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Florida lawmakers pass pair of extreme anti-trans bills

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Florida lawmakers pass pair of extreme anti-trans bills

S.B. 254 would bar gender-affirming care for minors, threaten custody, and add rules limiting adult care. H.B. 1521 would criminalize trans people's bathroom use in government buildings.

Chris Geidner
May 5, 2023
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Over the past two days, Florida lawmakers passed two of the most extreme anti-transgender bills in the nation — bills that would criminalize providing gender-affirming medical care to minors as a felony and criminalize trans people for using the appropriate restroom for their gender identity in virtually any (non-federal) government buildings.

If Republican Gov. Ron DeSantis signs them into law, which is expected, lawsuits will follow.

But, for now, here’s a Law Dork look at what’s in these two bills.

Law Dork provides extensive coverage of LGBTQ legal issues. Subscribe today.

Florida’s gender-affirming care bill

The bill addressing gender-affirming medical care, S.B. 254, is a slightly narrowed version of a House bill discussed previously at Law Dork. The bill that eventually passed — after several amendments and ultimately passing without a few provisions from the initial House bill — is, nonetheless, one of the most extreme anti-trans bills passed this year. (The bill refers to gender-affirming medical care throughout the bill as “sex-reassignment prescriptions or procedures,” but Law Dork will continue to use “gender-affirming medical care” throughout this article.)

Most notoriously, the bill contains a provision — as part of the Uniform Child Custody Jurisdiction and Enforcement Act section of the state’s code — that would establish new emergency jurisdiction for courts whenever a minor in the state is receiving or going to receive gender-affirming medical care.

 61.517 Temporary emergency jurisdiction.—        (1) A court of this state has temporary emergency   jurisdiction if the child is present in this state and:        (a) The child has been abandoned; or        (b) It is necessary in an emergency to protect the child   because the child, or a sibling or parent of the child, is   subjected to or threatened with mistreatment or abuse; or        (c) It is necessary in an emergency to protect the child   because the child has been subjected to or is threatened with   being subjected to sex-reassignment prescriptions or procedures,   as defined in s. 456.001.

Additionally, the bill specifies that gender-affirming medical care constitutes “serious physical harm” justifying a court issuing a warrant to take possession of a child as part of enforcing a child custody determination.

 61.534 Warrant to take physical custody of child.—        (1) Upon the filing of a petition seeking enforcement of a   child custody determination, the petitioner may file a verified   application for the issuance of a warrant to take physical   custody of the child if the child is likely to imminently suffer   serious physical harm or removal from this state. Serious   physical harm includes, but is not limited to, being subjected   to sex-reassignment prescriptions or procedures as defined in s.   456.001.

The other elements of the prohibitions on gender-affirming medical care for minors echo those that we’ve seen in other states this year for the most part.

As for minors currently receiving care, the Board of Medicine and the Board of Osteopathic Medicine are directed to set rules within 60 days of the bill becoming law defining the “standards of practice under which a patient younger than 18 years of age may continue to be treated with a prescription” of puberty blockers or hormones. These are the boards that have adopted Florida Gov. Ron DeSantis’s anti-trans policies as rules already, so, while this seems more open-ended than has happened elsewhere, it’s not clear what this would actually end up looking like if the bill becomes law.

The bill goes further, though, taking two additional significant actions:

  • The bill would bar governments, public postsecondary schools, the state group health insurance program, state-contracted behavioral health companies, and Medicaid managed care plans from using state funds for gender-affirming medical care. There is no age limit on these restrictions, so government health plans and government-funded health care in Florida would not include coverage of gender-affirming medical care for people of all ages.

  • The bill would also create new restrictions of gender-affirming medical care for adults. These include requiring consent that is “voluntary, informed, and in writing on forms adopted in rule by the Board of Medicine and the Board of Osteopathic Medicine.” While this could be minimal, in terms of its actual level of restriction, it’s not certain how this will be implemented given the boards. Also under the bill, only a physician would be able to prescribe or perform any gender-affirming medical care.

The bill also threatens providers’ licenses, and, as noted, criminalizes providing gender-affirming medical care to minors in violation of the bill as a third-degree felony, which includes a potential prison sentence of up to five years, and even criminalizes violations of the new rules on providing gender-affirming care to adults as a first-degree misdemeanor, which includes a potential prison sentence of up to one year.

Among the provisions in the original House bill that are not in the final bill are a provision barring private insurance in the state from covering gender-affirming medical care, a provision allowing anyone working in a hospital that provides gender-affirming medical care to refuse to do so on “clinical, moral, or religious grounds,” and a provision barring trans people from having their birth certificate sex marker changed.


A new restroom ban

The restroom bill, H.B. 1521, puts a new, complex system in place to regulate restroom usage throughout the state of Florida in virtually all government buildings in order to prevent trans people from using the restroom that fits with their gender identity.

And, as noted above, it does so with potential criminal consequences for trans people themselves.

The text of the bill, which defines sex based on “the person's sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth,” then limits restroom usage based on that definition of sex in schools, correctional and detention facilities, and any other “public building.”

(c) "Covered entity" means any: 1. Correctional institution; 2. Detention facility; 3. Educational institution; 4. Juvenile correctional facility or juvenile prison as described in s. 985.465, any detention center or facility designated by the Department of Juvenile Justice to provide secure detention as defined in s. 985.03(18)(a), and any facility used for a residential program as described in s. 985.03(44)(b), (c), or (d); or 5. Public building.

As with the medical care bill, the restroom bill was amended and slightly narrowed before final passage. Originally applying to public accommodations — which includes private businesses like restaurants and hotels — that was dropped from the final bill.

“Public building,” however, is further defined and would appear to include spaces like airports — most of which are publicly owned — and public convention centers and publicly owned sports stadiums.

(j) "Public building" means a building comfort-conditioned for occupancy which is owned or leased by the state, a state agency, or a political subdivision. The term does not include a correctional institution, a detention facility, an educational 101 institution, a juvenile correctional facility or juvenile prison 102 as described in s. 985.465, a detention center or facility 103 designated by the Department of Juvenile Justice to provide 104 secure detention as defined in s. 985.03(18)(a), or any facility 105 used for a residential program as described in s. 985.03(44)(b), 106 (c), or (d).

The bill is to be implemented in a way that would create onerous new requirements for basically every governmental entity in Florida.

Schools and prisons would need to “submit documentation … regarding compliance” to the appropriate state entity by April 1, 2024. Schools, prisons, and all governmental entities with publicly owned or leased buildings would need to “establish disciplinary procedures” for employees who enter restrooms not of their sex assigned at birth “when asked to do so by any other employee of the governmental entity,” in the case of public buildings, for example. Beginning in July 2024, people would be able to bring complaints about noncompliance to the state attorney general, who can then bring a lawsuit against the allegedly noncomplying entity.

And, then there’s the criminal aspect. As to the “public building” section, for example, here’s how that’s laid out:

(b) A person who willfully enters, for a purpose other 301 than those listed in subsection (6), a restroom or changing 302 facility designated for the opposite sex at a public building 303 and refuses to depart when asked to do so by an employee of the 304 governmental entity for the public building that is within the 305 governmental entity's jurisdiction commits the offense of 306 trespass as provided in s. 810.08. This paragraph does not apply 307 to employees of governmental entities for such public building.

What does that mean? When any employee of, say, the Florida Department of Revenue, asks a trans woman who is there for a meeting to leave the women’s restroom, refusing to leave means that trans woman is criminally trespassing. The criminal trespass law referenced makes clear that if there is anyone else in the “structure” in question, which there has to be given the terms of this restroom bill, then the crime is a first-degree misdemeanor — meaning, a potential prison sentence of up to one year.

Also, and although I’m not sure how often it would arise given the government spaces involved here (but, Florida, so), a potential ramification of grafting this restroom bill onto the existing criminal trespass bill is that if the trans person in one of the covered restrooms is even legally carrying “a firearm or other dangerous weapon,” the trespass could then potentially be prosecuted as a third-degree felony due to the firearm possession. In that case, the trans person could then be sentenced to up to five years in prison. (While not conclusive, although many of the spaces covered by the restroom bill are on this list of places where firearms are banned in Florida even with a license, not all of them are.)

Law Dork with Chris Geidner brings you independent, reader-supported legal and political journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a free or paid subscriber today.

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18 Comments
hw
May 5

Even though challenges will be filed, the chilling effects will endure.

Some days, the cumulative impact of what we've become as a country is overwhelming.

In the space of a week, a man is murdered in the subway, while onlookers casually film his death, a family is murdered for asking a neighbor to stop shooting his gun so their infant could sleep. Texas is openly disenfranchising a city. SCOTUS' corruption seems unending, with daily revelations. Finally, the former president openly promises to pardon insurrectionists.

I don't know how this country can realistically be governed.

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3 replies by Chris Geidner and others
Ian Mark Sirota
Writes Ian’s Substack
May 5

The parade of cruelty from the Sunshine State continues unabated. It’s despicable and disgusting.

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