Judge Blocks Federal Gender Identity Rule

By Jim Saunders, The News Service of Florida

A federal judge Wednesday blocked a new Biden administration health-care rule that would clash with Florida’s attempts to restrict treatments such as hormone therapy and puberty blockers for transgender people.

Tampa-based U.S. District Judge William Jung issued a 50-page decision granting a preliminary injunction to prevent the rule from taking effect in Florida. He wrote that Florida has “shown that it faces an imminent injury,” with plaintiffs including the state Agency for Health Care Administration, which runs the Medicaid program, and the state Department of Management Services, which manages the state-employee health insurance program.

“The plaintiff agencies and the healthcare providers they regulate must either clearly violate Florida law, or clearly violate the new rule,” Jung wrote.

The rule, which was scheduled to take effect Friday, is designed to help carry out a federal law that prevents discrimination in health-care programs that receive federal money. The law prevents discrimination based on “sex,” and the rule would apply that to include discrimination based on gender identity.

The state filed the lawsuit against the U.S. Department of Health and Human Services and the federal Centers for Medicare & Medicaid Services on May 6, shortly after the rule was finalized.

Meanwhile, a Mississippi federal judge on Wednesday also issued a preliminary injunction against the rule in a lawsuit filed by Tennessee, Mississippi, Alabama, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Virginia and West Virginia. That injunction is nationwide, while Jung’s decision was limited to Florida.

The rule and the legal battles have come after Florida and other Republican-controlled states in recent years have made controversial decisions to prevent or restrict treatments for transgender people diagnosed with gender dysphoria. That has included barring Medicaid coverage for treatments such as hormone therapy and puberty blockers and preventing the treatments for minors.

Florida has contended in its lawsuit that the rule improperly seeks to override restrictions on the treatments and would threaten lost money for the state and managed-care plans that help operate state health-care programs.

But in a brief filed last month, U.S. Department of Justice attorneys argued that the lawsuit is “premised on several misapprehensions” about the rule and said the preliminary-injunction motion should be rejected.

The brief said, for example, the rule “does not set a standard of care or require the provision of any particular service. Nothing in the rule overrides a clinician’s medical judgment as to whether a service is medically necessary or appropriate for any patient.”

But Jung wrote, for example, that the rule would require the Department of Management Services to “alter its policy against reimbursing managed care plan members for sex-change treatments.”

“This is not possible because DMS (the department) cannot amend its self-funded insurance plan without permission from the Florida Legislature, which is not in session and which has previously barred payment of tax dollars for gender transition treatment,” Jung wrote. “DMS will clearly suffer irreparable harm if the rule is not stayed.”

Jung also cited rulings by the 11th U.S. Circuit Court of Appeals in cases about gender identity, including a 2022 decision that upheld a St. Johns County School Board policy that prevented a transgender male student from using boys’ bathrooms at a high school. The Atlanta-based appeals court hears cases from Florida, Georgia and Alabama.

The appeals court said the bathroom policy did not violate Title IX, a federal law that prevents discrimination based on sex in education programs. The new health-care rule is linked to an interpretation of sex discrimination under Title IX, Jung wrote.

“The final rule is stillborn and a nullity if Title IX does not prohibit discrimination on the basis of ‘gender identity,’” Jung wrote. “The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity. … Frankly, this ends the issue — the new rule appears to be a dead letter in the Eleventh Circuit.”

Florida Attorney General Ashley Moody also has joined Alabama, Georgia and South Carolina in challenging a new Biden administration rule on sex-based discrimination in education programs. That lawsuit alleges, in part, that the Biden administration has overstepped its legal authority in extending regulations to apply to discrimination based on sexual orientation and gender identity.

An Alabama federal judge held a hearing Monday in the education case but had not issued a ruling as of Wednesday evening on the states’ request for a preliminary injunction, according to an online docket.