Attorneys from the state and the ACLU of Indiana presented arguments before a federal judge Wednesday on Indiana’s gender-affirming care ban for transgender youth. The arguments largely focused on what clinical evidence does — and doesn’t — show in the treatment of gender dysphoria.
The ACLU filed a motion to halt the ban before it would take effect on July 1. Judge James Patrick Hanlon told both parties he would issue a ruling “as soon as possible.”
What is the ban?
SEA 480 bans medicinal and surgical gender-affirming care for transgender youth, but the treatments are still available for cisgender youth. Puberty blockers, for example, are frequently prescribed for children experiencing precocious puberty. A cisgender teenage girl in Indiana may receive a gender-affirming surgery like a breast augmentation, but the same procedure — which would go against national guidance on age-appropriate care — is banned for a transgender teenage girl.
Gender-affirming care is health care that encompasses mental, social, medical and surgical care designed to treat gender dysphoria. And gender dysphoria is a clinically significant distress experienced by people whose gender assigned at birth and gender identity don’t match — though not all transgender people experience gender dysphoria.
The vast majority of medical organizations support gender-affirming care, and there is national and international guidance on age-appropriate interventions for transgender youth.
The legislation also includes a ban on gender-affirming care providers from “aiding and abetting” families seeking care out of state.
If SEA 480 takes effect on July 1, transgender youth who receive puberty blockers would be forcibly detransitioned on that date. Those who receive hormone therapy would have to stop that care by the end of 2023.
READ MORE: What is gender-affirming care?
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What are the arguments?
The ACLU of Indiana’s arguments largely focused on three constitutional arguments: the ban violates the 14th Amendment and equal protections clause because it discriminates against transgender youth on the basis of sex, as defined in the 2020 Supreme Court case Bostock v. Clayton County, Georgia; it violates due process protections for parents of trans youth by taking away their ability to seek care for their children; and the ACLU said it infringes on the 1st Amendment rights of medical professionals.
Ken Falk, ACLU of Indiana legal director, called SEA 480 an “odd” law.
“It's shocking that Indiana's willing to inflict this sort of harm on persons,” Falk said. “Indiana says we're doing this, protect the children but there's no evidence of that. What we have are parents and children, and their doctors providing this care, and the kids are getting better.”
Indiana Solicitor General Thomas Fisher represented the state in court. He said the support for gender-affirming care from nearly all major medical organizations is based largely in anecdotal evidence and not in studies.
Fisher said the General Assembly was unwilling to “subject the children of Indiana to this grand experiment.” Magnus Hirschfeld’s Institute for Sexual Research in Berlin is largely recognized as the world’s first gender-affirming care clinic. It would have been 100 years old if it had not been burned to the ground by the Nazi Party in 1933.
“There are risks that are tended to these treatments for children,” Fisher said. “The legislature wanted to address that with a law that goes into effect July 1, and we think that that law should stand.”
Fisher said previous studies on outcomes for transgender youth and their gender identity into adulthood weren’t rigorous enough to support medical policies.
He pointed to recent moves from European countries limiting access on national health care plans to gender-affirming care for trans teens.
“What they’re discovering is that the scientific studies that are cited to support use of medical intervention for gender dysphoria for minors, simply does not show causation,” Fisher said.
But Falk said those aren’t outright bans on gender-affirming care — only for youth under 16 who are receiving care through universal health care.
“The only place that is prohibited besides the states that–it’s prohibited in the United States, is in Indiana,” Falk said. “There's no place in the–in the world other than here where you cannot get this care.”
Falk said the state’s medicinal gender-affirming care alternatives also don’t meet the same metric for effectiveness, and calls the consequences “tragic” – referring to the 54 percent of transgender and nonbinary youth in Indiana who considered suicide in the last year.
What happens next?
A preliminary injunction — which is what the ACLU of Indiana is seeking — halts SEA 480 from taking effect until the lawsuit against it finishes moving through the court system.
Preliminary injunctions are granted under a handful of reasons, including likelihood of success, irreparable harm and the public interest. For example, if Judge Hanlon finds that the ACLU’s lawsuit is likely to be successful or that the law taking effect causes irreparable harm to transgender youth, he may halt it.
He told both parties that he will make a decision “as soon as possible.”
Lauren is our digital editor. Contact her at lchapman@wfyi.org or follow her on Twitter at @laurenechapman_.