'Gender identity is real': Judge backs trans children in treatment battle
A federal judge on Tuesday blocked Florida’s ban on the use of puberty blockers and hormone therapy to treat three children diagnosed with gender dysphoria, calling the prohibition “an exercise in politics, not good medicine.”
U.S. District Judge Robert Hinkle’s ruling will affect a group of transgender children and parents who filed a lawsuit challenging rules adopted by state medical boards banning health-care providers from using gender-affirming care to treat youths.
The Legislature this spring enshrined the rules — advanced by Gov. Ron DeSantis’ administration — in state law and added restrictions for transgender adults.
While the preliminary injunction issued Tuesday by Hinkle only applies to three of the children in the lawsuit, his ruling indicated the state’s prohibition against gender-affirming care for minors is unconstitutional and drew praise from LGBTQ-advocacy groups.
“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.
The lawsuit, filed in March, challenges the prohibition against the use of puberty blockers and hormone therapy for children under age 18. Defendants include DeSantis administration officials and members of the Board of Medicine and the Board of Osteopathic Medicine.
Hinkle’s 44-page ruling found there was “no rational basis” for the ban on the use of the drugs for transgender girls and boys.
“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,” he wrote.
Although the vast majority of medical groups support gender-affirming care, the DeSantis administration and the state medical boards argued that the treatment isn’t supported by high-quality clinical research. The state also alleged that the medical groups supported the care for ideological, not clinical, reasons.
But Hinkle rejected the state’s stance.
“If ever a pot called a kettle black, it is here. The statute and the rules were an exercise in politics, not good medicine,” he wrote.
DeSantis’ press office did not respond to a request for comment, while the Florida Department of Health said it did not comment on current litigation. But Rep. Randy Fine, a Brevard County Republican who helped sponsor the legislation, blasted Hinkle’s decision.
'It's clear that Democrat Judge Hinkle is a science-denying wokeist whose radical order will soon be overturned by jurists who actually believe in science. We will not stop fighting to defend children from those like Hinkle who support child castration and mutilation,” Fine tweeted.
Florida is among Republican-led states that have passed hundreds of measures targeting transgender minors and the LGBTQ community this year. DeSantis, who recently announced he is seeking the Republican nomination for president in 2024, has fiercely attacked the use of gender-affirming care for minors, frequently calling it “child mutilation.”
The issue is “politically fraught,” wrote Hinkle, who was appointed to the bench by former President Bill Clinton in 1996.
“There has long been, and still is, substantial bigotry directed at transgender individuals. Common experience confirms this, as does a Florida legislator’s remarkable reference to transgender witnesses at a committee hearing as ‘mutants’ and ‘demons.’ And even when not based on bigotry, there are those who incorrectly but sincerely believe that gender identity is not real but instead just a choice. This is, as noted above, the elephant in the room,” the judge wrote, referring to references during an April committee meeting by Rep. Webster Barnaby, R-Deltona.
Although Tuesday’s ruling affected only the group of plaintiffs, Hinkle’s analysis rallied LGBTQ advocates.
“It’s important not to miss what the court also said, which is that the law and rules are likely to fail constitutional scrutiny once the court has the chance to rule on the merits. That is a hugely important part of the ruling which sends a strong signal to medical providers and families about the likely demise of this ban,” Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders, said in an email.
Other groups representing the plaintiffs include Southern Legal Counsel, the National Center for Lesbian Rights and the Human Rights Campaign.
“My husband and I have been heartbroken and worried sick about not being able to care for our daughter in the way we know she needs,” said one of the anonymous plaintiffs, who is listed in the suit as Jane Doe filing on behalf of her daughter, Susan Doe, in a press release.
“I’m sure most any parent can imagine the sense of powerlessness that comes from being unable to do something as basic as get medical care for your child," the woman said, in a report by WUSF Public Media. "Today my entire family is breathing a huge sigh of relief knowing we can now access the treatment that we know will keep Susan healthy and allow her to continue being the happy, confident child she has been.”
The lawsuit alleged, in part, that the treatment ban unconstitutionally stripped parents of rights, a claim that Hinkle said was “likely to succeed” on the merits.
“I find that the plaintiffs’ ability to evaluate the benefits and risks of treating their individual children this way far exceeds the ability of the state of Florida to do so. I find that the plaintiffs’ motivation is love for their children and the desire to achieve the best possible treatment for them. This is not the State’s motivation,” he wrote.
The judge also concluded that the state’s decision appeared to be rooted in “purposeful discrimination” against transgender people.
“Still, an unspoken suggestion running just below the surface in some of the proceedings that led to adoption of the statute and rules at issue — and just below the surface in the testimony of some of the defense experts — is that transgender identity is not real, that it is made up,” Hinkle wrote. “Any proponent of the challenged statute and rules should put up or shut up: Do you acknowledge that there are individuals with actual gender identities opposite their natal sex, or do you not? Dog whistles ought not be tolerated.”
The treatment ban seeks to discourage people from pursuing their gender identities, when different from their sex assigned at birth, Hinkle wrote.
“In a ‘fact sheet,’ the Florida Department of Health asserted social transitioning, which involves 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,” he wrote.
Tuesday’s decision came as Hinkle also is poised to rule in a lawsuit challenging a decision by the state Agency for Health Care Administration to prohibit Medicaid payments to health care providers for gender-affirming care for minors and adults. Some of the evidence in that case has also been used in the challenge to the medical boards’ rules and the new law.
The state has contended that puberty blockers and hormone therapy can pose risks for patients, which Hinkle said could be true. But Hinkle’s ruling attacked the state for relying on a group of experts who oppose gender-affirming care, saying the state ignored the “overwhelming weight of medical authority” supporting the use of such treatments, when appropriate.
“It is no answer to say the evidence on the yes side is weak when the evidence on the no side is weaker or nonexistent. … A decision for the three patients at issue cannot wait for further or better research; the treatment decision must be made now,” the judge wrote.