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.

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.

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.

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.

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.”

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.

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:

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.)