K.c. v. Individual Members of the Medical Licensing Board of Indiana

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 16, 2024
Decided March 21, 2024
Before
KENNETH F. RIPPLE, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
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.
O R D E R
This court has received Appellees’ motion to reconsider and request for en banc
consideration of this court’s February 27, 2024, order staying the district court’s
preliminary injunction and order dated June 16, 2023 (DE 125 and DE 126), as well as
the State’s response (DE 128) and Appellees’ reply (DE 129) to this motion.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-2366 Page 2
“A preliminary injunction is an extraordinary remedy never awarded as of
right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A stay simply
suspend[s] judicial alteration of the status quo … .” Nken v. Holder, 556 U.S. 418, 429
(2009) (alteration in original) (quotation omitted); see also Nat. Res. Def. Council, Inc. v.
Winter, 518 F.3d 704, 705 (9th Cir. 2008) (sua sponte partial stay of preliminary
injunction).
The state law challenged here, I ND. C ODE § 25-1-22, Gender Transition
Procedures for Minors, was signed on April 5, 2023, and was scheduled to go into effect
on July 1, 2023, absent the district court’s order and injunction, entered on June 16, 2023.
This court’s February 27, 2024, stay allows us to consider the state law without
altering Indiana’s ability to regulate the practice of medicine through a duly enacted
law. The state law would be in effect now but for the injunction. And any physician or
patient who proceeded in reliance on the district court’s preliminary injunction did so
understanding that the injunction was subject to reversal or to stay at any time by this
court.
After review and consideration, the court denies Appellees’ motion, and denies
the alternative relief of delaying this court’s stay.
JACKSON -A KIWUMI , Circuit Judge, dissenting. On June 16, 2023, the district court
preliminarily enjoined Indiana S.E.A. 480 from going into effect. The State appealed. On
February 27, 2024, eleven days after we heard oral argument, the panel majority issued
a sua sponte order staying the preliminary injunction. That meant hundreds of
transgender minors in Indiana woke up the next day without access to their existing
care for gender dysphoria—specifically puberty blockers and cross-sex hormones. I
would grant Plaintiff-Appellees’ motion for reconsideration of the majority’s stay order
because the order is unsolicited and unreasoned, disrupts the status quo, and threatens
irreparable harm to transgender minors, their parents, and their medical providers.
To begin, the majority has taken the highly unusual two-step of staying a district
court’s preliminary injunction on its own and offering no explanation. Let’s take the first
part: neither party has asked us—or the district court in the first instance—for a stay.
Ordinarily, when we issue a stay, we do so at the request of a party and subject to the
requirements of Federal Rule of Appellate Procedure 8(a). That rule instructs parties to
present motions for a stay pending appeal to the district court initially, and only then to
the court of appeals. Fed. R. App. P. 8(a). In this case, the majority certainly has the

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authority to act without requiring a party to first present a motion to the district court
or to us, but the departure from the ordinary appellate procedure means that the
majority has weighed the wisdom of a stay without the benefit of reasoned arguments
from both sides or input from the district court. I see no reason in a dispute of this
magnitude—more on that below—to issue an order no party has requested and that the
rules of procedure otherwise govern.
But it is not just that the majority has issued the stay on its own—it has done so
without explaining its decision. The order above merely states that the majority has the
power to impose the stay and, so, the majority will in fact continue to impose the stay.
This leaves stakeholders and reviewing courts in the dark about why the majority
remains certain—if the majority is certain—that its stay decision satisfies our
jurisprudential standards.
The stay order here craves explanation for two reasons. One, although the
analyses of stays and preliminary injunctions “substantial[ly] overlap,” they are not
identical. Illinois Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020) (quoting
Nken v. Holder, 556 U.S. 418, 434 (2009)). A preliminary injunction “is an order directed
at someone and that governs that party’s conduct.” Id. By affecting the injunction in
some way, “a stay operates upon the judicial proceeding itself.” Id. (quoting Nken, 556
U.S. at 428). This is precisely why, the Supreme Court has explained, before a stay order
should issue, the stay applicant must make “a strong showing that she is likely to
succeed on the merits”—not a showing that she is merely likely to succeed, as required
for preliminary injunctions. Id. (emphasis added) (quoting Nken, 556 U.S. at 434). Two,
this case presents difficult questions of whether banning minors’ use of puberty
blockers and cross-sex hormones to treat gender dysphoria violates the Minor-Plaintiffs’
Fourteenth Amendment equal protection rights, the Parent-Plaintiffs’ Fourteenth
Amendment due process rights, or the Provider-Plaintiffs’ First Amendment free
speech rights. As the filings by the parties and amici demonstrate, the issues are
complicated, fact-intensive, and subject to reasonable disagreement. No one is well-
served by the risk of an appearance that the court has rushed its consideration of these
weighty issues or the reality that the court has issued a stay order without analyzing the
merits of a stay. Every case the State cites in post-hoc defense of the majority’s stay
decision involves a stay issued upon request by a party or with some explanation—
neither of which is present here. It is in cases precisely like this one that we should
exercise caution and explain any decision we make.

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No. 23-2366 Page 4
My second concern is that—contrary to the majority’s suggestion—the stay order
disrupts, rather than maintains, the status quo pending our review of the case. This
directly contravenes our jurisprudence on preliminary injunctions and stays. In
University of Texas v. Camenisch, 451 U.S. 390, 395 (1981), the Supreme Court explained
that preliminary injunctions have the “limited purpose” of “merely [preserving] the
relative positions of the parties until a trial on the merits.” And in Nken, the Court
explained that stays “suspend[] judicial alteration of the status quo.” 556 U.S. at 429
(quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986)
(Scalia, J., in chambers)). Our function in deciding whether a stay is appropriate, then, is
to keep things as they are until we can determine the parties’ legal rights and
entitlements. See Flynn v. Sandahl, 58 F.3d 283, 287 (7th Cir. 1995) (“The purpose of a
stay is simply to preserve the status quo.”); Ind. Planned Parenthood Affiliates Ass’n, Inc. v.
Pearson, 716 F.2d 1127, 1135 n.8 (7th Cir. 1983) (explaining that regardless of whether the
stay is of an order granting affirmative relief or denying affirmative relief, “[i]n both
cases, the effect of the stay is to preserve the status quo ante”).
To that end, we ask a single question: “What was the ‘status quo’ before the
parties’ dispute in this case?” Chi. United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944
(7th Cir. 2006). Here, had Plaintiff-Appellees not filed suit, S.E.A. 480 would have gone
into effect eventually (on December 31, 2023, for minors receiving cross-sex hormones
and on July 1, 2023, for everyone else). This, the majority posits above, is the relevant
“status quo.” But our jurisprudence demands the opposite conclusion. “Status quo”
does not mean the state of things the moment a party files suit; it means the “last
peaceable uncontested status existing between the parties before the dispute
developed.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2948 (3d ed. 2023) (internal quotation marks and citation
omitted); see Whole Woman’s Health All. v. Rokita, 13 F.4th 595, 597 (7th Cir. 2021) (“All of
the contested provisions have been in force for years, so a stay would preserve the
status quo pending appellate resolution.”).
Before the Indiana Legislature enacted S.E.A. 480, transgender minors used
puberty blockers and cross-sex hormones to treat gender dysphoria for years. On June
16, 2023, weeks before S.E.A. 480’s effective date of July 1, 2023, the district court
preliminarily enjoined the law. So transgender minors continued to use puberty
blockers and cross-sex hormones to treat gender dysphoria. The State did not ask the
district court to reconsider its preliminary injunction, nor did the State ask us to stay the
district court’s order pending appeal. This means during this appeal, transgender
minors have continued to use puberty blockers and cross-sex hormones. They did so

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undisturbed until February 27, 2024—the day the panel majority decided that S.E.A. 480
should go into effect.
Our court’s statements on the topic of the status quo are worth noting:
“Fundamentally, the reluctance to disturb the status quo prior to trial on the merits is an
expression of judicial humility.” Chi. United Indus., Ltd., 445 F.3d at 945 (quoting O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1015 (10th Cir. 2004)
(en banc) (McConnell, J., concurring)). “It is one thing for a court to preserve its power
to grant effectual relief by preventing parties from making unilateral and irremediable
changes during the course of litigation, and quite another for a court to force the parties
to make significant alterations in their practices before there has been time for a trial on
the merits.” Id. (citation omitted). Preserving the status quo allows us to remain neutral
and forces the parties to act in accordance with their good-faith dispute about legal
entitlements. See id. “The moving party is not given any rights, even temporarily, that
would normally be his only if the legal dispute were resolved in his favor.” Id. (citation
omitted).
Yet, in a highly unusual move, the majority decided on its own that S.E.A. 480
should go into effect immediately, thereby forcing the parties to significantly alter their
practices before any issue has been decided on the merits. To be sure, not all stays or
injunctions that force litigants to shift action prove problematic: “[I]t is sometimes
necessary to require a party who has recently disturbed the status quo to reverse its
actions. Such an injunction restores, rather than disturbs, the status quo ante, and is thus
not an exception to the rule.” O Centro, 389 F.3d at 1013 (McConnell, J., concurring)
(emphasis added). I do not see how the majority’s requirement that the State implement
a law that has yet to go into effect can be justified as necessary to preserve the status
quo. The “stay” thus does something other than stabilize existing conditions: it
effectuates change (potentially life-altering change for the Minor-Plaintiffs) and
functionally provides final relief on the merits to the State. It does so, as I have stressed,
without issuing judgment and a reasoned opinion or even the promise of reasoned
opinion to come.
Now to my final reason for dissenting from the denial of Plaintiff-Appellees’
motion for reconsideration. I believe that had our court undertaken the analysis
commanded by Nken, it would have been clear that the balance of harms tilts decisively
in favor of Plaintiff-Appellees—in fact, profound irreparable harm is happening now.
Overnight, the stay terminated key parts of transgender care and prohibited families
from working with their medical providers to achieve continuity of care out of state. See

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ECF No. 125 at 5, 9–10. The abbreviated record before us leaves no doubt that this
situation dramatically impairs the health of minors with gender dysphoria. It
establishes that this condition, when left untreated, causes grave adverse mental health
outcomes including suicidality. Id. at 6 (citing Dkt. 26-3 at 18 ¶ 32 (Turban Declaration)).
And what of the State’s harm? Why, if the State’s claim of irreparable harm was so
serious as to warrant preliminary relief in its favor, did it tolerate the longstanding use
of puberty blockers and cross-sex hormones by minors? More importantly, why did it
choose not to ask the district court or our court to stay the preliminary injunction
pending appeal?
We are left with the following balancing picture: The most harm that could befall
the State (by maintaining the preliminary injunction while we decide the appeal and
prepare an opinion) is a delay by several months of a change to the status quo. The most
harm that could befall Plaintiff-Appellees (by lifting the preliminary injunction while
we decide the appeal) is serious physical or other harm—harm that may be permanent.
Even accepting what I must assume is the majority’s conclusion that the State
would suffer an irreparable harm, this would not necessarily warrant a stay. “A stay is
not a matter of right, even if irreparable injury might otherwise result. It is instead an
exercise of jurisdiction, and the propriety of its issue is dependent upon the
circumstances of the particular case.” Nken, 556 U.S. at 433 (internal quotation marks
and citation omitted). The fact that the majority issued an order on March 1, 2024,
asking the State to address whether the stay should have built in a “grace period” like
the one the State itself furnished in the statute, see I ND. C ODE § 25-1-22-13(d), or whether
any other approach would accomplish the statute’s end, is also telling. The majority has,
perhaps inadvertently, signaled that the stay provides less protection than the affected
minors require and less protection than the statute offered—both of which call into
question the majority’s balancing of harms. But because we have only an unreasoned
stay decision and an unreasoned denial of a request to reconsider, we have no way of
knowing to what extent the Plaintiff-Appellees’ claims of irreparable harm were either
lost on the majority or, if not lost, why they carried insufficient weight.
Our Chicago United Industries case is instructive once again: “[A] court bears more
direct moral responsibility for harms that result from its intervention than from its
nonintervention, and more direct responsibility when it intervenes to change the status
quo than when it intervenes to preserve it . . . . Moreover, like the doctrine of stare
decisis, preserving the status quo serves to protect the settled expectations of the
parties. Disrupting the status quo may provide a benefit to one party, but only by

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depriving the other party of some right he previously enjoyed. Although the harm and
the benefit may be of equivalent magnitude on paper, in reality, deprivation of a thing
already possessed is felt more acutely than lack of a benefit only hoped for.” 445 F.3d at
945–46 (quoting O Centro, 389 F.3d at 1015–16 (McConnell, J., concurring)).
Today’s decision on the motion for reconsideration, and the decision weeks ago
to issue the stay in the first place, constitute unwarranted departures from the ordinary
operation of the Federal Rules of Appellate Procedure, our court’s well-developed
standards for issuing a stay, and our established practice of providing parties with an
explanation for our decisions. “The fact that the issuance of a stay is left to the court’s
discretion does not mean that no legal standard governs that discretion. A motion to a
court’s discretion is a motion, not to its inclination, but to its judgment; and its
judgment is to be guided by sound legal principles.” Nken, 556 U.S. at 434 (internal
quotation marks and citation omitted). By acting sua sponte (rather than upon a
motion) to disrupt the status quo (rather than to maintain it) to Plaintiff-Appellees’
irreparable detriment (despite the State’s lesser harm) without explanation (despite the
gravity of the issue and the greater showing we require before issuing stays), the
majority’s stay appears to be an inclination governed by no legal standard rather than
judgment guided by sound legal principles. The better course of action would have
been to address the merits of the appeal promptly, or issue judgment and promise that
opinions would follow. Had this route been taken, as Plaintiff-Appellees note in their
motion for reconsideration, the parties would have had at least a few weeks’ notice that
the status quo would be changing in, at the earliest, 21 days when the mandate issued.
See Fed. R. App. P. 41(b).
I respectfully dissent.

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