Senior US District Judge Robert Hinkle has granted a preliminary injunction on behalf of three parents of transgender children who are challenging the constitutionality of a statute enacted last month and rules adopted last year by the Florida Board of Medicine and the Florida Board of Osteopathic Medicine which prohibit licensed practitioners from providing gender-affirming care to persons under age 18.
Judge Hinkle’s June 6 opinion finds that the challenged statute and rules are probably unconstitutional and that they should not be enforced against the plaintiffs while the case is pending. But his opinion goes beyond the targeted injunctive relief, asserting that the state of Florida has no “rational basis” to categorically prohibit the provision of gender-affirming for all minors regardless of individual circumstances. The only gender-affirming care directly at issue in this decision are puberty-blockers and cross-sex hormones.
The plaintiffs, who are suing under pseudonyms to protect their children’s privacy, are represented by Southern Legal Counsel, GLBTQ Legal Advocates and Defenders, the National Center for Lesbian Rights, and Human Rights Campaign. Each of the seven plaintiffs is the parent of a transgender child. Three of them filed a motion for a temporary restraining order and preliminary injunction, as their children are at or near the point where their health care providers believe that they should be receiving puberty blockers, which Judge Hinkle refers to by their scientific name of GnRH agonists.
When this case was assigned to Judge Hinkle, he was already presiding over another related case, Dekker v. Weida, challenging the refusal of Florida’s Medicaid program to pay for gender-affirming care. A bench trial has been conducted in that case and it has been submitted for the court’s decision, which has not yet been issued. Conveniently, the medical evidence in that case is directly relevant to the issues to be decided in this case, and the parties have agreed that the record compiled in the Dekker case could be used by the court to decide the motions filed in this case, which cut the amount of new evidence that Judge Hinkle needed to render his decision.
Judge Hinkle prefaced his legal analysis with some observations about gender identity in light of the controversy surrounding this topic. “Gender identity is real,” he wrote, drawing upon that body of expert testimony. “The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear. The medical defendants, speaking through their attorneys, have admitted it. At least one defense expert also has admitted it. That expert is Dr. Stephen B. Levine, the only defense expert who has actually treated a significant number of transgender patients. He addressed the issue conscientiously, on the merits, rather than as a biased advocate.”
Judge Hinkle rejected the argument by opponents of transgender rights that “transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham. Many people with this view tend to disapprove all things transgender and so oppose medical care that supports a person’s transgender existence.” But in these lawsuits, he 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.”
That observation really decides the case, the judge found.
The plaintiffs contend that the challenged statute and rules violate their rights to equal protection and parental control of their children’s medical care. Judge Hinkle agrees with them, having decided that the state has no rational basis for imposing these absolute restrictions. Before getting to that conclusion, he analyzes the constitutional doctrines raised in the litigation and concludes that the case could be resolved without applying heightened or strict scrutiny, although he concluded that heightened scrutiny could apply. Under the heightened scrutiny analysis, the challenged law is presumed to be unconstitutional and the burden is on the state to show that it substantially advances an important state interest. In light of the evidentiary record in this case, the state cannot meet that test.
But, argues Hinkle, the state cannot even meet the less demanding rational basis test, because he effectively dismantles every argument the state advances to justify the law, frequently in devastating language.
Judge Hinkle shows that the consensus of relevant medical professional associations in the United States is that gender-affirming care can be the appropriate treatment for minors with diagnosed gender dysphoria, and that the state’s reliance on reports that some countries in Europe have placed some restrictions on the provision of such care are overstated, as none of those countries has enacted a categorical ban on the treatment.
The state argues that the risks associated with gender-affirming care are too severe to allow the procedures to be performed. Judge Hinkle shows that all medical procedures involve some degree of risk, that the risks asserted by the state have been overstated, and that, in any event, it is up to the parents, their health care providers, and the children, to weigh the risks, as there is no evidence that the state is in a better position to do so in individual cases.
“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,” he wrote, “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. The record includes no evidence that these treatments have caused substantial adverse clinical results in properly screened and treated patients.”
“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,” the judge stated. “The medical defendants have acknowledged this. But the state’s disapproval of transgender status – of a person’s gender identity when it does not match the person’s natal sex – was a substantial motivating factor in enactment of the challenged statute and rules. 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 involved no medical intervention at all, should not be a treatment option for children or adolescents. Nothing could have motivated this remarkable intrusion into parental prerogatives other than opposition to transgender status itself. State action motivated by purposeful discrimination, even if otherwise lawful, violates the Equal Protection Clause.”
Given these findings, the judge held that plaintiffs were likely to prevail on both their equal protection and parental rights claims, both of which arise from the 14th Amendment.
The court also found that the justifications advanced by the state for the statute and rules are “pretextual.”
He provided a detailed analysis of the level of scientific evidence upon which the medical profession operates, rejecting the state’s argument that only “low quality” evidence supports gender-affirming care. The state’s arguments about protecting children from the risks of treatment are overblown. Among other things, the state talks about people who had gender-affirming care as children coming to regret it later on, but he notes that the state has not presented any actual examples of any Floridian who has received such care and then stated regret. And, he notes, the state’s talk of risk is one-sided, failing to take account of the “substantial benefits for the overwhelming majority of patients treated with GnRH agonists and cross-sex hormones.”
“If the three plaintiffs at issue here do not start GnRH agonists soon, they will go through puberty consistent with their natal sex,” wrote Hinkle. “They will live with the consequences for the rest of their lives. The likelihood is very high they will suffer attendant adverse mental-health consequences. If, on the other hand, they do get GnRH agonists, they will avoid some of the adverse consequences. They also will face attendant risks.”
But, he points out, “Risks attend many kinds of medical treatment, perhaps most. Ordinarily it is the patient, in consultation with the doctor, who weighs the risks and benefits and chooses a course of treatment. What is remarkable about the challenged statute and rules is not that they address medical treatments with both risks and benefits but that they arrogate to the state the right to make the decision. And worse, the statute and rules make the same decision for everybody, without considering any patient’s individual circumstances. The statute and rules do this in contravention of widely accepted standards of care.”
The state also argued that the professional associations are “biased” in support of gender-affirming care for political reasons, but this strikes Hinkle as laughable. “If ever a pot called a kettle black, it is here,” he wrote. “The statute and rules were an exercise in politics, not good medicine,” and “common experience confirms this.”
“Where there is bigotry, there are usually — one hopes, always — opponents of bigotry. It is hardly surprising that doctors who understand that transgender identity can be real, not made up — doctors who are willing to provide supportive medical care — oppose anti-transgender bigotry.”
The court similarly rejected the state’s claims of international support for its position and of malpractice by health care providers “rushing” children into treatment, and refuted the state’s argument that the fact that almost every minor who starts on puberty blockers eventually goes on to cross-sex hormones as a reason to outlaw the puberty blockers. If anything, this is evidence that the children don’t regret taking the puberty blockers and want to continue with their transition based on their experience.
He also refutes the state’s argument that because the Food and Drug Administration has not specifically approved puberty blockers and hormones for treatment of gender dysphoria, the state has good reason to outlaw the practice, pointing out that once a drug has been approved as safe and effective by the FDA, “off-label” use has become standard medical practice as new applications for medications are discovered. “The defendants’ contrary implication is divorced from reality,” he wrote.
Because this motion was brought only by three of the plaintiffs whose children need puberty blockers either “immediately” or soon, Judge Hinkle’s injunction is narrowly focused on protecting them from enforcement of the statute, directed to state officials who are involved in the enforcement of the statute and professional rules. But the court’s constitutional analysis supports broader application. Since Judge Hinkle’s June 6 ruling also rejected the defendants’ motion to dismiss the case, now is the time for plaintiffs to seek class certification and a permanent injunction against enforcement of the challenged statute and rules against parents, transgender minors, and health care practitioners generally.
In light of Judge Hinkle’s analysis, it is likely he will soon be issuing a decision in the Medicaid case as well, and further litigation may attack other aspects of the challenged statute, including those affecting adult transgender people seeking treatment.
In the meantime, it is possible that the state will seek to appeal Judge Hinkle’s order to the 11th Circuit Court of Appeals, a notably conservative circuit in which seven of the 12 active judges are Republican appointees with very conservative records.
Judge Hinkle was appointed to the district court by President Bill Clinton, and prior to taking senior status had served as chief judge of the district court for several years. In 2014, he rendered a decision finding Florida’s ban on same-sex marriage unconstitutional.
