By Dara Kam ©2023 The News Service of Florida
TALLAHASSEE — Focusing on what has become one of the most emotionally charged issues in the state and nation, a trial ended Thursday in a constitutional challenge to Florida restrictions on medical care for transgender children and adults.
The challenge centers on a 2023 law and rules approved by state medical boards prohibiting the use of puberty blockers and hormone therapy to treat children for gender dysphoria. The restrictions also made it harder for transgender adults to receive hormones and surgical procedures and required signing lengthy informed-consent forms with warnings about the use of puberty blockers and hormones.
Thomas Redburn, an attorney who represents the plaintiffs in the lawsuit, told U.S. District Judge Robert Hinkle that the restrictions are having a devastating impact on the lives of transgender Floridians.
Redburn said the law (SB 254), passed this spring by the Republican-controlled Legislature and signed by Gov. Ron DeSantis, is a “product of invidious discrimination” and “animus” against transgender people.
To bolster his arguments, Redburn pointed to a series of bills targeting transgender people in recent years. For example, lawmakers and DeSantis have approved measures to ban transgender girls from competing on girls’ and women’s high-school and college sports teams, restrict the way preferred pronouns can be used at schools and prohibit children from attending drag shows.
“The overall driving force of denying transgender validity underlies all of it,” Redburn said. “It’s one other piece of a whole mosaic of evidence … of invidious discrimination.”
But the judge questioned whether Redburn could show that DeSantis’ motivation for the restrictions was “because he hates transgender people” or if he and state lawmakers were concerned that the treatments for transgender people were being provided too readily.
“Then the question is what do we do about this, and what the state’s decided is, take a sledgehammer and ban it outright,” the judge said.
Hinkle also asked if it was possible DeSantis did not know that withholding treatment from children diagnosed with gender dysphoria could cause them harm, but instead supported the restrictions for political purposes.
“The governor just says, ‘I know it’s going to be in the headlines. I know it’s going to be popular. Let’s go for it,’” Hinkle posited.
Redburn said the possibility of “benign indifference” wouldn’t let the state off the hook.
“You’re almost never blessed with what’s actually in people’s minds,” Redburn said. “When you put all that together here, you have an unconstitutional statute.”
But Mohammad Jazil, an attorney for the state, told Hinkle there is a “dearth of evidence” to show “intentional discrimination.”
The law and the rules were focused on “how to treat gender dysphoria,” Jazil said.
“We’re targeting gender dysphoria, we’re not targeting transgenders,” he said.
Testifying on behalf of the state earlier Thursday, Monica Mortensen, a pediatric endocrinologist who serves on the Florida Board of Osteopathic Medicine and who crafted the informed-consent forms, defended the medical boards’ contention that the treatments for minors pose unknown risks.
Hinkle asked her about the need for a “flat-out” ban on treatment, referring to testimony last week from the mother of a transgender child and from a transgender man who are plaintiffs in the lawsuit.
The plaintiffs “have had very good results” and “the quality of their lives has improved substantially” with gender-affirming care, Hinkle observed.
“Do you have any reason to believe that’s not so?” he asked Mortensen.
But Mortensen, who does not treat children diagnosed with gender dysphoria, said she knows several physicians across the country who have discontinued ordering the treatment for minors.
“We’re not seeing the same thing. … Can some people have benefits? Yeah, but the risks outweigh the benefit,” she said, adding that many of the other doctors “are scared to speak out because of this cancel culture.”
Hinkle, however, pushed back.
“You don’t have to persuade me that there are irrational people” on both sides of the issue, the judge said.
“The people that were on that witness stand … some of them seemed very credible,” he added, asking Mortensen if she could dispute that people have benefited from the treatments.
“I’m sure there are some,” she conceded.
The law, in part, barred doctors from approving puberty blockers and hormone therapy for the treatment of minors with gender dysphoria.
It also required adults seeking hormone therapy or surgeries for gender dysphoria to sign the informed consent forms. Also under the law, only physicians — and not nurse practitioners — are allowed to approve hormone therapy, and it banned the use of telehealth for new prescriptions.
Florida is among numerous Republican-controlled states that in recent years have approved proposals targeted at transgender people, with some of the highest-profile debates about banning treatments for transgender minors. Florida contends that such treatments are unproven and risky for minors — despite support for the treatments from major medical organizations.
DeSantis has called such treatments “child mutilation.”
Hinkle also pressed Jazil about the informed-consent forms, which don’t contain information about the possible benefits of the treatments.
“When I read the consent form, it seemed pretty clear to me that it was an effort to dissuade people from getting care, not an effort to help people make the best decision for them,” Hinkle said.
Jazil acknowledged that the forms “were inartful” and said the Board of Osteopathic Medicine and Board of Medicine are working on revisions to what were emergency rules.
But Hinkle continued to push, noting that part of the form provides information about a drug that is not used in the United States.
Hinkle in June issued a preliminary injunction against the part of the law preventing puberty blockers and hormone therapy for minors, with the injunction applying to minors who are plaintiffs in the lawsuit. The state has appealed the decision. Hinkle in October also certified a class action in the lawsuit on behalf of transgender children and adults.
The judge on Thursday repeatedly questioned the decision by state leaders to prohibit treatment rather than slow down the process before ordering puberty blockers or hormone therapy for children. The federal government defines gender dysphoria as “significant distress that a person may feel when sex or gender assigned at birth is not the same as their identity.”
“Can you cite any other treatment in Florida where there is a benefit for some patients that is outright banned?” Hinkle asked Jazil.
“No, I can’t, your honor,” Jazil responded.
Hinkle did not rule from the bench Thursday but said he would try to deliver an opinion “as quick as I can.”
Leave a Reply
