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, 

 (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, 

 (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., 

, 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., 

(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.

. Legislative enactments touching on health and wel-
fare receive a “strong presumption of validity.” Heller v. Doe,

 (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, 

 (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., 

, 791 (7th Cir. 2022) (brackets and quotation
omitted). “An error of law can cause an abuse of discretion.”
Id.; Common Cause Ind. v. Lawson, 

 (7th Cir.
2020); Mays v. Dart, 

, 818 (7th Cir. 2020) (also er-
rors of fact); Lawson Prods., Inc. v. Avnet, Inc., 

,
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, 

, 762 (7th Cir. 2020); cf.
Nken v. Holder, 

 (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, 

, 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, 

 (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, 

 (1973) (evaluating whether a “difference in treatment
constitutes an unconstitutional discrimination”); Craig v.
Boren, 

, 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, 

 (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., 

, 273–74 (1986), and (gener-
ally) alienage, Examining Bd. of Eng’rs, Architects & Surveyors
v. Flores de Otero, 

 (1976). Laws that discrimi-
nate based on sex, United States v. Virginia, 

, 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, 

 (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, 

 (1979); Pennell v. City of San Jose, 

 (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, 

, 375 n.14 (1974) (quoting Robison v. Johnson,

 (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, 

(1997) (quoting N.Y.C. Transit Auth. v. Beazer, 

(1979)). Further, even laws that affect different groups une-
venly raise no equal protection problems per se. Pers. Adm'r
of Mass. v. Feeney, 

, 271–72 (1979) (“Most laws clas-
sify, and many affect certain groups unevenly … .”); see Mass.
Bd. of Retirement v. Murgia, 

 (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., 

 (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, 

. Indiana’s justification for SEA 480 would have to be “ex-
ceedingly persuasive.” 

 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., 

 (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, 

, 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, 

, 639–41, 645 (1975); a law allowing women
to purchase near beer at age 18 but men at age 21, Craig, 

; a law placing an obligation on husbands—but
not wives—to pay alimony, Orr v. Orr, 

, 270–71,
273 (1979); a law allowing unwed mothers—but not unwed
fathers—to object to their children’s adoption, Caban v. Mo-
hammed, 

, 387–88 (1979); a state nursing school’s
policy of barring men—but not women—from admission,
Miss. Univ. for Women v. Hogan, 

, 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, 

, 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, 

 (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., 

 (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, 

 (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, 

 (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. 

. 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, 

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

, 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, 

, 772 (7th Cir. 2023); West v. Radtke, 

, 852 (7th Cir. 2022); Carson v. Lake Cnty., 

 (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., 

, 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, 

; see 

 (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[][.]” 

 at
F64.0(A)(5) (emphasis added). The patient says, “yes.” If the
patient has been feeling that way for at least six months, 

 at
No. 23-2366                                                              19

F64.0(A), and experienced “clinically significant distress” in
the patient’s social life, 

 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.” 

. 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. 

 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, 

(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, 

).
    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, 

.
   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, 

(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.” 

. 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 

 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. 

. 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, 

 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, 

, 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, 

, 486 (6th Cir. 2023), cert. granted, 

(2024). Transgender status is neither “an immutable characteristic deter-
mined solely by the accident of birth,” Segovia v. United States, 

 (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, 

 (1973); see also Segovia, 

.
     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, 

(poverty); Harris v. McRae, 

, 322–23 (1980) (indigent women
seeking abortions); N.Y.C. Transit Auth. v. Beazer, 

, 592–94
(1979) (methadone users); Johnson v. Robinson, 

, 375 n.14 (1974)
(conscientious objectors); Williamson v. Lee Optical of Okla. Inc., 

, 488–89 (1955) (opticians). This court, too, recognizes the central role
of immutability when analyzing Equal Protection cases. Baskin v. Bogan,

 (7th Cir. 2014); Segovia, 

; St. John's United
Church of Christ v. City of Chicago, 

 (7th Cir. 2007); Hamilton
v. Caterpillar Inc., 

 (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, 

. 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., 

, 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, 

.
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, 

. 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, 

. 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., 

.
    First, we must “identify a legitimate end … .” St. Joan An-
tida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 

 (7th Cir. 2019). Second, we must “ask whether the
means—the classification—bears a rational relationship to the
end.” 

 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. 

, 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. 

.
As Indiana does, Arkansas argued that the sex-based classifi-
cation only arises incidentally through the medical procedure
at issue. 

 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.” 

. 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. 

    Parties do sometimes confuse their justification for a clas-
sification with the classification question. See Tagami, 

. 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 

 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, 

 (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, 

, 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, 

 (citation
and quotations omitted); see also Collins v. City of Harker
Heights, 

 (1992); Dep’t of State v. Muñoz, 

, 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, 

(1993); Collins, 

.
     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, 

.
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.

.
     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.” 

.
   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, 

 (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].” 

,
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. 

, 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, 

 (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, 

 (quoting
United States v. Salerno, 

 (1987) (quoting
Snyder v. Massachusetts, 

 (1934))); see Dist.
Att’y’s Off. for Third Jud. Dist. v. Osborne, 

 (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. 

 (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. 

. The principle of informed consent,
the Court explained, “ha[d] become firmly entrenched in
American tort law,” 

, having been “carefully
guarded[] by the common law,” 

 (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.” 

.
   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), 

-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, 

.
   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, 

 (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, 

 (1944) (“It is
cardinal … that the custody, care, and nurture of the child re-
side first in the parents … .”); Brokaw v. Mercer Cnty., 

 (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.” 

 (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. 

 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, 

 (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, 

; Doe
v. Heck, 

 (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, 

. 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.’” 

 at 520 (quoting Brokaw, 

 (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, 

 (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, 

, 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, 

; 

(“[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.

. 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.” 

.
    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, 

 (1921); Robinson v. Califor-
nia, 

 (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, 

.
   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, 

 (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, 

 (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,

 (quotations omitted), lest we “cast [this] stat-
ute[] into constitutional doubt,” Osborne, 

, with-
draw the question from the people of Indiana, “and be forced
to take over the issue … ourselves.” 

 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., 

 (1949).
Such speech “is historically recognized as unprotected.” See
United States v. Price, 

 (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, 

 (2023).
    The Supreme Court’s recent analysis in Hansen supports
our view of Indiana’s law. In Hansen, the Court held that 

(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, 

(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, 

; Hansen, 

. 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, 

 (“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., 

 (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.” 

. It conditioned liability on
the content of the information and how the user incorporated
that information into its speech. 

. For example,
No. 23-2366                                                       41

marketing to providers was a prohibited use but educational
communication was not. 

    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. 

,
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, 

 (7th Cir.
1994); United States v. Kaun, 

 (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, 

 (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, 

 (2014); see also Hansen, 

 (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, 

. 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., 

, 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., 

(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, 

 (emphasis omitted); DM
Trans, LLC v. Scott, 

, 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, 

.
     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, 

, 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, 

, 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., 

 (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.’” 

 (quoting Turnell, 

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

, 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., 

, 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,

 (7th Cir. 1980); Beach Commc'ns, Inc., 

 (“‘[J]udicial intervention is generally unwarranted
no matter how unwisely we may think a political branch has
acted.’” (quoting Vance, 

 (footnote omitted)));
Heller, 

; see also Dandridge v. Williams, 

 (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, 

 (1974);
Gonzales, 

 (“[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, 

 (7th Cir. 1992); Sutker v. Ill. State Dental Soc’y, 

 (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, 

). See Marshall, 

; Williamson, 348 U.S. at 487–
50                                                No. 23-2366


88; Maguire v. Thompson, 

, 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, 

, 492–513 (6th

Cir.) (White, J., dissenting), cert. dismissed in part sub nom. Doe v. Kentucky,

 (2023), and cert. granted sub nom. United States v. Skrmetti, 

 (2024); Eknes-Tucker v. Governor of Alabama, 

, 1275–
77 (Wilson, J., dissenting), 1277–89 (Jordan, J., dissenting), 1289–1319 (Ros-
enbaum, J., dissenting) (11th Cir. 2024); see also Brandt v. Rutledge, 

, 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,
       

 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, 

 (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,
         

, 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, 

 (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,

 (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 

(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., 

 (7th Cir.
2012); Eli Lilly & Co. v. Arla Foods, Inc., 

 (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., 

. The two most im-
portant factors are likelihood of success on the merits and ir-
reparable harm. Bevis v. City of Naperville, 

, 1188
(7th Cir. 2023), cert. denied sub nom. Harrel v. Raoul, 

 (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, 

 (1976). I discussed the
remaining factors in a prior dissent. K.C., 

, 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, 

 (2023). If the relevant con-
duct falls outside the statute’s scope, our work is done. Ind.
Right to Life Victory Fund v. Morales, 

, 632 (7th Cir.
2023), certified question answered, 

 (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, 

 (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, 

 (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, 

(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, 

 (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, 

 (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, 

 (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,

 (7th Cir. 2002) (emphasis added), and “not
[] a separate crime,” United States v. Ruiz, 

(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,

 (emphasis added); United States v. Worthen, 

, 1069 (7th Cir. 2023), cert. denied, 

 (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, 

 (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, 

 (7th Cir. 1998) (“[Under] the traditional
understanding of aiding and abetting liability… an aider and
abettor knowingly contributes to the principal’s violation, ra-
ther than committing an independent violation of its own.”
(emphasis added)).
    Applying this well-established aiding and abetting juris-
prudence to Provider-Plaintiffs’ First Amendment challenge
to SEA 480 is straight forward. Starting at the top, a primary
violation of SEA 480 occurs when an Indiana provider pro-
vides gender transition treatment to a minor. A secondary vi-
olation of SEA 480 occurs when an Indiana provider helps the
principal Indiana provider treat the minor. Provider-Plaintiffs
wish to provide their minor patients information about out-
of-state treatment and referrals to out-of-state providers but
cannot do so for fear of liability under SEA 480’s aiding and
abetting provision. Yet, if Provider-Plaintiffs do as they pro-
pose, an out-of-state provider—not an Indiana one—would
70                                                                No. 23-2366

treat the minor, and that is not a primary violation of SEA 480.
Because Provider-Plaintiffs would not be assisting with a pri-
mary violation of SEA 480, SEA 480’s secondary liability does
not attach. Ergo, Provider-Plaintiffs’ proposed activities do
not violate SEA 480’s aiding and abetting provision. This is
the end of the statutory analysis and, thus, the First Amend-
ment challenge—or so I thought.
    The majority opinion skips the requisite statutory inter-
pretation analysis, and instead begins and ends with the con-
stitutional question. 2 The majority opinion does not discuss
SEA 480’s clear text, much less acknowledge that SEA 480
governs Indiana physicians and practitioners only. Because
SEA 480 simply does not reach the conduct of out-of-state
providers and Provider-Plaintiffs do not challenge the First
Amendment implications of SEA 480’s ban on aiding and
abetting Indiana providers, 3 we have no opportunity to

     2 My colleagues explain their approach by stating that the parties

agree on SEA 480’s scope, so my colleagues will defer to that understand-
ing. See ante at 43–44. First, courts are not bound by the parties’ interpre-
tation of a statute. Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 

 (2006) (“Nor must we accept an interpretation of a statute simply
because it is agreed to by the parties.”). Second, “[i]t is a well-established
principle … that normally the Court will not decide a constitutional ques-
tion if there is some other ground upon which to dispose of the case.” Nw.
Austin Mun. Util. Dist. No. One v. Holder, 

 (2009) (citing
Escambia County v. McMillan, 

, (1984) (per curiam)).
     3 See ante at 61–62 (summarizing Plaintiff-Providers’ First Amendment

challenge as focused on communications about out-of-state treatment al-
ternatives). The majority opinion posits that Plaintiff-Providers are com-
plaining about speech related to Indiana treatment options and speech re-
lated to out-of-state treatment options. Even if so—and while there may
be no constitutional violation for the first type of speech as it may be
speech incidental to conduct now regulated by SEA 480—the separate
No. 23-2366                                                                 71

decide whether SEA 480’s aiding and abetting provision vio-
lates the First Amendment. 4




constitutional question about the second type of speech, concerning out-
of-state providers, must be answered with an analysis the majority opin-
ion does not provide, as I discuss later in this dissent. See post at 81–82.
    4 A brief word on standing. We have recognized that, in the pre-en-

forcement context, “when an ambiguous statute arguably prohibits cer-
tain protected speech, a reasonable fear of prosecution can provide [Arti-
cle III injury-in-fact] for a First Amendment challenge,” which can be re-
dressed with injunctive relief. Schirmer v. Nagode, 

 (7th
Cir. 2010). Ordinarily, no substantial, credible threat of enforcement exists
if the statute “clearly fails to cover” a plaintiff’s conduct. Lawson v. Hill,

 (7th Cir. 2004) (quoting Majors v. Abell, 

(7th Cir. 2003)). SEA 480’s aiding and abetting provision, we now know,
cannot be fairly read to prohibit Provider-Plaintiffs from giving infor-
mation about and referrals for out-of-state treatment; yet, Indiana has con-
firmed that liability remains on the table, declaring in its briefing that
“S.E.A. 480 prohibits any action that aids or abets a gender-transition pro-
cedure” and refusing to disavow that the aiding and abetting provision
applies to Provider-Plaintiffs’ proposed speech. Dkt. 19 at 55; see also Dkt.
105 at 29–30 (Indiana arguing that it is unresolved “whether Indiana may
prohibit providers from providing its children with out-of-state refer-
rals”). Cf. Lawson, 

 (citing Presbytery of New Jersey of Orthodox
Presbyterian Church v. Florio, 

 (3d Cir. 1994)) (concluding
that plaintiffs lacked standing because the prosecutor neutralized any
threat of enforcement by disavowing prosecution under the statute); Flo-
rio, 

 (concluding that “the state demonstrat[ing] its willing-
ness to prosecute …. added immediacy to [the plaintiff’s] claim that he
faced prosecution if he engaged in [the] proscribed expressive activity”).
So, the substantial and credible threat of enforcement and, thus, Article III
injury-in-fact, live on.
72                                                  No. 23-2366

                               B
   We need not reach the constitutional question for the rea-
son I have just explained, but the majority opinion does. Even
under the majority opinion’s approach, SEA 480’s aiding and
abetting provision is unconstitutional.
    To understand why, we must first frame the First Amend-
ment inquiry. In deciding whether a law imposes an uncon-
stitutional restriction on speech, we ask four questions.
    First, does the statute regulate speech or conduct? See Cor-
nelius v. NAACP Legal Def. & Educ. Fund, Inc., 

(1985). In analyzing the First Amendment issue (even though
doing so is not necessary, as I have explained), I conclude that
SEA 480 regulates speech. The majority opinion assumes the
same. See ante at 40.
    Second, is the regulated speech or regulated conduct pro-
tected? 

 We ask this because the First Amendment guaran-
tees that “Congress shall make no law … abridging the free-
dom of speech,” U.S. CONST. amend. I, and the Fourteenth
Amendment makes this constitutional protection applicable
to the states, see Cantwell v. Connecticut, 

(1940). This means the First Amendment protects against gov-
ernment restriction—based on message, ideas, subject matter,
or content—of “pure speech” or “expressive conduct.” 303
Creative LLC v. Elenis, 

 (2023). The First
Amendment does not protect “nonexpressive conduct”; nor
does it prohibit restrictions on speech incidental to regulated
conduct, Sorrell v. IMS Health Inc., 

 (2011), or
speech integral to unlawful conduct, Giboney v. Empire Storage
& Ice Co., 

 (1949).
No. 23-2366                                                   73

    The majority opinion holds that, insofar as the aiding and
abetting provision regulates speech, it reaches only unpro-
tected speech—either speech integral to unlawful conduct or
speech incidental to regulated conduct. Our law, however,
defies both conclusions. I explain why below, before return-
ing to the third and fourth questions, which are determining
the applicable level of scrutiny and applying that scrutiny to
the facts, respectively.
                               1.
   I begin with the speech-integral-to-unlawful conduct ex-
ception.
    The exception for speech integral to unlawful conduct
found life in Giboney v. Empire Storage & Ice Co., 

(1949). There, the Supreme Court observed “that the constitu-
tional freedom for speech … [does not] extend[] its immunity
to speech or writing used as an integral part of conduct in vi-
olation of a valid criminal statute.” 

. “[W]here speech
becomes an integral part of the crime, a First Amendment de-
fense is foreclosed even if the prosecution rests on words
alone.” United States v. Kaun, 

 (7th Cir.
1987) (citation omitted). Aiding and abetting liability gener-
ally, my colleagues and I agree, falls within Giboney’s speech-
integral-to-unlawful-conduct exception. But our agreement
on Giboney ends there.
   As a preliminary matter, SEA 480’s aiding and abetting
provision regulates speech integral to civil conduct. Physi-
cians and practitioners who provide or threaten to provide
gender transition treatment face civil claims brought by mi-
nors or their parents. § 25-1-22-16. Providers who aid and abet
74                                                          No. 23-2366

treatment face the same, as well as discipline by the board reg-
ulating the provider. § 25-1-22-15.
    Though courts use the phrases “speech integral to crimi-
nal conduct” and “speech integral to unlawful conduct” in-
terchangeably, see, e.g., Giboney, 

 (discussing
speech “integral” to “conduct otherwise unlawful” and
“speech or writing used as an integral part of conduct in vio-
lation of a valid criminal statute”), courts have historically ap-
plied the Giboney exception only to crimes, not civil infrac-
tions, see, e.g., Giboney, 

; United States v. Stevens,

 (2010) (noting the First Amendment does not
protect speech integral to criminal conduct). The majority
opinion does not address this distinction in Giboney’s applica-
tion.
     Even if the Giboney exception applies to civil laws like SEA
480, we do not have a speech-integral-to-unlawful-conduct
problem here. Remember, to have a speech-integral-to-un-
lawful conduct situation, we need aiding and abetting liabil-
ity. For aiding and abetting liability to attach, we need a pri-
mary violation. But there is none here as far as Provider-Plain-
tiffs are concerned. By providing information about and re-
ferrals for out-of-state treatment, Provider-Plaintiffs do not aid
and abet other Indiana providers in treating minors—the con-
duct that constitutes a primary violation of SEA 480.
   Put more simply, there is no unlawful conduct here—and
there can be no “speech integral to unlawful conduct” with-
out unlawful conduct. 5 Furthermore, the caselaw on speech


     5 The majority opinion cites the Supreme Court’s decision in Hansen,

see ante at 38–43, as a modern example of the speech-integral-to-unlawful-
conduct exception. 

. But Hansen and this case are cut from
No. 23-2366                                                                  75

integral to unlawful conduct requires a strong connection be-
tween the speech and the unlawful conduct. See, e.g., United
States v. Stevens, 

, 468–69 (2010) (describing the
unprotected speech as “intrinsically related” to depictions of
animal cruelty, which a federal statute criminalizes); Ashcroft
v. Free Speech Coalition, 

, 249–250 (2002) (holding
that distribution and sale of child pornography “were intrin-
sically related to the sexual abuse of children” giving the
speech at issue “a proximate link to the crime from which it
came”).
    The cases on speech integral to unlawful conduct are no
different from the other rare exceptions to First Amendment
protection: incitement, defamation, obscenity, and “true
threats” of violence. See Counterman v. Colorado, 

,
73–74 (2023) (listing these four as the “few limited areas”
where restrictions on speech are permitted); Stevens, 559 U.S.
468–69 (adding speech integral to conduct to the above list,
with a cite to Giboney). The cases in these areas focus on the
specificity and imminence of the threat at issue, which is an-
other way of asking “how connected is the speech to the un-
lawful conduct?” But here, again, we have no unlawful con-
duct. Just speech.


two different cloths. Hansen was a case about unlawful conduct, and there
is none here. Moreover, Hansen concerned a federal immigration law, 

(a)(1)(A)(iv), which, according to every circuit court that has
ruled on the issue, applies extraterritorially. See United States v. Beliard, 

 (1st Cir. 1980); United States v. Villanueva, 

(5th Cir. 2005); United States v. Lopez, 

, 1194–95 (9th Cir. 2007)
(en banc); United States v. Rolle, 

, 1279 (11th Cir. 2023); United
States v. Delgado-Garcia, 

 (D.C. Cir. 2004). This case con-
cerns state law, and no one asserts that SEA 480 applies extraterritorially.
So, the majority opinion’s attempt to graft Hansen onto this case fails.
76                                                 No. 23-2366

    Another issue I see: The majority opinion suggests that the
aiding and abetting provision does not stir up a constitutional
problem because, the majority opinion rationalizes, Provider-
Plaintiffs can always ask the trial court to dismiss a lawsuit
against them if Indiana applies the law in an unconstitutional
way. “If Indiana applied the law to speech that did not aid or
abet a principal violation of SEA 480,” the majority opinion
says, “the defendant’s first course of action would not be a
federal constitutional challenge—it would be to move for dis-
missal of the lawsuit.” Ante, at 39. “In other words,” the ma-
jority opinion concludes, “because SEA 480’s secondary lia-
bility provision ‘stretches no further than … [s]peech in-
tended to bring about a particular unlawful act,’ the plaintiff
doctor and her practice could only ever be sued for unpro-
tected speech.” Ante, at 39.
    This reasoning unravels because our jurisprudence per-
mits pre-enforcement, as-applied First Amendment chal-
lenges. See Holder v. Humanitarian Law Project, 

, 14–
16 (2010). Why? To prevent the chilling effect associated with
expansive proscriptions on speech. See Majors, 

.
Otherwise, plaintiffs face an unattractive set of options: re-
frain from activity they believe the First Amendment protects,
or risk liability for violating the challenged law. 

    My colleagues appear moved by the good intentions that
Indiana contends underpin SEA 480’s aiding and abetting
provision. But it is axiomatic that a state cannot ensnare free
speech just because it means well. The majority opinion says:
“[T]he underlying wrongful conduct is the principal violation
of Indiana’s statute by the practitioner providing the treat-
ment.” Ante, at 42. Perhaps, by “principal violation,” the ma-
jority opinion means principle violation, as in the Provider-
No. 23-2366                                                    77

Plaintiffs’ conduct (or the out-of-state provider’s conduct) vi-
olates the spirit of SEA 480, rather than its letter, satisfying
aiding and abetting liability’s underlying wrongful conduct
requirement. This interpretation tracks other reasoning found
in the majority opinion. At one point, for example, the major-
ity opinion asserts: “But when the physicians and the state do
not see eye-to-eye on treatment—and when the state validly
regulates that treatment—the state must be able to preclude
its physicians from using their authority to help the state’s cit-
izens access the treatment. Otherwise, the physicians would
hold a veto over the state’s power to protect its citizens.” Ante,
at 43.
    To the extent that the majority opinion contends that vio-
lating the spirit of SEA 480 satisfies the primary violation re-
quirement, this rationale cannot sustain SEA 480’s aiding and
abetting provision. To provide tractable limits to the Giboney
exception, the speech at issue must bear a causal link to an
independently unlawful course of conduct, not a relationship
to the mere purpose of a law. Without a primary violation, the
only “unlawful conduct” that could be the basis of applying
Giboney’s speech-integral-to-unlawful-conduct exception
would be the speech itself—speech that Indiana regards as
politically unpopular and morally disfavored.
    The First Amendment does not tolerate that result, as the
freedom of speech is meant to prevent the government from
“suppress[ing] unpopular ideas or information.” Turner
Broad. Sys., Inc. v. F.C.C., 

 (1994). The Supreme
Court, in Virginia Board of Pharmacy v. Virginia Citizens Con-
sumer Council, Inc., found fears that patients who received
price advertising from pharmacists would “choose the low-
cost, low-quality service,” “destroy the pharmacist-customer
78                                                  No. 23-2366

relationship,” and “drive the ‘professional’ pharmacist out of
business” insufficient to justify restricting the pharmacists’
speech, explaining:
       There is, of course, an alternative to this highly
       paternalistic approach. That alternative is to as-
       sume that this information is not in itself harm-
       ful, that people will perceive their own best in-
       terests if only they are well enough informed,
       and that the best means to that end is to open
       the channels of communication rather than to
       close them…. But the choice among these alter-
       native approaches is not ours to make or the Vir-
       ginia General Assembly’s. It is precisely this
       kind of choice, between the dangers of sup-
       pressing information, and the dangers of its
       misuse if it is freely available, that the First
       Amendment makes for us. Virginia is free to re-
       quire whatever professional standards it wishes
       of its pharmacists …. But it may not do so by
       keeping the public in ignorance of the entirely
       lawful terms that competing pharmacists are of-
       fering…. [A] State may [not] completely sup-
       press the dissemination of concededly truthful
       information about entirely lawful activity, fear-
       ful of that information’s effect upon its dissemi-
       nators and its recipients.

, 769–70, 773 (1976); see also Thompson v. W. States
Med. Ctr., 

 (2002) (rejecting the conclusion
that the government can regulate physicians’ speech about
controlled substances because it may result in patients mak-
ing bad decisions if given truthful information); Sorrell, 564
No. 23-2366                                                    79

U.S. at 567, 572, 577 (finding unconstitutional a state law, en-
acted in part because lawmakers believed brand-name drugs
were less safe than generic alternatives, permitting pharma-
cies to share prescriber-identifying information with anyone
for any reason except marketing, and explaining that “[t]hose
who seek to censor or burden free expression often assert that
disfavored speech has adverse effects” but a regulation can-
not “achieve [a State’s] policy objectives through the indirect
means of restraining certain speech by certain speakers”).
    For this reason, a state could not pass a law prohibiting
ministers from informing their teenage parishioners that they
can marry in another state, even if the state legislature thinks
that it is against teenagers’ best interests to marry without pa-
rental consent. As another example, Indiana could not pro-
hibit Indiana physicians from informing patients that medical
marijuana is legal in another state, even if the Indiana state
legislature believes that its residents will make bad decisions
if given truthful information. See Thompson,535 U.S. at 374–75.
    So, Indiana can realize its objectives by enacting a law and
punishing those who violate it; it cannot accomplish its objec-
tives by punishing speech that somehow relates to the purpose
of a state law, yet amounts to no criminal or civil primary vi-
olation. See Kingsley Int’l Pictures Corp. v. Regents of Univ. of
N.Y., 

 (1959) (explaining that, “[a]mong free
men, the deterrents ordinarily to be applied to prevent crime”
and other unlawful conduct “are education and punishment
for violations of the law, not abridgment of the rights of free
speech” (citation omitted)). Put differently, for us to be as-
sured that a state law targets something other than disfavored
speech, it is not enough that the state label the speech itself as
“illegal conduct” (i.e., “breach of the peace,” “sedition,” or, in
80                                                  No. 23-2366

this case, aiding and abetting). See Eugene Volokh, The
“Speech Integral to Criminal Conduct” Exception, 

, 1011 (2016). Instead, the speech “must help cause or
threaten other illegal conduct . . ., which may make restricting
the speech a justifiable means of preventing that other [illegal]
conduct.” 

 (emphasis added).
   In short, Indiana cannot prohibit speech that aids and
abets disfavored, yet legal, conduct. For all these reasons,
Giboney’s speech-integral-to-unlawful-conduct exception
does not apply.
                               2.
    Now, consider the exception to First Amendment protec-
tion for speech incidental to conduct. The majority opinion
cites Sorrell and Expressions Hair Design v. Schneiderman, 

 (2017), to support its position that “SEA 480’s second-
ary liability provision burdens speech incidentally because it
targets conduct: facilitating the provision of gender transition
procedures.” Ante, at 40.
    It is “true that the First Amendment does not prevent re-
strictions directed at … conduct from imposing incidental
burdens on speech,” Sorrell, 

, but—before we
get to the incidental speech analysis—the state must regulate
the relevant conduct by way of a law, Clark v. Cmty. for Crea-
tive Non-Violence, 

, 292 n.4 (1984) (describing the
issue whether proposed activities fall within the definitions
found in the regulations as “a threshold matter” when con-
sidering the application of the speech-incidental-to-conduct
exception). And, again, as a matter of statutory interpretation,
SEA 480 does not regulate (or, said differently, reach) the con-
duct of out-of-state providers.
No. 23-2366                                                   81

   The majority opinion’s view that the aiding and abetting
provision permissibly regulates only speech incidental to con-
duct is wrong for three reasons.
    The first reason is that even if SEA 480 incidentally bur-
dens speech, SEA 480’s aiding and abetting provision fails the
O’Brien test, a test the majority opinion says it need not apply.
Courts use the O’Brien factors to assess whether a regulation
is constitutionally valid even if it incidentally affects speech.
See United States v. O’Brien, 

, 376–77 (1968).
O’Brien requires that (1) the regulation be within the govern-
ment’s constitutional power; (2) the regulation further an im-
portant or substantial governmental interest; (3) the govern-
mental interest be unrelated to the suppression of free expres-
sion; and (4) the restriction on free expression be no greater
than is essential to further the governmental interest. 

    SEA 480’s aiding and abetting provision fails this test. A
look at the first O’Brien factor demonstrates this: no portion of
the majority opinion explains how regulating the aiding and
abetting out-of-state conduct falls within Indiana’s constitu-
tional power. “[S]tate law enforcement agencies generally
have no authority to operate outside a state’s borders,” erect-
ing considerable hurdles to Indiana’s authority to regulate the
conduct of out-of-state providers. Darryl K. Brown, Extrater-
ritorial State Criminal Law, Post-Dobbs, 113 J. CRIM. L. &
CRIMINOLOGY 853, 859 (2024); see also Ruth Mason & Michael
S. Knoll, Bounded Extraterritoriality, 122 MICH. L. REV. (forth-
coming 2024) (manuscript at 8–17) (available at https://pa-
pers.ssrn.com/sol3/papers.cfm?abstract_id=4375149) (explaining
that the Dormant Commerce Clause doctrine substantially
constrains states’ power to regulate extraterritorially, pre-
dominantly through civil law); Paul Schiff Berman, Roey
82                                                  No. 23-2366

Goldstein & Sophie Leff, Conflicts of Law and the Abortion War
Between the States, 172 U. PA. L. REV. 399, 440–55 (2024).
    On the second O'Brien factor, Indiana cannot have a sub-
stantial interest in regulating the aiding and abetting of legal
conduct that occurs outside of the state. On the third factor,
for reasons already discussed, I conclude that Indiana’s inter-
est in regulating the aiding and abetting of conduct is directly
related to the suppression of speech itself. And on the fourth
factor, SEA 480’s restriction on free expression is greater than
necessary to achieve any governmental interest because,
again, Indiana lacks an interest in regulating the aiding and
abetting of out-of-state treatment, which is legal under SEA
480.
    The majority opinion sidesteps O’Brien entirely. My col-
leagues tell us that Plaintiff-Providers’ proposed speech in-
cludes sharing information with Indiana providers and shar-
ing information with out-of-state providers. If true, that
would not let us off the hook when it comes to examining the
constitutionality of both types of proposed speech. Yet the
majority opinion does not offer a word on O’Brien regarding
communications with Indiana providers (and I do not be-
cause, again, I do not think these communications are at issue
in this appeal), much less a word on O’Brien regarding com-
munications with out-of-state providers.
   The majority opinion’s two reasons for concluding the aid-
ing and abetting provision regulates only speech incidental to
conduct similarly fail to persuade.
    In the majority opinion’s view, “[s]imply because speech
is picked up during enforcement of a law does not mean the
law targets speech.” Ante, at 41. I agree. But the majority
No. 23-2366                                                   83

opinion fails to account for a fact that renders its analysis un-
workable: for the reasons I have explained, SEA 480 does not
and cannot reach the provision of gender transition treatment
outside of Indiana. See, e.g., ante at 43. And the majority opin-
ion is right that the First Amendment does not frown on laws
forbidding an accountant to assist a client with filing a false
tax return. See ante at 41–42. But in United States v. Knapp, 

 (7th Cir. 1994), and United States v. Kaun, 

 (7th Cir. 1987), the two cases the majority opinion cites
to support this argument, the challenged federal income tax
law did purport to reach the underlying conduct—that is, the
filing of a false federal tax return in any state. The First
Amendment does frown on a law—not so different from the
scenario Provider-Plaintiffs fear here—forbidding an Indiana
accountant or lawyer from advising a client, “you can incor-
porate in Delaware, where you would not have to pay certain
state taxes,” even if the failure to pay those same taxes in In-
diana would be unlawful.
   Two, the majority opinion relies on United States v. Hansen,

 (2023), to conclude:
       Ordinarily, the “incidental” question is neces-
       sary to prevent states from attaching criminal
       penalties to restrictions of protected speech. But
       secondary liability statutes depend on their
       mate for legal power. So, if a plainly unconstitu-
       tional primary liability statute fell, it would take
       the secondary liability statute with it. The prac-
       tical concern baked into the “incidental” ques-
       tion would never arise.
Ante, at 42.
84                                                  No. 23-2366

    Hansen does not do what the majority opinion suggests. I
agree that aiding and abetting liability can attach only when
a primary violation occurs. And I agree that a plainly uncon-
stitutional primary liability statute takes its secondary liabil-
ity provision down with it. But I do not agree that this means
that “[t]he practical concern baked into the ‘incidental’ ques-
tion would never arise.” 

 This is because Provider-Plaintiffs
have not lodged a facial challenge to SEA 480. They bring an
as-applied challenge. So, we are without occasion to decide
whether SEA 480 is a “plainly unconstitutional primary liabil-
ity statute,” as the majority opinion describes the hypothetical
inquiry. 

 And “the practical concern baked into the ‘inci-
dental’ question,” 

 persists in as-applied challenges, as ev-
idenced by the majority opinion’s robust analysis of whether
the speech-incidental-to-conduct exception removes First
Amendment protection from Provider-Plaintiffs’ as-applied
speech.
    For these reasons, I cannot conclude that SEA 480’s aiding
and abetting provision as applied to Provider-Plaintiffs regu-
lates speech incidental to conduct.
   The speech in this case does not fall into the traditional
unprotected speech categories of speech integral to unlawful
conduct or speech incidental to regulated conduct. Nor is the
majority opinion entitled to create a new “First Amendment
Free Zone” that leaves speech integral to lawful conduct and
speech incidental to unregulated conduct unprotected. Ste-
vens, 

 (citation omitted).
No. 23-2366                                                 85

                              3.
   With Giboney’s speech-integral-to-unlawful-conduct and
the speech-incidental-to-conduct exceptions to First Amend-
ment protection excised from our consideration, only pure
speech remains; so, we return to the framework for deciding
whether a law imposes an unconstitutional restriction on
speech, see ante at 72–73, and ask the third question: What
level of scrutiny applies? See Cornelius, 

.
    No party disputes that the aiding and abetting provision
regulates speech based on its content, since it prohibits only
speech related to gender transition treatment for minors. As
such, it is subject to strict scrutiny as a content-based re-
striction on pure speech. Sorrell, 

.
    Now to the fourth and final question: Has Indiana made
the requisite showing when we apply strict scrutiny to SEA
480’s aiding and abetting provision? To survive strict scru-
tiny, Indiana must show that the aiding and abetting provi-
sion’s singling out of speech relating to gender transition
treatment for minors is necessary to “further[] a compelling
interest and is narrowly tailored to that end.” Reed v. Town of
Gilbert, 

, 171 (2015).
    Trying to shoulder this burden, Indiana argues—and the
majority opinion accepts—that the aiding and abetting provi-
sion furthers Indiana’s compelling interests in preventing
harm to the physical and psychological well-being of minors,
regulating the providers it licenses, and enforcing democrati-
cally enacted statutes.
   Even assuming these amount to compelling interests, In-
diana fails to demonstrate that prohibiting Plaintiff-Providers
from providing information about and referrals for out-of-
86                                                    No. 23-2366

state treatment is narrowly tailored to further these interests.
This is because the provision of gender transition treatment
by out-of-state providers does not violate SEA 480, rendering
a provision that targets secondary conduct (like the aiding
and abetting provision) overbroad and not “reasonably nec-
essary to achieve” Indiana’s interests. R.A.V. v. City of St. Paul,

, 395–96 (1992) (concluding that a law that leaves
gaps that, if filled, would directly target the conduct the state
purportedly seeks to regulate, while nonetheless regulating
the secondary conduct of speech, fails strict scrutiny). In the
end, it is plain to me that SEA 480’s aiding and abetting pro-
vision, even if aimed at Indiana’s legitimate interests, has
such a tendency to inhibit constitutionally protected expres-
sion that it cannot stand.
                                IV
    I would affirm the district court’s preliminary injunction
and conclude that we need not reach the constitutional issue
because Provider-Plaintiffs’ proposed speech falls outside
SEA 480’s bounds. Indeed, SEA 480 bars Indiana physicians
and practitioners from providing gender transition treatment
to minors and it bars Indiana providers from aiding and abet-
ting other Indiana providers in the provision of the same. If I
reached the constitutional question, I would hold that SEA
480’s aiding and abetting provision violates the First Amend-
ment because it does not regulate speech integral to unlawful
conduct; it does not regulate speech incidental to regulated
conduct; and it does not regulate Provider-Plaintiffs’ pure
speech in a manner that survives strict scrutiny.
     I respectfully dissent.