Alabama ruling could bolster a law making it more difficult for transgender Floridians to get some medical treatment

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By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — Florida is urging a federal appeals court to clear the way for a new law preventing transgender minors from receiving puberty blockers and hormone therapy, citing a decision last month in a “virtually identical case” from Alabama.

Attorneys for Florida Surgeon General Joseph Ladapo and state medical boards last week filed a 50-page brief arguing the 11th U.S. Circuit Court of Appeals should overturn a preliminary injunction that U.S. District Judge Robert Hinkle issued in June against the law and related rules.

A key issue in the state’s brief is a decision issued last month by a three-judge panel of the Atlanta-based appeals court in what Florida attorneys described as “a virtually identical case with a virtually identical law in the exact same procedural posture” from Alabama.

In that case, the panel rejected a preliminary injunction that a district judge had issued against an Alabama ban on puberty blockers and hormone therapy for minors seeking treatment for gender dysphoria. Florida contends that such treatments are unproven and risky for minors — despite support for the treatments from major medical organizations.

“The challenged laws turn on a medical diagnosis, not sex and not transgender status. The state has a compelling governmental interest in protecting its citizens from risky medical procedures for the treatment of a difficult-to-diagnose condition where there is ‘uncertainty regarding benefits’ of the treatments, serious ‘irreversible effects’ from the treatment like sterility, and a host of unknowns like the effects on cognition,” Florida attorneys wrote, partially quoting from the ruling in the Alabama case, known as Eknes-Tucker v. Governor of the State of Alabama.

The potential effects of the Alabama decision were evident in a separate ruling that Hinkle issued Monday denying a preliminary injunction against part of the Florida law that makes it more difficult for transgender adults to access hormone therapy and surgeries.

While Hinkle gave other reasons for denying the preliminary injunction, he noted, “The plaintiffs’ likelihood of success on the merits is significantly lower now than it was prior to Eknes-Tucker v. Governor of Alabama.”

The 11th Circuit hears cases from Florida, Alabama and Georgia, with many of its rulings setting precedents for judges in those states.

Amid politically charged debates across the country about transgender issues, Florida’s Republican-controlled Legislature and Gov. Ron DeSantis this spring approved the law blocking puberty blockers and hormone therapy for minors. The move effectively enshrined in law rules that had been passed earlier by the Florida Board of Medicine and the Florida Board of Osteopathic Medicine.

The law included an exception for minors already receiving the treatments, but it also imposed new requirements on transgender adults seeking hormone therapy and surgeries. As examples, it requires adults to sign informed-consent forms and only allows physicians — not nurse practitioners — to order hormone therapy.

National groups and law firms filed the lawsuit on behalf of several plaintiffs, including children and their parents, and named as defendants Ladapo and the Board of Medicine and Board of Osteopathic Medicine.

In his June decision issuing a preliminary injunction on the treatment issue for children, Hinkle wrote that the “statute and the rules were an exercise in politics, not good medicine.”

“The statute and rules at issue were motivated in substantial part by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities. This was purposeful discrimination against transgenders,” Hinkle wrote.

But in the brief last week, the state’s attorneys argued that the preliminary injunction should be rejected — just like the Alabama injunction was rejected. In addition to citing the Alabama case, they pointed to a U.S. Supreme Court ruling last year that overturned Roe v. Wade and left abortion decisions up to states.

“The district court … recognized a protected right because it believed that the treatments at issue are beneficial and adequate. But the district court failed to acknowledge that the state gets to make decisions about the appropriateness of medical treatments,” the brief said, citing the U.S. Supreme Court abortion decision.

The brief also said the plaintiffs and Hinkle had not cited “any evidence — none whatsoever — to demonstrate the deep rootedness of a parental right to obtain puberty blockers and cross-sex hormones to treat their children’s gender dysphoria. No statutes, no common-law cases, nothing was assembled to demonstrate this.”

Lawyers for the Florida plaintiffs have not filed a brief at the appeals court.

But attorneys for plaintiffs in the Alabama lawsuit on Monday asked the full appeals court to take up that case, a request known as seeking an “en banc” hearing. They pointed, in part, to rights of parents to make medical decisions for their children.

“This panel’s holding that parents have no constitutionally protected interest in making medical decisions for their children runs counter to ordinary citizens’ most deep-seated expectations and leaves millions of parents vulnerable to laws, policies and bureaucratic decisions that dictate what medical care their children may receive,” the attorneys in the Alabama case wrote.

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