Divided appeals court keeps Indiana ban on trans minors' medical care in effect

Judge Candace Jackson-Akiwumi issued an impassioned dissent, highlighting the "profound irreparable harm" her colleagues' action is causing.

On Thursday, two judges of the U.S. Court of Appeals for the Seventh Circuit issued a dismissive order keeping gender-affirming medical care for minors blocked in Indiana, contorting law and procedure to do so.

The brief order from Judges Kenneth Ripple and Michael Brennan sparked a strong dissent from the third judge on the panel, Judge Candace Jackson-Akiwumi.

“[I]n a highly unusual move, the majority decided on its own that [Indiana’s law] should go into effect immediately, thereby forcing the parties to significantly alter their practices before any issue has been decided on the merits,” Jackson-Akiwumi, a Biden appointee, wrote of the panel’s order. Because of the court’s action, Jackson-Akiwumi continued, “profound irreparable harm is happening now.”

The appeals court, technically, has stayed a district court’s preliminary injunction, which had blocked the law from being enforced since before it went into effect. The stay issued on Feb. 27, therefore, allowed the law’s enforcement for the first time. Thursday’s order denied a request to reconsider the stay or to delay when the stay goes into effect.

Of the court’s action allowing the law to go into effect immediately and with no warning for either transgender minors or their medical providers, the unsigned order — coming from Ripple and Brennan — declared simply: “[A]ny physician or patient who proceeded in reliance on the district court’s preliminary injunction did so understanding that the injunction was subject to reversal or to stay at any time by this court.”

Ripple, a Reagan appointee who took senior status during the George W. Bush administration, and Brennan, a Trump appointee, have still provided no reasoning for their decision upending the rights of parties — and for blocking the preliminary injunction issued last year.

What happened?

Back in June 2023, after Indiana passed the law, S.E.A. 480, a district court judge issued a preliminary injunction keeping much of it from being enforceable. Indiana officials appealed, but, importantly, did not ask the appeals court for a stay of the injunction pending appeal.

After more than eight months, during which time the appeal was briefed and argued and the law had remained on hold, the panel issued an unreasoned, five-sentence order granting a stay of the injunction on Feb. 27 sua sponte — meaning without any party asking for it.

The court, with no explanation — and without the state even asking for it — made the law enforceable during the appeal.

The challengers asked the court to reconsider the order or for the full court, en banc, to do so. In particular, they raised the fact that, under the initial law, there was to be a six-month “grace period” for those minors currently receiving hormones or puberty blockers “to taper off such treatment and make other arrangements.”

In response to that, the court ordered further briefing, at which point Jackson-Akiwumi made clear that she had dissented from the court’s actions allowing the law to go into effect.

All of that led to Thursday’s dismissive order, which included a reference to preserving the “status quo.”

The court notes a case in which a different appeals court had issued a partial stay of a preliminary injunction sua sponte, but the citation is misleading at best.

There, the U.S. Court of Appeals for the Ninth Circuit had first issued an order upholding the district court’s preliminary injunction in a case related to Navy training exercises off the coast of California and concerns about the dangers posed to marine life as a result. Then, in a subsequent related order, the court granted a sua sponte partial stay of the injunction for a very particular and fully explained reason: “the importance of the Navy's mission to provide for the national defense and the representation by the Chief of Naval Operations that the district court's preliminary injunction in its current form will ‘unacceptably risk’ effective training and strike group certification.” The court then detailed that it was “modify[ing] … two mitigation measures” in the injunction to respond to the Navy’s concerns and “out of an abundance of caution to protect the important interests at stake in this appeal pending possible further review.”

In other words, when another court took an action like this — likely the best example the judges or their clerks could find — they did so as part of a “national defense” request, after ruling against the military for the most part, and with a full explanation of their reasons.

To her colleagues’ contrasting actions, Jackson-Akiwumi wrote an impassioned dissent.

“I do not see how the majority’s requirement that the State implement a law that has yet to go into effect can be justified as necessary to preserve the status quo,” she wrote. The effect of the court’s order, as well, matters, she detailed: “[T]he stay order disrupts, rather than maintains, the status quo pending our review of the case.”

The status quo, Jackson-Akiwumi made clear, is that trans minors could use puberty blockers and hormones:

Before the Indiana Legislature enacted S.E.A. 480, transgender minors used puberty blockers and cross-sex hormones to treat gender dysphoria for years. On June 16, 2023, weeks before S.E.A. 480’s effective date of July 1, 2023, the district court preliminarily enjoined the law. … [D]uring this appeal, transgender minors have continued to use puberty blockers and cross-sex hormones. They did so undisturbed until February 27, 2024—the day the panel majority decided that S.E.A. 480 should go into effect.

This highlights another problem with the majority’s order, as Jackson-Akiwumi described it.

“[I]t is not just that the majority has issued the stay on its own—it has done so without explaining its decision,” she wrote. “The order above merely states that the majority has the power to impose the stay and, so, the majority will in fact continue to impose the stay.”

In short, they have the votes.

And, as a result, trans minors across Indiana continue to be blocked from receiving puberty blockers and hormones.