Florida Republicans want to force trans adults to wait to receive gender-affirming care

The Florida Board of Medicine met today to consider a proposed rule by the Florida Department of Health that would set standards of care for both trans minors and trans adults, right after they discuss a letter from the Surgeon General of Florida in June where he expressed opposition to allowing gender-affirming care in the state.

The meeting is expected to adjourn today at 5 P.M., according to the agenda. 

Under the petition submitted to initiate the rule change, physicians would be prohibited from providing any gender-affirming care for trans youth, while adults would have to fill out what the department called “informed consent” forms that include inaccurate information about gender-affirming care and await 24-hour waiting period before receiving treatment.

The Florida Department of Health also recommends that the Board of Medicine issue guidance for how physicians should provide gender-affirming care that they call “experimental treatments” in these forms for those who are already receiving it. The petition does not address social transition, which the agency opposed in its April guidance on gender-affirming care. Social transition can include a trans person changing their name or gender presentation. 

Gender-affirming care can include hormone treatments, puberty blockers, and surgery, depending on a patient’s age and other factors. According to a 2021 study, people who received this health care “had significantly lower odds of past-month psychological distress, past-year tobacco smoking, and past-year suicidal ideation” compared to those who did not.

A number of physician groups have supported gender-affirming care for minors as well as adults and have criticized state efforts to restrict or eliminate gender-affirming care for trans youth. The American Academy of Pediatrics, American Academy of Child & Adolescent Psychiatry, and American Medical Association are among some of the organizations that have spoken out against banning gender-affirming care. Since last year, a few states have passed some type of gender-affirming medical care ban or government leaders have put up other barriers to accessing it.

Dr. Michael Haller, professor and chief of pediatric endocrinology at the University of Florida, said that the proposed informed consent documents don’t represent the actual use of informed consent in medicine.

“Informed consent is amongst the most important concepts in medicine. Ensuring that a patient and a doctor sit down and discuss risks, benefits, and alternatives for any treatment decision is integral to everything that the doctor-patient relationship stands for. That said, the state has provided a proposed set of documents that is highly biased and therefore fails to represent the risks or benefits objectively. Consent forms are not typically pre-determined documents whereby the state mandates which information is included or excluded from the document.”

Haller also pointed out that the rule would hurt many trans people who benefit from this care.

“If this rule is approved, it will have an immediate negative impact on the thousands of kids and young adults who have and are currently receiving gender-affirming care. Access to gender affirming care has made the difference between severe mental health illness and successful lives. Stripping away access to care is inhumane and certainly not in the best interest of Florida’s kids,” he said.

Simone Chriss of Southern Legal Counsel, a law firm advocating for civil rights based in Florida, said the rule reminded her of some anti-abortion regulations.

“It came out in the current proposed standard of care that it’s completely banned — a categorical exclusion for all minors — but that for adults, they require informed consent and a 24-hour waiting period, which typically we’ve only seen in the context of abortion and not other medically necessary standard health care so that was definitely a bizarre, unexpected piece of this.”

On July 8, the Florida Agency for Healthcare Administration held a hearing on a rule that says Medicaid wouldn’t have to cover gender-affirming care for any trans people of any age. Although LGBTQ advocates attended the meeting including members of Equality Florida — the largest LGBTQ advocacy group in the state — to oppose the rule, several outspoken anti-trans speakers also attended. Those speaking against the rule were interrupted several times by people yelling from the crowd.

This happened following guidance from the department of health and a letter from the Florida Surgeon General Joseph Ladapo, an appointee of Gov. Ron DeSantis (R), opposing gender-affirming care. The April 20 guidance document was heavily criticized by physician groups and individual doctors as citing only a few studies and including misinformation on gender-affirming care, according to the Washington Post. Ladapo wrote to the Board of Medicine in June, claiming the medical standards followed by numerous professional medical groups that support gender-affirming care follow a “preferred political ideology.” 

Chriss added that she thinks the purpose of the rule is to use these proposed standards of care to say that this type of health care treatment isn’t safe or medically necessary, referring to state documents such as the guidance from the Agency for Health Care Administration and Ladapo’s letter.

“They will then rely on the fact that it’s not established care within the standards of care to revoke licenses of folks like the doctors I work with every day so who are specifically pediatric endocrinologists who provide gender-affirming care to trans youth. I think that’s absolutely the intention and that the only way they can really enforce it is by taking action against doctors who do provide this care,” she said.

Advocates for access to gender-affirming care and Florida physicians who have provided this care say that anti-trans voices have been influential voices in state policy. Dr. Patrick Hunter, who is on the Florida Board of Medicine, retweeted a tweet from GenSpect, which wrote a letter to the Academy of Pediatrics opposing social and medical transition. According to openDemocracy, GenSpect has connections to supporters of anti-trans “conversion therapy.” “Conversion therapy” is a harmful practice that falsely purports to change people’s sexual orientation and gender identity. 

Brandon Wolf, press secretary for Equality Florida, said to the American Independent Foundation through email, “The August 5 meeting is a critical juncture for transgender Floridians and for transgender people nationwide. The extreme steps being taken by this Administration threaten to end gender-affirming care statewide, punish health care providers who are simply doing their jobs, and send a signal to other states’ leaders looking to weaponize agencies against trans people.”

Wolf added, “The proposed rule would be the most extreme in the nation and is yet another moment of the governor wielding the power of the state government to force LGBTQ young people into the closet — and deny transgender youth access to lifesaving care.”

DeSantis and his administration have attacked LGBTQ rights many times over the past couple years. This year, DeSantis signed into law a bill to stop mentions of gender identity and sexual orientation in school. He filed a complaint against a restaurant in Miami, R House, for disorderly conduct, after the Libs of Tik Tok, an anti-LGBTQ Twitter account, shared a video of a child at a drag brunch performance at the establishment, NBC News reported. DeSantis has also mentioned the possibility of parents being investigated by the state for child abuse for deciding to bring their kids to drag performances. In 2021, he signed into a law a bill that prohibits transgender athletes from playing on the sports team of their gender. 

Chriss said that her organization is watching the developments for this rule closely and that there are legal options available to try to halt it. But she added that they are not in a friendly jurisdiction. She said that it clearly violates Section 1557 of the Affordable Care Act. The Biden administration released a proposed rule in July to improve and clarify Section 1557’s nondiscrimination protections in health care after the 2020 Supreme Court decision in Bostock v. Clayton County.

“It is discrimination on the basis of gender identity, gender expression, and basis of all things related to sex, and so I think that is pretty obvious. I think also there would be a valid equal protection claim that could be made again for discrimination on basis of sex,” she said.

But the June Supreme Court decision in Dobbs v. Jackson Women’s Health Organization that overturned the landmark Roe v. Wade decision could hurt those legal efforts.

“It’s very uncertain because of Dobbs and because of the evisceration of the Due Process Clause of the 14th Amendment to bodily autonomy and privacy and decision-making over your own body,” she said. “I think we’re on much less solid ground than we were a few months ago, where otherwise I would have said this falls squarely within the right to bodily autonomy to refuse medical treatment.”

Published with permission of The American Independent Foundation.