By Dara Kam ©2023 The News Service of Florida
TALLAHASSEE — A federal judge on Friday refused to block a new Florida law making it more difficult for transgender adults to access hormone therapy and surgeries.
But U.S. District Judge Robert Hinkle said he could issue a narrowly tailored injunction to ensure care for individual plaintiffs if they provide detailed medical records.
The law, passed by the Republican-controlled Legislature this spring and championed by Gov. Ron DeSantis, requires patients diagnosed with gender dysphoria to sign informed-consent forms crafted by state medical boards. Also under the law, only physicians — not nurse practitioners — are allowed to order hormone therapy. In addition, the law bans the use of telehealth for new prescriptions.
The law (SB 254) also barred doctors from ordering gender-affirming care for children but allowed minors already receiving such treatment to continue under certain conditions.
Parents of transgender children filed a lawsuit challenging the restrictions, and Hinkle in June blocked a ban on the use of puberty blockers and hormones to treat children diagnosed with gender dysphoria, calling the prohibition “an exercise in politics, not good medicine.” The state is appealing Hinkle’s ruling.
The lawsuit was revised in July to add several adults as plaintiffs. It contends the new restrictions on adults have erected “unnecessary barriers” to care and imposed “medically unsupported requirements” on trans people. The lawsuit alleges that the law and resulting rules adopted by the state Board of Medicine and the Board of Osteopathic Medicine have created a “crisis of availability of care” for trans adults.
Hinkle held a two-hour hearing Friday on the plaintiffs’ motion for a preliminary injunction to block portions of the law dealing with trans adults and on a request for class-action certification.
The informed-consent forms have “resulted in the termination of care for transgender adults, including the cancellation of surgeries, and also including the termination of hormone therapy, including for transgender adults who’ve been on treatment for many years,” Jennifer Levi, an attorney for the plaintiffs, told the judge.
The consent forms approved by the medical boards last month, in part, say “medical treatment of people with gender dysphoria is based on very limited, poor-quality research with only subtle improvements seen in some patients’ psychological functioning in some, but not all, research studies.” Plaintiffs contend the forms are misleading and contain incorrect and irrelevant information.
Hinkle acknowledged that the forms lacked clarity.
“You would be hard-pressed to do a worse job drafting a form that is intended to have a person understand it and get informed consent. I grant you, the form is just abysmally drafted,” the judge said.
Mohammad Jazil, an attorney who represents the state, conceded that the forms “are perhaps inartfully drafted … but they are emergency rules.”
“If somebody is really trying to communicate with patients, this is not how they do it,” Hinkle pushed back. “And I’ll just tell you … one of the questions I’ll have for you at the trial is, why shouldn’t I infer from that form that the goal was not to inform and get honest consent, the goal was to discourage people? … Why are you doing this?
It seems to me those forms cut against the state pretty strongly.”
Hinkle asked Levi “what irreparable harm” plaintiffs would suffer if he did not block the law in the run-up to a trial slated to begin Nov. 13.
“Patients are suffering significantly,” Levi said, arguing that some plaintiffs’ surgeries have been canceled and other plaintiffs have run out of testosterone or estrogen.
Hinkle noted that the law does not block doctors from performing surgeries.
“I understand that clinics are closing in the state, and the Legislature managed to shut down some gender clinics. But I’m not going to enter an order that changes that,” he said.
Defending the requirement that doctors, not nurse practitioners, order hormone treatment, Jazil argued that “there’s a lot of unknowns” in the treatment of transgender patients.
“Where do you draw the line, and who gets to draw that line, is something that the state is entitled to figure out,” Jazil said. “Caution truly remains the watchword, and if caution’s the watchword, then the state should be able to upgrade the level of care that’s being provided.”
Florida is among a number of GOP-led states taking steps to ban gender-affirming care for children. DeSantis, who is running for president, has elevated the issue, frequently boasting of the state’s efforts to end what he often calls “child mutilation.”
The DeSantis administration last year also prohibited Medicaid reimbursement for gender-affirming care for children and adults. Hinkle has ruled that the prohibition is unconstitutional, but the state is appealing the decision.
Hinkle on Friday said that plaintiffs in lawsuits challenging bans in various parts of the country have prevailed at the district-court level, but a number of appeals are ongoing — including one that could complicate the legal challenge in Florida.
A three-judge panel of the 11th U.S. Circuit Court of Appeals last week unanimously upheld an Alabama law banning gender-affirming care for minors, overturning a district judge’s ruling. At least three other circuits also are considering appeals. The 11th Circuit hears cases from Florida.
“It’s a little bit of an odd situation. You’ve now got the (11th) circuit decision, and frankly one thing that occurs to me is that it would be better just to lock arms for a while and see what happens in the circuit,” Hinkle said.
But Florida’s restrictions on adults go further than other state laws that centered on care for children, Levi argued. She said evidence showed that Florida intended to discourage people — including adults — from being transgender.
Hinkle did not rule on the class-action certification Friday, and said he would not enter an injunction to block the telehealth restriction or the physician requirement in the law.
“Here’s part of the concern. You’ve heard me say again and again, the state comes in and says they’re doing what they do in Europe. Well, they’re not. European countries have not banned the treatment. But it is true that some doctors, some professionals, some European countries, some state governments have concerns about whether this treatment is being prescribed too haphazardly. At the preliminary injunction stage, I’m not going to sign off or order the state to get out of the way so that somebody can get haphazard treatment,” Hinkle said.
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