropin-Releasing Hormone Analogs in Children: Update by

an International Consortium, 91 HORMONE RSCH. IN PÆDIATRICS

357, 357 (2019); Jadranka Popovic et al., Gonadotropin-Releasing

Hormone Analog Therapies for Children with Central Precocious

Puberty in the United States, 10 FRONTIERS IN PEDIATRICS, at 1, 2

(2022). Early onset of puberty can lead to serious physical con-

sequences for the child, including shorter-than-expected

height due to rapid acceleration of the skeleton, as well as be-

havioral difficulties. Popovic, Gonadotropin-Releasing Hormone

Analog Therapies, at 2. By slowing puberty down, puberty

blockers can allow a child to begin puberty at an appropriate

age and avoid these problems. Id.

Another example is Klinefelter syndrome, which physi-

cians sometimes treat with hormone therapy. This syndrome

is a sex chromosome abnormality that affects boys. See Chang

et al., Morbidity in Klinefelter Syndrome and the Effect of Testos-

terone Treatment, 184 AM. J. OF MED. GENETICS 344, 344 (2020).

Although they enter puberty normally, these boys can expe-

rience an early cessation of puberty due to declining levels of

testosterone. Anna Nordenström, Puberty in Individuals with a

Disorder of Sex Development, 14 CURRENT OP. IN ENDOCRINE &

METABOLIC RSCH. 42, 46 (2020). Klinefelter syndrome has been

treated with testosterone supplementation since the 1960s,

and hormone therapy has been proposed as a treatment since

the 1940s, when Klinefelter was first described. Chang, Mor-

bidity in Klinefelter Syndrome, at 344–45.

More recently, physicians have started using puberty

blockers and hormone therapy for a new purpose: to treat

gender dysphoria in minors approaching puberty. Gender

dysphoria is the diagnostic term for the distress a person may

feel in response to believing their gender identity does not

4 No. 23-2366

match their sex. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STA-

TISTICAL MANUAL OF MENTAL DISORDERS 511 (5th ed. text revi-

sion 2022).

There are psychological and medical treatments for gen-

der dysphoria. Social support and psychotherapy are widely

recognized approaches, Danyon Anderson et al., Gender Dys-

phoria and Its Non-Surgical and Surgical Treatments, 10 HEALTH

PSYCH. RSCH., at 4 (2022), including by both appellees and ap-

pellants. Medical organizations that broadly support inter-

ventions endorse psychosocial therapy for gender dysphoria.

Id. (“The WPATH recognizes that psychotherapy successfully

helps individuals with their gender identity without needing

hormone based medical therapy or gender affirmation sur-

gery.”).

Physicians may also attempt to eliminate the distress asso-

ciated with gender dysphoria through three medical interven-

tions relevant here. In adolescents, this route typically begins

when a physician prescribes puberty blockers to prevent the

development of secondary sex characteristics. Then, physi-

cians can introduce the hormones biologically produced by

the opposite sex to induce those secondary sex characteristics.

And finally, a patient could undergo surgery to eliminate the

primary sex characteristics developed in utero and establish

the characteristics of the other sex through plastic surgery.

The efficacy and risks of the three medical interventions

are unclear. Some reports and studies provide reasons to be

cautious, emphasizing the medical interventions’ usefulness

in effectuating a gender transition but not in treating the men-

tal health component. For example, one study found no “clin-

ically significant changes” in depression and anxiety among

minors prescribed hormone therapy within seven months of

No. 23-2366 5

their first visit. Annette L. Cantu et al., Changes in Anxiety and

Depression from Intake to First Follow-Up Among Transgender

Youth in a Pediatric Endocrinology Clinic, 5 TRANSGENDER

HEALTH 196, 199 (2020). Other reports have noted the risks

and side effects of interfering with puberty, one of the most

critical developmental periods in a human being’s life, when

the gender dysphoria could be treated by other means. For

example, a case study explored the devastating impacts on

fertility and bone density in long-term use of puberty block-

ers. Ken C. Pang et al., Long-term Puberty Suppression for a Non-

binary Teenager, 145 PEDIATRICS, Feb. 2020, at 1, 2.

Other sources support medical interventions, saying they

do treat the mental health symptoms effectively and that the

side effects are comparable whether or not prescribed as treat-

ment for gender dysphoria. One study, for example, found a

statistical correlation between gender hormone therapy and

lower suicidality. Amy E. Green et al., Association of Gender-

Affirming Hormone Therapy With Depression, Thoughts of Sui-

cide, and Attempted Suicide Among Transgender and Nonbinary

Youth, 70 J. ADOLESCENT HEALTH 643, 647 (2022). But the most

influential voices in this group have been two professional

organizations—the Endocrine Society and the World Profes-

sional Association for Transgender Health. They have prom-

ulgated treatment guidelines recommending that physicians

use puberty blockers and hormone therapy to treat children

with gender dysphoria at certain stages and after certain as-

sessments. But these organizations have not evaded criticism.

Some have expressed doubt about whether WPATH’s guide-

lines actually reflect medical consensus as to treatments for

gender dysphoria. See Kosilek v. Spencer, 774 F.3d 63, 87, 90 (1st

Cir. 2014) (en banc) (holding a prison official did not act with

deliberate indifference by failing to provide transgender

6 No. 23-2366

inmate with sex reassignment surgery, even where treating

doctor did not follow WPATH standards of care because it

was one of “two alternative courses of medical treatment”);

Gibson v. Collier, 920 F.3d 212, 223 (5th Cir. 2019) (“[T]he

WPATH Standards of Care do not reflect medical consensus,”

and “[t]here is no medical consensus that sex reassignment

surgery is a necessary or even effective treatment for gender

dysphoria.”).

States have taken a variety of regulatory approaches in re-

sponse to the debate over the medical treatments. These ap-

proaches group into three general camps. Some have decided

the risks and efficacy are too unclear and have chosen to limit

access to medical treatments to adults while protecting access

to puberty blockers and hormone therapy when used to treat

the disorders of sex development or puberty. See, e.g., KY. REV.

STAT. ANN. § 311.372(2) & (3). Others, believing the risk of

harm to the patient to be greater than the risk of not treating

gender dysphoria with medical interventions, have shielded

from disclosure healthcare information related to the treat-

ment. See, e.g., CAL. CIV. CODE § 56.109. And others have cho-

sen to wait.

B. Senate Enrolled Act 480

In April 2023, Indiana stopped waiting and enacted Senate

Enrolled Act 480. The law forbids medical practitioners from

providing gender transition procedures to minors. IND. CODE

§ 25-1-22-13(a). Gender transition procedures are defined as

medical interventions designed to “alter or remove” sex char-

acteristics “typical for the individual’s sex” or “instill or cre-

ate” sex characteristics “that resemble a sex different from the

individual’s sex.” See id. § 25-1-22-5(a).

No. 23-2366 7

SEA 480 concerns these procedures generally, but three in-

terventions are at its core. See id. § 25-1-22-5(a)(2). First, pu-

berty-blocking drugs. Id.; id. § 25-1-22-11. Second, hormone

therapy. Id. §§ 25-1-22-5(a)(2); 25-1-22-4. Hormone therapy is

defined as the provision of testosterone, estrogen, or proges-

terone in an amount greater than what a healthy person of

that age and sex would naturally produce. Id. § 25-1-22-4. And

third, gender reassignment surgery. Id. §§ 25-1-22-6; 25-1-22-

8; 25-1-22-5(a)(2). The act prohibits both genital and non-gen-

ital surgical interventions.

SEA 480 also defines a gender transition procedure by

what it is not. See id. § 25-1-22-5(b)(1)–(6). Those procedures

necessary to correct a disorder of sex development or to treat

an abnormality relating to sex, for example, are permitted. Id.

§ 25-1-22-5(b)(1), (2), (6). The law does not affect mental health

or social services. Id. § 25-1-22-5(b)(5). And it does not limit a

physician’s ability to treat a minor injured by a gender transi-

tion procedure or to save the minor from imminent grievous

harm. Id. § 25-1-22-5(b)(3), (4). SEA 480 also provides for

secondary liability. One practitioner “may not aid or abet an-

other” who is providing gender transition procedures to a mi-

nor. Id. § 25-1-22-13(b).

To illustrate: A male child with gender dysphoria could

not receive puberty blockers, hormone therapy, or gender re-

assignment surgery as treatment for that diagnosis. But a

male child with, for example, Klinefelter syndrome, could re-

ceive hormone therapy to supplement his natural develop-

ment of testosterone.

8 No. 23-2366

C. Appellees’ challenge to SEA 480

On April 5, 2023, a group of transgender children, their

parents, and a physician and her practice—Mosaic Health

and Healing Arts, Inc.—sued the Indiana officials responsible

for enforcing SEA 480.

They alleged SEA 480 violated the Equal Protection

Clause, substantive due process, the First Amendment’s Free

Speech Clause, the Affordable Care Act, and the Medicaid

statute. And they sought to represent three classes—minors

who would be eligible for the treatment, parents of those mi-

nors, and Indiana physicians who would provide the banned

treatment; and two subclasses—minors eligible for the treat-

ment who receive Medicaid and physicians who provide the

banned treatment who are Medicaid providers.

The next day the plaintiffs moved for a preliminary injunc-

tion. After briefing and a hearing, the district court granted

the injunction in part on June 16, 2023. It considered three of

the prohibitions within SEA 480: the non-surgical gender

transition procedures, speech constituting aiding and abet-

ting gender transition procedures, and gender reassignment

surgery. Because no provider in Indiana performs gender re-

assignment surgery on minors, the district court found the

plaintiffs lacked standing to challenge that prohibition and so

declined to enjoin it. So, its injunction extended only to the

first two.

Although the plaintiffs brought seven claims total, the dis-

trict court discussed only two in its preliminary injunction or-

der: the minor plaintiffs’ Equal Protection Clause claim and

the physicians’ Free Speech Clause claim. The minor plaintiffs

alleged that SEA 480 constituted a sex-based and transgender-

No. 23-2366 9

status-based classification. The district court concluded that

they showed a likelihood of success on this claim because SEA

480 conditions the legality of a procedure on the patient’s sex.

On heightened review, it determined that SEA 480 serves an

important interest but was far broader than necessary.

The physician plaintiffs alleged that SEA 480’s secondary

liability provision constituted a content-based regulation of

protected speech; namely, medical-care communications. The

court also concluded that these plaintiffs showed a likelihood

of success on their Free Speech claim, as the aiding and abet-

ting provision does not sweep in speech incidentally but tar-

gets it directly. Finally, the court decided that the balance of

harms tilted in favor of entering the injunction.

On July 11, 2023, Indiana appealed from the district court’s

decision to enter the injunction. This court heard oral argu-

ment on February 16, 2024, and on February 27, stayed the

district court’s order and injunction. Indiana’s law would

have gone into effect had the district court not entered its in-

junction, so the stay allowed the state to enforce SEA 480

while this appeal proceeded. The factors this court weighed

when evaluating the merits of the stay are the same as the fac-

tors for a preliminary injunction. Camelot Banquet Rooms, Inc.

v. U.S. Small Bus. Admin., 14 F.4th 624, 628 (7th Cir. 2021). So,

our analysis below supports both our February 27 stay and

our decision on Indiana’s appeal.

II.

Indiana challenges the district court’s preliminary injunc-

tion. To earn the “extraordinary remedy” of a preliminary in-

junction, Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24

(2008), the party seeking the injunction must establish:

10 No. 23-2366

[T]hat he is likely to succeed on the merits, that

he is likely to suffer irreparable harm in the ab-

sence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction

is in the public interest.

Id. at 20. Legislative enactments touching on health and wel-

fare receive a “strong presumption of validity.” Heller v. Doe,

509 U.S. 312, 319 (1993) (upholding laws providing for proce-

dures governing commitment of mentally disabled persons).

And “in areas where there is medical and scientific uncer-

tainty,” the courts give legislatures “wide discretion” in craft-

ing a response. Gonzales v. Carhart, 550 U.S. 124, 163 (2007).

When evaluating a preliminary injunction, “we review the

district court’s findings of fact for clear error, its legal conclu-

sions de novo, and its balancing of the factors for a prelimi-

nary injunction for abuse of discretion.” Doe v. Univ. of So.

Ind., 43 F.4th 784, 791 (7th Cir. 2022) (brackets and quotation

omitted). “An error of law can cause an abuse of discretion.”

Id.; Common Cause Ind. v. Lawson, 978 F.3d 1036, 1039 (7th Cir.

2020); Mays v. Dart, 974 F.3d 810, 818 (7th Cir. 2020) (also er-

rors of fact); Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429,

1437 (7th Cir. 1986) (same).

III.

A party seeking a preliminary injunction “must make a

strong showing that [it] is likely to succeed on the merits.” Ill.

Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020); cf.

Nken v. Holder, 556 U.S. 418, 434 (2009). This factor is a “signif-

icant burden,” but it ought not “spill … into the ultimate mer-

its,” as a preliminary injunction is “designed to protect both

No. 23-2366 11

the parties and the process while the case is pending.” Ill. Re-

publican Party, 973 F.3d at 763.

Proof of a likelihood of success by a preponderance of ev-

idence is not necessary. Id. We instead ask the party to demon-

strate “how [it] proposes to prove the key elements of its

case,” id., and evaluate its chance of success based on this

proffer. This “step ‘is often decisive.’” Doe v. Univ. of S. Ind.,

43 F.4th at 791 (quoting Braam v. Carr, 37 F.4th 1269, 1272 (7th

Cir. 2022)).

Appellees say SEA 480 violates the Constitution in three

ways: the Equal Protection Clause by classifying the minor

plaintiffs based on their sex and their status as transgender

persons; substantive due process by not allowing the parents

to override the law if they consent to the banned treatment;

and the Free Speech Clause by forbidding the physicians to

aid and abet other physicians who provide the banned treat-

ment. Although appellees initially raised seven claims, the

parties focus on these three in their briefs. Though the district

court discussed only the first and third claims, we will discuss

all three to determine whether they are likely grounds of suc-

cess on the merits for appellees. 1

1 Our dissenting colleague fails to engage with whether SEA 480 raises

any equal protection or substantive due process problems. Instead, our

colleague cites the dissents from other judges who have opined on various

state laws concerning gender transition procedures for minors.

This approach does not grapple with the similarities and the differ-

ences between and among each state’s law. See Appendix. To us, Indiana’s

law warrants independent review on each of these constitutional ques-

tions.

12 No. 23-2366

A. Equal Protection Clause

First, appellees claim SEA 480 classifies on the basis of

transgender status and sex, cannot meet heightened scrutiny,

and therefore violates the Fourteenth Amendment’s Equal

Protection Clause. The Fourteenth Amendment forbids a state

from “deny[ing] to any person within its jurisdiction the

equal protection of the laws.” U.S. CONST. amend. XIV, § 1.

The Supreme Court has characterized the Equal Protection

Clause as a Constitutional anti-discrimination rule. Goesaert v.

Cleary, 335 U.S. 464, 466 (1948) (“The Constitution in enjoining

the equal protection of the laws upon States precludes irra-

tional discrimination as between persons or groups of persons

in the incidence of a law.”); Frontiero v. Richardson, 411 U.S.

677, 679 (1973) (evaluating whether a “difference in treatment

constitutes an unconstitutional discrimination”); Craig v.

Boren, 429 U.S. 190, 207–08 (1976). Under the Clause, discrim-

ination means unequal treatment on the basis of a character-

istic likely to be regulated for suspect purposes. Geinosky v.

City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012) (“[The Equal

Protection Clause is] a guard against state and local govern-

ment discrimination on the basis of race, national origin, sex,

and other class-based distinctions.”).

The Equal Protection Clause works by subjecting state ac-

tion to a particular level of judicial review depending on

which class is being treated differently. The most burdensome

for the state—strict scrutiny—is reserved for unequal treat-

ment on the basis of race and national origin, see, e.g., Wygant

v. Jackson Bd. of Educ., 476 U.S. 267, 273–74 (1986), and (gener-

ally) alienage, Examining Bd. of Eng’rs, Architects & Surveyors

v. Flores de Otero, 426 U.S. 572, 602 (1976). Laws that discrimi-

nate based on sex, United States v. Virginia, 518 U.S. 515, 532–

No. 23-2366 13

33 (1996), and the marital status of a person’s parents at the

time of his birth, Clark v. Jeter, 486 U.S. 456, 461 (1988), receive

intermediate scrutiny. If a state has not treated one of these

classes unequally, “courts are quite reluctant to overturn gov-

ernmental action on the ground that it denies equal protection

of the laws” and will review the law for a rational basis. Vance

v. Bradley, 440 U.S. 93, 97 (1979); Pennell v. City of San Jose, 485

U.S. 1, 14 (1988).

The “underlying rationale” for these classifications “is

that, where legislation affects discrete and insular minorities,

the presumption of constitutionality fades because traditional

political processes may have broken down.” Johnson v. Robi-

son, 415 U.S. 361, 375 n.14 (1974) (quoting Robison v. Johnson,

352 F. Supp. 848, 855 (D. Mass. 1973)). So, not every instance

of unequal treatment implicates the Equal Protection Clause’s

two more burdensome tiers of scrutiny. For one, “laws that

apply evenhandedly to all ‘unquestionably comply’ with the

Equal Protection Clause.” Vacco v. Quill, 521 U.S. 793, 800

(1997) (quoting N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568, 587

(1979)). Further, even laws that affect different groups une-

venly raise no equal protection problems per se. Pers. Adm'r

of Mass. v. Feeney, 442 U.S. 256, 271–72 (1979) (“Most laws clas-

sify, and many affect certain groups unevenly … .”); see Mass.

Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976) (“[T]he

drawing of lines that create distinctions is peculiarly a legis-

lative task and an unavoidable one.”). Because “equal protec-

tion is not a license for courts to judge the wisdom, fairness,

or logic of legislative choices,” courts need to assure them-

selves that uneven treatment exists and is based on the pro-

tected characteristic. F.C.C. v. Beach Commc'ns, Inc., 508 U.S.

307, 313 (1993).

14 No. 23-2366

Therefore, courts must start by identifying the particular

“differential treatment” or “official action that closes a door

or denies opportunity to” a person. Virginia, 518 U.S. at 532–

33. Then, unless that differential treatment or door-closing is

on the basis of the person’s race, national origin, alienage, sex,

or parents’ marital status at the time of his birth, the Consti-

tution compels the court to uphold the law if it has a rational

basis.

The key issue in this appeal is whether SEA 480 classifies

based on a protected class, and that issue requires us to an-

swer two questions. First, does SEA 480 classify based on sex?

If yes, we must determine whether it serves an important gov-

ernmental objective and the means employed are substan-

tially related to achieving that objective. Virginia, 518 U.S. at

533. Indiana’s justification for SEA 480 would have to be “ex-

ceedingly persuasive.” Id. Second, is transgender status a

quasi-protected class warranting a level of scrutiny higher

than rational basis? If yes, we must determine and apply that

level of scrutiny.

SEA 480’s classifications based on age and medical diag-

nosis do not merit higher scrutiny. Murgia, 427 U.S. at 312–13

(age); cf. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.

432, 442 (1985) (disability). So, if we answer no to both ques-

tions—if we determine Indiana’s law does not classify based

on sex and transgender status is not a quasi-protected class—

we will review SEA 480 for a rational basis.

1. Differential treatment based on sex

Where the Supreme Court has held that a law entails “dif-

ferential treatment” between the sexes or “closes a door or de-

nies opportunity to” one sex, Virginia, 518 U.S. at 532–33, the

No. 23-2366 15

state placed a benefit within reach of one sex and out of reach

of the other or burdened one sex in a way it had not burdened

the other. For example, the Court has found differential treat-

ment in a law giving a man preference over a woman when

both are otherwise equally qualified to administer an intestate

estate, Reed v. Reed, 404 U.S. 71, 71–75, 77 (1971); a law requir-

ing servicewomen—but not servicemen—to prove their

spouses are dependent on them in order to qualify for

increased benefits, Frontiero, 411 U.S. at 678–79, 688; a law

allowing widows—but not widowers—to receive social secu-

rity benefits upon the death of their spouse, Weinberger v. Wie-

senfeld, 420 U.S. 636, 639–41, 645 (1975); a law allowing women

to purchase near beer at age 18 but men at age 21, Craig, 429

U.S. at 210, 197; a law placing an obligation on husbands—but

not wives—to pay alimony, Orr v. Orr, 440 U.S. 268, 270–71,

273 (1979); a law allowing unwed mothers—but not unwed

fathers—to object to their children’s adoption, Caban v. Mo-

hammed, 441 U.S. 380, 387–88 (1979); a state nursing school’s

policy of barring men—but not women—from admission,

Miss. Univ. for Women v. Hogan, 458 U.S. 718, 730–31 (1982); a

state military institution’s policy of barring women—but not

men—from admission, Virginia, 518 U.S. at 533–34; and a law

allowing an unwed mother—but not a father—to transfer her

U.S. citizenship to her child born abroad, Sessions v. Morales-

Santana, 582 U.S. 47, 51–52 (2017).

Following the Supreme Court’s guidance, this court has

found differential treatment in a city ordinance banning

women—but not men—from bearing their breasts in public,

Tagami v. City of Chicago, 875 F.3d 375, 377, 380 (7th Cir. 2017);

a rule requiring boys—but not girls—to cut their hair short to

play interscholastic basketball, Hayden ex rel. A.H. v. Greens-

burg Cmty. Sch. Corp., 743 F.3d 569, 572, 582 (7th Cir. 2014);

16 No. 23-2366

and an ordinance requiring a county to award a certain quota

of contracts to women-owned—but not male-owned—enter-

prises, Builders Ass’n of Greater Chicago v. County of Cook, 256

F.3d 642, 643, 645 (7th Cir. 2001).

SEA 480 is unlike the rules in any of these cases. It bars

gender transition procedures regardless of whether the pa-

tient is a boy or a girl: Nobody may receive the treatment the

state has chosen to regulate. So, sex does not indicate on what

basis treatment is prohibited. The law does not create a class

of one sex and a class of another and deny treatment to just

one of those classes.

Appellees point past this Supreme Court and Seventh Cir-

cuit precedent to Whitaker ex rel. Whitaker v. Kenosha Unified

School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir.

2017). In their view, Whitaker shifted how this court reads and

applies the Equal Protection Clause: Any law that “cannot be

stated without referencing sex” creates a sex-based classifica-

tion demanding heightened scrutiny. Id. at 1051. They argue

SEA 480 entails a sex-based classification under Whitaker be-

cause the law “prohibit[s] medical treatment only when that

treatment is deemed inconsistent with a minor’s birth sex.”

Because SEA 480 requires physicians to consider a patient’s

sex before prescribing gender transition procedures, appel-

lees say, Whitaker confirms that SEA 480 classifies on the basis

of sex.

Not so. Whitaker did not hold that a state draws a sex-

based classification each time it must reference sex to enforce

the law. Such a statement would directly contradict the Su-

preme Court. Both before and after Whitaker, the Court has

applied rational-basis review to laws classifying based on sex

where the distinction drawn is based on a medical procedure

No. 23-2366 17

or condition exclusive to one sex. See Geduldig v. Aiello, 417

U.S. 484, 496 n.20 (1974); Dobbs v. Jackson Women's Health Org.,

597 U.S. 215, 236–37 (2022). Enforcing the laws in those cases

depended on an essential reference to sex, too. In Geduldig,

California did not allow pregnant women to receive disability

payments on account of their pregnancy, but the court ap-

plied rational-basis review. Geduldig, 417 U.S. at 488–89, 496.

In Dobbs, Mississippi did not allow pregnant women to have

abortions after the child’s gestational age passed 15 weeks,

but the court applied rational-basis review. Dobbs, 597 U.S. at

232, 300. If Whitaker means what appellees say, the Court in

Geduldig and Dobbs should have applied heightened scrutiny.

If Whitaker’s pronouncement modified the Equal Protec-

tion Clause analysis, we would expect this court to have

treated it as having done so in subsequent cases. But since

Whitaker, this court has not once cited the language appellees

point to, despite referencing the case in three Equal Protection

Clause cases. See A.C. ex rel. by M.C. v. Metro. Sch. Dist. of Mar-

tinsville, 75 F.4th 760, 772 (7th Cir. 2023); West v. Radtke, 48

F.4th 836, 852 (7th Cir. 2022); Carson v. Lake Cnty., 865 F.3d 526,

536 (7th Cir. 2017).

Further, Whitaker itself did not require this purported

gloss: the school district’s classification was sex-based

because assigning a bathroom based on a child’s sex unques-

tionably separates the sexes into two groups. This is an unre-

markable conclusion. See Adams ex rel. Kasper v. Sch. Bd. of St.

Johns Cnty., 968 F.3d 1286, 1311–12 (11th Cir. 2020) (W. Pryor,

J., dissenting) (disagreeing that similar bathroom rule vio-

lated Equal Protection Clause but recognizing that rule classi-

fied based on sex) (subsequent history omitted).

18 No. 23-2366

The court’s “referencing sex” language referred to “the

student’s birth certificate,” which is how the school district

determined which bathroom each student could use. Whita-

ker, 858 F.3d at 1051; see id. at 1041 (explaining that school dis-

trict required “legal or medical documentation” from student

to change student’s gender in school records). “Referencing

sex” was how the school district classified by sex, not why its

classification was sex-based.

Appellees have another Whitaker problem. Even if the case

means what appellees and the district court think it does,

medical practitioners can comply with SEA 480 “without ref-

erencing sex.” Although the physician would have to deter-

mine the patient’s sex to decide which hormone to prescribe,

the physician does not need to reference sex to determine

whether the patient has gender dysphoria. Once the patient is

diagnosed, the physician knows that SEA 480 restricts his

treatment options. So, even under appellees’ reading of Whit-

aker, heightened scrutiny need not be applied.

Consider a hypothetical demonstrating why SEA 480 does

not require a reference to sex. Assume a physician did not

know a patient’s sex and could only establish it by asking the

patient questions. The physician asks the patient, as the DSM-

5-TR commands, if the patient has “[a] strong desire to be of …

[]some alternative gender different from one’s assigned gen-

der[][.]” Gender Dysphoria, Gender Dysphoria in Adolescents

and Adults, F64.0(A)(4) DSM-5-TR, at 513 (emphasis added).

The patient says, “yes.” The physician asks the patient if the

patient has “[a] strong desire to be treated as … []some alterna-

tive gender different from one’s assigned gender[][.]” Id. at

F64.0(A)(5) (emphasis added). The patient says, “yes.” If the

patient has been feeling that way for at least six months, id. at

No. 23-2366 19

F64.0(A), and experienced “clinically significant distress” in

the patient’s social life, id. at F64.0(B), the physician knows—

while still ignorant to the patient’s sex—that SEA 480 prohib-

its two treatment options. 2

The only way SEA 480 implicates sex at all is that the med-

ical treatment at issue is sex specific—it denies each sex access

to the other’s hormones. A physician could, if not for SEA 480,

prescribe two medical treatments: one exclusively to girls

with gender dysphoria—testosterone; and one exclusively to

boys with gender dysphoria—estrogen.

The Supreme Court has dealt with laws like this before, in

which the classification is only sex-based because it regulates

a “medical procedure that only one sex can undergo.” Dobbs,

597 U.S. at 236. In Geduldig, for example, California had de-

clined to compensate workers for lost time working if the rea-

son was a disability attributable to pregnancy. 417 U.S. at 488–

89. The Court found no sex-based classification, explaining

that “[t]here is no risk from which men are protected and

women are not” and “there is no risk from which women are

protected and men are not.” Id. at 496–97. It did not raise a

constitutional problem that pregnant women were being

2 We recognize that Whitaker addressed the role transgender status

played in the school district’s bathroom policy. The school district, Whita-

ker explained, “treats transgender students … who fail to conform to the

sex-based stereotypes associated with their assigned sex at birth[] differ-

ently.” 858 F.3d at 1051. Appellees place significant emphasis on that

quote, citing it three times in their brief. But for two reasons, sex-based

stereotyping is not at issue here. First, a physician in Indiana could not

provide gender transition procedures no matter how the patient acted or

dressed. Second, if transgender status enters the debate about SEA 480 at

all, it would be through a diagnosis of gender dysphoria, not the patient’s

external manifestation of gender.

20 No. 23-2366

treated differently than men under the disability plan, the

Court continued, for two reasons: Pregnancy is an

“objectively identifiable physical condition with unique char-

acteristics” and there was no indication that the regulation of

pregnancy was pretextual, hiding some secret discriminatory

motive. Id. at 496 n.20. Illustrating this “lack of identity be-

tween the excluded disability and gender,” the Court pointed

out how “[t]he program divides potential recipients into two

groups—pregnant women and nonpregnant persons.” Id.; see

also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 271

(1993).

In Dobbs, the Court summarized the rule applicable in

these cases: When a state regulates a “medical procedure that

only one sex can undergo,” the courts apply rational-basis re-

view “unless the regulation is a ‘mere pretex[t] designed to

effect an invidious discrimination against members of one sex

or the other.’” 597 U.S. at 236 (quoting Geduldig, 417 U.S. at

496, n.20).

As mentioned, Indiana has regulated two procedures—

the male and female hormone therapies—which, because of

the polarity of the sexes, only one sex can undergo. Like in

Geduldig, SEA 480 bans estrogen therapy for a class of, for ex-

ample, boys with gender dysphoria, but preserves access for

all girls and boys with disorders of sex development. There is

thus a “lack of identity” between hormone therapy and gen-

der. Geduldig, 417 U.S. at 496, n.20.

And, also like the disability program in Geduldig, there is

no evidence that SEA 480 is a pretext designed to discriminate

against either sex. The law blocks access to the treatment to

boys and girls equally. If Indiana intended SEA 480 to disfa-

vor girls, for example, it would not have burdened them in

No. 23-2366 21

the exact same way it burdened the boys. It could have per-

mitted access to testosterone therapy as a gender dysphoria

treatment but banned estrogen therapy. Appellees say SEA

480 is pretextual because it “targets only treatment related to

gender transition.” But this law is markedly less pretextual

than, say, an abortion regulation, which has no male counter-

part yet still receives rational-basis review. Appellees offer no

meaningful response to this. So, we will review it for a ra-

tional basis.

Appellees urge that Bostock v. Clayton County, 590 U.S. 644

(2020), compels us to adopt their view of the Equal Protection

Clause. There, the Supreme Court interpreted the meaning of

the word “sex” in Title VII of the Civil Rights Act to include

adverse action by an employer where that decision was

“based in part on sex.” Id. at 659. Appellees recognize Bos-

tock’s statutory roots but contend that its reasoning should

branch out to antidiscrimination provisions in the Constitu-

tion.

It does not. Bostock turns on the text of Title VII. The words

in the statute—“because of,” in particular—were dispositive

for the Court’s holding and occupied much of its discussion.

See id. at 656–67. And for its understanding of how the Civil

Rights Act uses “sex,” the Court relied on sources dating to

the time of the Act’s enactment to decide what “discriminate”

means. Id. at 657. This court has recognized that Bostock pro-

vides “useful guidance” in Title IX cases because both Title

VII and Title IX “involve sex stereotypes and less favorable

treatment because of the disfavored person’s sex.” A.C., 75

F.4th at 769. But Bostock is of no use when interpreting the

Equal Protection Clause. That clause does not use the word

“sex.” And the Fourteenth Amendment was ratified nearly a

22 No. 23-2366

century before the Civil Rights Act, meaning Bostock’s sources

have little to say about constitutional meaning.

Bostock does not apply to every use of the word “sex” in

American statutory and constitutional law. The case decided

an interpretive question about Title VII’s reach. Title VII does

not apply here, so neither does Bostock.

2. Transgender status as a quasi-suspect class

Because sex does not provide a reason to heighten our

scrutiny of SEA 480, we consider appellees’ alternative argu-

ment: the law classifies based on transgender status, such a

classification is quasi-suspect, and therefore SEA 480 is sub-

ject to heightened scrutiny.

This argument, too, is unsuccessful. SEA 480 regulates

gender transition procedures, which means it may inci-

dentally burden transgender people without burdening non-

transgender people. But even if transgender status were a

quasi-suspect class, any differential treatment on that basis in

SEA 480 is tethered to those procedures. There is thus a “lack

of identity between” the regulated activity and the difference

in treatment. Geduldig, 417 U.S. at 496 n.20; see Dobbs, 597 U.S.

at 236. It is true that Dobbs and Geduldig are about sex, but

their logic applies equally to a case about transgender status.

See Eknes-Tucker v. Governor of Alabama, 80 F.4th 1205, 1229–30

(11th Cir. 2023). Further, as with sex, there is no evidence that

SEA 480 is a pretext designed to discriminate against

transgender people. The law allows mental health care, does

not limit an adult’s access to gender transition treatment, and

does not prohibit treatment focused on non-medical affirma-

tion of the individual’s gender identity. It is focused on the

medically induced part of a gender transition, which is the

No. 23-2366 23

part of the transitioning process Indiana believes is too dan-

gerous and novel to be left unregulated. 3

3 The Supreme Court has been extremely hesitant to add new suspect

classes, having not done so in more than 40 years. L.W. ex rel. Williams v.

Skrmetti, 83 F.4th 460, 486 (6th Cir. 2023), cert. granted, 144 S. Ct. 2679

(2024). Transgender status is neither “an immutable characteristic deter-

mined solely by the accident of birth,” Segovia v. United States, 880 F.3d

384, 390 (7th Cir. 2018) (cleaned up), nor has the status been “relegated to

such a position of political powerlessness as to command extraordinary

protection from the majoritarian political process.” San Antonio Indep. Sch.

Dist. v. Rodriguez, 411 U.S. 1, 28 (1973); see also Segovia, 880 F.3d at 390.

Immutability is one of the factors most consistently present in Equal

Protection cases. Almost all the suspect classes the Supreme Court has rec-

ognized share an immutable characteristic, unlike many of those it has re-

jected. See, e.g., Murgia, 427 U.S. at 312–14 (age); Rodriguez, 411 U.S. at 25

(poverty); Harris v. McRae, 448 U.S. 297, 322–23 (1980) (indigent women

seeking abortions); N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568, 592–94

(1979) (methadone users); Johnson v. Robinson, 415 U.S. 361, 375 n.14 (1974)

(conscientious objectors); Williamson v. Lee Optical of Okla. Inc., 348 U.S.

483, 488–89 (1955) (opticians). This court, too, recognizes the central role

of immutability when analyzing Equal Protection cases. Baskin v. Bogan,

766 F.3d 648, 657 (7th Cir. 2014); Segovia, 880 F.3d at 390; St. John's United

Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007); Hamilton

v. Caterpillar Inc., 966 F.2d 1226, 1227 (7th Cir. 1992).

The incongruence between sex and gender identity, essential to

transgender status, is fundamentally different than an immutable charac-

teristic determined at birth. Indeed, some transgender adolescents realize

in adulthood that their gender identity and sex are actually congruent.

One of appellees’ experts, for example, described a study finding that mul-

tiple adolescents realized that their sex and gender matched and stopped

treatment before even proceeding to hormone therapy. The characteristic

that indicates they are transgender—the incongruence between sex and

gender—can thus change. See Segovia, 880 F.3d at 390. One could argue

that the adolescents’ gender identities did not change—they simply real-

ized later that they were incorrect about their identities. Yet this argument

24 No. 23-2366

SEA 480 does not receive heightened scrutiny because of

the way it treats transgender people. So, we consider whether

Indiana had a rational basis for enacting SEA 480.

3. Rational basis

“When applying rational basis review to an equal protec-

tion claim, we are highly deferential to the government.” Hope

v. Comm’r of Ind. Dep’t of Corr., 66 F.4th 647, 650 (7th Cir. 2023).

misunderstands what it means for a trait to be immutable. Consider an

analogy: a person learns that he has Gallic ancestry. But after completing

a DNA test, the person discovers that he descends exclusively from the

Britons. The consequences of this discovery change nothing about the le-

gality of discriminatory acts against him. It is unconstitutional to discrim-

inate based on his ancestry, whatever it may be. If transgender status were

a suspect class, it would operate in a different way. A transgender adoles-

cent who realizes in adulthood that his gender identity matches his sex

would lose constitutional protection entirely. That realization would nul-

lify the trait that qualified the adolescent for constitutional protection in

the first place.

In addition, transgender people have not been relegated “to such a

position of political powerlessness as to command extraordinary protec-

tion from the majoritarian political process.” Rodriguez, 411 U.S. at 28.

They have never been denied the right to “hold office, serve on juries, or

bring suit in their own names,” nor have they been denied the right to vote

because they are transgender. Frontiero, 411 U.S. at 685. And the “legisla-

tive response” to transgender issues “negates any claim that [transgender

people] … have no ability to attract the attention of the lawmakers.” City

of Cleburne, 473 U.S. at 445. Most states cover gender transitions in their

Medicaid policies, Medicaid Coverage of Transgender-Related Health Care,

MOVEMENT ADVANCEMENT PROJECT, https://www.lgbtmap.org/equality-

maps/medicaid, and twenty-four states plus D.C. bar private health insur-

ers from excluding transgender people from coverage, Healthcare Laws and

Policies, MOVEMENT ADVANCEMENT PROJECT,

https://www.lgbtmap.org/equality-maps/healthcare_laws_and_policies.

No. 23-2366 25

If “any reasonably conceivable state of facts … could provide

a rational basis for the classification,” the challenged law is

constitutional. Beach Commc'ns, Inc., 508 U.S. at 313.

First, we must “identify a legitimate end … .” St. Joan An-

tida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003,

1011 (7th Cir. 2019). Second, we must “ask whether the

means—the classification—bears a rational relationship to the

end.” Id. Protecting minor children from being subjected to a

new and heavily challenged medical treatment is a legitimate

end. The two classifications—age and medical diagnosis—are

rationally related to this end. The law applies to minors only.

And because the state believes puberty blockers are danger-

ous when prescribed to stop puberty’s natural course and

hormone therapy is dangerous when prescribed cross-sex,

limiting access for those purposes is reasonable.

We hold that appellees have not shown a likelihood of suc-

cess on the merits of their Equal Protection Clause claim.

4. Treatment by other circuits

Three of our fellow circuits have heard challenges to laws

regulating the medical procedures available for gender dys-

phoria treatment. The Sixth and Eleventh Circuits reached the

same conclusion as we do on the Equal Protection Clause

claim. The Eighth Circuit disagreed on equal protection and

did not discuss substantive due process or whether

transgender status is a quasi-suspect class. None of the three

circuits discussed the First Amendment. In the Appendix is a

chart comparing the statutes in these cases to the statute at

issue here. A few words on the three cases.

In Brandt ex rel. Brandt v. Rutledge, the Eighth Circuit held

that Arkansas’ similar law drew a sex-based classification,

26 No. 23-2366

was subject to heightened scrutiny, and violated the Equal

Protection Clause. 47 F.4th 661, 669–71 (8th Cir. 2022). Brandt’s

analysis was brief. As we do with the Indiana law, the Brandt

court recognized that the Arkansas law deprives women—

but not men—access to testosterone, and vice versa. Id. at 669.

As Indiana does, Arkansas argued that the sex-based classifi-

cation only arises incidentally through the medical procedure

at issue. Id. at 669–70. The Brandt court dismissed this argu-

ment by noting that the state “conflat[ed] the classifications

drawn by the law with the state’s justification for it.” Id. at

670. Because “[t]he biological sex of the minor patient is the

basis on which the law distinguishes between those who may

receive certain types of medical care and those who may not,”

the court applied heightened scrutiny. Id.

Parties do sometimes confuse their justification for a clas-

sification with the classification question. See Tagami, 875 F.3d

at 380. But that is not the case here. Ignore for a moment why

Indiana has denied men access to estrogen and women access

to testosterone and consider the classes: SEA 480 separates

gender dysphoric girls, for example, from non-gender dys-

phoric girls and all boys. We do not need to consider Indiana’s

justifications to understand why the rule in Dobbs and

Geduldig applies.

But Brandt did not discuss or even cite Dobbs and Geduldig.

Indeed, Brandt cited only four cases in deciding which level

of scrutiny to apply. See id. at 669–70. Nothing in the Eighth

Circuit’s analysis warrants reevaluating our conclusion.

By contrast, in L.W. ex rel. Williams v. Skrmetti, the Sixth

Circuit held that Tennessee and Kentucky’s similar laws did

not violate substantive due process or the Equal Protection

Clause. 83 F.4th at 491. And in Eknes-Tucker v. Governor of

No. 23-2366 27

Alabama, the Eleventh Circuit held the same of Alabama’s law.

80 F.4th at 1224–25, 1227.

Skrmetti and Eknes-Tucker engaged in much deeper and

more thorough analyses of the Equal Protection Clause. In

Skrmetti, for example, the Sixth Circuit evaluated nearly a

dozen Supreme Court cases to determine whether the statutes

fit the traditional mold of unequal treatment. 83 F.4th at 480–

81. It also examined the medical treatment for gender dyspho-

ria in detail. Id. at 483. The Eleventh Circuit reached the same

conclusion, explaining that the Alabama law “targets specific

medical interventions for minors” and therefore does not clas-

sify on the basis of any suspect characteristic. Eknes-Tucker, 80

F.4th at 1227. Both courts also discussed the Geduldig inci-

dental classification cases at length. The Sixth Circuit recog-

nized how many other statutes would be problematic under

the Equal Protection Clause “[i]f any reference to sex in a stat-

ute dictated heightened review.” Skrmetti, 83 F.4th at 482; see

also Eknes-Tucker, 80 F.4th at 1228 (same). And the Eleventh

Circuit explained why the Geduldig reasoning would apply to

insulate the Arkansas law from heightened scrutiny even if

transgender people made up a quasi-suspect class. Eknes-

Tucker, 80 F.4th at 1229–30.

The Sixth and Eleventh Circuit’s analyses are more per-

suasive because they comprehensively apply Equal Protec-

tion law and better respond to more counterarguments.

B. Substantive due process

Next, appellees claim that because SEA 480 does not in-

clude a provision allowing the banned treatment if a parent

consents, the law infringes the parent plaintiffs’ authority to

make medical decisions for their children. They say this

28 No. 23-2366

authority is a fundamental right, and that SEA 480 thus denies

them substantive due process.

Under the Fourteenth Amendment, “[n]o State shall … de-

prive any person of life, liberty, or property, without due pro-

cess of law.” U.S. CONST. amend. IV, § 1. The Supreme Court

has instructed that this clause requires heightened judicial

scrutiny of laws that infringe a fundamental right. Washington

v. Glucksberg, 521 U.S. 702, 720 (1997). To determine whether

a state prevents a person from exercising such a right, the

court must ask whether the subject matter of the deprivation

is fundamental in the first place—whether it is “deeply rooted

in [our] history and tradition” and “essential to our Nation’s

scheme of ordered liberty.” Dobbs, 597 U.S. at 237 (quotations

omitted).

This substantive view of due process “has sometimes led

the Court to usurp authority that the Constitution entrusts to

the people’s elected representatives.” Dobbs, 597 U.S. at 239–

40; Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225–26

(1985). The Supreme Court has urged courts to “exercise the

utmost care whenever [they] are asked to break new ground

in this field, lest the liberty protected by the Due Process

Clause be subtly transformed into the policy preferences of

the [federal judiciary].” Glucksberg, 521 U.S. at 720 (citation

and quotations omitted); see also Collins v. City of Harker

Heights, 503 U.S. 115, 125 (1992); Dep’t of State v. Muñoz, 144 S.

Ct. 1812, 1821–22 (2024) (explaining that “[i]dentifying un-

enumerated rights carries a serious risk of judicial over-

reach”).

First, we must decide what right is at issue. Then, we can

evaluate whether it is fundamental. If so, we apply strict scru-

tiny; if not, rational basis.

No. 23-2366 29

1. Defining the right at issue

The level of generality with which we define the right at

issue matters. “[W]e have a tradition of carefully formulating

the interest at stake in substantive-due-process cases.” Glucks-

berg, 521 U.S. at 722; see, e.g., Reno v. Flores, 507 U.S. 292, 302

(1993); Collins, 503 U.S. at 125.

The Supreme Court has always defined the right at issue

narrowly, hewing as closely as possible to the statute, Glucks-

berg, 521 U.S. at 723, or the complaint, Collins, 503 U.S. at 125.

In Reno, the right at issue was not what the respondents iden-

tified—“freedom from physical restraint”—but something far

more specific:

[T]he alleged right of a child who has no availa-

ble parent, close relative, or legal guardian, and

for whom the government is responsible, to be

placed in the custody of a willing-and-able pri-

vate custodian rather than of a government-op-

erated or government-selected child-care insti-

tution.

507 U.S. at 302.

In Collins, the right at issue was not what petitioner iden-

tified—“to be free from unreasonable risks of harm to his

body, mind and emotions and … to be protected from the

city[’s] … custom and policy of deliberate indifference toward

the safety of its employees”—but, specifically, “a safe work-

ing environment.” 503 U.S. at 117, 126.

In Glucksberg, the Court navigated nearly a half dozen for-

mulations of the right at issue—proposed by the respondents

and the court below—including the amorphous “liberty to

shape death” and the searching “right to control of one’s final

30 No. 23-2366

days.” 521 U.S. at 722 (quotations omitted). Rejecting those,

the court used the language found in the Washington statute

at issue, settling on “whether the ‘liberty’ specially protected

by the Due Process Clause includes a right to commit suicide

which itself includes a right to assistance in doing so.” Id. at

723.

And in Dobbs, the Court warned against the risks of

defining a right too broadly. See 597 U.S. at 257. The right to

abortion was at issue, but a prior case had defined it as an

“intimate and personal choice[] … central to personal dignity

and autonomy” and “[t]he right to define one’s own concept

of existence, of meaning, of the universe, and of the mystery

of human life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 851 (1992); see Dobbs, 597 U.S. at 255. A definition that

broad, the Court explained, would lead to problems. See

Dobbs, 597 U.S. at 257. It might, for example, “license funda-

mental rights to illicit drug use, prostitution, and the like.” Id.

This court has heeded the Supreme Court’s warning. In

Khan v. Gallitano, we rejected the plaintiff’s “right to contract”

language as “far too general to guide our analysis of the spe-

cific conduct about which [she] complain[ed].” 180 F.3d 829,

833–34 (7th Cir. 1999). And in Lukaszczyk v. Cook County, we

held that the specific law at issue—a vaccine mandate—did

not violate substantive due process, leaving intact other rights

against the invasion of bodily autonomy. 47 F.4th 587, 602 (7th

Cir. 2022).

Appellees here offer two ways to evaluate the right at is-

sue. They invoke “the fundamental right of parents, rather

than the State, to make medical decisions for their children”

and “the ability of the parent to consent to medical care for

their child … .” Both are broad.

No. 23-2366 31

As Dobbs explained, defining a right this broadly can lead

to problems. Appellees’ view may give parents immunity

from child neglect claims if they decline to take their child to

the hospital after a serious injury and the child’s injuries leave

him permanently disabled. Or, it may allow parents to re-

quest and receive a prescription for a drug widely agreed to

be dangerous because the parent believes it would benefit the

child. Further, SEA 480 does not prevent a parent from con-

senting to a course of medical treatment on his child’s behalf;

it makes that consent legally irrelevant.

Properly tailored, the question here is whether the Due

Process Clause gives parents the right to access gender tran-

sition procedures for their children. SEA 480 is specifically

limited to “gender transition procedures,” so any right en-

compassing all medical treatment is too broad. See IND. CODE

§ 25-1-22-13(a) (forbidding medical practitioners to “know-

ingly provide gender transition procedures to a minor”). And

appellees’ complaint takes aim at SEA 480’s lack of an exemp-

tion for parents who have consented to the treatment on their

minors’ behalf.

Although appellees argue we should not evaluate the

right at issue as narrowly as the “specific medical procedure,”

that is precisely what the Court did in Dobbs. It did not have

to uproot cases speaking generally of the “sacred … right of

every individual to the possession and control of his own per-

son.” Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).

Rather, the Court recognized that access to a specific medical

procedure—abortion—is not a fundamental right. Dobbs, 597

U.S. at 240.

32 No. 23-2366

2. Whether the right is deeply rooted

Knowing the right at issue, we ask whether that right is

“deeply rooted in [our] history and tradition” and “essential

to our Nation’s scheme of ordered liberty.” Dobbs, 597 U.S. at

237 (quotations omitted). “The mere novelty of … a claim is

reason enough to doubt that ‘substantive due process’ sus-

tains it; the alleged right certainly cannot be considered ‘“so

rooted in the traditions and conscience of our people as to be

ranked as fundamental.”’” Reno, 507 U.S. at 303 (quoting

United States v. Salerno, 481 U.S. 739, 751 (1987) (quoting

Snyder v. Massachusetts, 291 U.S. 97, 105 (1934))); see Dist.

Att’y’s Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 72 (2009)

(novelty of DNA testing evidence precludes constitutional

right to access and submit such evidence at trial).

Cruzan ex rel. Cruzan v. Director, Missouri Department of

Health is one example of when the Supreme Court has found

a right so rooted. 497 U.S. 261 (1990). In Cruzan, the Court held

that a state may require clear and convincing evidence of the

wishes of an incompetent person before ending life-sustain-

ing treatment. Id. at 281. The principle of informed consent,

the Court explained, “ha[d] become firmly entrenched in

American tort law,” id. at 269, having been “carefully

guarded[] by the common law,” id. (quotations omitted). This

common law right applied just as well when the person was

a patient—patients too “generally possess[ed] the right not to

consent, that is, to refuse treatment.” Id. at 270.

To the contrary, the gender transition procedures at the

heart of appellees’ claimed right have no such long history.

The first report of a minor transgender patient treated with

puberty blockers was in the Netherlands in 1998. P.T. Cohen-

Kettenis & S.H.M. van Goozen, Pubertal Delay as an Aid in

No. 23-2366 33

Diagnosis and Treatment of a Transsexual Adolescent, 7 EUR.

CHILD & ADOLESCENT PSYCHIATRY 246 (1998); Natalie J.

Nokoff, Medical Interventions for Transgender Youth, in EN-

DOTEXT [INTERNET] (Kenneth R. Feingold et al. eds., 2000) (de-

scribing this as the first). The first treatment guidelines for ad-

olescents diagnosed with gender dysphoria by the Endocrine

Society came out in 2009. See Endocrine Treatment of Transsex-

ual Persons: An Endocrine Society Clinical Practice Guideline, 94

J. CLINICAL ENDOCRINOLOGY & METABOLISM 3132 (Wylie C.

Hembree et al. eds., 2009). In 1998, WPATH approved its first

treatment guidelines for children and made its first recom-

mendation that adolescents be considered candidates for hor-

mone therapy. STEPHEN B. LEVINE ET AL., HARRY BENJAMIN

INT’L GENDER DYSPHORIA ASS’N, THE STANDARDS OF CARE FOR

GENDER IDENTITY DISORDERS 18–19 (5th version 1999). The

1990 version of the Standards even recommended that doc-

tors should consider “how well the patient fits the diagnostic

criteria for transsexualism as listed in the DSM-III-R,” which

requires that “[t]he person has reached puberty.” PAUL A.

WALKER ET AL., HARRY BENJAMIN INT’L GENDER DYSPHORIA

ASS’N, STANDARDS OF CARE: THE HORMONAL AND SURGICAL

SEX REASSIGNMENT OF GENDER DYSPHORIC PERSONS 3 (4th ver-

sion 1990) (4.3.1 Principle 8).

The states are not watching silently on this issue. Rather,

as in Glucksberg, “[they] are currently engaged in serious,

thoughtful examinations” of the questions that attend these

novel procedures. 521 U.S. at 719. Nationally, the picture is

complicated. Arizona has chosen to ban surgical care alone.

ARIZ. REV. STAT. ANN. § 32-3230(A). North Carolina has

banned all medical treatment, like Indiana. N.C. GEN. STAT.

§ 90-21.151. Georgia has banned surgery and hormone ther-

apy, but not puberty blockers. GA. CODE ANN. § 43-34-15(a).

34 No. 23-2366

Some states have chosen to make providing any banned med-

ical transition treatment a crime. See, e.g., ALA. CODE § 26-26-

4(c); N.D. CENT. CODE § 12.1-36.1-02(2). Some have passed

laws protecting those who receive the treatment in the state

from enforcement actions elsewhere. See, e.g., CAL. CIV. CODE

§ 56.109(a), N.Y. EXEC. LAW § 837-x*2. And still others have

not acted.

This circuit is a microcosm of the complexity of the na-

tional picture: Indiana has banned the treatment, Illinois has

a shield law, see, e.g., 20 ILL. COMP. STAT. 2630/3.2(b), (c)(2),

and Wisconsin has not acted either way. “To suddenly consti-

tutionalize this area would short-circuit what looks to be a

prompt and considered legislative response.” Osborne, 557

U.S. at 73.

Appellees raise an alternative argument. They urge that

the Supreme Court has already established a broader funda-

mental right which would necessarily include the lesser one

we have identified: the fundamental right of parents to make

medical decisions on their children’s behalf.

The Supreme Court and this court have supported parents

in family–relations substantive due process cases before. See

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (including “to

marry, establish a home and bring up children” in statement

of “the liberty thus guaranteed” by the Fourteenth Amend-

ment); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is

cardinal … that the custody, care, and nurture of the child re-

side first in the parents … .”); Brokaw v. Mercer Cnty., 235 F.3d

1000, 1018 (7th Cir. 2000) (“[T]he right of a man and woman

to marry, and to bear and raise their children is the most fun-

damental of all rights—the foundation of not just this country,

but of all civilization.”).

No. 23-2366 35

Appellees say that Parham v. J.R., which addresses paren-

tal authority in the substantive due process context, further

establishes parents’ “plenary authority to seek … care for

their children.” 442 U.S. 584, 604 (1979). In Parham, the Court

upheld a Georgia law allowing parents to admit their children

to psychiatric hospitals voluntarily, so long as a neutral fact-

finder confirmed institutionalization was medically appropri-

ate. Id. at 618–19. Parham is about the limits of parental discre-

tion. It does not establish “a constitutional requirement that

the State recognize [family] decisionmaking.” Cruzan, 497

U.S. at 286 (distinguishing Parham).

Parham could not reach as far as appellees claim without

overruling other lines of caselaw or being undermined by

Seventh Circuit cases. This court has not purported to contra-

dict Parham when stating that “the constitutional right to fa-

milial integrity is not absolute.” Brokaw, 235 F.3d at 1019; Doe

v. Heck, 327 F.3d 492, 520 (7th Cir. 2003). In Heck, even though

this court held that the parents’ “right to familial relations”

was violated when their son was interviewed without their

notice or consent, it cautioned that it was not “suggesting that

the right of parents to discipline their children is absolute or

that parents are immune from being investigated for child

abuse.” Heck, 327 F.3d at 524, 523. Quite to the contrary, “[t]he

liberty interest in familial privacy and integrity is ‘limited by

the compelling governmental interest in the protection of chil-

dren particularly where the children need to be protected

from their own parents.’” Id. at 520 (quoting Brokaw, 235 F.3d

at 1019 (cleaned up)).

Nor did this court contradict Parham when it explained

that “a patient does not have a constitutional right to obtain a

particular type of treatment or to obtain treatment from a

36 No. 23-2366

particular provider if the government has reasonably prohib-

ited that type of treatment … .” Mitchell v. Clayton, 995 F.2d

772, 775 (7th Cir. 1993). A parent’s right to demand care for

his child could not be stronger than the child’s right to access

it. Cf. Whalen v. Roe, 429 U.S. 589, 604 n.33 (1977) (declining to

hold that “a doctor's right to administer medical care has any

greater strength than his patient's right to receive such care”).

And Parham did not overrule older Supreme Court cases

endorsing limits on the parental right over his child’s general

“custody, care, and nurture.” Prince, 321 U.S. at 166; id.

(“[N]either rights of religion nor rights of parenthood are

beyond limitation.”). In Prince, the Court upheld an aunt–cus-

todian’s conviction under a state child-labor law—her nine-

year-old daughter had been distributing religious pamphlets.

321 U.S. at 159, 162. Even though a parent can make decisions

about her child’s care for the most part, the Court explained,

“the state as parens patriae may restrict the parent’s control

… in many other ways.” Id. at 166.

Appellees’ broad formulation of Parham contradicts yet

another line of Supreme Court cases, holding that a state can

ban dangerous and habit-forming narcotics. Minnesota ex rel.

Whipple v. Martinson, 256 U.S. 41, 45 (1921); Robinson v. Califor-

nia, 370 U.S. 660, 664 (1962) (recognizing Whipple). If Parham

somehow tunneled through Whipple without shaking its foun-

dation, giving parents a path to demand for their children ac-

cess to a narcotic for a well-meaning medical purpose despite

a state’s “firmly established” power to ban it, appellees pro-

vide no evidence of it. Whipple, 256 U.S. at 45.

Because SEA 480 does not infringe a fundamental right,

we again review it for a rational basis. Lukaszczyk, 47 F.4th at

600.

No. 23-2366 37

3. Rational basis

The rational-basis analysis is essentially the same whether

under the Equal Protection Clause or substantive due process.

Hayden, 743 F.3d at 576 (listing cases) (“This rational-basis

variant of substantive due process differs little, if at all, from

the most deferential form of equal protection review.”); see

also Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1071 (7th

Cir. 2013) (same).

SEA 480 is supported by a rational basis. As discussed

above, protecting minor children from being subjected to a

novel and uncertain medical treatment is a legitimate end.

And if Indiana had included a parental-consent provision, the

exception would swallow the rule: all but a small number of

minors cannot consent to their own health care anyway. See

IND. CODE § 16-36-1-3(a), (a)(2).

The Supreme Court’s direction is straightforward: We

must “exercise the utmost care” in this new land, Glucksberg,

521 U.S. at 720 (quotations omitted), lest we “cast [this] stat-

ute[] into constitutional doubt,” Osborne, 557 U.S. at 73, with-

draw the question from the people of Indiana, “and be forced

to take over the issue … ourselves.” Id. We oblige. Appellees

have not shown a likelihood of success on their substantive

due process claim.

C. Free Speech Clause

Appellees’ last claim challenges SEA 480’s secondary lia-

bility provision as a violation of the First Amendment’s Free

Speech Clause. See IND. CODE § 25-1-22-13(b).

This provision forbids anyone to aid and abet a principal

violator. It provides that “a physician or other practitioner

may not aid or abet another physician or practitioner in the

38 No. 23-2366

provision of gender transition procedures to a minor.” IND.

CODE § 25-1-22-13(b). Appellees contend that, as applied to

the class of medical practitioners challenging the law, this

provision violates the First Amendment. They focus on two

specific First Amendment activities they say the law prohib-

its: referring patients to other physicians, and discussing

where and to what extent gender transition procedures are

available.

It is not clear that the law prohibits anything other than

speech used “as an integral part of” unlawful conduct.

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).

Such speech “is historically recognized as unprotected.” See

United States v. Price, 775 F.3d 828, 838 (7th Cir. 2014). Aiding

and abetting laws, such as the provision at issue in SEA 480,

fall within this category of unprotected speech. United States

v. Hansen, 599 U.S. 762, 781 (2023).

The Supreme Court’s recent analysis in Hansen supports

our view of Indiana’s law. In Hansen, the Court held that 8

U.S.C. § 1324(a)(1)(A)(iv)’s prohibition on “encourag[ing] or

induc[ing]” a violation of the immigration laws was not an

overbroad restriction on free speech. Id. at 780. The respond-

ent, Helaman Hansen, ran an immigration scam promising a

painless citizenship process through “adult adoption.” Id. at

766–67. Hansen would connect an alien with an American cit-

izen, who would adopt the alien. Then, the new parent would

pass citizenship to the alien. Hansen was convicted under the

encouragement/inducement law. Id. at 767. He argued it was

a facially overbroad regulation of protected speech, but the

district court disagreed. On appeal, the Ninth Circuit reversed

and agreed with Hansen, explaining that the law would in-

clude, for example, “encouraging an undocumented

No. 23-2366 39

immigrant to take shelter during a natural disaster … .” Id. at

768 (quotations omitted). The Supreme Court reversed, view-

ing the law much more narrowly. Id. at 781.

As relevant here, the Court explained that the word “in-

duce” refers to the concept of facilitation, which in turn is an-

other term for aiding and abetting. The Ninth Circuit’s error

was thinking Congress used “induce” for its ordinary mean-

ing. Id. at 773. This would of course be overbroad, as it would

apply to substantially more protected speech than unpro-

tected speech. Id. at 774. Instead, as an aiding and abetting

law, id., the only speech the statute reached was “speech inte-

gral to unlawful conduct,” id. at 783.

So too here. SEA 480’s secondary liability clause applies to

speech by physicians that aids or abets another physician’s

provision of gender transition procedures to a minor. If Indi-

ana applied the law to speech that did not aid or abet a prin-

cipal violation of SEA 480, the defendant’s first course of ac-

tion would not be a federal constitutional challenge—it would

be to move for dismissal of the lawsuit. In other words, be-

cause SEA 480’s secondary liability provision “stretches no

further than … [s]peech intended to bring about a particular

unlawful act,” the plaintiff doctor and her practice could only

ever be sued for unprotected speech. Id.

Appellees offer several counterarguments. First, they say

SEA 480’s secondary liability provision prohibits pure speech

based on its content. But the first question in any First

Amendment case is whether the speech at issue is protected.

If the answer is no, the fact that a law regulates pure speech is

no longer relevant. See Counterman v. Colorado, 600 U.S. 66, 73

(2023) (“From 1791 to the present, the First Amendment has

permitted restrictions upon the content of speech in a few

40 No. 23-2366

limited areas.” (quotations omitted)). Giboney and Hansen say

speech integral to criminal or unlawful conduct is unpro-

tected. Giboney, 336 U.S. at 498; Hansen, 599 U.S. at 783. Thus,

assuming appellees are correct that SEA 480 prohibits pure

speech (a contention with which even the district court did

not agree), that speech is unprotected.

Second, appellees urge that, even if SEA 480 is directed at

conduct as the state argues, it nonetheless directly burdens

their speech as applied. But, again, to the extent SEA 480 reg-

ulates speech, it only regulates speech integral to unlawful

conduct. The First Amendment’s protection does not reach

that far. Hansen, 599 U.S. at 783 (“Speech intended to bring

about a particular unlawful act has no social value; therefore,

it is unprotected.”).

Assuming for a moment that SEA 480 does more than reg-

ulate speech integral to unlawful conduct, courts must still

ask whether a law’s burden on speech is “incidental” to its

regulation of the speakers’ conduct or is in fact the targeted

evil, such that it is “based on the content of [their] speech” “on

its face [or] in its practical operation.” Sorrell v. IMS Health

Inc., 564 U.S. 552, 567 (2011). SEA 480’s secondary liability

provision burdens speech incidentally because it targets con-

duct: facilitating the provision of gender transition proce-

dures.

In Sorrell, the Court held that a Vermont law prohibiting

the sale, disclosure, and use of prescriber-identifying infor-

mation was a content-based speech regulation. 564 U.S. at

563–64. The law was “directed at certain content” and “aimed

at particular speakers.” Id. at 567. It conditioned liability on

the content of the information and how the user incorporated

that information into its speech. Id. at 564. For example,

No. 23-2366 41

marketing to providers was a prohibited use but educational

communication was not. Id.

In Expressions Hair Design v. Schneiderman, too, the Court

held that a New York law regulated speech—not conduct—

because it mandated how a store owner could communicate

its prices, not simply what prices he may charge. 581 U.S. 37,

47–48 (2017). The law forbade store owners to charge credit

card users an amount higher than that reflected by the sticker

price. Id. at 41, 47. Thus, it regulated speech—“the communi-

cation of prices”—not conduct—“prices themselves.” Id. at 48.

It would be permitted, the Court explained, for New York to

require delis to charge $10 for sandwiches. Id. at 47. Such a

law would regulate the content of speech “incidental[ly]” be-

cause the store owners would have to display the $10, but un-

der the law, it would not matter how. Id.

SEA 480’s aiding and abetting provision differs from the

statutes in these cases. Its language does not address speech

at all, so it is not like the statute discussed in Sorrell. And it is

more like the hypothetical statute in Schneiderman, as it says

physicians must avoid some action, not that they must avoid

some language.

Although the district court correctly recognized that an in-

cidental burden on speech “flow[s] indirectly from the core

purpose of the regulation,” it concluded that the speech tar-

geted by SEA 480 is “itself” aiding and abetting and therefore

could not be “incidental to separate, prohibited conduct.”

That is not correct.

Simply because speech is picked up during enforcement

of a law does not mean the law targets speech. If this were

true, the First Amendment would frown on laws forbidding,

42 No. 23-2366

for example, an accountant to assist a client with filing a false

tax return. See United States v. Knapp, 25 F.3d 451, 457 (7th Cir.

1994); United States v. Kaun, 827 F.2d 1144, 1152 (7th Cir. 1987).

Any speech involved would flow indirectly from the law’s

purpose in targeting tax fraud, but it would also be “itself”

the targeted act.

Ordinarily, the “incidental” question is necessary to pre-

vent states from attaching penalties to restrictions of pro-

tected speech. But secondary liability statutes depend on their

mate for legal power. So, if a plainly unconstitutional primary

liability statute fell, it would take the secondary liability stat-

ute with it. The practical concern baked into the “incidental”

question would never arise. 4

That brings us to appellees’ third argument: Hansen and

Giboney do not govern, they say, because an out-of-state refer-

ral to a state permitting gender transition procedures would

not be “integral to unlawful conduct.” First, this argument ig-

nores that the district court’s preliminary injunction extends

to in-state referrals. There, of course, the underlying wrongful

conduct is the principal violation of Indiana’s statute by the

practitioner providing the treatment. The physicians Indiana

regulates have authority to connect patients to treatment

through their professional connections and medical training.

4 To reiterate, we hold that appellees have not shown a strong likeli-

hood of success on the merits of their First Amendment claim because, to

the extent SEA 480 regulates speech, it regulates speech integral to unlaw-

ful conduct. Accordingly, we decline to apply the intermediate scrutiny

test outlined in United States v. O’Brien, 391 U.S. 367, 377 (1968), and dis-

cussed in the dissenting opinion. The parties did not engage with O’Brien,

so, without the benefit of full briefing, we leave those arguments to litiga-

tion on remand.

No. 23-2366 43

When the state and its physicians agree, these physicians can

use their authority to provide a valuable service that the state

cannot provide on its own. But when the physicians and the

state do not see eye-to-eye on treatment—and when the state

validly regulates that treatment—the state must be able to

preclude its physicians from using their authority to help the

state’s citizens access the treatment. Otherwise, the physicians

would hold a veto over the state’s power to protect its citizens.

SEA 480’s secondary liability provision covers unprotected

speech, and it reasonably relates to its primary liability provi-

sion, which itself is a reasonable regulation.

Second, SEA 480 can prohibit providing assistance to phy-

sicians in states where gender-transition procedures are ille-

gal. The provision at issue prohibits aiding and abetting. IND.

CODE § 25-1-22-15. That phrase is a term of art that covers

those “who facilitated any part” of an unlawful venture. Rose-

mond v. United States, 572 U.S. 65, 72 (2014); see also Hansen, 599

U.S. at 771 (the abettor must provide “assistance to a wrong-

doer”). The amount of assistance is immaterial, as “a contri-

bution to some part of a crime aids the whole.” Rosemond, 572

U.S. at 73. Even under appellees’ reading, then, the statute

permissibly reaches assisting out-of-state providers.

The dissenting opinion focuses entirely on an issue that

neither party raised in the district court nor on appeal. The

dissent reads SEA 480 as only barring Indiana physicians and

practitioners from aiding and abetting other Indiana physi-

cians and practitioners in the provision of gender transition

treatment to minors. So, our dissenting colleague says, we

need not reach the First Amendment question because appel-

lees may make referrals to, and discuss former patients with,

out-of-state providers without violating SEA 480. The parties

44 No. 23-2366

disagree. Appellants and appellees read SEA 480 to also pro-

hibit Indiana providers from aiding and abetting out-of-state

providers. That explains why the district court evaluated SEA

480 under the First Amendment, K.C. v. Indiv. Members of Med.

Licensing Bd. of Ind., 677 F. Supp. 3d 802, 818–19 (S.D. Ind.

2023), and why the parties have asked this court to do the

same.

Courts should avoid resolving cases on constitutional

grounds when they can be fairly resolved on statutory

grounds. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348

(1936) (Brandeis, J., concurring). But avoiding the First

Amendment question in this case would be a mistake. The

dissenting opinion incorrectly characterizes appellees’ as-ap-

plied First Amendment claim. They do not limit their

challenge, as the dissent says, to SEA 480’s bar on aiding and

abetting out-of-state providers. Rather, in their complaint, ap-

pellees broadly allege that SEA 480 “prohibits [them] from en-

gaging in communications that are designed to allow another

physician or practitioner to provide ‘gender transition proce-

dures’ as described in the statute.” DE 1, Complaint at 44.

Even under the dissent’s reading of SEA 480, we must reach

the First Amendment issue to determine whether Indiana

could prohibit, for example, a South Bend physician from aid-

ing and abetting an Indianapolis physician’s provision of gen-

der transition treatment to a minor.

Further, licensure can be in multiple states. So, even under

a narrow reading of SEA 480, secondary liability could attach

when an Indiana physician aids and abets a physician li-

censed in both Indiana and Illinois providing gender transi-

tion services in Illinois. Given these scenarios, the First

Amendment question—argued and considered by the district

No. 23-2366 45

court, raised on appeal, and briefed by the parties—deserves

our review. What is more, our task at this interlocutory stage

is to determine appellees’ likelihood of success on the merits,

not to rule definitively on the First Amendment question.

Other issues this litigation might present, including the scope

of the statute and any constitutional questions that might flow

from it, are left for another day. Indeed, any such issues

should first be briefed by the parties and considered in the

district court on remand. And the district court may deem it

appropriate to certify a statutory question to the Indiana Su-

preme Court. IND. R. APP. P. 64(A). We leave these matters to

the district court’s discretion as this litigation proceeds.

* * *

These constitutional arguments threaten significant conse-

quences. Appellees ask us to constitutionalize and thus take

from Indiana the power to regulate a new and heavily de-

bated 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.

So will we. Appellees have not shown a likelihood of suc-

cess on any of their claims. This factor cuts against an injunc-

tion.

IV.

A party seeking a preliminary injunction must also

“demonstrate that irreparable injury is likely in the absence of

an injunction.” Winter, 555 U.S. at 22 (emphasis omitted); DM

Trans, LLC v. Scott, 38 F.4th 608, 617 (7th Cir. 2022). “[I]f legal

46 No. 23-2366

remedies available to the movant … are seriously deficient as

compared to the harm suffered” then the harm is irreparable.

DM Trans, LLC, 38 F.4th at 618. The district court’s determina-

tion is a factual finding, so this court reviews it for clear error.

Whitaker, 858 F.3d at 1045.

The district court decided that this factor favored the

plaintiffs. K.C., 677 F. Supp. 3d at 819–20. Citing evidence that

puberty blockers and cross-sex hormone therapy can help

treat gender dysphoria, the court concluded the minor plain-

tiffs would suffer if they lost access to that treatment once the

law went into effect. Id. at 820. And because the court held

that the physician plaintiffs were likely to succeed on the mer-

its of their First Amendment claim, it also found this constitu-

tional violation to constitute irreparable harm. Id.

The district court clearly erred. While it was correct to rec-

ognize 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. See id. It might be different if Indiana

barred all treatment for gender dysphoria, but SEA 480 does

no such thing.

The district court incorrectly concluded that the physician

plaintiffs would suffer irreparable harm if Indiana enforced

the aiding and abetting provision. Again, the district court did

not misstate the law—“violations of First Amendment rights

are presumed to constitute irreparable injuries … .” Christian

Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006). But

plaintiffs are not likely to succeed on the merits of their First

Amendment claim. See infra III.C.; see also Elrod v. Burns, 427

U.S. 347, 373–74 (1976) (affirming decision that preliminary

No. 23-2366 47

injunctive relief was warranted where First Amendment

violation “was both threatened and occurring at the time of

respondents’ motion and … respondents sufficiently demon-

strated a probability of success on the merits” of that claim).

The second factor cuts against entering an injunction.

V.

The third factor weighs “the irreparable harm the moving

party will endure if the preliminary injunction is wrongfully

denied versus the irreparable harm to the nonmoving party if

it is wrongfully granted.” DM Trans, LLC, 38 F.4th at 622

(quoting Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir.

2015)).

This is a sliding scale—“‘the more likely [the moving

party] is to win, the less the balance of harms must weigh in

his favor; the less likely he is to win, the more it must weigh

in his favor.’” Id. (quoting Turnell, 796 F.3d at 662) (alteration

in original); Mays, 974 F.3d at 818; cf. Speech First, Inc. v. Killeen,

968 F.3d 628, 637 (7th Cir. 2020) (“If the plaintiff is likely to

win on the merits, the balance of harms need not weigh as

heavily in his favor.”). Part of the balancing process includes

evaluating the public interest, which refers to “the effects the

preliminary injunction—and its denial—would have on non-

parties.” Speech First, Inc., 968 F.3d at 637.

We do not defer to the district court’s erroneous decision

on this factor. See DM Trans, LLC, 38 F.4th at 622; id. (“Unless

the district court’s legal conclusions were incorrect or its find-

ings of fact were clearly erroneous, we afford the court's ulti-

mate decision ‘great deference.’”) (cleaned up); Life Spine, Inc.

v. Aegis Spine, Inc., 8 F.4th 531, 539 (7th Cir. 2021); Speech First,

Inc., 968 F.3d at 638. The court conditioned its decision that

48 No. 23-2366

the balance of harms favored the plaintiffs on its likelihood of

success and irreparable harm determinations. K.C., 677 F.

Supp. 3d at 820.

As we discussed above, the district court erroneously eval-

uated these issues. It misapplied the Geduldig incidental sex-

based classification line of caselaw, which instructs courts to

double check whether the groups created by a law are divided

by sex or for some other purpose. It also neglected to consider

the state’s evidence of psychosocial support and psychother-

apy, which led to its view that the plaintiffs would have no

treatment options without the law. We did not discuss the

court’s heightened scrutiny discussion, but this blind spot af-

fected its view there too. And although it was still in error, the

district court is not to blame for its contrary conclusion on the

Free Speech Clause claim, for it did not have the benefit of

Hansen before reaching its decision.

An injunction causes significant harm to Indiana and the

public interest. SEA 480 is a duly enacted law. Indiana’s vot-

ers have decided, through their representatives, legislative

and executive, that medical interventions are too risky and

novel to be safe treatments for children with gender dyspho-

ria. The people of Indiana have a substantial interest in the

effectiveness of that decision. Because appellees have not

shown a likelihood of success, and because their harms are

not irreparable, we conclude that the balance of harms favors

Indiana.

The district court erred by entering the preliminary injunc-

tion.

No. 23-2366 49

VI.

“That the wisdom of a legislative act is not subject to judi-

cial scrutiny requires no citation.” EEOC v. City of Janesville,

630 F.2d 1254, 1259 (7th Cir. 1980); Beach Commc'ns, Inc., 508

U.S. at 314 (“‘[J]udicial intervention is generally unwarranted

no matter how unwisely we may think a political branch has

acted.’” (quoting Vance, 440 U.S. at 97 (footnote omitted)));

Heller, 509 U.S. at 319; see also Dandridge v. Williams, 397 U.S.

471, 487 (1970). As the Supreme Court has explicitly warned

lower courts, when legislatures “act in areas fraught with

medical and scientific uncertainties, legislative options must

be especially broad and courts should be cautious not to re-

write legislation, even assuming, arguendo, that judges with

more direct exposure to the problem might make wiser

choices.” Marshall v. United States, 414 U.S. 417, 427 (1974);

Gonzales, 550 U.S. at 163 (“[Legislatures have] wide discretion

to pass legislation in areas where there is medical and scien-

tific uncertainty.”).

And yet, throughout their briefs, appellees and their amici

herald statements from medical authorities on their side of the

debate as evidence that the Indiana legislature acted impru-

dently. But the federal courts do not mediate medical debates.

The Constitution vests the people and their chosen represent-

atives with that responsibility. This is why “[w]e have consist-

ently deferred to legislative judgment in cases involving the

regulation of licensed professions.” DeSalle v. Wright, 969 F.2d

273, 275 (7th Cir. 1992); Sutker v. Ill. State Dental Soc’y, 808 F.2d

632, 635 (7th Cir. 1986). It is also why “health and welfare

laws” like SEA 480 are “entitled to a ‘strong presumption of

validity.’” Dobbs, 597 U.S. at 221 (quoting Heller, 509 U.S. at

319). See Marshall, 414 U.S. at 427; Williamson, 348 U.S. at 487–

50 No. 23-2366

88; Maguire v. Thompson, 957 F.2d 374, 378–79 (7th Cir. 1992).

Appellees must take their grievance to the people of Indi-

ana—not the courts.

For the reasons above, we REVERSE the district court’s or-

der and VACATE its injunction. We REMAND for further pro-

ceedings consistent with this opinion.

No. 23-2366 51

APPENDIX

ALABAMA ARKANSAS INDIANA KENTUCKY TENNESSEE

Prohibited Ala. Code § Ark. Code Ind. Code Ky. Rev. Tenn. Code

Conduct 26-26-4(a) Ann. § 20-9- Ann. § 25-1-22- Stat. Ann. § Ann. § 68-

Generally (a) Except as 1502 13 311.372 33-103(a)(1)

provided in (a) A physician Sec. 13. (a) (2) Except as (a)(1) A

subsection (b), or other Except as provided in healthcare

no person healthcare provided in subsection provider

shall engage in professional subsections (c) (3) of this shall not

or cause any of shall not and (d), a section, a knowingly

the following provide physician or health care perform or

practices to be gender other provider offer to

performed transition practitioner shall not, for perform on

upon a minor procedures to may not the purpose a minor, or

if the practice any individual knowingly of attempting administer

is performed under eighteen provide to alter the or offer to

for the (18) years of gender appearance administer

purpose of age. transition of, or to to a minor, a

attempting to (b) A physician procedures to validate a medical

alter the or other a minor. minor's procedure if

appearance of healthcare (b) Except as perception the

or affirm the professional provided in of, the performance

minor's shall not refer subsection (c), minor's sex, or

perception of any individual a physician or if that administrati

his or her under eighteen other appearance on of the

gender or sex, (18) years of practitioner or perception procedure is

if that age to any may not aid or is for the

appearance or healthcare abet another inconsistent purpose of:

perception is professional physician or with the (A) Enabling

inconsistent for gender practitioner in minor's sex, a minor to

with the transition the provision knowingly: identify

minor's sex as procedures. of gender with, or live

defined in this transition as, a

chapter: procedures to purported

a minor. identity

inconsistent

with the

minor's sex;

or

(B) Treating

purported

discomfort

or distress

from a

discordance

between the

52 No. 23-2366

minor's sex

and asserted

identity.

Puberty-blocking Ala. Code § Ark. Code Ind. Code Ky. Rev. Tenn. Code

medication 26-26-4(a)(1) Ann. § 20-9- Ann. § 25-1-22- Stat. Ann. § Ann. § 68-

(1) Prescribing 1501(6)(A) 5 311.372(2)(a) 33-104

or “Gender Sec. 5. (a) As (a) Prescribe A person

administering transition used in this or administer shall not

puberty procedures” chapter, any drug to knowingly

blocking means any “gender delay or stop provide a

medication to medical or transition normal hormone or

stop or delay surgical procedures” puberty; puberty

normal service, means any blocker by

puberty. including medical or any means

without surgical to a minor if

limitation service, the

physician's including provision of

services, physician's the hormone

inpatient and services, or puberty

outpatient practitioner's blocker is

hospital services, not in

services, or inpatient and compliance

prescribed outpatient with this

drugs related hospital chapter.

to gender services, or

transition that prescribed

seeks to: … (ii) drugs related

Instill or create to gender

physiological transition, that

or anatomical seeks to: … (2)

characteristics instill or create

that resemble a physiological

sex different or anatomical

from the characteristics

individual's that resemble a

biological sex, sex different

including from the

without individual's

limitation sex, including

medical medical

services that services that

provide provide

puberty- puberty

blocking drugs blocking drugs

… …

Hormones Ala. Code § Ark. Code Ind. Code Ky. Rev.

26-26-4(a) Ann. § 20-9- Ann. § 25-1-22- Stat. Ann. §

No. 23-2366 53

(2) Prescribing 1501(6)(A) 5 311.372(2)(b)

or “Gender Sec. 5. (a) As (b) Prescribe

administering transition used in this or administer

supraphysiolo procedures” chapter, testosterone,

gic doses of means any “gender estrogen, or

testosterone or medical or transition progesterone

other surgical procedures” , in amounts

androgens to service, means any greater than

females. including medical or would

(3) Prescribing without surgical normally be

or limitation service, produced

administering physician's including endogenousl

supraphysiolo services, physician's y in a healthy

gic doses of inpatient and services, person of the

estrogen to outpatient practitioner's same age and

males. hospital services, sex;

services, or inpatient and

prescribed outpatient

drugs related hospital

to gender services, or

transition that prescribed

seeks to: . . . (ii) drugs related

Instill or create to gender

physiological transition, that

or anatomical seeks to: . . .

characteristics (2) instill or

that resemble a create

sex different physiological

from the or anatomical

individual's characteristics

biological sex, that resemble a

including sex different

without from the

limitation . . . individual's

cross-sex sex, including

hormones . . . medical

services that

provide . . .

gender

transition

hormone

therapy . . .

Surgery Ala. Code § Ark. Code Ind. Code Ky. Rev.

26-26-4(a)(4) Ann. § 20-9- Ann. § 25-1-22- Stat. Ann. §

(4) Performing 1501(6)(A) 5 311.372(2)(c)

surgeries that “Gender Sec. 5. (a) As (c) Perform

sterilize, transition used in this any

54 No. 23-2366

including procedures” chapter, sterilizing

castration, means any “gender surgery,

vasectomy, medical or transition including

hysterectomy, surgical procedures” castration,

oophorectomy service, means any hysterectomy

, orchiectomy, including medical or ,

and without surgical oophorectom

penectomy. limitation service, y,

physician's including orchiectomy,

Ala. Code § services, physician's penectomy,

26-26-4(a)(5) inpatient and services, and

(5) Performing outpatient practitioner's vasectomy;

surgeries that hospital services,

artificially services, or inpatient and Ky. Rev.

construct prescribed outpatient Stat. Ann. §

tissue with the drugs related hospital 311.372(2)(d)

appearance of to gender services, or (d) Perform

genitalia that transition that prescribed any surgery

differs from seeks to: . . . (ii) drugs related that

the Instill or create to gender artificially

individual's physiological transition, that constructs

sex, including or anatomical seeks to: … tissue having

metoidioplasty characteristics (2) instill or the

, phalloplasty, that resemble a create appearance

and sex different physiological of genitalia

vaginoplasty. from the or anatomical differing

individual's characteristics from the

Ala. Code § biological sex, that resemble a minor's sex,

26-26-4(a)(6) including sex different including

(6) Removing genital or from the metoidioplas

any healthy or nongenital individual's ty,

non-diseased gender sex, including phalloplasty,

body part or reassignment genital gender and

tissue, except surgery … reassignment vaginoplasty;

for a male surgery or

circumcision. Ark. Code nongenital Ky. Rev.

Ann. § 20-9- gender Stat. Ann. §

1501(7)(A) reassignment 311.372(2)(e)

“Genital surgery (e) Remove

gender knowingly any healthy

reassignment performed for or non-

surgery” the purpose of diseased

means a assisting an body part or

medical individual tissue.

procedure with a gender

performed for transition.

the purpose of

No. 23-2366 55

assisting an

individual Ind. Code

with a gender Ann. § 25-1-22-

transition, 6

including Sec. 6. As used

without in this chapter,

limitation: (A) “genital

Surgical gender

procedures reassignment

such as surgery”

penectomy, means a

orchiectomy, medical

vaginoplasty, procedure

clitoroplasty, knowingly

or vulvoplasty performed for

for biologically the purpose of

male patients assisting an

or individual

hysterectomy with a gender

or ovariectomy transition,

for biologically including the

female following:

patients; (1) Surgical

procedures,

Ark. Code including a

Ann. § 20-9- penectomy,

1501(7)(B) orchiectomy,

“Genital vaginoplasty,

gender clitoroplasty,

reassignment or vulvoplasty

surgery” for a male sex

means a patient or

medical hysterectomy

procedure or ovariectomy

performed for for a female

the purpose of sex patient.

assisting an (3)

individual Phalloplasty,

with a gender vaginectomy,

transition, scrotoplasty,

including or

without implantation

limitation: (C) of erection or

Phalloplasty, testicular

vaginectomy, prostheses for

scrotoplasty, a female sex

or patient.

56 No. 23-2366

implantation

of erection or

testicular

prostheses for

biologically

female

patients;

Exceptions Ala. Code § Ark. Code Ind. Code Ky. Rev. Tenn. Code

Generally 26-26-4(b) Ann. § 20-9- Ann. § 25-1-22- Stat. Ann. § Ann. § 68-

(b) Subsection 1502(c) 13(c) 311.372(3) 33-103(b)(1)

(a) does not (c) A physician (c) This section (3) The (b)(1) It is

apply to a or other does not prohibitions not a

procedure healthcare prohibit a of subsection violation of

undertaken to professional is physician or (2) this subsection

treat a minor not prohibited other section shall (a) if a

born with a from practitioner not limit or healthcare

medically providing any from restrict the provider

verifiable of the providing any provision of knowingly

disorder of sex following of the services to: performs, or

development, procedures following to a offers to

including which are not minor: perform, a

either of the gender medical

following: transition procedure

procedures to on or

an individual administers,

under eighteen or offers to

(18) years of administer,

age: a medical

procedure to

a minor if:

Born with Ala. Code § Ark. Code Ind. Code Ky. Rev. Tenn. Code

ambiguous sex 26-26-4(b)(1) Ann. § 20-9- Ann. § 25-1-22- Stat. Ann. § Ann. § 68-

characteristics (1) An 1502(c)(1) 13(c)(1) 311.372(3)(a) 33-

individual (1) Services to (1) Services to (a) A minor 103(b)(1)(A)

born with persons born individuals born with a (A) The

external with a born with a medically performance

biological sex medically medically verifiable or

characteristics verifiable verifiable disorder of administrati

that are disorder of sex disorder of sex sex on of the

irresolvably development, development, development medical

ambiguous, including a including an , including procedure is

including an person with individual external to treat a

individual external with external biological sex minor's

born with 46 biological sex biological sex characteristic congenital

XX characteristics characteristics s that are defect . . .

chromosomes that are that are irresolvably

with irresolvably irresolvably ambiguous;

No. 23-2366 57

virilization, 46 ambiguous, ambiguous,

XY such as those including

chromosomes born with 46 individuals

with under XX born with

virilization, or chromosomes forty-six (46)

having both with XX

ovarian and virilization, 46 chromosomes

testicular XY with

tissue. chromosomes virilization,

with born with

undervirilizati forty-six (46)

on, or having XY

both ovarian chromosomes

and testicular with

tissue; undervirilizati

on, or having

both ovarian

and testicular

tissue.

Disorder of sexual Ala. Code § Ark. Code Ind. Code Ky. Rev. Tenn. Code

development 26-26-4(b)(2) Ann. § 20-9- Ann. § 25-1-22- Stat. Ann. § Ann. § 68-

(2) An 1502(c)(2) 13(c)(2) 311.372(3)(b) 33-

individual (2) Services (2) Services (b) A minor 103(b)(1)(A)

whom a provided provided diagnosed (A) The

physician has when a when a with a performance

otherwise physician has physician or disorder of or

diagnosed otherwise practitioner sexual administrati

with a diagnosed a has diagnosed development on of the

disorder of disorder of a disorder of , if a health medical

sexual sexual sexual care provider procedure is

development, development development has to treat a

in which the that the that the determined, minor's

physician has physician has physician or through congenital

determined determined practitioner genetic or defect . . .

through through has biochemical

genetic or genetic or determined testing, that

biochemical biochemical through the minor

testing that the testing that the genetic or does not

person does person does biochemical have a sex

not have not have testing that the chromosome

normal sex normal sex individual structure, sex

chromosome chromosome does not have steroid

structure, sex structure, sex normal sex hormone

steroid steroid chromosome production,

hormone hormone structure, sex or sex steroid

production, or production, or steroid hormone

sex steroid sex steroid hormone action, that is

58 No. 23-2366

hormone hormone production, or normal for a

action for a action; sex steroid biological

male or hormone male or

female. action. biological

female;

Disease/disorder/inj Ark. Code Ind. Code Ky. Rev. Tenn. Code

ury Ann. § 20-9- Ann. § 25-1-22- Stat. Ann. § Ann. § 68-

1502(c) 13(c) 311.372(3)(c) 33-

(3) The (3) The (c) A minor 103(b)(1)(A)

treatment of treatment of needing (b)(1) It is

any infection, any infection, treatment for not a

injury, disease, injury, disease, an infection, violation of

or disorder or disorder injury, subsection

that has been that has been disease, or (a) if a

caused by or caused by or disorder that healthcare

exacerbated by exacerbated by has been provider

the the caused or knowingly

performance of performance of exacerbated performs, or

gender gender by any action offers to

transition transition or procedure perform, a

procedures, procedures. prohibited by medical

whether or not (4) Any subsection procedure

the gender medical or (2) of this on or

transition surgical section. administers,

procedure was service or offers to

performed in undertaken administer,

accordance because the a medical

with state and individual procedure to

federal law or suffers from a a minor if:

whether or not physical (A) The

funding for the disorder, performance

gender physical or

transition injury, or administrati

procedure is physical illness on of the

permissible that would, as medical

under this certified by a procedure is

subchapter; or physician or to treat a

(4) Any practitioner, minor's . . .

procedure place the disease, or

undertaken individual in physical

because the imminent injury;

individual danger of

suffers from a death or

physical impairment of

disorder, major bodily

physical function unless

injury, or the medical or

No. 23-2366 59

physical illness surgical

that would, as service is

certified by a performed.

physician,

place the

individual in

imminent

danger of

death or

impairment of

major bodily

function unless

surgery is

performed.

60 No. 23-2366

JACKSON-AKIWUMI, Circuit Judge, dissenting. The majority

opinion vacates the district court’s preliminary injunction on

the grounds that Indiana’s Senate Enrolled Act 480 does not

likely violate Provider-Plaintiffs’ free speech rights, Parent-

Plaintiffs’ due process rights, or Minor-Plaintiffs’ equal pro-

tection rights. I disagree on all fronts. On the critically im-

portant due process and equal protection questions before us,

I dissent for largely the same compelling reasons explained

by dissenting judges around the country.1

I limit this dissenting opinion to the question no court of

appeals has addressed to date: whether a state law construed

to prohibit medical providers from aiding and abetting out-

of-state providers in the provision of gender transition treat-

ment to minors violates the First Amendment. The issue is

this: Provider-Plaintiffs, fearing exposure to liability under

SEA 480 for providing patients information about out-of-state

providers, referring patients to out-of-state providers, and

discussing former patients with out-of-state providers, say

they must remain silent, in violation of their right to free

speech.

1 See L.W. by & through Williams v. Skrmetti, 83 F.4th 460, 492–513 (6th

Cir.) (White, J., dissenting), cert. dismissed in part sub nom. Doe v. Kentucky,

144 S. Ct. 389 (2023), and cert. granted sub nom. United States v. Skrmetti, 144

S. Ct. 2679 (2024); Eknes-Tucker v. Governor of Alabama, 114 F.4th 1241, 1275–

77 (Wilson, J., dissenting), 1277–89 (Jordan, J., dissenting), 1289–1319 (Ros-

enbaum, J., dissenting) (11th Cir. 2024); see also Brandt v. Rutledge, 677 F.

Supp. 3d 877, 917–23 (E.D. Ark. 2023), appeal filed, No. 23-2681 (8th Cir.

July 21, 2023). As the majority opinion notes, the statutes in these cases

from around the country presented the same core substantive due process

and equal protection issues relevant here. See ante at 25–27.

No. 23-2366 61

Provider-Plaintiffs make clear throughout their complaint

and brief on appeal that the focus of their challenge is their

ability to communicate about and to out-of-state providers.

Here are examples, with all emphasis added:

• Complaint ¶ 175: “If S.E.A. 480 becomes law, [Pro-

vider-Plaintiff Dr. Catherine Bast] will want to provide

advice to her minor patients to assist them in receiving gen-

der-affirming care in other states and will, at her patients’

requests, want to cooperate with the health providers

in that state in terms of sharing information concerning

her minor patients. This is also part of her duty as a

physician to not abandon patients when she is unable

to continue their care.”

• Complaint ¶ 178: “However, S.E.A. 480 prohibits her

from doing anything that aids or abets another physi-

cian or practitioner in providing gender transition pro-

cedures for a minor and she will therefore not even be able

to discuss with her patients the availability of these services

in another state.”

• Appellees’ Brief at 22: “The district court also properly

held that appellees were likely to succeed in demon-

strating that S.E.A. 480’s ‘aiding or abetting’ provision,

Ind. Code § 25-1-22 13(b), violates the First Amend-

ment. It prohibits practitioners from referring patients

for care or discussing that care with other practitioners.

This is pure speech, not conduct, and as the district

court noted, a state cannot prohibit the dissemination of

truthful information about lawful out-of-state alternatives

without running afoul of the First Amendment. See,

e.g., Bigelow v. Virginia, 421 U.S. 809, 829 (1975).”

62 No. 23-2366

• Appellees’ Brief at 46–47: “A transgender minor who re-

ceives gender-affirming care in Illinois or Michigan is vio-

lating no law, and so Mosaic’s referral to a provider in one

of these states, while certainly integral to the minor’s health

and well-being, is not ‘integral to unlawful conduct.’ The

State ignores this distinction. It is not clear why the

State believes that the district court’s First Amendment

holding depends on its conclusion that Indiana cannot

prohibit gender-affirming care. (Appellants Br. 49). It

does not: as the Supreme Court made clear in Bigelow,

421 U.S. at 827-29, the right to share information about le-

gal options for obtaining medical care does not rise and fall

on whether a state can prohibit that care within its borders.

The State has no answer for this case.”

The initial, and largest, fault I find in the majority opin-

ion’s analysis is its unexplained silence on a threshold statu-

tory interpretation issue: an analysis of SEA 480 reveals the

law bars Indiana providers from giving gender transition treat-

ment to minors, and it bars Indiana providers from aiding and

abetting other Indiana providers in doing the same. As I explain

below, the law cabins its reach to the conduct of “physicians”

licensed to practice in Indiana and “practitioners” regulated

by an Indiana board. The law does not reach the conduct of

out-of-state physicians or practitioners who provide gender

transition treatment. It therefore does not violate SEA 480 for

an Indiana physician or practitioner to provide their patients

information about and referrals to out-of-state physicians and

practitioners, or to discuss former patients with out-of-state

physicians and practitioners. This understanding changes

everything in the analysis that should follow.

No. 23-2366 63

The lacuna in the majority opinion’s analysis gives way to

a second fundamental error: placing Provider-Plaintiffs’ pro-

posed speech into two categories of unprotected speech. Con-

trary to the majority opinion’s holding, Provider-Plaintiffs’

proposed speech does not fall within Giboney’s speech-inte-

gral-to-unlawful-conduct exception because provision of

treatment by an out-of-state provider is not a violation of SEA

480, meaning Provider-Plaintiffs’ proposed speech is integral

to lawful conduct. And because there is no unlawful conduct

to begin with, aiding and abetting liability cannot attach.

Nor is Provider-Plaintiffs’ proposed speech incidental to

regulated conduct because, again, SEA 480 does not regulate

conduct by out-of-state providers. This means Provider-

Plaintiffs’ proposed speech (again, providing patients infor-

mation about and referrals to out-of-state providers, and dis-

cussing former patients with out-of-state providers) is inci-

dental to unregulated conduct. Provider-Plaintiffs are free to

discuss out-of-state treatment options and make referrals to

out-of-state providers, full stop.

We therefore need not reach the constitutional question.

But the majority opinion does. Even if we did have to reach

that question, the aiding and abetting provision of SEA 480 is

unconstitutional. For these reasons, I dissent.

I

I begin with a brief procedural history, followed by an

overview of the standard governing this appeal. Provider-

Plaintiffs are a physician, Dr. Catherine Bast, and her family

medicine practice, Mosaic Health and Healing Arts, Inc., in

Goshen, Indiana. Dr. Bast and Mosaic sought to preliminarily

enjoin SEA 480’s aiding and abetting provision from going

64 No. 23-2366

into effect. They argued that the law violated their First

Amendment rights as applied to the following proposed ac-

tivities: discussing lawful out-of-state treatment options with

patients and making referrals to out-of-state providers, which

includes discussing former patients with out-of-state provid-

ers. Separately, Minor-Plaintiffs and Parent-Plaintiffs respec-

tively alleged the equal protection and due process violations

that I referenced at the beginning of this dissent. The district

court agreed with all the plaintiffs and issued a preliminary

injunction. Indiana appealed.

Eleven days after we heard oral argument, the panel ma-

jority issued a sua sponte order staying the preliminary in-

junction. See K.C. v. Individual Members of Med. Licensing Bd. of

Ind., No. 23-2366, 2024 WL 811523 (7th Cir. Feb. 27, 2024). In a

highly unusual move, the panel majority decided on its own

that SEA 480 should go into effect immediately. This forced

hundreds of transgender minors in Indiana to wake up the

next day without access to their existing care for gender dys-

phoria and chilled Provider-Plaintiffs’ speech about care

available out-of-state—all before we decided anything on the

merits. I dissented. See Dkt. 127 (Jackson-Akiwumi, J., dissent-

ing from the February 27, 2024, order staying the preliminary

injunction). The panel majority subsequently denied Plaintiff-

Appellees’ motion to reconsider, also over my dissent. K.C. v.

Individual Members of Med. Licensing Bd. of Ind., No. 23-2366,

2024 WL 1212700 (7th Cir. Mar. 21, 2024). And then came the

order denying Plaintiff-Appellees’ motion requesting en banc

reconsideration—again, over my dissent. See Dkt. 140.

Today, we reach a merits decision on whether to uphold

or vacate the district court’s preliminary injunction.

No. 23-2366 65

II

We must remember, for purposes of this interlocutory ap-

peal under 28 U.S.C. § 1292(a)(1), our role is to review the dis-

trict court’s decision for abuse of discretion only, evaluating

its legal conclusions de novo and its factual findings for clear

error. See United States v. NCR Corp., 688 F.3d 833, 837 (7th Cir.

2012); Eli Lilly & Co. v. Arla Foods, Inc., 893 F.3d 375, 381 (7th

Cir. 2018).

In deciding whether to issue an injunction, a district court

considers four factors: (1) whether the movant is likely to suc-

ceed on the merits; (2) whether the movant would suffer ir-

reparable injury absent the injunction; (3) whether the injunc-

tion would cause substantial harm to others; and (4) whether

the public interest would be served by the issuance of an in-

junction. See NCR Corp., 688 F.3d at 837. The two most im-

portant factors are likelihood of success on the merits and ir-

reparable harm. Bevis v. City of Naperville, 85 F.4th 1175, 1188

(7th Cir. 2023), cert. denied sub nom. Harrel v. Raoul, 144 S. Ct.

2491 (2024).

I focus this dissent on Provider-Plaintiffs’ likelihood of

succeeding on the merits of their First Amendment challenge,

as “[t]he loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable in-

jury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). I discussed the

remaining factors in a prior dissent. K.C., 2024 WL 1212700, at

*3–4 (Jackson-Akiwumi, J., dissenting).

66 No. 23-2366

III

The first step in any First Amendment analysis is to con-

strue the statute’s meaning, bearing in mind that, “[w]hen leg-

islation and the Constitution brush up against each other, our

task is to seek harmony, not to manufacture conflict.” United

States v. Hansen, 599 U.S. 762, 781 (2023). If the relevant con-

duct falls outside the statute’s scope, our work is done. Ind.

Right to Life Victory Fund v. Morales, 66 F.4th 625, 632 (7th Cir.

2023), certified question answered, 217 N.E.3d 517 (Ind. 2023)

(explaining that, “when we are faced with both statutory and

constitutional questions, we must prioritize resolving the stat-

utory issues if doing so would prevent us from engaging in

unnecessary constitutional analysis,” particularly “when the

statute at issue is a state statute” (citation omitted)); Ashwan-

der v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)

(explaining that, “if a case can be decided on either of two

grounds, one involving a constitutional question, the other a

question of statutory construction or general law, the Court

will decide only the latter”). If the statute reaches the relevant

conduct, though, we decide the constitutional question.

Applying this guidance, I address the unavoidable mean-

ing of SEA 480’s text and conclude that the text should end

our consideration of Provider-Plaintiffs’ free speech claim.

Though the majority opinion skips over our statutory inter-

pretation starting point and dives into the constitutional ques-

tion, even then, I explain, the majority opinion cannot save

SEA 480 from falling short of what the First Amendment re-

quires.

No. 23-2366 67

A

I start, as we must, with the statutory text. I conclude that

our First Amendment analysis should end where it begins be-

cause Provider-Plaintiffs’ proposed speech falls outside SEA

480’s purview.

SEA 480 prohibits “a physician or other practitioner [from]

… knowingly provid[ing] gender transition procedures to a

minor.” IND. CODE § 25-1-22-13(a). SEA 480 also prohibits “a

physician or other practitioner … aid[ing] or abet[ing] an-

other physician or practitioner in the provision of gender

transition procedures to a minor.” § 25-1-22-13(b).

SEA 480 gives the terms “physician” and “practitioner”

specific meaning. SEA 480 defines “physician” as “an individ-

ual who is licensed under IC 25-22.5,” § 25-1-22-9, and Section

25-22.5 defines “physician” as “any person who holds the de-

gree of doctor of medicine … and who holds a valid unlimited

license to practice medicine … in Indiana,” § 25-22.5-1-1.1(g)

(emphasis added). The statute defines “practitioner” as “an

individual who provides health services and holds … an un-

limited license … issued by a board regulating the profession

in question.” § 25-1-22-10. The relevant statutory chapter does

not define “board,” but it does note that “[a] physician or

practitioner” who violates SEA 480 “violates the standards of

practice under IC 25-1-9.” § 25-1-22-15. Section 25-1-9-1 states

that “‘board’ means any of the entities described in IC 25-0.5-

11,” see § 25-1-9-1, and Section 25-0.5-11, in turn, lists over one

dozen boards, including the Medical Licensing Board of Indi-

ana (which regulates physicians licensed by the state of Indi-

ana and whose individual members are defendants in this

case), see § 25-0.5-11-5, the Indiana Board of Pharmacy, see §

68 No. 23-2366

25-0.5-11-8, and the State Psychology Board, see § 25-0.5-11-

11.

So, SEA 480 bars physicians licensed in Indiana from provid-

ing gender transition treatment to minors. See Estate of Mo-

reland v. Dieter, 576 F.3d 691, 698 (7th Cir. 2009) (noting, with

citation to Indiana law, that courts must respect a statute’s

plain language). SEA 480 also bars practitioners licensed in In-

diana from doing the same. See Law v. Siegel, 571 U.S. 415, 422

(2014) (“[T]he ‘normal rule of statutory construction’ [is] that

words repeated in different parts of the same statute generally

have the same meaning.” (citation omitted)); IBP, Inc. v. Alva-

rez, 546 U.S. 21, 34 (2005) (“[I]dentical words used in different

parts of the same statute are generally presumed to have the

same meaning.”); Dep't of Treasury of Ind. v. Muessel, 218 Ind.

250, 258 (1941) (“[W]e have a rule of construction that the

same word used in the same manner in different places in the

same statute is presumed to be used with the same mean-

ing.”).

What does this mean for the “aid and abet” part of SEA

480? Taken together, the provision above establishes that SEA

480’s prohibition on “a physician or other practitioner …

aid[ing] or abet[ing] another physician or practitioner in the

provision of gender transition procedures to a minor” means

one Indiana provider’s secondary liability depends on another

Indiana provider’s primary violation, which is providing gen-

der transition procedures. This accords with our centuries-old

aiding and abetting jurisprudence, which establishes that a

primary violation of law is the only thing to which a second-

ary violation of that law (also called “aiding and abetting” li-

ability) may attach. See Twitter, Inc. v. Taamneh, 598 U.S. 471,

488 (2023).

No. 23-2366 69

Keep in mind that “aiding and abetting is merely a theory

of liability, not a substantive offense,” United States v. Schuh,

289 F.3d 968, 976 (7th Cir. 2002) (emphasis added), and “not

[] a separate crime,” United States v. Ruiz, 932 F.2d 1174, 1180

(7th Cir. 1991). It is a tool to hold a party liable for helping

others break the law. “[L]iability for aiding and abetting,”

therefore, “requires that a wrongful act be carried out.” Hansen,

599 U.S. at 771 (emphasis added); United States v. Worthen, 60

F.4th 1066, 1069 (7th Cir. 2023), cert. denied, 144 S. Ct. 91 (2023)

(“It is ‘hornbook law’ that convicting an aider and abettor first

requires showing that the underlying crime … ‘was actually com-

mitted.’” (cleaned and emphasis added) (citation omitted));

United States v. Freed, 921 F.3d 716, 721 (7th Cir. 2019) (“[I]t is

axiomatic that one cannot aid and abet a crime unless a crime

was actually committed.” (emphasis added)); Damato v. Herman-

son, 153 F.3d 464, 470 (7th Cir. 1998) (“[Under] the traditional

understanding of aiding and abetting liability… an aider and

abettor knowingly contributes to the principal’s violation, ra-

ther than committing an independent violation of its own.”

(emphasis added)).

Applying this well-established aiding and abetting juris-

prudence to Provider-Plaintiffs’ First Amendment challenge

to SEA 480 is straight forward. Starting at the top, a primary

violation of SEA 480 occurs when an Indiana provider pro-

vides gender transition treatment to a minor. A secondary vi-

olation of SEA 480 occurs when an Indiana provider helps the

principal Indiana provider treat the minor. Provider-Plaintiffs

wish to provide their minor patients information about out-

of-state treatment and referrals to out-of-state providers but

cannot do so for fear of liability under SEA 480’s aiding and

abetting provision. Yet, if Provider-Plaintiffs do as they pro-

pose, an out-of-state provider—not an Indiana one—would

70 No. 23-2366

treat the minor, and that is not a primary violation of SEA 480.

Because Provider-Plaintiffs would not be assisting with a pri-

mary violation of SEA 480, SEA 480’s secondary liability does

not attach. Ergo, Provider-Plaintiffs’ proposed activities do

not violate SEA 480’s aiding and abetting provision. This is

the end of the statutory analysis and, thus, the First Amend-

ment challenge—or so I thought.

The majority opinion skips the requisite statutory inter-

pretation analysis, and instead begins and ends with the con-

stitutional question. 2 The majority opinion does not discuss

SEA 480’s clear text, much less acknowledge that SEA 480

governs Indiana physicians and practitioners only. Because

SEA 480 simply does not reach the conduct of out-of-state

providers and Provider-Plaintiffs do not challenge the First

Amendment implications of SEA 480’s ban on aiding and

abetting Indiana providers, 3 we have no opportunity to

2 My colleagues explain their approach by stating that the parties

agree on SEA 480’s scope, so my colleagues will defer to that understand-

ing. See ante at 43–44. First, courts are not bound by the parties’ interpre-

tation of a statute. Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S.

47, 56 (2006) (“Nor must we accept an interpretation of a statute simply

because it is agreed to by the parties.”). Second, “[i]t is a well-established

principle … that normally the Court will not decide a constitutional ques-

tion if there is some other ground upon which to dispose of the case.” Nw.

Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (citing

Escambia County v. McMillan, 466 U.S. 48, 51, (1984) (per curiam)).

3 See ante at 61–62 (summarizing Plaintiff-Providers’ First Amendment

challenge as focused on communications about out-of-state treatment al-

ternatives). The majority opinion posits that Plaintiff-Providers are com-

plaining about speech related to Indiana treatment options and speech re-

lated to out-of-state treatment options. Even if so—and while there may

be no constitutional violation for the first type of speech as it may be

speech incidental to conduct now regulated by SEA 480—the separate

No. 23-2366 71

decide whether SEA 480’s aiding and abetting provision vio-

lates the First Amendment. 4

constitutional question about the second type of speech, concerning out-

of-state providers, must be answered with an analysis the majority opin-

ion does not provide, as I discuss later in this dissent. See post at 81–82.

4 A brief word on standing. We have recognized that, in the pre-en-

forcement context, “when an ambiguous statute arguably prohibits cer-

tain protected speech, a reasonable fear of prosecution can provide [Arti-

cle III injury-in-fact] for a First Amendment challenge,” which can be re-

dressed with injunctive relief. Schirmer v. Nagode, 621 F.3d 581, 586 (7th

Cir. 2010). Ordinarily, no substantial, credible threat of enforcement exists

if the statute “clearly fails to cover” a plaintiff’s conduct. Lawson v. Hill,

368 F.3d 955, 957 (7th Cir. 2004) (quoting Majors v. Abell, 317 F.3d 719, 721

(7th Cir. 2003)). SEA 480’s aiding and abetting provision, we now know,

cannot be fairly read to prohibit Provider-Plaintiffs from giving infor-

mation about and referrals for out-of-state treatment; yet, Indiana has con-

firmed that liability remains on the table, declaring in its briefing that

“S.E.A. 480 prohibits any action that aids or abets a gender-transition pro-

cedure” and refusing to disavow that the aiding and abetting provision

applies to Provider-Plaintiffs’ proposed speech. Dkt. 19 at 55; see also Dkt.

105 at 29–30 (Indiana arguing that it is unresolved “whether Indiana may

prohibit providers from providing its children with out-of-state refer-

rals”). Cf. Lawson, 368 F.3d at 959 (citing Presbytery of New Jersey of Orthodox

Presbyterian Church v. Florio, 40 F.3d 1454, 1468 (3d Cir. 1994)) (concluding

that plaintiffs lacked standing because the prosecutor neutralized any

threat of enforcement by disavowing prosecution under the statute); Flo-

rio, 40 F.3d at 1468 (concluding that “the state demonstrat[ing] its willing-

ness to prosecute …. added immediacy to [the plaintiff’s] claim that he

faced prosecution if he engaged in [the] proscribed expressive activity”).

So, the substantial and credible threat of enforcement and, thus, Article III

injury-in-fact, live on.

72 No. 23-2366

B

We need not reach the constitutional question for the rea-

son I have just explained, but the majority opinion does. Even

under the majority opinion’s approach, SEA 480’s aiding and

abetting provision is unconstitutional.

To understand why, we must first frame the First Amend-

ment inquiry. In deciding whether a law imposes an uncon-

stitutional restriction on speech, we ask four questions.

First, does the statute regulate speech or conduct? See Cor-

nelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797

(1985). In analyzing the First Amendment issue (even though

doing so is not necessary, as I have explained), I conclude that

SEA 480 regulates speech. The majority opinion assumes the

same. See ante at 40.

Second, is the regulated speech or regulated conduct pro-

tected? Id. We ask this because the First Amendment guaran-

tees that “Congress shall make no law … abridging the free-

dom of speech,” U.S. CONST. amend. I, and the Fourteenth

Amendment makes this constitutional protection applicable

to the states, see Cantwell v. Connecticut, 310 U.S. 296, 303

(1940). This means the First Amendment protects against gov-

ernment restriction—based on message, ideas, subject matter,

or content—of “pure speech” or “expressive conduct.” 303

Creative LLC v. Elenis, 600 U.S. 570, 600 (2023). The First

Amendment does not protect “nonexpressive conduct”; nor

does it prohibit restrictions on speech incidental to regulated

conduct, Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011), or

speech integral to unlawful conduct, Giboney v. Empire Storage

& Ice Co., 336 U.S. 490, 498 (1949).

No. 23-2366 73

The majority opinion holds that, insofar as the aiding and

abetting provision regulates speech, it reaches only unpro-

tected speech—either speech integral to unlawful conduct or

speech incidental to regulated conduct. Our law, however,

defies both conclusions. I explain why below, before return-

ing to the third and fourth questions, which are determining

the applicable level of scrutiny and applying that scrutiny to

the facts, respectively.

1.

I begin with the speech-integral-to-unlawful conduct ex-

ception.

The exception for speech integral to unlawful conduct

found life in Giboney v. Empire Storage & Ice Co., 336 U.S. 490

(1949). There, the Supreme Court observed “that the constitu-

tional freedom for speech … [does not] extend[] its immunity

to speech or writing used as an integral part of conduct in vi-

olation of a valid criminal statute.” Id. at 498. “[W]here speech

becomes an integral part of the crime, a First Amendment de-

fense is foreclosed even if the prosecution rests on words

alone.” United States v. Kaun, 827 F.2d 1144, 1152 (7th Cir.

1987) (citation omitted). Aiding and abetting liability gener-

ally, my colleagues and I agree, falls within Giboney’s speech-

integral-to-unlawful-conduct exception. But our agreement

on Giboney ends there.

As a preliminary matter, SEA 480’s aiding and abetting

provision regulates speech integral to civil conduct. Physi-

cians and practitioners who provide or threaten to provide

gender transition treatment face civil claims brought by mi-

nors or their parents. § 25-1-22-16. Providers who aid and abet

74 No. 23-2366

treatment face the same, as well as discipline by the board reg-

ulating the provider. § 25-1-22-15.

Though courts use the phrases “speech integral to crimi-

nal conduct” and “speech integral to unlawful conduct” in-

terchangeably, see, e.g., Giboney, 336 U.S. at 498 (discussing

speech “integral” to “conduct otherwise unlawful” and

“speech or writing used as an integral part of conduct in vio-

lation of a valid criminal statute”), courts have historically ap-

plied the Giboney exception only to crimes, not civil infrac-

tions, see, e.g., Giboney, 336 U.S. at 498; United States v. Stevens,

559 U.S. 460, 471 (2010) (noting the First Amendment does not

protect speech integral to criminal conduct). The majority

opinion does not address this distinction in Giboney’s applica-

tion.

Even if the Giboney exception applies to civil laws like SEA

480, we do not have a speech-integral-to-unlawful-conduct

problem here. Remember, to have a speech-integral-to-un-

lawful conduct situation, we need aiding and abetting liabil-

ity. For aiding and abetting liability to attach, we need a pri-

mary violation. But there is none here as far as Provider-Plain-

tiffs are concerned. By providing information about and re-

ferrals for out-of-state treatment, Provider-Plaintiffs do not aid

and abet other Indiana providers in treating minors—the con-

duct that constitutes a primary violation of SEA 480.

Put more simply, there is no unlawful conduct here—and

there can be no “speech integral to unlawful conduct” with-

out unlawful conduct. 5 Furthermore, the caselaw on speech

5 The majority opinion cites the Supreme Court’s decision in Hansen,

see ante at 38–43, as a modern example of the speech-integral-to-unlawful-

conduct exception. 599 U.S. at 762. But Hansen and this case are cut from

No. 23-2366 75

integral to unlawful conduct requires a strong connection be-

tween the speech and the unlawful conduct. See, e.g., United

States v. Stevens, 559 U.S. 460, 468–69 (2010) (describing the

unprotected speech as “intrinsically related” to depictions of

animal cruelty, which a federal statute criminalizes); Ashcroft

v. Free Speech Coalition, 535 U.S. 234, 249–250 (2002) (holding

that distribution and sale of child pornography “were intrin-

sically related to the sexual abuse of children” giving the

speech at issue “a proximate link to the crime from which it

came”).

The cases on speech integral to unlawful conduct are no

different from the other rare exceptions to First Amendment

protection: incitement, defamation, obscenity, and “true

threats” of violence. See Counterman v. Colorado, 600 U.S. 66,

73–74 (2023) (listing these four as the “few limited areas”

where restrictions on speech are permitted); Stevens, 559 U.S.

468–69 (adding speech integral to conduct to the above list,

with a cite to Giboney). The cases in these areas focus on the

specificity and imminence of the threat at issue, which is an-

other way of asking “how connected is the speech to the un-

lawful conduct?” But here, again, we have no unlawful con-

duct. Just speech.

two different cloths. Hansen was a case about unlawful conduct, and there

is none here. Moreover, Hansen concerned a federal immigration law, 8

U.S.C. § 1324(a)(1)(A)(iv), which, according to every circuit court that has

ruled on the issue, applies extraterritorially. See United States v. Beliard, 618

F.2d 886, 887 (1st Cir. 1980); United States v. Villanueva, 408 F.3d 193, 196

(5th Cir. 2005); United States v. Lopez, 484 F.3d 1186, 1194–95 (9th Cir. 2007)

(en banc); United States v. Rolle, 65 F.4th 1273, 1279 (11th Cir. 2023); United

States v. Delgado-Garcia, 374 F.3d 1337, 1345 (D.C. Cir. 2004). This case con-

cerns state law, and no one asserts that SEA 480 applies extraterritorially.

So, the majority opinion’s attempt to graft Hansen onto this case fails.

76 No. 23-2366

Another issue I see: The majority opinion suggests that the

aiding and abetting provision does not stir up a constitutional

problem because, the majority opinion rationalizes, Provider-

Plaintiffs can always ask the trial court to dismiss a lawsuit

against them if Indiana applies the law in an unconstitutional

way. “If Indiana applied the law to speech that did not aid or

abet a principal violation of SEA 480,” the majority opinion

says, “the defendant’s first course of action would not be a

federal constitutional challenge—it would be to move for dis-

missal of the lawsuit.” Ante, at 39. “In other words,” the ma-

jority opinion concludes, “because SEA 480’s secondary lia-

bility provision ‘stretches no further than … [s]peech in-

tended to bring about a particular unlawful act,’ the plaintiff

doctor and her practice could only ever be sued for unpro-

tected speech.” Ante, at 39.

This reasoning unravels because our jurisprudence per-

mits pre-enforcement, as-applied First Amendment chal-

lenges. See Holder v. Humanitarian Law Project, 561 U.S. 1, 14–

16 (2010). Why? To prevent the chilling effect associated with

expansive proscriptions on speech. See Majors, 317 F.3d at 721.

Otherwise, plaintiffs face an unattractive set of options: re-

frain from activity they believe the First Amendment protects,

or risk liability for violating the challenged law. Id.

My colleagues appear moved by the good intentions that

Indiana contends underpin SEA 480’s aiding and abetting

provision. But it is axiomatic that a state cannot ensnare free

speech just because it means well. The majority opinion says:

“[T]he underlying wrongful conduct is the principal violation

of Indiana’s statute by the practitioner providing the treat-

ment.” Ante, at 42. Perhaps, by “principal violation,” the ma-

jority opinion means principle violation, as in the Provider-

No. 23-2366 77

Plaintiffs’ conduct (or the out-of-state provider’s conduct) vi-

olates the spirit of SEA 480, rather than its letter, satisfying

aiding and abetting liability’s underlying wrongful conduct

requirement. This interpretation tracks other reasoning found

in the majority opinion. At one point, for example, the major-

ity opinion asserts: “But when the physicians and the state do

not see eye-to-eye on treatment—and when the state validly

regulates that treatment—the state must be able to preclude

its physicians from using their authority to help the state’s cit-

izens access the treatment. Otherwise, the physicians would

hold a veto over the state’s power to protect its citizens.” Ante,

at 43.

To the extent that the majority opinion contends that vio-

lating the spirit of SEA 480 satisfies the primary violation re-

quirement, this rationale cannot sustain SEA 480’s aiding and

abetting provision. To provide tractable limits to the Giboney

exception, the speech at issue must bear a causal link to an

independently unlawful course of conduct, not a relationship

to the mere purpose of a law. Without a primary violation, the

only “unlawful conduct” that could be the basis of applying

Giboney’s speech-integral-to-unlawful-conduct exception

would be the speech itself—speech that Indiana regards as

politically unpopular and morally disfavored.

The First Amendment does not tolerate that result, as the

freedom of speech is meant to prevent the government from

“suppress[ing] unpopular ideas or information.” Turner

Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 641 (1994). The Supreme

Court, in Virginia Board of Pharmacy v. Virginia Citizens Con-

sumer Council, Inc., found fears that patients who received

price advertising from pharmacists would “choose the low-

cost, low-quality service,” “destroy the pharmacist-customer

78 No. 23-2366

relationship,” and “drive the ‘professional’ pharmacist out of

business” insufficient to justify restricting the pharmacists’

speech, explaining:

There is, of course, an alternative to this highly

paternalistic approach. That alternative is to as-

sume that this information is not in itself harm-

ful, that people will perceive their own best in-

terests if only they are well enough informed,

and that the best means to that end is to open

the channels of communication rather than to

close them…. But the choice among these alter-

native approaches is not ours to make or the Vir-

ginia General Assembly’s. It is precisely this

kind of choice, between the dangers of sup-

pressing information, and the dangers of its

misuse if it is freely available, that the First

Amendment makes for us. Virginia is free to re-

quire whatever professional standards it wishes

of its pharmacists …. But it may not do so by

keeping the public in ignorance of the entirely

lawful terms that competing pharmacists are of-

fering…. [A] State may [not] completely sup-

press the dissemination of concededly truthful

information about entirely lawful activity, fear-

ful of that information’s effect upon its dissemi-

nators and its recipients.

425 U.S. 748, 769–70, 773 (1976); see also Thompson v. W. States

Med. Ctr., 535 U.S. 357, 374 (2002) (rejecting the conclusion

that the government can regulate physicians’ speech about

controlled substances because it may result in patients mak-

ing bad decisions if given truthful information); Sorrell, 564

No. 23-2366 79

U.S. at 567, 572, 577 (finding unconstitutional a state law, en-

acted in part because lawmakers believed brand-name drugs

were less safe than generic alternatives, permitting pharma-

cies to share prescriber-identifying information with anyone

for

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