An appellate panel on Friday heard arguments in a lawsuit challenging the state鈥檚 ban on Medicaid coverage for transgender people seeking hormone therapy and puberty blockers.
Lawyers for Gov. Ron DeSantis鈥� administration last year appealed a decision by U.S. District Judge Robert Hinkle, who found the prohibition on Medicaid coverage for transgender individuals鈥� treatments violated federal health-care laws and the U.S. Constitution鈥檚 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 鈥渢he state of Florida can choose not to reimburse for certain services specific to a medical condition,鈥� Mohammad Jazil, an attorney who represents the DeSantis administration, told a three-judge panel of the 11th U.S. Circuit Court of Appeals Friday morning.
鈥淲e believe the answer is yes, because the state鈥檚 exclusion belongs to anyone and everyone regardless of sex, gender identity, or a combination of those things, and the state鈥檚 medical policy choice is rational, legitimate, and even serves a compelling interest in ensuring that the services are safe and efficacious,鈥� 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.
鈥淭his is not a law that applies equally to everyone,鈥� Gonzalez-Pagan said. 鈥淎t the end of the day, this is a law that affects only transgender people.鈥�
The health agency adopted the Medicaid rule based on a report that concluded such treatment was 鈥渆xperimental鈥� and 鈥渘ot medically necessary,鈥� 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.
READ MORE: Trans treatment restrictions to continue as legal battles play out
Hinkle, who held a two-week trial in the case, called the state鈥檚 policy 鈥渋nvidious discrimination鈥� and found that the state only sought evidence to support a foregone decision to scrap the coverage.
The process 鈥渨as, from the outset, a biased effort to justify a predetermined outcome, not a fair analysis of the evidence,鈥� Hinkle wrote in a June 2023 ruling. 鈥淭he conclusion was not supported by the evidence and was contrary to generally accepted medical standards.鈥�
The state had no 鈥渞ational basis to categorically ban these treatments or to exclude them from the state鈥檚 Medicaid coverage,鈥� the judge said. 鈥淭he record includes no evidence that these treatments have caused substantial adverse clinical results in properly screened and treated patients.鈥�
Judge Kevin Newsom on Friday asked Jazil if there was evidence in the court record to uphold Hinkle鈥檚 finding of 鈥減urposeful discrimination鈥� with the rule and the law. The state鈥檚 lawyer said such proof was lacking.
鈥淲e have statements 鈥� from four legislators out of a 160-member body of the Florida Legislature and we鈥檙e saying that those four statements taken in isolation show that the entire legislature was intent on discriminating against individuals,鈥� Jazil said.
Judge Jill Pryor asked whether the state鈥檚 position about the restrictions was 鈥渞easonable.鈥�
Hinkle 鈥渨ent through extensive factual findings with regards to the risks that exist for both cisgender and transgender people鈥� and closely scrutinized clinical practice guidelines used by most medical associations throughout the country, Gonzalez-Pagan said.
鈥淚f there鈥檚 a mix of evidence 鈥� why isn鈥檛 the state, in effect, entitled to the benefit of the doubt?鈥� Newsom asked.
鈥淭he introduction of evidence, at the end of the day, is insufficient when that said evidence is not credible 鈥�,鈥� Gonzalez-Pagan said.
Pryor said Hinkle found 鈥渢he weight of the evidence鈥� 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鈥檚 determination that the treatments were not medically necessary was unreasonable.
鈥淭here鈥檚 clear, factual findings that, as to these plaintiffs, these treatments were effective and helpful and ultimately medically necessary,鈥� 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鈥檚 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 鈥渟ignificant distress that a person may feel when sex or gender assigned at birth is not the same as their identity.鈥�
Newsom on Friday also pressed the lawyers on the type of analysis the court should use to determine whether the state鈥檚 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 鈥減olitical powerlessness鈥� and 鈥渋mmutability鈥� could 鈥渃ut against鈥� the plaintiffs, Newsom said.
鈥淒o you think there鈥檚 a good case to be made that transgender individuals are politically powerless? I think that鈥檚 a hard case for you to make,鈥� the judge asked Gonzalez-Pagan.
The plaintiffs鈥� lawyer said that less than 1% of people nationally identify as transgender.
鈥淚n 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鈥檚 in health care, whether it鈥檚 in schools, whether it鈥檚 on their ability to use the restroom, whether they can use pronouns in their employment,鈥� Gonzalez-Pagan argued. 鈥淚 think it just (ill) behooves common sense to say that, in this day and age, starting here today, transgender people are somehow politically powerful.鈥�
But Newsom persisted, noting that President Joe Biden鈥檚 administration has issued policies aimed at protecting transgender student athletes.
鈥淎nd so from a nationwide perspective, I think someone could reasonably say, relative to this, to the less than 1% sort of overall population, they have outsized political influence,鈥� the judge said.
鈥淭he idea that there are some measures that have been passed that extend protections to people doesn鈥檛 negate the fact that they are politically powerless as a group,鈥� Gonzalez-Pagan replied.
