In a decision striking down a Florida law criminalizing treating transgender children with puberty blockers Federal District Judge Robert Hinkle used uncommonly harsh and powerful language. It’s a decision that should be read closely by the MAGAs who shout “follow the science” about this issue or claim that such laws conform with international norms. You can read the decision HERE.
Plaintiffs were parents of seven transgender children who sought care for their children that they, and their physicians, determined was in the best interest of their children. That care was criminalized by Florida’s law. Defendants were Florida state agencies implementing this law.
On The Scientific Reality of Transgenderism
I’ll be quoting a lot directly from the decision because its words are so strong. So let’s start with this.
The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear. The medical defendants, speaking through their attorneys, have admitted it. At least one defense expert also has admitted it. That expert is Dr. Stephen B. Levine, the only defense expert who has actually treated a significant number of transgender patients
Another interesting point gets made. While the defendants admitted transgenderism is real, many of their expert witnesses (other than Dr. Levine who treated such people), in other cases, said it was not.
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. And so, for example, one of the defendants’ experts, Dr. Paul Hruz, joined an amicus brief in another proceeding asserting transgender individuals have only a “false belief” in their gender identity—that they are maintaining a “charade” or “delusion.” Another defense expert, Dr.Patrick Lappert—a surgeon who has never performed gender-affirming surgery—said in a radio interview that gender-affirming care is a “lie,” a “moral violation,” a“huge evil,” and “diabolical.”
To say that such prior testimony undermined the credibility of those witnesses in the judge’s eyes is to be kind. The judge declared:
Any proponent of the challenged statute and rules should put up or shut up: do you acknowledge that there are individuals with actual gender identities opposite their natal sex, or do you not? Dog whistles ought not be tolerated.
In discussing the standards of care within the profession for this the judge repudiated demands we “follow the science.” Here is what the judge says about the science:
The overwhelming weight of medical authority supports treatment of transgender patients with GnRH agonists and cross-sex hormones in appropriate circumstances. Organizations who have formally recognized this include the American Academy of Pediatrics, American Academy of Child and Adolescent Psychiatry, American Academy of Family Physicians, American College ofObstetricians and Gynecologists, American College of Physicians, AmericanMedical Association, American Psychiatric Association, and at least a dozen more . . . as shown by this record, not a single reputable medical association has taken a contrary position.
Pro-tip. You might want to bookmark this article just for that list to throw in the face of those who say “follow the science.”
The plaintiffs claimed the Florida law violates the equal protection clause of the Constitution and the due process clause as it violates parental right to make healthcare decisions for their children. First the equal protection clause.
The Equal Protection Clause
The judge first has to decide which level of scrutiny is applicable. A brief primer is in order of three levels of scrutiny applicable to Constitutional challenges under Constitutional law and the equal protection clause.
- Strict Scrutiny: Applies when a direct Constitutional right is restricted (such as free speech). Under the equal protection clause it applies to racial distinctions in the law. It is the least deferential to the state and its application means the state law is likely to be found unconstitutional. Under it the state must have a compelling state interest at stake and the law must be narrowly tailored to meet that interest (e.g. yelling fire in a crowded theater).
- Intermediate scrutiny: The least applied of review standards. The Supreme Court has applied it to matters sex and gender distinctions in law. Under it the state must advance an important state interest and the restriction must be substantially related to the state interest. Under this standard separate treatment of men and women for bathrooms and certain military specialties have been upheld, while many other sexual treatment distinctions have not.
- Rational Basis Test: The most deferential to the state standard. The state statute need only advance a “legitimate state interest” and have a rational connection to that interest. Further, “legitimate state interest” is broadly defined by the state “police power” to advance the interests of health, welfare and morality in the state. It is under this broad grant (not given to the federal government) that state laws against things like gambling, prostitution and adultery have been upheld.
The judge in this case decides the intermediate standard applies as this is all about gender discrimination. However, the judge goes further to state that the Florida statute would fail even under the more favorable to the state rational basis test.
Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest. The medical defendants have acknowledged this.
The basis for the judge’s determination was simple. What was really going on here was the state’s “state’s disapproval of transgender status . . . This was purposeful discrimination against transgenders.” The judge noted that: “State action motivated by purposeful discrimination, even if otherwise lawful, violates the Equal Protection Clause.”
The Due Process Claim and Parental Rights
The parents argued that the law interfered with their due process rights, recognized by many court decisions, to make what they regard as the best healthcare decisions for their children. To be sure, this right is not absolute. When sufficient evidence establishes the parental decision would be harmful to their children it can be overruled. However, that sort of exception must be found. It is most often found when parents act against the determinations of treating physicians who believe a treatment is necessary (e.g. blood transfusion) but parents object based on religious beliefs.
However, in the cases before this court the parents, the child’s physicians, and the great weight medical authority described above were all in agreement with what was best for the child. The state sought to overturn that simply because of its bias against transgender people.
The state attempted to argue against the standard of care suggested by the medical organizations listed above claiming those organizations were biased and “pursued good politics, not good medicine.” The judge was particularly strong in responding to this.
If ever a pot called a kettle black, it is here. The statute and the rules were an exercise in politics, not good medicine. This is a politically fraught area. There has long been, and still is, substantial bigotry directed at transgender individuals
As an example of such bigotry the judge cited a Florida legislator’s quite personal attack on transgender witnesses who testified in opposition to the proposed legislation. You got to read this to believe it.
Representative Webster Barnaby said to transgender Florida citizens who spoke at the hearing that they were “mutants living among us on Planet Earth.” He raised his voice and said, “This is Planet Earth, where God created men, male and women, female!” He continued: “The Lord rebuke you Satan and all of your demons and imps that come parade before us. That’s right I called you demons and imps who come and parade before us and pretend that you are part of this world.” Finally, he said, you can “take him on” but he “promises he will win every time.”
Note, he lost this time. If you doubt this actually was said in a state legislature watch the video, jump to about the 2:30 mark.
www.myfloridahouse.gov/…
Just for the record, a legislative history that includes calling people, “mutants,” “demons and imps” is kind of hard to defend as rationally based.
In the end the judge cites the overwhelming array of healthcare professionals on this issue in rejecting the state claim that they are “woke.”
The overwhelming majority of doctors are dedicated professionals whose first goal is the safe and effective treatment of their patients. There is no reason to believe the doctors who adopted these standards were motivated by anything else.
While as the above quote from Representative Barnaby suggests, the state legislature was motivated by something else. Something very weird.
Florida’s “International Consensus” Argument
Florida argued that its ban simply joined an international consensus against such treatments. The judge basically branded that as a damn lie.
The defendants have asserted time and again that Florida now treats GnRH agonists and cross-sex hormones the same as European countries . . . The assertion is false. And no matter how many times the defendants say it, it will still be false. No country in Europe—or so far as shown by this record, anywhere in the world—entirely bans these treatments.
The judge acknowledges that some European nations restrict such treatments, but that each and everyone of the plaintiffs in this case would qualify for the treatments under those restrictions.
Had Florida truly joined the international consensus—making these treatments available in appropriate circumstances or in approved facilities—these plaintiffs would qualify, and the instant motions would not be necessary.
Of course, the judge did acknowledge that there were some nations where the defendants’ arguments would prevail.
To be sure, there are countries that ban gays and lesbians and probably transgender individuals, too. One doubts these treatments are available in Iran or other similarly repressive regimes.
Thus, Florida’s treatment of this matter is more similar to Iran, than Great Britain or Finland. The judge chooses to not make Florida another Iran.