Appellate court eyes Florida's restrictions on transgender care

TALLAHASSEE, Fla. - An appellate panel on Friday heard arguments in a lawsuit challenging the state’s ban on Medicaid coverage for transgender people seeking hormone therapy and puberty blockers.

Lawyers for Gov. Ron DeSantis’ administration last year appealed a decision by U.S. District Judge Robert Hinkle, who found the prohibition on Medicaid coverage for transgender individuals’ treatments violated federal health-care laws and the U.S. Constitution’s Equal Protection Clause.

The lawsuit, filed in 2022 on behalf of two transgender adults and the parents of two transgender minors, challenged a state Agency for Health Care Administration rule that barred coverage of hormone treatment and puberty blockers. The lawsuit was later updated to include a state law that similarly prevented Medicaid reimbursement for the treatments.

The case hinges on whether "the state of Florida can choose not to reimburse for certain services specific to a medical condition," Mohammad Jazil, an attorney who represents the DeSantis administration, told a three-judge panel of the 11th U.S. Circuit Court of Appeals on Friday morning.

"We believe the answer is yes, because the state’s exclusion belongs to anyone and everyone regardless of sex, gender identity, or a combination of those things, and the state’s medical policy choice is rational, legitimate, and even serves a compelling interest in ensuring that the services are safe and efficacious," Jazil, a lawyer with the Holtzman Vogel firm, argued.

But Omar Gonzalez-Pagan, who represents plaintiffs challenging the Medicaid restrictions, told the panel that the law discriminates against transgender people.

"This is not a law that applies equally to everyone," Gonzalez-Pagan said. "At the end of the day, this is a law that affects only transgender people."

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The health agency adopted the Medicaid rule based on a report that concluded such treatment was "experimental" and "not medically necessary," and thus did not meet the threshold for Medicaid coverage. The report was by researchers who oppose gender-affirming care. The Legislature enshrined the rule into law in 2023.

Hinkle, who held a two-week trial in the case, called the state’s policy "invidious discrimination" and found that the state only sought evidence to support a foregone decision to scrap the coverage.

The process "was, from the outset, a biased effort to justify a predetermined outcome, not a fair analysis of the evidence," Hinkle wrote in a June 2023 ruling. "The conclusion was not supported by the evidence and was contrary to generally accepted medical standards."

The state had no "rational basis to categorically ban these treatments or to exclude them from the state’s Medicaid coverage," the judge said. "The record includes no evidence that these treatments have caused substantial adverse clinical results in properly screened and treated patients."

Judge Kevin Newsom on Friday asked Jazil if there was evidence in the court record to uphold Hinkle’s finding of "purposeful discrimination" with the rule and the law. The state’s lawyer said such proof was lacking.

"We have statements … from four legislators out of a 160-member body of the Florida Legislature and we’re saying that those four statements taken in isolation show that the entire legislature was intent on discriminating against individuals," Jazil said.

Judge Jill Pryor asked whether the state’s position about the restrictions was "reasonable."

Hinkle "went through extensive factual findings with regards to the risks that exist for both cisgender and transgender people" and closely scrutinized clinical practice guidelines used by most medical associations throughout the country, Gonzalez-Pagan said.

"If there’s a mix of evidence … why isn’t the state, in effect, entitled to the benefit of the doubt?" Newsom asked.

"The introduction of evidence, at the end of the day, is insufficient when that said evidence is not credible …," Gonzalez-Pagan said.

Pryor said Hinkle found "the weight of the evidence" showed that the treatments were a medical necessity. The Medicaid program allows states to establish their own definition of medical necessity, she noted.

Gonzalez-Pagan, an attorney with Lambda Legal, said that the state’s determination that the treatments were not medically necessary was unreasonable.

"There’s clear, factual findings that, as to these plaintiffs, these treatments were effective and helpful and ultimately medically necessary," he said.

The Medicaid restrictions are among a number of actions DeSantis and many other Republican leaders across the country have taken targeting transgender people.

Hinkle’s decision in the Medicaid lawsuit largely mirrored a similar ruling he issued in a separate challenge to state restrictions on gender-affirming care for transgender children and adults. The federal government defines gender dysphoria clinically as "significant distress that a person may feel when sex or gender assigned at birth is not the same as their identity."

Newsom on Friday also pressed the lawyers on the type of analysis the court should use to determine whether the state’s restrictions unconstitutionally discriminate against transgender people. The judge pointed to a number of factors courts consider when determining what level of scrutiny to apply to challenged policies.

Factors such as "political powerlessness" and "immutability" could "cut against" the plaintiffs, Newsom said.

"Do you think there’s a good case to be made that transgender individuals are politically powerless? I think that’s a hard case for you to make," the judge asked Gonzalez-Pagan.

The plaintiffs’ lawyer said that less than 1 percent of people nationally identify as transgender.

"In just the last two years, this state has adopted over half-a-dozen statutes targeting transgender people for disparate treatment in some form, whether it’s in health care, whether it’s in schools, whether it’s on their ability to use the restroom, whether they can use pronouns in their employment," Gonzalez-Pagan argued. "I think it just (ill) behooves common sense to say that, in this day and age, starting here today, transgender people are somehow politically powerful."

But Newsom persisted, noting that President Joe Biden’s administration has issued policies aimed at protecting transgender student athletes.

"And so from a nationwide perspective, I think someone could reasonably say, relative to this, to the less than 1 percent sort of overall population, they have outsized political influence," the judge said.

"The idea that there are some measures that have been passed that extend protections to people doesn’t negate the fact that they are politically powerless as a group," Gonzalez-Pagan replied.

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