Florida Gets Appeals Court Go-Ahead to Enforce Trans Care Rules

Florida has made a strong showing that it will win a lawsuit over two anti-transgender health-care provisions that LGBTQ+ advocates say are unconstitutional, a federal court said, allowing the state to enforce them while the case is on appeal.

Circuit precedent holding that a rational basis standard of review must be applied to determine the constitutionality of a similar Alabama gender-affirming care ban for minors controlled this case, two judges of the US Court of Appeals for the Eleventh Circuit said Monday. A lower federal court wrongly held the provision subject to intermediate scrutiny review based on the conclusion that lawmakers acted with animus toward transgender people, they said.

Even if the animus decision were correct, “heightened scrutiny under the Equal Protection Clause does not apply to invidious discrimination based on a non-suspect class, and ‘[n]either the Supreme Court nor this court has recognized transgender status as a quasi-suspect class,’” Judges Britt C. Grant and Robert J. Luck said in an opinion designated as signed “by the court.”

Judge Robert L. Hinkle, of the US District Court for the Northern District of Florida, was the second trial judge to permanently halt a state’s gender-affirming care ban for minors, following the US District Court for the Eastern District of Arkansas over a year ago. The US Court of Appeals for the Eighth Circuit is the only appeals court so far to hear arguments on the merits.

Twenty-six states now ban gender-affirming care for minors, including Arizona and New Hampshire, which ban only surgery, according to the Movement Advancement Project. The US Supreme Court has granted review of whether these laws violate the 14th Amendment’s equal protection clause.

A regulation that imposes physician-only prescribing and informed consent requirements on adults who receive gender dysphoria treatments is also at issue in the Eleventh Circuit.

Judge Charles R. Wilson dissented, calling Hinkle’s decision “well-reasoned.” The district judge appropriately recognized the presumption of legislative good faith, but found sufficient evidence to support his conclusion that the provisions’ passage “was based on invidious discrimination against transgender adults and minors,” Wilson said.

The National Center for Lesbian Rights, Southern Legal Counsel Inc., GLBTQ Legal Advocates & Defenders, Lowenstein Sandler LLP, Sidley Austin LLP, the Human Rights Campaign Foundation, and Greenberg Traurig LLP represent the plaintiffs. Holtzman Vogel Baran Torchinsky & Josefiak PLLC and the Florida Attorney General’s Office represent the state defendants.

The case is Doe v. Surgeon Gen. of Fla., 11th Cir., No. 24-11996, 8/26/24.