November 30, 2023

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Florida Argues ‘Unproven’ Transgender Care Barred From Medicaid

Current medical consensus supports the conclusion that gender dysphoria treatments are experimental and can be excluded from Medicaid coverage, Florida’s health-care agency told a federal court.

The Florida Agency for Health Care Administration and Secretary Jason Weida, which administer the state’s Medicaid program, have asked the US District Court for the Northern District of Florida for summary judgment in a suit brought by Medicaid-eligible transgender patients. The patients are trying to secure payment for medications and procedures the agency excluded from coverage in August 2022, including puberty blockers, hormone therapy, and gender-affirming surgeries.

This is one of several cases challenging state actions that narrowed transgender rights nationwide, especially with respect to minors. It’s similar to a case recently argued in the US Court of Appeals for the Fourth Circuit, where the plaintiffs objected to Medicaid exclusions for gender-affirming surgeries. The Fourth Circuit panel didn’t seem receptive to the plaintiffs’ argument, even though the weight of the law currently is in their favor, according to the Williams Institute at UCLA School of Law, which conducts independent research on sexual orientation, gender identity law, and public policy.

The FAHCA’s motion relies mostly on an argument that the standard treatments for gender dysphoria—a condition in which a person suffers distress because the sex assigned to them at birth doesn’t match their gender identity—are experimental and, therefore, can be excluded from Medicaid coverage. The agency argued the case is controlled by a 1980 decision from the US Court of Appeals for the Eleventh Circuit, which concluded that Florida’s determination that gender dysphoria treatments were experimental was “reasonable.”

The gender dysphoria treatments currently accepted by several medical groups rely on standards of care developed by the World Professional Association for Transgender Health, the Florida agency said. But WPATH is an advocacy group consisting in part of non-medical professionals that has refused to share with the agency how it reached its recommendations, the FAHCA said.

A discovery dispute is pending in the District of Columbia federal courts between the FAHCA, WPATH, and several medical groups in which the Florida agency is seeking access to how the groups reached their policy positions and the substantive materials and opinions on which they relied. A federal appeals court there has stayed a decision that granted the FAHCA limited review. In a separate case, a federal court in Alabama recently granted officials there access to WPATH information related to its treatment guidelines.

The FAHCA also said in an April 7 brief that it’s entitled to summary judgment on the plaintiffs’ claims under the 14th Amendment’s equal protection clause and the Affordable Care Act’s anti-discrimination provision.

Briefs Proposed

Several groups have asked District Judge Robert L. Hinkle for permission to file friend of the court briefs supporting the FAHCA’s motion. Such briefs aren’t commonly used in the district courts, but judges have discretion to accept them.

Among the proposed briefs is one by 17 states that seek “to ensure that their ‘health and welfare laws’ continue to be entitled to a strong presumption of validity.’” They told the court April 7 that the plaintiffs’ “preferred medical groups do not represent an unbiased medical perspective, and they represent only a slice of medical opinion on this issue.”

The states are led by Alabama, which is defending a law banning gender-affirming care for minors in a federal court. Also signing on are Arkansas, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, South Carolina, Tennessee, Texas, Utah, and Virginia.

Do No Harm, which describes itself as “a diverse group of physicians, healthcare professionals, medical students, patients, and policymakers whose goal is to protect healthcare from a radical ideology,” also sought to file an amicus brief. Also asking to be heard were three adult men who said they’d had experience with gender transitioning and detransitioning.

The court previously denied the plaintiffs’ motion for a preliminary injunction to stop the agency from enforcing the rule while the case is proceeding. A bench trial is currently set to begin May 9.

Holtzman Vogel Barantorchinsky & Josefiak PLLC represents the FAHCA. Southern Legal Counsel Inc., Florida Health Justice Project, the National Health Law Program, Lambda Legal, and Pillsbury Winthrop Shaw Pittman LLP represent the plaintiffs.

The Alabama Attorney General’s Office and Ausley McMullen represent the states. Cooper & Kirk PLLC represents Do No Harm. GrayRobinson PA and Kniffin Law PLLC represent the former patients.

The case is Dekker v. Weida, N.D. Fla., No. 22-cv-325, summary judgment motion filed 4/7/23.