Doe v. Surgeon General, State of Florida

Gender Affirming CareEqual ProtectionTrans HealthcareDue ProcessParental RightsFourteenth AmendmentTrans YouthFlorida11th Circuit

Aug 27

Written By Mack Karbon

Eleventh Circuit Court of Appeals

On appeal from the U.S. District Court for the Northern District of Florida

Case No. 4:23cv114-RH-MAF (then-titled Doe v. Lapado, District Court)
Case No. 24-11996 (11th Circuit)

STATUS: ONGOING

UPDATE: In a devastating turn of events, on August 26, 2024, a three-judge panel on the Eleventh Circuit Court of Appeals issued a stay of the district court’s recent landmark decision striking down Florida’s trans healthcare ban. The ban went into effect immediately after the ruling, leaving countless trans Floridians without access to gender-affirming care.

The appellate court heard oral arguments in this case on January 15, 2025. Access the recording here.

BACKGROUND

In 2023, Florida passed S.B. 254 and related Boards of Medicine rules banning puberty blockers and hormone therapy for transgender youth. For youth that were already undergoing hormone therapy, the law required excessive medical interventions such as X-rays, in-person appointments, and unnecessary laboratory testing in order to continue receiving care. The law also threatened to suspend the medical licenses of health care professionals that provided banned treatment to youth, and even restricted who could provide medical care to just physicians.

Florida Governor Ron DeSantis signed the law in May 2023 as part of a number of bills restricting LGBTQ+ rights that he enacted while campaigning to be the Republican presidential nominee.

••••••

Early Proceedings

Two classes of transgender plaintiffs, minors and adults, brought a suit challenging the law. They argued that (1) the law deprived plaintiffs of their rights to substantive due process under the Fourteenth Amendment; and (2) the law violated plaintiffs’ rights to Equal Protection under the Fourteenth Amendment.

In June of 2023, District Court Judge Robert Hinkle issued an order temporarily blocking the state from enforcing provisions of the law affecting trans minors. In the decision, Judge Hinkle concluded that Florida’s legal guidelines were partly to discourage “individuals from pursuing their honest gender identities,” and that “gender identity is real.” He declined, however, to enjoin the state from enforcing the law’s provisions affecting trans adults.

District Court Decision

In a huge and unexpected victory out of Florida, the district court on June 11, 2024, ruled that the Florida law was unconstitutional. In a beautifully penned, 105-page opinion, Judge Hinkle stated that “it is clear that anti-transgender animus motivated bill sponsors and at least a significant number of legislators.” He concluded that the state impermissibly interfered with the rights of trans youth and their parents, with guidance from medical professionals, to consider and, when appropriate, pursue gender-affirming care as treatment for gender dysphoria.

Judge Hinkley also balked at the law’s plainly unnecessary and unmedical roadblocks to adults receiving gender-affirming care. For instance, the law mandated that only physicians - not nurses, not pharmacists, and not anyone under a physician’s direction or supervision - can provide gender-affirming care to adult patients. This includes routine acts like administering an injection or filling a prescription. In the words of Judge Hinkley, this provision “is either extraordinarily poor statutory craftsmanship or an animus-based roadblock intended to reduce access to care.” Either way, it failed to withstand constitutional muster.

Within hours of the decision being announced, Governor DeSantis’s press secretary stated that the state had plans to appeal the decision. He said that the DeSantis administration disagrees “with the Court’s erroneous rulings on the law, on the facts, and on the science,” adding that “Florida will continue to fight to ensure children are not chemically or physically mutilated in the name of radical, new age gender ideology.”

Should the state decide to appeal, the case will go to the Eleventh Circuit Court of Appeals which, in May of 2024, issued a landmark decision requiring employers to provide healthcare coverage for gender-affirming care in employee healthcare plans.

Appeal to the Eleventh Circuit

On June 18, 2024, defendants-appellants made good on their promise and filed an appeal with the Eleventh Circuit Court of Appeals. Appellants’ opening brief explaining the bases for the appeal is due on July 29, 2024.

On July 17, 2024, defendants asked the appellate court to issue an stay of the district court decision “as soon as practicable.” If granted, this would mean that the district court decision would be suspended and the Florida law would go into effect.

In their motion to stay, the defendants rely heavily on Eknes-Tucker, a 2023 case in which the 11th Circuit Court held that an Alabama statute that regulated hormone therapy as treatment for gender-dysphoria did not violate the Equal Protection Clause or the Fourteenth Amendment’s substantive due process clause, and did not discriminate on the basis of sex. The Court concluded that access to puberty blockers and hormone treatment is not a right that is “deeply rooted in our nation’s history and tradition,” giving states significant leeway to pass and enforce restrictive laws.

Injunction Pending Appeal

In a devastating turn of events, a three-judge panel on the Eleventh Circuit Court of Appeals, on August 26, 2024, issued a stay of the district court’s decision. The healthcare ban went into effect immediately, and countless trans Floridians have already been cut off from gender-affirming care.

The appellate court heard oral arguments in this case on January 15, 2025 (audio recording here).

Updates to follow.

————— What Will Happen on Appeal?

Setting aside President Trump’s nationwide prohibition on gender-affirming care for trans youth, federal appellate courts are split on the constitutionality of this kind of care. Unfortunately, the majority of courts presented with the issue have allowed gender-affirming care bans to go into effect.

On September 28, 2023, a split panel of judges on the Sixth Circuit allowed gender-affirming care bans in Kentucky and Tennessee to go into effect. Plaintiffs appealed the decision to the Supreme Court, which agreed to consider the case in its upcoming 2025 term. Oral arguments are expected in the fall. Read more here.

In February of 2024, the Seventh Circuit Court of Appeals issued a sua sponte (unrequested) stay order allowing Indiana’s gender-affirming care ban to take effect. Read more here.

More recently, on April 15, 2024, the Supreme Court temporarily revived an Idaho law banning gender-affirming care for trans youth, the first such intervention by the high court on the issue of trans healthcare. The partial stay allows the plaintiffs’ families to continue receiving care while the case proceeds on the merits before the Idaho District Court. Read more here.

The Eleventh Circuit’s record on trans issues offers more reason for concern. On August 15, 2024, the court granted en banc reconsideration of the appellate panel’s decision affirming a trans employee’s right to seek coverage for gender-affirming care through her employer's healthcare plan. That order also vacated the panel’s decision pending issuance of the full court’s decision. Still worse, the Eleventh Circuit has already upheld the constitutionality of an Alabama gender-affirming care ban, which the Court in Doe relied on heavily in its decision to grant the injunction.

The exception to this trend, for the time being, is the Eighth Circuit. In 2023, a panel of three Eighth Circuit judges ruled that an Arkansas law banning gender-affirming care for trans youth violated plaintiffs’ rights under the Equal Protection Clause, the Due Process Clauses, and the First Amendment of the U.S. Constitution. That ruling, however, is currently under reconsideration by the full court, which heard oral arguments on the issue on April 11, 2024. Read more here.

••••••

There is still reason for hope. To quote Judge Hinkley:

“In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice.”

— Judge Hinkley, Decision in Doe v. Lapado