By Dara Kam ©2022 The News Service of Florida.
TALLAHASSEE — A federal judge on Wednesday refused to issue a preliminary injunction to block a new state rule preventing Medicaid reimbursements for gender-affirming treatments for transgender people, saying plaintiffs had failed to demonstrate “irreparable harm.”
But U.S. District Judge Robert Hinkle also questioned how state health officials supported their decision to block the Medicaid coverage, saying they recruited five doctors “who are decidedly out of the mainstream” to bolster the state’s position.
The Florida Agency for Health Care Administration, which largely oversees the Medicaid program, proposed a rule this summer to prevent reimbursements to medical providers for such treatments as puberty blockers, hormone therapy and gender-reassignment surgery.
The rule went into effect Aug. 21, making Medicaid beneficiaries receiving gender-affirming treatment responsible for paying the costs of surgeries, services and medications, which can run to thousands of dollars a month.
Four transgender plaintiffs, including two children, filed a lawsuit challenging the rule, alleging the treatment of gender dysphoria is “medically necessary, safe and effective” for transgender children and adults.
Hinkle’s verbal decision Wednesday came after testimony from state witnesses including an angry and tearful father whose transgender son died of a fentanyl and alcohol overdose, a pregnant woman who “de-transitioned” after taking testosterone as a teenager, and an endocrinologist who maintains that transgender people should be provided mental-health treatment rather than medical interventions.
Hinkle said he was bound by a 1980 appeals court ruling in a case known as Rush v. Parham that upheld a Georgia Medicaid plan that denied reimbursement for “experimental surgery, e.g., … transsexual operations.”
“I’m a follow-the-circuits guy. There is a binding decision. … I’m going to follow it,” Hinkle said.
The judge said his ruling Wednesday to deny a preliminary injunction did not address what he called the crux of the case, which will be handled during a trial that was originally scheduled for August 2023 but likely will take place much earlier.
“The fundamental issue … is whether the state has reasonably determined that the treatments at issue are experimental,” Hinkle said.
The rule addresses treatment for gender dysphoria, which the federal government defines gender dysphoria clinically as “significant distress that a person may feel when sex or gender assigned at birth is not the same as their identity.”
While the plaintiffs submitted declarations asserting that gender-affirming care is necessary, Hinkle said the record does not include the Medicaid recipients’ medical records or attestations from doctors saying the treatments are required.
“Those (plaintiffs’) declarations are not sufficient to show irreparable harm … at this time,” Hinkle said.
Speaking to The News Service of Florida after the hearing, Omar Gonzalez-Pagan, a Lambda Legal attorney who represents the plaintiffs, called Hinkle’s ruling disappointing.
“We think that there is a great deal of harm that is being inflicted right now, through confusion that is being sowed by this rule, through care that is being shelved and the denial of coverage for people in the meantime,” he said.
Gonzalez-Pagan said the plaintiffs will demonstrate that gender-affirming care no longer covered by Medicaid is not experimental but is “well-established, well-accepted, well-documented and evidence-based.”
Justifications for the rule “are all pretextual for discrimination,” he added.
“They are all justifications based on misreading of the scientific literature, the intentional mischaracterization of what this care is, and ultimately, it’s about denying people the ability to be who they are,” Gonzalez-Pagan said.
The Agency for Health Care Administration proposed the rule as Gov. Ron DeSantis and other Republicans in Florida and nationally have taken aim at transgender issues. Florida Surgeon General Joseph Ladapo, for example, has backed a proposal that could restrict doctors from providing treatments to transgender people under age 18. State medical boards are considering that proposal.
Lawyers for the DeSantis administration on Wednesday denied that the state’s rule is a blanket prohibition against medical treatment for Medicaid patients who are transgender. They said Florida law provides an appeal process for people who can show they have suffered hardship because of state agencies’ regulations.
“If it’s true that sometimes puberty blockers can be approved, then why not spell it out in the rule?” Hinkle asked.
Mohammad Jazil, an attorney with the Holtzman Vogel firm who represents the state, said such a move was unnecessary.
But Gonzalez-Pagan said it was “farfetched” to construe that the state’s rule “somehow … is not a ban on coverage,” arguing that the state’s lawyers never mentioned the waiver process before Wednesday’s hearing.
Michael Laidlaw, a California endocrinologist who was one of the state’s witnesses, testified that people with gender dysphoria should be treated with mental-health services instead of puberty blockers or surgery.
The use of medical treatments such as hormone therapy “could compound the patients’ problems,” he said.
Lambda Legal lawyer Carl Charles, who represents the plaintiffs, asked Laidlaw if he was aware of position statements or policies issued by a variety of medical groups — including the American Academy of Pediatrics, the American Medical Association and the Endocrine Society — expressing support for gender-affirming treatment for transgender people.
“They’re not standards of care. … I see these as an opinion on what should be done with these patients but not an exclusive rule,” Laidlaw said, adding that “their conclusions are false or incorrect.”
Hinkle asked the doctor if it was ever appropriate for a medical professional “to support a person’s decision to live in the person’s gender identity as opposed to the person’s natal identity?”
Laidlaw said he was “not opposed to personal autonomy” but was concerned about risks outweighing benefits for children.
But the judge appeared skeptical about Laidlaw’s conclusions and quizzed Jazil about the doctor’s expertise to discuss surgeries for transgender people. Jazil said Laidlaw has been “tracking the literature” on the issue.
Hinkle remained unconvinced, however.
“He’s a doctor who says a person with gender dysphoria … should not be treated,” the judge said. “Now, how far off the general view in the medical profession is that?”
Noting that Laidlaw said he would not use patients’ preferred pronouns, Hinkle said Laidlaw is a “person that’s far off from the accepted view.”
Hinkle also appeared critical of how the state developed the rule.
“How do you support a process that goes out and finds five” doctors who “are decidedly out of the mainstream, no one in the mainstream,” Hinkle asked. “You do scratch your head when that’s the best you can do.”
The judge also heard from Yaacov Sheinfeld, whose 28-year-old transgender son died of a fentanyl and alcohol overdose after taking testosterone for a decade and having surgery as an adult.
“All I now is … that the system … influenced her into a journey that killed her. She’s dead. I buried her a year ago. And I’m angry,” said a tearful Sheinfeld, whose child had a long history of depression and mental health problems.
Zoe Hawes, a 28-year-old pregnant woman who also testified for the state, said she was diagnosed with anxiety, post-traumatic stress disorder, obsessive-compulsive disorder and gender dysphoria at age 15 and began taking testosterone at age 16.
She said her experience was “not great” and that she continued to be suicidal throughout her hormone treatment, which she discontinued four years later.
“I realized that my peace was not going to come from changing my body,” she said.