Column: In blow to anti-trans bigots, judge finds Florida’s treatment ban unconstitutional
A federal judge in Tallahassee left few doubts the other day about what he thought of Florida Gov. Ron DeSantis’ assault on healthcare for transgender Floridians.
“For many years, Florida’s Medicaid system paid for medically necessary treatments for gender dysphoria,” Judge Robert L. Hinkle wrote on June 21. “Recently, for political reasons, Florida adopted a rule and then a statute prohibiting payment for some of the treatments.”
Hinkle invalidated the rule and the law as unconstitutional acts of discrimination against transgender people and ordered coverage restored. He went further. He ascribed the policy to pure anti-transgender bigotry and implied that at least one of the state’s witnesses defending the policies had lied.
Gender identity is real.
— U.S. District Judge Robert L. Hinkle of Florida
A Clinton appointee, Hinkle ridiculed the state’s contention that treating gender dysphoria, in which patients feels a profound disconnection between their assigned gender and their identity, is more dangerous than not treating it.
The state’s policy, he wrote, was largely motivated “by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities.”
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Hinkle’s ruling is only the latest in a growing file of court decisions invalidating or suspending reactionary laws and regulations promulgated by DeSantis and his henchmen and -women in the GOP-dominated state legislature.
These initiatives have all been aimed at shoring up DeSantis’ right-wing bona fides as he pursues his quest for the Republican nomination for president in 2024.
DeSantis has evidently decided that the key to securing the nomination is to appeal to the narrowest conceivable voting base within the GOP.
That’s the cadre that makes common cause with white supremacists in demonizing diversity and inclusiveness, that wishes to suppress any honest discussion of racism in America’s past or present, that opposes the full spectrum of women’s reproductive rights including the right to abortion.
Along the way, however, DeSantis keeps running into a judicial buzz saw. Let’s call the roll.
When anti-LGBTQ+ activists went after Target for selling Pride merchandise, they guessed the company would cave. They were right.
DeSantis’ “Stop WOKE Act,” which restricts classroom discussions about race by public university faculty members in Florida, has been blocked by federal Judge Mark Walker of Tallahassee. Walker, an Obama appointee, called the law “positively dystopian” and quoted George Orwell’s observation that “if liberty means anything at all it means the right to tell people what they do not want to hear.”
On Friday, U.S.District Judge Gregory Presnell of Orlando blocked a law DeSantis signed aimed at shutting down hotels and restaurants found to have admitted a child to “an adult live performance.”
That term was left purposefully vague, but critics say the law was designed to target drag performers. Presnell, a Clinton appointee, blocked the law pending a full trial, on grounds that it infringed on the performers’ free speech rights.
Also coming under legal challenge is a ban on abortions after six weeks, one of the most restrictive such laws in the country. DeSantis signed the law , which supplanted a law DeSantis signed last year allowing abortions up to 15 weeks, in the dead of night on April 13.
The 15-week law has been challenged on grounds that it violates privacy rights enshrined in the state constitution, an issue now before the state Supreme Court. The new law is probably destined for review on the same grounds.
The transgender treatment policy reflects another front in the culture war that DeSantis seems to think will sweep him past Donald Trump and into the White House. He’s not alone in targeting LGBTQ+ people and transgender individuals specifically. Laws and policies banning gender-affirming care for adolescents have been passed or implemented in 19 other states, according to the Human Rights Campaign, an LGBTQ+ rights group, and are under consideration in at least seven others.
The Florida initiative was launched last year via a decision by the state’s Medicaid agency to cease paying for gender-affirming care.
Ron DeSantis, who is expected to run for president, has turbocharged his attack on LGBTQ+ people, racial minorities and gun safety. How much lower will he sink?
In practical terms, the decision applied to puberty blockers for transgender adolescents and cross-sex hormones — testosterone for those transitioning to men, and estrogen for those transitioning to women — for adults and older adolescents. The Medicaid agency ruling was followed by legislation prohibiting the use of state funds, including Medicaid, for “sex reassignment prescriptions or procedures.”
Hinkle noted that those treatments had been approved for coverage by Florida Medicaid in 2016 and 2017, when the program recognized that failing to treat adolescents and adults with those drugs exposed them, as Hinkle wrote, to “higher rates of anxiety, depression, suicidal ideation, and suicide than the population at large.”
One of the adult plaintiffs who brought the lawsuit Hinkle ruled on attempted suicide four times before beginning treatment with cross-sex hormones. “He is now thriving,” the judge wrote.
Medicaid’s experts noted that such treatments were consistent with the standard of care accepted by professionals in the field.
The four plaintiffs in the case —two adolescents represented by their parents, and two adults— had begun treatments paid for by Medicaid.
Everything changed last year, when DeSantis ordered the Medicaid agency to conduct another review of the coverage. The agency hired consultants “known in advance for their staunch opposition to gender-affirming care,” Hinkle wrote. The process “was, from the outset, a biased effort to justify a predetermined outcome, not a fair analysis of the evidence.”
The judge scoffed at testimony by the Medicaid employee who drafted the analysis that he did not know the outcome the analysis was expected to reach. “I do not credit the testimony,” Hinkle wrote dryly. In the event, the analysis concluded that gender-affirming care was not a generally accepted medical standard but was experimental, and therefore could be dropped from coverage.
Hinkle made clear that he found no merit in the state’s defense that its ban arose from a sincere concern for the health of transgender patients.
After observing that state officials accuse the professional bodies that endorse treatments with puberty blockers and hormones of pursuing “good politics, not good medicine,” he responded, “If ever a pot called a kettle black, it is here.” The law and regulation that denied coverage for those treatments, he wrote, “were an exercise in politics, not good medicine.”
Utah Gov. Cox stood firm against anti-transgender legislation last year. What made him sign a much harsher law this week?
Nor did he have any difficulty locating the bigotry motivating the state law: He found it in the words of state Rep. Webster Barnaby, a Republican from an Orlando exurb, who called transgender witnesses at a committee hearing “mutants” and “demons.” “This is Planet Earth, where God created men male and women female,” Barnaby brayed. “The Lord rebuke you Satan and all of your demons and imps...who come and parade before us and pretend that you are part of this world.”
Hinkle rejected the contention by a defense witness for the state, Dr. Paul Hruz, that transgender individuals have a “false belief” in their gender identity, and are subject to a “charade” or “delusion.” Hruz, an endocrinologist with no experience treating patients for gender dysphoria, “testified as a deeply biased advocate, not as an expert sharing relevant evidence-based information,” Hinkle found.
The judge ruled that “the overwhelming weight of medical authority supports treatment of transgender patients” with puberty blockers and cross-sex hormones “in appropriate circumstances....Not a single reputable medical association has taken a contrary position.”
The state’s interference with these treatments crossed a bright line, the judge found: “Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest.”
Hinkle drew his own bright line that should be recognized by the red state legislators and governors who have been scurrying to interfere with their own citizens’ pursuit of legitimate medical care.
In conclusion, the judge reproached DeSantis and Florida officials for casting doubt on medical science for their own partisan purposes. “Gender identity,” he wrote, “is real.”
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