A divided panel of the U.S. Court of Appeals for the Eleventh Circuit on Monday stayed a permanent injunction against Florida’s law protecting minors from gender transition procedures. After District Judge Robert Hinkle, a Clinton-appointee, struck down parts of the law as unconstitutional on June 11 (in Doe v. Ladapo), Florida Governor Ron DeSantis (R) vowed to “win that appeal.”
The Eleventh Circuit had already considered the issue of gender transition procedures for minors in August 2023 (Eknes-Tucker v. Governor of Alabama), when a different three-judge panel unanimously vacated a preliminary injunction against that state’s law protecting minors from gender transition procedures. The decision denied that such laws create “a sex-based classification” and therefore do not warrant heightened scrutiny. It also denied there is a “constitutional right to ‘treat [one’s] children with transitioning medications subject to medically accepted standards.”
That ruling from the Eleventh Circuit became binding precedent for the three states in its jurisdiction. Consequently, following that ruling, an Obama-appointed district judge in Georgia stayed her own preliminary injunction against a Georgia law protecting minors from gender reassignment surgeries and cross-sex hormones.
However, this Clinton-appointed district judge in Florida took a different route. He acknowledged the Eleventh Circuit’s ruling in Eknes-Tucker and granted that Alabama’s law was “not meaningfully distinguishable from Florida’s.”
However, Judge Hinkle found another reason, not explicitly addressed by the Eleventh Circuit, to find the law unconstitutional. He argued that the legislature was allegedly motivated by animus against transgender individuals and that therefore the law was subject to heightened scrutiny. On this basis, he struck down the law’s prohibition on providing puberty blockers and cross-sex hormones to minors, as well as a requirement that only doctors could prescribe gender transition drugs, even to adults. The other parts of the law had not been challenged.
In their Monday opinion, a three-judge panel of the Eleventh Circuit stayed Hinkle’s permanent injunction against Florida’s law while they consider it on appeal with “an expedited briefing schedule.” The court found two reasons to believe that Florida had “made a strong showing that they are likely to succeed on the merits,” one of four factors a court considers when deciding to issue a stay.
First, the court concluded that “the district court likely misapplied the presumption that the legislature acted in good faith.” After Hinkle recognized the “presumption of legislative good faith” and concluded that “a significant number of legislators — more likely than not a majority — were also motivated by their desire to ensure that patients receive only proper medical care,” the court said, “that should have been the end of it.” Instead, Hinkle “attempted to determine whether some number of legislators … were silently motivated by such animus.”
Second, the court concluded that “the district court likely misapplied intermediate scrutiny.” Its application was inappropriate to a “non-suspect class,” the court found. A “suspect” class is legal jargon for a group of people, such as African Americans, who meet certain criteria making them more likely to face discrimination, making laws disfavoring them more “suspect.” The criteria include: 1) a history of discrimination against them, 2) possessing an immutable or highly visible trait, 3) political powerlessness, and 4) an ability to contribute meaningfully to society. Courts have also recognized “quasi-suspect” classes. However, the Eleventh Circuit noted that “neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class.”
The court briefly considered other factors in granting a stay — irreparable injury to the state in its laws not being enforced, lack of injury to other parties, and the public interest in the enforcement of the laws — and found in Florida’s favor on each point. “The district court itself recognized that there were ‘legitimate concerns’ about some of the [gender transition] treatments’ effects, as well as a ‘risk of misdiagnosis,’ ‘risks attendant to treatment,’ and the potential for ‘additional medical risks,’” they noted.
The two circuit judges who joined the panel’s opinion were Judge Britt Grant and Judge Robert J. Luck, both appointed by former President Donald Trump. The other judge on the panel, Judge Charles R. Wilson, appointed by former President Bill Clinton, dissented from their ruling. He argued the “matter is a medical issue, where patients are best left to make decisions alongside health professionals.”
With Florida’s law protecting minors from gender transition procedures now taking full effect, all three states within the Eleventh Circuit’s jurisdiction are currently protecting minors from gender transition procedures. The Eleventh Circuit has scheduled Doe v. Ladapo for expedited consideration on the merits, which could happen as early as October. However, the Eleventh Circuit’s ruling may only stand until next year, when the Supreme Court will rule on a similar law protecting minors from gender transition procedures in Tennessee, which came to it out of the Sixth Circuit Court of Appeals.
Joshua Arnold is a senior writer at The Washington Stand.
