Updates from the front lines in Florida (5.5.23)
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.