Republican Florida Gov. Ron DeSantis speaks at an annual Basque Fry at the Corley Ranch in Gardnerville, Nev., Saturday, June 17, 2023. (AP Photo/Andy Barron, File)
A federal judge in Florida struck down a key part of Ron DeSantis’s “war on woke” Tuesday when the court ruled that Florida could not restrict transgender medical care.
U.S. District Judge Robert L. Hinkle, a Bill Clinton appointee, penned a 105-page order that declared Florida’s 2023 law unconstitutional and across the voluminous document, the judge spared no opportunity to detail the discriminatory intent held by the lawmakers who adopted the statute.
DeSantis’ law and the courtroom challenge
Florida’s Republican governor signed SB 254 into law in May 2023. It banned medical care for transgender adolescents and restricted it for transgender adults. The law also barred doctors and nurses from prescribing or administering transition-related medication to those under 18 and exposed medical providers to criminal liability and professional discipline if they violated the statute’s restrictions.
Eleven plaintiffs — four transgender adults, and seven parents of transgender minors — filed suit against the Florida surgeon general, the state’s medical boards, and government officials, challenging the constitutionality of the law.
Last May, Hinkle issued a preliminary injunction protecting the continuing medical care of the seven transgender children at issue while the lawsuit made its way through the court.
‘Gender identity is real’
Tuesday’s ruling permanently blocks Florida from enforcing the law.
In his lengthy opinion, Hinkle reiterated that “gender identity is real,” and said that a “widely accepted standard of care” includes puberty blockers and hormone treatments that the statute would have banned.
Hinkle focused his opinion first on the basic concept of gender identity, explaining it in exceedingly basic terms.
“For more than 99% of people, the external sex characteristics and chromosomes — the determinants of what this order calls the person’s natal sex — match the person’s gender identity,” Hinkle said.
Hinkle next summed up the erroneous viewpoint that underlaid Florida’s statute: some believe that cisgender individuals “properly adhere to” their sex assigned at birth while transgender people “inappropriately” choose their gender identity, “just as one might choose whether to read Shakespeare or Grisham.”
“Many people with this view tend to disapprove all things transgender and so oppose medical care that supports a person’s transgender existence,” the judge explained.
Hinkle likened “denial that transgender identity is real” to racism and misogyny and noted that those who engage in such denial sometimes invoke religion to support their position, “just as some once invoked religion to support their racism or misogyny.”
‘Discrimination against transgender individuals will diminish’
“Transgender opponents are of course free to hold their beliefs,” allowed Hinkle. “But they are not free to discriminate against transgender individuals just for being transgender.”
“In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished,” the judge predicted.
Quoting Rev. Dr. Martin Luther King, Jr., he said, “To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice.”
Hinkle concluded that the appropriate legal standard applicable to the statute was intermediate scrutiny — the same heightened constitutional scrutiny applicable to other gender-based classifications. Intermediate scrutiny requires a law to be struck down unless it is substantially related to an important state interest.
The judge discussed the overwhelming evidence that Florida’s law was not adopted for the purpose of achieving any important governmental interest, but rather, was simply a way of purposefully discriminating against transgender people.
‘Frenzied’ rhetoric that is ‘removed from reality’
Hinkle recalled some of the legislative history of the law, quoting one lawmaker who commented, “I can say I’m a porcupine, but that doesn’t make it so,” in reference to a transgender person’s gender identity. Hinkle noted that one of the bill’s sponsors said, “there’s no such thing as someone being able to change their sex,” and characterized the comment as one that “completely misunderstands gender identity.”
Hinkle quoted that same lawmaker, who called being transgender “not a medical issue but a deterioration of our culture,” and “evil in our society,” as definitive evidence of the animus toward transgender people.
The judge also pointed to lawmakers’ “frenzied” rhetoric, quoting a House member who said that gender-affirming medical care amounted to, “taking little children … put[ting] them to sleep on a gurney …[and] … cut[ting] off their breasts … sever[ing] their genitalia … [and] … throw[ing] them in the trash.”
Hinkle said this version of the medical care at issue was, “[p]robably about as far removed from reality as any statement by any legislator ever,” and noted that no one who voted for the bill “expressed disagreement or called these speakers out” for their erroneous statements.
Hinkle also took aim at one of the bill’s sponsors who, after Hinkle issued a preliminary injunction against the bill, promised that, “he would not stop fighting to defend children from ‘wokeist’ judges ‘who support child castration and mutilation.”” Hinkle wrote that during oral arguments in the case, the defendants admitted that “there was absolutely no factual basis for these remarks,” and that there was “no evidence that any Florida child had ever been castrated or mutilated.”
“The sponsor just made it up,” said Hinkle about the lawmaker’s remarks.
The bill’s sponsors were Republican lawmakers Clay Yarborough, Keith Perry, and Doug Broxson.
A failure at even the lowest level of scrutiny
Although intermediate scrutiny was applicable to the case, Hinkle noted that the analysis would fail even under the far less stringent test of rational basis scrutiny. This lowest standard of constitutional scrutiny presumes a state law valid unless is not rationally related to a legitimate state interest.
Intentional discrimination to disadvantage an entire class of people, however, has long been understood as a clear example of a purpose that is not legitimate for purposes of constitutional analysis.
Hinkle wrote:
Second, there are some, including the Governor and quite a few members of the Florida Legislature, who believe transgenderism — and thus gender-affirming care — is morally wrong. Enforcing this moral view is not, however, a legitimate state interest that can sustain this statute, even under rational-basis scrutiny.
Read the full order here.
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