Updates from the front lines in Florida (May 28, 2023)
MAY 28, 2023:
Hello again! I want to apologize for my delayed responses to everyone who has reached out over the past few weeks, I was in trial starting on May 9th for our case against the state challenging the discriminatory ban on Medicaid coverage of gender-affirming care (read more about the trial here: https://www.southernlegal.org/news/trial-challenging-floridas-ban-on-medicaid-coverage-for-gender-affirming-medical-care-for-transgender-floridians-comes-to-a-close), and, as I'm sure is true for all of us navigating these volatile and turbulent times, things have been a bit overwhelming. But the good news is, the reason I've been so busy and haven't slept in a month is because we are continuing to use federal litigation to challenge the FL government's multi-pronged attacks on trans rights and to hold the state actors accountable for their unapologetic campaign of discrimination.
My intent with this email is two-fold:
(1) Updating you on our legal challenges to SB 254, the Boards of Medicine Rules, and the Medicaid ban on gender-affirming care, including when we expect rulings on the various emergency motions, the trial, and next steps in the Boards of Medicine rule making process to implement SB 254's provisions.
(2) Providing an easily digestible analysis/breakdown of the new laws that passed on May 17th, including SB 254 (medical care bans), HB 1521 (bathroom ban), SB 1580 (medical conscience), and HB 1069 (expansion of don't say LGBTQ).
SECTION 1: UPDATES ON LEGAL CHALLENGES
Dekker v. Weida trial:
On Monday, we wrapped up a two-week federal trial challenging the state's categorical ban on coverage of gender-affirming care for all adults and minors who receive their healthcare through Florida's Medicaid program. The trial went exceptionally well, and we feel very strong about the case that we put on demonstrating that gender-affirming care is medically necessary, safe, effective, and evidence-based. We expect a ruling from Judge Hinkle soon.
** REMINDER - the state's attack on access to care for trans folks in Florida all started with this rule being promulgated by AHCA - the Agency for Healthcare Administration - which began on April 20, 2022. After AHCA determined that treatments for gender dysphoria were "experimental," that justification was relied upon by the Florida Boards of Medicine in promulgating their rules banning care for minors, and that same justification was also relied upon by the legislature in passing SB 254. Thus, the Dekker trial, through which we demonstrated to the Court that this care is not experimental, is critical to the challenges to the other discriminatory rules and laws as well).
** NOTE: On May 17th, the same day that Governor DeSantis signed SB 254 into law (which was mid-trial), I filed an Amended Complaint in Dekker, adding a challenge to Section (3) of SB 254, the provision that bans public funds from being expended on gender-affirming care in Florida.
Check out the press release here
Check out an article about the trial here
Doe v. Ladapo lawsuit:
In March, we sued the Surgeon General (Joseph Ladapo) and the Boards of Medicine and Osteopathic Medicine challenging the two discriminatory rules they promulgated banning the provision of gender-affirming care for minors.
In April, we filed a Motion for Preliminary Injunction (P.I.) asking the Court to block enforcement of the Boards of Medicine rules while our litigation proceeds.
On May 17, 2023, after Governor DeSantis signed SB 254 into law, I filed a Motion for Temporary Restraining Order (TRO) asking the Court to block enforcement of SB 254, sections 4-7, while our litigation proceeds (and also filed a Second Amended Complaint in Doe v. Ladapo challenging sections 4-7 of SB 254).
On May 19, 2023, we had oral argument in front of Judge Hinkle in the federal district court for the U.S. Northern District of Florida.
We await a ruling on the P.I. and TRO and hope to enjoin enforcement of the Boards of Medicine Rules and SB 254 while we move forward to trial in Doe v. Ladapo.
Check out press release for TRO challenging SB 254 here
Check out press release for P.I. challenging BoM rules here
Update: SB 254 requires that the Boards of Medicine and Osteopathic Medicine promulgate new emergency rules to implement the provisions banning or restricting access to gender-affirming medical care (see below for overview of SB 254). The Boards will be meeting on June 1, 2023, in Tampa to discuss the new rules implementing SB 254 and the required "informed consent" forms that are to create for treatment of gender dysphoria in Florida. You can find the agenda here, the FAR here, and the public book here (if you are interested in the contents of the 891 page public book published by the BoM in advance of the joint committee meeting, let me know and I can send you a chart I created analyzing/breaking down the contents).
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SECTION 2: OVERVIEW OF NEW LAWS
SB 254: Gender-Affirming Care Ban
See email below, dated May 5, 2023, for full analysis of the final version of the bill that passed and was signed into law by May 17th.
Reminders of key points:
DOES NOT allow the state/DCF/child welfare, etc., to investigate or remove transgender children from supportive parents or parents who allow them to access gender-affirming care, as SB 254 DOES NOT allow any state intervention of any kind;
The custody provision of SB 254 is ONLY applicable to existing out-of-state custody orders where the non-affirming parent brings the child to Florida and asks a court to take temporary emergency jurisdiction to modify the existing custody order to favor the non-affirming parent to "protect" the child from receiving gender-affirming care.
PROHIBITS doctors from prescribing puberty blocking medications or hormones to minors for the treatment of gender dysphoria if the minor had not yet been prescribed such medication(s) prior to the effective date of the law (5/17/23).
BUT DOES ALLOW continuation of care for adolescents who were already receiving puberty blocking medications or hormones prior to the effective date (5/17/23), as it contains a "grandfathering in clause" that allows continuity of care (just like the recently promulgated Boards of Medicine rules)
ALLOWS adults to continue on care and to obtain new prescriptions and surgeries as treatment for gender dysphoria as long as the informed consent process is followed by the physician (MD or DO);
If the initial time a medication was prescribed, the provider followed the informed consent process laid out by SB 254, the patient can continue to receive such care ("consent required under subsection (2) does not apply to renewals of prescriptions" as long as the physician "met the requirements for consent for the initial prescription or renewal")
The forms required for the initial informed consent process for new medications or surgery for an adult will be adopted by the Boards of Medicine (see above for info on June 1, 2023 BoM/BoOM meeting).
PROHIBITS all non-physicians (MDs/DOs) from prescribing any treatment for gender dysphoria - meaning APRNs, PAs, NPs cannot prescribe gender-affirming care to minors or adults in Florida.
DOES threaten healthcare providers who violate the above prohibitions/ requirements with penalties, including criminal and civil liability, but these penalties do not extend to parents seeking care for their children.
DOES NOT prohibit anyone from changing their legal name or gender marker, I have gotten this question a lot lately - there was originally a provision that would have prohibited folks from amending the gender marker on their FL birth certificates but that did not pass. Right now, there are no restrictions on amending your legal name and/or gender marker on any and all identification documents.
NOTE: We have already challenged sections (3) through (7) of SB 254 in federal lawsuits (including amending Dekker v. Weida to include a challenge to section (3), the ban on state funding being used for gender-affirming care; and amending Doe v. Ladapo to include a challenge to sections 4-7, which ban the provision of care to minors who had not yet started treatment; the criminal and civil penalties/liabilities associated with the provision of gender-affirming care; requiring in-person informed consent for adults and minors; and banning non-physicians from prescribing treatment for gender dysphoria) (links to these pleadings above in section 1).
HB 1521: Bathroom Ban ("Safety in private spaces act")
High level summary:
(A) Requires people to use the bathrooms and changing rooms aligned with their sex assigned at birth, but also requires all public facilities (including schools, colleges, detention facilities, and public buildings) to have a unisex (i.e. single user, gender-neutral) bathroom or changing room option;
(B) associated penalties are only enforceable if an employee of the facility asks you to leave and you refuse to do so.
Breakdown of provisions applicable across all sections:
APPLIES TO: bathrooms and changing facilities in correctional institutions and detention facilities (jails, including juvenile detention facilities), educational institutions (K-12 schools, colleges and universities), and public buildings (a building owned or leased by the state, a state agency, or a political subdivision).
"Changing facility" means a place where people may undress in front of each other, including dressing rooms, fitting rooms, locker rooms, changing rooms, and shower rooms.
"Restroom" means a room that includes one or more toilets or urinals.
DOES NOT APPLY TO:
Unisex restrooms (i.e. single user, all gender, non-gender bathrooms), which are defined as a bathroom "intended for a single occupant or a family, enclosed by floor-to-ceiling walls, and accessed by a full door with a lock that prevents others from entering while in use"
Unisex changing facilities (i.e. single user, all gender, non-gender changing facilities), which are defined as "a room intended for a single occupant or a family" where people may undress in front of each other, including dressing rooms, fitting rooms, locker rooms, changing rooms, and shower rooms that are "fully enclosed by floor-to-ceiling walls and accessed by a full door with a secure lock that prevents others from entering while changing facility is in use"
REQUIRES: that all entities (public places, schools, jails, etc.) must have a restroom designated for exclusive use by females, a restroom designated for exclusive use by males, and a unisex restroom (this means it's now mandatory that there is always a bathroom that is unisex and that anyone can use with privacy); same goes for public changing rooms (all entities, including public places and schools, that have changing facilities, must have one for males, one for females, and one unisex that anyone can use with privacy).
** NOTE: While this bill is awful and represents an egregious infringement upon the rights of transgender, gender-nonconforming and non-binary people, this requirement will result in more single-user, safe, private bathrooms and changing rooms being available, which is something that many facilities sorely lack. Often I have to fight with school districts, for example, to compel them to create single-user bathroom options for my transgender clients in middle and high school who do not feel comfortable using the "gang-style" male or female bathrooms at school. Sex-segregated bathrooms also often create major safety and privacy risks for individuals who are incarcerated. This bill requires all schools, jails, and public buildings to have "unisex" single-user bathrooms, changing facilities, showers, etc., which is actually a small silver lining.
PROHIBITS: willfully entering a bathroom or changing facility designated for the "opposite sex" (defining "sex" as a person's sex assigned at birth, as determined by "sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth") and refusing to leave after being asked to leave by an employee of the facility.
Note: a prior iteration allowed anyone to ask a person to leave if they thought that the person was in the "wrong bathroom" but the final version that was signed into law only allows employees of the building to ask the person to leave - see below for more detail defining employees for the different types of facilities.)
Exceptions to the prohibition on entering a bathroom/changing facility "designated for the opposite sex":
to accompany a child under age 12 to the restroom, or to accompany an elderly person or person with disabilities into the restroom;
if the facility aligned with sex assigned at birth is out of order and there is no one in the facility aligned with your gender identity at the time you need to use it;
for custodial or maintenance purposes, or for law enforcement or governmental regulatory purposes;
to render emergency medical assistance or intervene in an emergency situation where a person's health or safety are at risk.
K-12 Schools and Colleges/Universities (specific provisions):
How Applies to K-12 Students: Each K-12 educational institution shall establish within its code of conduct a disciplinary procedure for students who "willfully enter" restrooms or changing facilities designed for "the opposite sex" and "refuse to depart when asked to do so" by an instructional or administrative personnel or a safe-school officer;
** NOTE: There is no requirement that an instructional or administrative personnel (i.e. teacher or staff) must ask a student to leave or must prohibit a student from using bathroom aligned with their gender identity, meaning kids who are at affirming schools with affirming staff may not experience any changes or issues under this new law. The requirement is that the school has a "disciplinary procedure" in place for if a teacher/staff does ask a student to leave a bathroom that is not aligned with their sex assigned at birth and the student refuses to do so. Further, most schools don't have staff posted up outside every bathroom on school campus to police who enters each bathroom.
How Applies to College Students: Each postsecondary institution (colleges, universities) shall establish within code of conduct a disciplinary procedure for students who "willfully enter" restrooms or changing facilities designed for "the opposite sex" and "refuse to depart when asked to do so" by an administrative personnel, faculty member, security personnel, or law enforcement personnel.
** NOTE: Again, there is no requirement that an administrative personnel, faculty, security, or law enforcement must ask a student to leave or must prohibit a student from using the bathroom aligned with their gender identity. Also, most colleges/universities don't have staff members posted up outside of every bathroom on campus to police who enters each bathroom.
How Applies to K-12 Teachers/Staff: If K-12 teachers or administrative staff willfully enter restrooms or changing facilities designated for "the opposite sex" while at an educational institution and refuse to depart when asked to do so by another teacher or admin staff, they violate the Principles of Professional Conduct for the Education Profession and can be subjected to discipline.
How Applies to College Faculty/Staff: If university/college personnel willfully enter a bathroom or changing facility designated for "the opposite sex" while at an educational institution and refuse to depart when asked to do so by another staff member, they are subject to disciplinary actions established in State Board of Education rules or Board of Governors regulations.
These rules/regulations are to be created/adopted by January 1, 2024.
How Applies to Non-Students/Non-Teachers: Any non-student/non-teacher who willfully enters a bathroom or changing facility designated for "the opposite sex" while at an educational institution and refuses to depart when asked to do so by staff, teachers, or admin personnel can be charged with the offense of trespass (does not apply to students or staff of the educational institution). Trespass is a misdemeanor (Fla. Stat. 810.08).
NOTE: Reminder that none of these prohibitions in any context apply in the exceptions listed above:
(a) to accompany a child under age 12 to the restroom, or to accompany an elderly person or person with disabilities into the restroom; (b) if the facility aligned with sex assigned at birth is out of order and there is no one in the facility aligned with your gender identity at the time you need to use it; (c) for custodial or maintenance purposes, or for law enforcement or governmental regulatory purposes; or (d) to render emergency medical assistance or intervene in an emergency situation where a person's health or safety are at risk.
Timing of implementation: K-12 educational facilities and colleges/universities must submit documentation to the State Board of Education regarding "compliance with" the law... "no later than April 1, 2024."
Public Buildings (specific provisions):
How Applies to Employees of Public Buildings: For state buildings (owned or leased by the state, a state agency, or political subdivision), the applicable government entity for that building must establish disciplinary procedures for any employee of the government entity who willfully enters a restroom or changing facility designated for "the opposite sex" at such public building and refuses to depart when asked to do so by any other employee of the governmental entity.
No penalties exist yet, they are to be established by each governmental entity for each public building. These rules/regulations are to be created/adopted by January 1, 2024.
How Applies to Patrons/Visitors/Patrons of Public Buildings: Any person who who willfully enters a restroom or changing facility designated for "the opposite sex" at a public building and refuses to depart when asked to do so by an employee of the governmental entity for the public building that is within the government entity's jurisdiction, commits the offense of trespass. Trespass is a misdemeanor (Fla. Stat. 810.08).
Note: most public buildings do not have an employee of the government entity that owns the building stationed outside of all bathrooms at all times policing who enters the restroom.
Correctional Institutions / Detention Facilities / Juvenile Correctional Facilities or Juvenile Prisons (specific provisions):
Applies to: any state correctional institution or private correctional facility; juvenile correctional institution or prison; any detention center or facility designated by the Department of Juvenile Justice to provide secure detention; any facility used for a residential program; any county detention facility or municipal detention facility.
How applies to incarcerated individuals (including juveniles): All correctional institutions and detention facilities must establish disciplinary procedures for any prisoner who "willfully enters" a restroom or changing facility designated for the opposite sex on the premises of the correctional institution/detention facility and refuses to depart when asked to do so by an employee of the Dept of Corrections or an employee of the institution/facility
How applies to employees of correctional institutions & detention facilities (including juvenile facilities): If an employee "willfully enters" a restroom of changing room designated for the opposite sex on the premises of the correctional institution/detention facility and refuses to depart when asked to do so by another employee of the facility/institution, they are subject to disciplinary action by the managing entity of the detention facility or Department of Corrections.
How applies to non-incarcerated individuals and non-employees (i.e. visitors of correctional institutions & detention facilities, including juvenile facilities): If a person who isn't a prisoner or employee of the correctional institution or detention facility "willfully enters" a restroom of changing room designated for the opposite sex on the premises of the institution/facility and refuses to depart when asked to do so by an employee of the correctional institution/ detention facility, they commit the offense of trespass. Trespass is a misdemeanor (Fla. Stat. 810.08).
Timing of implementation: Correctional institutions and detention facilities must submit documentation to the Dept of Corrections or applicable governing body of the facility re: compliance with these provisions no later than April 1, 2024.
Complaints to the Attorney General:
Beginning July 1, 2024, a person may submit a complaint to the Attorney General if a covered entity fails to meet the minimum requirements for restrooms and changing facilities (i.e. if every school, college/university, and public space does not have a gender-neutral/unisex / single-user restroom and changing room option, folks can file a complaint about it - this could be used to our benefit to ensure all LGBTQ+ folks or others who desire increased privacy while using the bathroom/changing room have access to a single-user bathroom that feels safe to them.)
SB 1580: Medical Conscience Bill
ALLOWS health care providers and health care payors to "opt out of participation in or payment for" any health care service they have a "conscience-based objection" to based on their "sincerely held religious, moral, or ethical beliefs."
"Healthcare Payor" means any health insurer, employer, health are sharing organization, health plan, health maintenance organization, management services org, or any other entity that pays for or arranges for the payment of any health care service.
"Healthcare Provider" means any medical provider or entity licensed under the Florida Statutes governing physicians (MDs/DOs), mental health, nursing, chiropractic medicine, pharmacy, dentistry, optometry, naturopathy, podiatric medicine, midwifery, nursing homes and health facilities, speech-language pathology, occupational therapy, respiratory therapy, electrolysis, massage therapy, health testing services, physical therapy, psychological services or clinical counseling, hearing aid or optical devices, most health care providing facilities requiring licensure, etc., and any student enrolled in education institution seeking to become health care provider.
REQUIRES that the health care provider - at the time of the conscience-based objection - provide written notice of the objection to their supervisor or employer and document the objection to the particular health care service in the patients' medical file
The right of medical conscience is limited to conscience-based objections to a specific health care service. (Cannot broadly just refuse to provide care/treatment to a patient, the provider must explain the specific health care service they object to).
REQUIRES that before the patient schedules an appointment with the provider, the provider must notify the patient that they do not provide such health service.
PROHIBITS a health care provider or payor from opting out of providing health care services to any patient or potential patient because of that patient's or potential patient's race, color, religion, sex, or national origin.
PROHIBITS a health care payor from declining to pay for a health care service it is contractually obligated to cover during the plan year.
Protects health care providers and health care payors from "being discriminated against" or "suffering any adverse action" due to their conscience-based objections, protects them in whistleblowing on others who may violate this section, protects them in disclosing information to state agencies that constitutes a violation by someone else of any laws, rules, or ethical guidelines or a treatment that would put a patient at risk.
REQUIRES the provision of emergency medical treatment in accordance with state law or the Emergency Medical Treatment and Active Labor Act.
The conscience-based objection protections do not allow a health care provider to forego providing emergency medical treatment for any reason, including a sincerely held religious or conscience-based objection.
So if a health care provider had a conscience-based objection to the specific treatments that transgender people may receive, they can provide a written objection to prescribing puberty blockers, hormones, performing gender-affirming surgery, etc., but they cannot deny a transgender person, or anyone else, emergency medical treatment.
HB 1069: Don't Say LGBTQ+ Expansion
How the new law expands beyond HB 1557:
REDEFINES "sex" for purposes of the Florida K-20 education code to mean male or female based on the "organization of the body of such person for a specific reproductive role, as indicated by the person's sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth."
PROHIBITS public K-12 schools from requiring their employees, contractors, or students to refer to another person using that person's preferred pronouns if the preferred pronouns don't align with the person's sex assigned at birth.
** NOTE: this has been misinterpreted to mean teachers are prohibited from using students' affirmed/preferred pronouns, and students are prohibited from using teachers' affirmed/preferred pronouns - this is not the case - rather the school cannot force teachers, staff or students to use other peoples' affirmed/preferred pronouns.
PROHIBITS employees or contractors of public K-12 schools from telling students their affirmed/preferred pronouns if they don't align with the person's sex assigned at birth.
PROHIBITS employees or contractors of public K-12 schools from asking students their preferred pronouns
EXPANDS the former HB 1557's prohibition on "classroom instruction on sexual orientation or gender identity" from K through 3 to pre-K through 8th grade. And requires such instruction in grades 9-12 to be "age-appropriate or developmentally appropriate" in accordance with state standards. This section now applies to chart schools.
Note: a recent rule promulgated by the Florida Board of Education extended this to K-12 and adopted rules that threaten to revoke the license of teachers who violate the law.
Note: despite HB 1557 going into effect July 1, 2022, there are still no definitions provided by the state for the vague and ambiguous terms used in the original iteration and this expansion - including the terms “classroom instruction,” “sexual orientation,” and “gender identity”
REQUIRES all materials used to teach reproductive health or any disease (HIV/AIDS, etc.) to be approved by the department (rather than the district school board).
REQUIRES all sexual education / health education to "classify males and females" according to new draconian and discriminatory definition of sex (see above) and requires teaching that "biological males impregnate biological females by fertilizing the female egg with male sperm" and then "the female gestates the offspring" and "these reproductive roles are binary, stable, and unchangeable." And requires Department of Education approve all materials used for instruction under this section.
EXPANDS language about oversight of and approval of all instructional materials to specifically include "classroom libraries" in addition to school libraries.
REQUIRES all district school boards to adopt policies regarding parents' or residents' objections to any material, including through an objection form created by the State Board of Education. Also includes that any parent or resident must have opportunity to proffer evidence to the district school board about any material that "depicts or describes sexual conduct" (expands from prior iteration which said material that was "pornographic"). Requires that any material subject to an objection that it describes or depicts sexual conduct must be removed within 5 school days of receipt of the objection and remain unavailable to students until objection is resolved.
EXPANDS use of special magistrate process - now allows any parent who disagrees with a determination made by the school district on an objection to specific material to request the Commissioner of Education to appoint a special magistrate; then the State Board of Education can approve or reject the recommendation of the special magistrate at its next meeting. The costs of the special magistrate process must be borne by the school district.
EXPANDS process for developing library media center collections and book selection to also include classroom libraries; and requires all elementary school teachers to post their classroom libraries online; and requires each district to adopt and publish on its website a process for a parent to limit their child's access to materials in the school or classroom library.
SECTION 3: CLOSING THOUGHTS
I know this is a lot of information, and I know it comes during a time when it feels we are being pummeled with never-ending relentless bad news.
I attempted to provide accurate, high-quality information about the real implications and effects of the new laws created by these bills, but in a way that highlights the portions of these bills that provide some degree of protection or even a silver lining (as with the bathroom bill requiring all public facilities to have gender-neutral, single-user bathrooms that - for some people - feel more safe than traditional gang-style bathrooms). I want to be very clear that I am in no way minimizing the impact of these laws, nor suggesting they are not a cause for outrage, fear, anger, or any other valid emotions folks may be feeling. I have found that when we only focus on the negative, it's easy to slip into feeling hopeless and overwhelmed, and that is not what I want for any of my clients, colleagues, friends, the youth I advocate for, the parents of trans youth across the state, nor anyone else who may be consuming the information that I share. I try to strike this balance to ensure folks are adequately & accurately informed and armed with knowledge to self-advocate, but not feeling hopeless, alone, or overwhelmed.
I also want to make sure folks know that we are fighting, on every front, to enjoin, block, and overturn these draconian laws and policies. You may not be able to see everything we're doing behind the scenes, and I rarely have time to post on social media about all of the federal litigation against the state of Florida challenging these discriminatory measures, all of the on-the-ground advocacy on behalf of transgender youth and adults, all of the collaborations with brilliant and courageous medical providers and civil rights lawyers across the country, the battles we are fighting around the clock both large and small, but I assure you - we are fighting. And we will continue to fight. We can do hard things, even seemingly impossible things, when we work together and support one another.
As always, feel free to reach out to me at simone.chriss@southernlegal.org if you have questions, and I will do my best to get back to you. Again, I appreciate your patience and understanding as I juggle an inordinate amount of work and rapidly evolving federal litigation, but I do my best to answer each and every question I receive from folks in need of assistance or guidance. [For about the past 2 weeks, a not-insignificant number of people have been unable to receive my emails from my SLC email account, it's been wildly inconvenient and I am working through that issue and trying to resolve it, but if you haven't been receiving emails from me, I apologize - I am not notified on my end when it happens, so it's very hard to gauge who is and isn't receiving them].
In solidarity,
Simone Chriss, Esq.
Director of Transgender Rights Initiative
Southern Legal Counsel, Inc.
1229 NW 12th Ave.
Gainesville, FL 32601
simone.chriss@southernlegal.org
Pronouns: she/her/hers
(352) 271-8890 (phone)
(352) 271-8347 (fax)
http://www.southernlegal.org
Recipient of National LGBTQ+ Bar Association's
"40 Best LGBTQ+ Lawyers Under 40" Award
Notice: If you are not the intended recipient of this message, please immediately delete it and notify the sender. This message is confidential and may be covered by the attorney work-product and/or attorney-client privilege. The inadvertent misdirection of this message does not waive these privileges.
EMAIL UPDATE FROM MAY 5, 2023:
Hey folks, I wanted to share a few quick updates, as I know everyone is concerned and upset about the passage of SB 254 (and the other draconian laws and policies being pushed relentlessly by the Florida legislature and agencies). If you have reached out and I haven't gotten back to you yet, please know I am trying my best but the volume of emails, texts, and calls is immense and we're also litigating these issues in federal court through various lawsuits, and preparing for trial, so please know I will get back to you one on one as soon as I'm able!
In the meantime, here is the quick bullet point overview of the iteration of the bill that actually passed the legislature yesterday and is headed to the Governor's desk for filing:
It DOES NOT allow the state to take children away from affirming parents or to investigate affirming parents or anything of the sort (** more details below)
It DOES NOT kick transgender adolescents off of their treatment if they are currently on blockers or hormones (and it no longer has the "detransition" clause that required getting off the medications by Dec. 31, 2023 - it "grandfathers in" any adolescent already receiving affirming treatment prior to effective date, just like the Board of Medicine rules - more details below)
It DOES NOT ban tele-health (it simply requires that the first time a new medication is prescribed, it must be in person and include "informed consent" - more details below)
It DOES NOT ban private health insurance from covering treatment for gender dysphoria
It DOES NOT ban physicians from referring patients out of state for treatment (previously it contained a clause that providers/facilities must sign an attestation that they do not provide gender-affirming care to anyone under 18 or refer said patients to other providers, that provision is not in the final version of the bill)
It DOES NOT require physicians to maintain "professional liability coverage" in certain amounts (which the original iteration of the house bill did, and that would have created a major financial hardship for some providers)
It DOES NOT ban amending the gender marker on a Florida birth certificate to match your affirmed, authentic gender (previous version banned birth certificate amendments, that provision did not make it into the final bill - *see below for more information)
It DOES allow a family law court in Florida to modify an existing custody order between two legal parents of a transgender child if the non-affirming parent asks a Florida court (which is not the home court, meaning not the court that granted the divorce and entered the custody order) to take "temporary emergency jurisdiction" (over the case, NOT the child) to modify the custody agreement to favor the non-affirming parent. (** See below for more details)
It DOES codify the existing Boards of Medicine and Osteopathic Medicine rules that prohibit trans minors from starting blockers or hormones if they had not started that treatment already prior to the effective date of the bill (the day the Governor signs it, which could be any day) (note that we already challenged these rules in federal court, and we will also challenge SB 254's codification of these prohibitions through a TRO (temporary restraining order) as soon as possible).
It DOES include a felony penalty for any physician who violates this prohibition (i.e. a physician who "willfully or actively participates" in prescribing blockers or hormones for treatment of gender dysphoria to a minor who had not already been prescribed such medication)
It DOES ban any medical provider who is not an M.D. or a D.O. (a "physician") from prescribing treatments for gender dysphoria, thus effectively banning APRNs and NPs, etc., from treating transgender patients
It DOES prohibit state funds from being expended on gender-affirming care, including Medicaid (which we already have lawsuit challenging, and we go to trial next week), the state employee healthcare plans (which we already have a lawsuit challenging, it's at summary judgment), and any postsecondary educational institution or government entity.
It DOES require Informed Consent for transgender people over the age of 18 who are being prescribed a medication for the first time, or who are receiving a surgical procedure. The informed consent model is already followed by medical providers, so this is not a major change, but it does require that the FIRST TIME a new treatment is prescribed, the informed consent must be done in person (i.e. the first time something is prescribed it cannot be through tele-health, but it does not "ban" tele-health as some folks have worried it does, and the bill specifies the "consent requirement does not apply to renewals of prescriptions")
We are fighting to protect trans folks' right to access healthcare, parents of trans youth's rights to make medical decisions for their child, and medical providers rights to practice evidence-based medicine aligned with the standards of care for the treatment of gender dysphoria.
We go to trial next week on the Medicaid case, Dekker v. Weida, where over the course of a two to three week trial we will demonstrate to the federal court that gender-affirming care is not experimental, it is safe, effective, and medically necessary, and hopefully we will overturn/permanently enjoin the rule promulgated by AHCA banning coverage for gender-affirming care under Florida's Medicaid program.
We filed a preliminary injunction in our case Doe v. Ladapo to enjoin the Boards of Medicine and Osteopathic Medicine rules that went into effect in late March, and we hope to receive an order from the judge blocking those rules from being enforced in the next couple of weeks.
We are filing a TRO (temporary restraining order) asking the federal court to block SB 254 from going into effect once it is signed by the Governor (the provisions that prohibit minors from receiving gender-affirming care and criminalize doctors who provide such care, and potentially other provisions of SB 254 shortly thereafter)
** More details on CUSTODY provision: If you have not received my prior emails with the very thorough legal analysis of these provisions please let me know and I will send to you directly. The custody provision ONLY applies in the context of custody orders resulting from dissolution or marriage/divorce, and does NOT allow the state/DCF/child welfare/ etc. to take a child from their affirming parents, not does it deem gender-affirming care to be child abuse or anything of the sort. As I've said throughout, and as I've provided countless detailed analyses on, there is NO mechanism by which the state can remove children from supportive parents, investigate affirming parents, or criminalize affirming parents. The custody provisions created by SB 254 fall under Chapter 61, which governs dissolution of marriage and custody within that context (and specifically falls under the UCCJEA, which governs out of state custody orders); it does not fall under Chapter 39, which governs dependency (child welfare, foster care, DCF, child abuse/neglect, etc.). I am not minimizing the impact or the horrific nature of the law, it is absolutely disgusting that Florida has created a sort of "reverse safe haven" where non-affirming parents from other states can bring their children to try to get the court to "protect them from gender-affirming care" by entering a temporary custody order modifying the custody agreement entered by the home court. If you are someone who this may impact, and you have questions or concerns, please contact me and I will do anything I can to help.
* More details on Birth Certificate provision: The Bureau of Vital Statistics seemed to be holding applications to amend Florida birth certificates "hostage" (so to speak) while the legislation was pending that would have banned amending the gender marker on FL birth certificates (but that provision DID NOT make it into the version of the bill that passed yesterday). I have roughly a dozen clients who have sent their application materials and supporting documents to the bureau and were told they were "under legal review," sometimes for several months. Now that the bill has passed and it does not include a ban on amending birth certificates, the bureau should go ahead and process the amendments that are pending and folks who submitted those should receive the amended records in the next few weeks. Similarly, folks who need to amend their birth certificates can do so and they should have no trouble getting the amendment approved and receiving the updated certificate. If you have questions about how to navigate this process, please let me know, I can send you the application and affidavit that are required. In order to amend the legal name on a Florida birth certificate, you need to provide a certified copy of the court order for legal name change; in order to amend the gender marker on the Florida birth certificate, you need to provide a signed letter from you (or your trans child's) treating provider that says the person whose birth certificate is being amended has had "appropriate clinical treatment for gender transition." Again if you have any questions about any of this please let me know, I help folks navigate this process all the time. You can also visit the website I created to help folks navigate this process, www.floridanamechange.org, which walks you through all of the steps of the legal name and gender marker change processes.
Please keep the faith, I know it feels impossible during these dystopian times with the relentless assault on our rights, but I assure you will we get through this. We have the facts and the law on our side, and our positions are based in science and evidence, while the individuals promulgating these draconian laws' positions are based in fear and disinformation. We need to stick together and support each other through this. I assure you we will continue challenging these laws and policies, and holding the state accountable for these discriminatory measures.
