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

> Court of Appeals for the Seventh Circuit · November 13, 2024 · 121 F.4th 604

URL: https://www.frixlaw.com/law-library/cases/10739913

## Case

- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** November 13, 2024
- **Citations:** 121 F.4th 604
- **Precedential status:** Published
- **Opinion:** Opinion by Brennan
- **Judges:** Brennan
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10739913

## How later opinions describe it (automated extraction)

- holding that where movant has not established first two factors, the third tips in favor of the nonmovant

## Opinion text

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 d

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10739913. Public record. Not legal advice.