On June 6, 2023, the United States District Court for the Northern District of Florida issued a preliminary junction in Doe et al. v. Ladapo et al., Case No. 4:23-cv-114, enjoining the State of Florida from enforcing a statute and rules prohibiting doctors from treating transgender minors suffering from gender dysphoria with either (1) drugs that slow or stop the onset of puberty, known as GnRH agonists or “puberty blockers,” or (2) hormones.
The order, issued by Judge Robert L. Hinkle, takes pains to address the “elephant in the room” that “gender identity is real.” In that regard, Ladapo goes further than the Eighth Circuit’s recent opinion in Brandt v. Rutledge, 47 F.4th 661 (8th Cir. 2022), which affirmed a similar injunction against the State of Arkansas for banning certain treatments of gender dysphoria in minors.
On the other hand, the scope of the Ladapo injunction is very narrow. The plaintiffs requested that the Court enjoin the enforcement of the statute and rules during the pendency of the lawsuit; however, the Court instead enjoined the State – through the named official defendants – from enforcing the statute and rules only against the named plaintiffs or their parents or health care providers. The Court appears to have otherwise denied the plaintiffs’ requested injunction, opening the door to potential continued enforcement of the laws against other minors.
Background
At issue in Ladapo was SB 254, which imposes criminal, civil, and professional discipline liability on health care practitioners who treat gender dysphoria in minors with puberty blocking medications or hormone therapy. The Florida Legislature passed SB 254 on May 4, 2023, and Governor Ron DeSantis signed it into law on May 17, 2023. SB 254 was preceded by a categorical ban on treating minors with gender dysphoria, which the Florida Boards of Medicine and Osteopathic Medicine adopted in March 2023, and which was codified in Florida regulations.
On March 23, 2023, the Ladapo plaintiffs, who are transgender minors and their parents, filed a lawsuit challenging the constitutionality of the categorical ban in the regulations. They sought declaratory and injunctive relief for deprivation of substantive due process and equal protection under the Fourteenth Amendment. The plaintiffs brought the suit against Florida Surgeon General Joseph Ladapo, the Florida Boards of Medicine and Osteopathic Medicine, the Florida Attorney General, and each of Florida’s 20 state attorneys. On May 18, 2023, the plaintiffs amended the lawsuit to also challenge SB 254 on the same grounds.
The plaintiffs moved for a preliminary injunction and temporary restraining order regarding the enforcement of the regulations and SB 254 during the pendency of the lawsuit. The parties stipulated to the submission of the motions based on the written filings as well as the record from a separate case, Dekker v. Weida, No. 4:22-cv-325-RH-MAF, which concerns a challenge to Florida’s prohibition on Medicaid coverage for certain gender-affirming care. (The Dekker case recently concluded a bench trial and a ruling is expected to be issued soon.)
The Court’s order
In its order granting the plaintiffs’ motion for preliminary injunction, the Court begins by emphasizing that gender identity – that is, “a deeply felt internal sense of being male or female” – is real. The Court stated that even though some of the defendants and at least one expert admitted that gender identity is real, “there are those who believe that cisgender individuals properly adhere to their natal sex and that transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham.” (The Court refers to the sex assigned based on external sex characteristics and chromosomes as “natal sex.”) The Court also notes that “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.”
Turning to the plaintiffs’ substantive claims, the Court first analyzed whether banning puberty blockers and hormones violates the Fourteenth Amendment’s Equal Protection Clause. First, the Court found that intermediate scrutiny applies because the Statute and Rules discriminate on the basis of sex or transgender status. Additionally, the Court found that the Statute and the Rules would not likely survive the lower rational basis test. Thus, this supported the injunction.
The Court next turned to the plaintiffs’ argument regarding violation of the Due Process Clause of the Fourteenth Amendment because SB 254 and the regulations encroach upon a parent’s right to control a child’s medical treatment. While the Court noted that parents do not have a right to insist upon a treatment that is properly prohibited, that was not the case here because the laws were not likely to survive the rational basis test, let alone intermediate scrutiny. This argument also supported the injunction.
Having found that the plaintiffs were likely to prevail on their Equal Protection and Due Process claims at issue, the Court then summarized and rejected the defendants’ arguments, including that the hormonal treatments at issue are considered “low” or “very low” quality based on the medical evaluation methodology known as Grading of Recommendations, Assessment, Development, and Evaluation (GRADE). However, the Court noted that even accepting the premise, there was no (or very weak) evidence to the contrary. The defendants also argued that there are risks to treating minors with GnRH agonists and hormones. Nonetheless, the Court found that the fact that “there are risks does not end the inquiry.” The Court determined that the risks to the plaintiffs of not receiving treatment were immediate – one minor plaintiff was expected to begin puberty any day, at which time she would have been “outed” to her classmates who knew her as a girl. The Court further stated that risks attendant to treatment are usually weighed in consultation with a doctor and what “is remarkable about the challenged statute and rules is not that they address medical treatments with both risks and benefits but that they arrogate to the state the right to make the decision.”
Having found that the three plaintiffs had met their burden and that the defendants had not met theirs, the Court enjoined the individual defendants (other than the Attorney General) from enforcing the Statute or the Rules as to the three named plaintiffs, or their parents or health care providers. The Court otherwise denied the plaintiffs’ request for a preliminary injunction and/or temporary restraining order. But notwithstanding the narrow scope of the injunction, the Court’s order contains fairly strong language that may influence other courts’ decisions on similar bans. In addition, it is a strong indication that the Court will ultimately rule that both SB 254 and the regulations are unconstitutional.
Client Alert 2023-130
