US federal judge rules Florida ban on gender-affirming care unconstitutional

A federal judge ruled Tuesday that a Florida ban on certain gender-affirming care including puberty blockers and hormone therapy was illegal under the Equal Protection Clause of the US Constitution.

Florida Statute Section 456.52 banned individuals under the age of 18 from receiving puberty blockers to “stop or delay puberty in order to affirm a person’s perception of his or her sex if that perception is inconsistent with the person’s [natal] sex.” It also banned hormone therapy “to affirm a person’s perception of his or her sex” for the same reasons.

The law grandfathered in minors who were already receiving gender-affirming drugs but created new restrictions for adults who wished to begin the therapies, restricting the therapy to in-person treatment by licensed physicians. Bans on gender-affirming surgeries for minors and further restrictions for these kinds of surgeries for adults were not included in the plaintiffs’ challenge.

In his decision Robert Hinkle, a US Federal Judge for the Northern District of Florida, wrote:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes it clear. The defendants, speaking through their attorneys, have admitted it. At least one defense expert has admitted it…the only defense expert who has actually treated a significant number of transgender patients.

Hinkle continued that many individuals believe that gender identity is “chosen” like “one might choose whether to read Shakespeare or Grisham.” He added that many people oppose all things related to transgender identity and are often fueled by religious beliefs, comparing people’s denial of transgender identity to the same kind of “intensity” or “animus that has attended racism and misogyny…”. He stated that:

Transgender opponents are of course free to hold their beliefs. But they are not are free to discriminate against transgender individuals just for being transgender. In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice. In the meantime, the federal courts have a role to play in upholding the Constitution and its laws.

Hinkle cited high depression and suicide rates among the transgender community and pointed out that medical intervention via treatment was only available to “adolescents or adults, never younger children.” Stressing that the ban on surgery for minors was not an issue in the case and explaining that there was no evidence in the record that such surgeries had even taken place in Florida.

The court applied intermediate scrutiny holding that the law was based on classifications of sex and gender nonconformity also finding that animus in the law against transgender individuals as another basis for heightened scrutiny.

Hinkle rejected the defense’s claim that the law was an example of the constitutional exercise of legislative power to regulate the medical industry citing animus in the legislative record. The judge pointed toward legislators who had used hyperbolic language against transgender individuals. Specifically quoting one Florida House member who referred to transgender witnesses present at the committee as “mutants” and “demons.”

Finally, the court held that the outright ban was not sufficiently related to the state’s legitimate interest in safeguarding health since the care could be appropriately regulated and a ban would cause “needless suffering” from those experiencing gender dysphoria.

Florida’s conservative led government has been aggressive in legislating against various issues relating to transgender rights including so called “don’t say gay” laws regulating the use of personal pronouns among other pronouncements from Governor Ron DeSantis to battle “woke” culture in the state.

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