Florida ban on trans care for minors is likely unconstitutional, federal judge rules

"The elephant in the room should be noted at the outset. Gender identity is real," U.S. District Judge Robert Hinkle wrote, telling Florida to "put up or shut up."

Jun 06, 2023

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION JANE DOE et al., Plaintiffs, v. CASE NO. 4:23cv114-RH-MAF JOSEPH A. LADAPO et al., Defendants. ___________________________/ PRELIMINARY INJUNCTION This action presents a constitutional challenge to a Florida statute and rules that (1) prohibit transgender minors from receiving specific kinds of widely accepted medical care and (2) prohibit doctors from providing it. The treatments at issue are GnRH agonists, colloquially known as “puberty blockers,” and cross-sex hormones. This order grants a preliminary injunction.

A federal judge ruled Tuesday morning that Florida’s bans on gender-affirming medical care for minors are likely unconstitutional in an opinion that called out the state’s anti-transgender motives as being “targeted at a discrete and insular minority” — a touchstone for heightened protections under the law against discrimination.

As such, U.S. District Judge Robert Hinkle, a Clinton appointee to the federal bench, barred the state from enforcing the regulatory and statutory bans on puberty blockers and hormones against the transgender children and their parents who brought the case, as well as their medical providers.

Hinkle’s ruling addressed the rules adopted by the Florida Board of Medicine and Board of Osteopathic Medicine, as well as parts of S.B 254, the bill signed into law by Florida Gov. Ron DeSantis, a Republican, in May — specifically the ban on care and the criminal and disciplinary consequences passed to apply to those who provide such care.

Although Tuesday’s ruling only directly enjoins the state from enforcing the bans against the challengers, the effect of his ruling — specifically, his finding that the bans are likely unconstitutional — would bar the state from enforcing the bans against minor care in general, Jennifer Levi, the lawyer for the plaintiffs from GLBTQ Legal Advocates & Defenders told Law Dork.

This issue, Levi explained, came up previously for Hinkle, when he heard the case challenging Florida’s ban on same-sex couples’ marriages — and ruled against the ban there as well. When asked to clarify the scope of that ruling, he explained that even if a preliminary injunction does not directly “require” such a result, “the Constitution requires” it.

Additionally, while Tuesday’s ruling only addressed the bans on gender-affirming care for minors, much of his decision could — in some ways, with even greater effect — apply to restrictions on adult care.

Hinkle also recently completed a bench trial in another case challenging Florida’s effort to ban and restrict gender-affirming medical care, and a ruling is expected in that case, addressing Medicaid coverage for gender-affirming care, in short order. The parties in this case, Doe v. Ladapo, agreed to allow the evidence in that case, Dekker v. Weida, to inform his ruling in this case as well.

A groundbreaking ruling

Hinkle found that Florida’s bans on gender-affirming medical care for minors are subject to heightened scrutiny under the Equal Protection Clause because the bans discriminate on the bases of both sex and transgender status. While that would require the state to show that the bans advance an “important” government interest, Hinkle found that the state couldn’t even succeed in justifying the bans under the lowest level of scrutiny: rational basis review.

“The State of Florida’s decision to ban the treatment is not rationally related to a legitimate state interest,” he ruled, a decision fatal to the bans.

The trial evidence led Hinkle to address a conflict between some of the state’s arguments in court and the clear motivating factors expressed outside of court.

“The elephant in the room should be noted at the outset,” Hinkle wrote. “Gender identity is real.”

What followed in the next two pages of the court’s opinion was as aggressive a ruling as we’ve seen in challenging state actions to limit gender-affirming medical care — backed up, again, by a seven-day bench trial over these issues.

“The medical defendants, speaking through their attorneys, have admitted [gender identity is real]. At least one defense expert also has admitted it,” Hinkle wrote. Some people, however, believe that “transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham.” Because of this, he continued, those people tend to “oppose medical care that supports a person’s transgender existence.”

The members of the medical boards defending the lawsuit, at least in court, are not among those people. “In this litigation,” Hinkle wrote, “the medical defendants have explicitly acknowledged that this view is wrong and that pushing individuals away from their transgender identity is not a legitimate state interest.”

Nonetheless, “an unspoken suggestion running just below the surface in some of the proceedings that led to adoption of the statute and rules at issue—and just below the surface in the testimony of some of the defense experts—is that transgender identity is not real, that it is made up.”

To that, Hinkle wrote:

Any proponent of the challenged statute and rules should put up or shut up: do you acknowledge that there are individuals with actual gender identities opposite their natal sex, or do you not? Dog whistles ought not be tolerated.

Hinkle went on to review the standards of care for treatment of gender dysphoria and the widely accepted nature of that treatment, concluding, “At least as shown by this record, not a single reputable medical association has taken a contrary position.”

As such, he concluded:

The clinical evidence would support, though certainly not mandate, a decision by a reasonable patient and parent, in consultation with properly trained practitioners, to use GnRH agonists at or near the onset of puberty and to use cross-sex hormones later, even when fully apprised of the current state of medical knowledge and all attendant risks. There is no rational basis for a state to categorically ban these treatments.

After recounting the stories of the three transgender minors and their parents in the case, including efforts to assess the need for puberty blockers for the trans children, Hinkle concluded, “I find that the plaintiffs’ motivation is love for their children and the desire to achieve the best possible treatment for them. This is not the State’s motivation.”

Florida’s motivation

Florida’s rules and law, Hinkle ruled, “were motivated in substantial part by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities.”

Discouraging individuals from pursuing their gender identities, when different from their natal sex, was also a substantial motivating factor. In a “fact sheet,” the Florida Department of Health asserted social transitioning, which involves no medical intervention at all, should not be a treatment option for children or adolescents.56 Nothing could have motivated this remarkable intrusion into parental prerogatives other than opposition to transgender status itself.

This “purposeful discrimination” led him to conclude, “The plaintiffs are likely to succeed on their equal-protection claim,” as well as the parental-rights claim raised on behalf of the parents.

Hinkle then addressed the state’s “laundry list of purported justifications” for the bans, concluding that they “are largely pretextual and, in any event, do not call for a different result.”

In discussing Florida’s claims regarding the risks associated with gender-affirming medical care treatment, Hinkle acknowledges that “[i]need there are” risks — but, he goes on to describe the incomplete way such risks are addressed.

“The challenged statute ignores the benefits that many patients realize from these treatments and the substantial risk posed by foregoing the treatments—the risk from failing to pursue what is, for many, the most effective available treatment of gender dysphoria,” he wrote.

Hinkle also addressed the claims brought by many regarding international rules surrounding this care.

The defendants have asserted time and again that Florida now treats GnRH agonists and cross-sex hormones the same as European countries. A heading in the defendants’ response to the current motions is typical: “Florida Joins the International Consensus.” The assertion is false. And no matter how many times the defendants say it, it will still be false. No country in Europe—or so far as shown by this record, anywhere in the world—entirely bans these treatments.

“Had Florida truly joined the international consensus—making these treatments available in appropriate circumstances or in approved facilities—these plaintiffs would qualify,” Hinkle stated.

After rejecting Florida’s purported justifications for the bans, Hinkle concluded, “Florida has adopted a statute and rules that prohibit these treatments even when medically appropriate. The plaintiffs are likely to prevail on their claim that the prohibition is unconstitutional. And they have met the other prerequisites to a preliminary injunction.”

In perhaps the simplest statement from Hinkle that also centered the case — and why these bans are so dangerous — Hinkle wrote, “If these treatments are prohibited, many patients will suffer needlessly.”

The is a developing story. More to come at Law Dork in the coming days.