Today's en banc Eighth Circuit opinion in Brandt v. Griffin, written by Judge Duane Benton, held—largely relying on the Supreme Court's decision this Summer in U.S. v. Skrmetti—that the Act doesn't involve a presumptively unconstitutional sex classification or a transgender status classification. It also held that the Act doesn't violate parents' "right to provide appropriate medical care for their children," for much the same reasons given by panels in the Tenth Circuit and Sixth Circuit. And the court said this as to the prohibition on referrals:
[T]he Supreme Court recognizes that the First Amendment "does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." National Inst. of Family & Life Advocates v. Becerra (2018). "States may regulate professional conduct, even though that conduct incidentally involves speech." In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld a provision compelling physicians to provide information to patients about the risks of abortion. The plurality opinion recognized that the requirement "implicated" a physician's First Amendment rights, "but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State." Planned Parenthood of Southeastern Pa. v. Casey (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.), overruled on other grounds by Dobbs.
The question here is whether the Act regulates speech, conduct, or both. "While drawing the line between speech and conduct can be difficult," the precedents of the Supreme Court have long drawn that line. The district court interpreted "refer" in the Act to include "informing their patients where gender transition treatment may be available." … [But] this court should read "refer" according to its medical definition: "to send or direct for diagnosis or treatment." The whole of the Act supports this reading. The Act makes "unprofessional conduct" any "referral for or provision of" gender transition procedures for minors. This language supports that "refer" in Section 1502(b) means a formal "referral for" treatment, not merely informing patients about the availability of procedures.
Whether the Act "proscribes speech, conduct, or both depends on the particular activity in which an actor seeks to engage." A referral for treatment is not part of the "speech process." Rather, a referral is part of the treatment process for gender transition procedures.
