Seventh Circuit restricts trans minors' rights in Indiana without a word explaining why

Update: The appeals court responded Friday to questions about its unusual order allowing Indiana's law banning gender-affirming medical care for minors to go into effect.

On Feb. 27, the U.S. Court of Appeals for the Seventh Circuit issued an unusual, questionable order changing the lives of transgender minors — and their parents and medical providers — overnight in Indiana.

The court allowed Indiana’s ban on gender-affirming medical care to go into effect immediately — without notice and despite the fact that the state hadn’t even sought such an order.

Before the order, the law had never fully gone into force due to the fact that major provisions of the ban had been blocked by a preliminary injunction in place since before the law was originally supposed to go into effect in July 2023.

In the unsigned, unreasoned order, the court — under the auspices of the three-judge panel that is hearing Indiana’s appeal of the preliminary injunction blocking enforcement of the law — issued a stay of that injunction on Feb. 27.

The panel is made up of Judge Kenneth Ripple, a Reagan appointee; Judge Michael Brennan, a Trump appointee; and Judge Candace Jackson-Akiwumi, a Biden appointee. A clerk for the court told Law Dork on Thursday that orders of this type would not state whether a judge on the panel dissented from the majority.

By issuing a stay of the injunction, that meant the law was no longer blocked and could be enforced. It also short-circuited procedures that the challengers otherwise would have had to protect their rights, an issue that the lawyers for the challengers have since raised with the court.

More than 48 hours later, the court has not provided any more information about why it took this action in this way — and the restrictions have gone into effect.

[Update, 12:40 p.m. March 1: The morning after Law Dork published this report, the Seventh Circuit panel issued an order responding to the challengers’ request for reconsideration or hearing en banc, calling for further briefing that acknowledged the abrupt and unexpected nature of its Feb. 27 order.

The Indiana code provision referenced is a six-month grace period allowing for existing “gender transition hormone therapy” to continue for six months after the law goes into effect.

Additionally, Jackson-Akiwumi formally noted that she had dissented from the Feb. 27 stay order.

Finally, and troublingly, Jackson-Akiwumi also dissented to Friday’s order because it did not allow the parties to brief the underlying question of whether there should be a stay at all.

In other words, when the panel got the challengers’ reconsideration filing on Feb. 28, Jackson-Akiwumi — at least — wanted the parties to brief on whether there should be a stay of the injunction. She could not get either Ripple or Brennan to agree to add that question to Friday’s order, so she dissented.

That bodes very poorly for where this is going for the challengers.

A final point: By “reconsidering” their Feb. 27 stay order — while not lifting the stay — this order has the immediate results of both leaving Indiana’s ban in effect and preventing the en banc court from getting the challengers’ request for a rehearing.]

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U.S. District Judge James Patrick Hanlon — a Trump appointee — had issued the preliminary injunction in the case more than eight months earlier, on June 16, 2023, and the state had proceeded with its appeal without seeking a stay pending appeal.

Hanlon’s injunction did two things:

• It blocked enforcement of the bans against puberty blockers or hormones as part of treatment for gender dysphoria — the medical diagnosis for a person who is transgender that, in part, precedes any further medical treatment.

• It also blocked application of a broad provision that bans “aiding or abetting another physician or practitioner” in helping a minor obtain gender-affirming medical care to allow “providing patients with information, making referrals to other medical providers, and providing medical records or other information to medical providers.”

As Indiana’s appeal went forward, briefing took place and oral arguments were held on Feb. 16 before Ripple, Brennan, and Jackson-Akiwumi.

It was clear from her questioning that Jackson-Akiwumi was skeptical of the state’s defense of the law. When the lawyer for the state referenced “deference to legislative predictive judgments,” for example, Jackson-Akiwumi shot back: “That, of course, is subject to the Constitution. That’s why we’re here.”

It appears from the Feb. 27 order, however, that at least Ripple and Brennan viewed the matter differently and are preparing to side with the state.

They have not yet sided with the state, but their stay immediately upended the rights of trans minors across the state of Indiana.

That is not how it’s supposed to be done. Appellate procedures exist to prevent unexpected changes in the rights of parties, and this order ignored those procedures to the detriment of people’s rights across the state of Indiana.

The morning after the order was issued, lawyers for the challengers asked the court — either the three-judge panel or the full appeals court — to reconsider the stay in a filing that highlighted the immediate harm that the stay had unleashed without any briefing or notice.

The lawyers discussed the effect on trans minors and their parents:

By staying the district court’s preliminary injunction and order sua sponte and allowing Senate Enrolled Act (“SEA”) 480 to go into effect upon entry of its order, the panel did not allow for briefing on the immediate, irreparable harms that would flow to Appellees and the hundreds of other transgender adolescents and parents across Indiana, who are all suddenly unable to obtain vital care.

They discussed the effect of allowing the “aiding or abetting” provision to go into effect:

It also did not allow for briefing on the immediate, irreparable harms that would flow to Mosaic Health and Healing Arts, Inc., and other medical providers, who not only must immediately cease providing care to their patients but may not even refer their patients to out-of-state providers or cooperate with those providers to ensure the continuity of their patients’ care.

Finally, and importantly, they noted how this amounted to procedural trickery that cut short the challengers’ rights:

Had a stay application ever been filed by the Appellants, Appellees and other transgender adolescents and families could have prepared for the possibility that SEA 480 might immediately go into effect. Alternatively, had an opinion and order reversing the district court’s preliminary injunction been issued, Appellees and other transgender adolescents and families would have had either 21 days from the issuance of the order or from denial of rehearing for the mandate to issue. Because the panel circumnavigated those typical procedures, transgender youth, their families, and their medical providers are now left without medical care, and with no notice and no opportunity to meaningfully find alternative treatment options outside of Indiana.

This stay has been in effect for more than 48 hours now. The law has gone into effect in Indiana, and these rights were immediately curtailed, and the Seventh Circuit has done nothing further — aside from issuing a brief order reclassifying the filing as a motion rather than a petition.

In doing so, however, the court — perhaps inadvertently — highlighted the irregular nature of the Feb. 27 order, noting as it does that “this court has not entered a final judgment” that would normally be a part of a ruling altering parties’ rights after arguments in an appeal.