October 16, 2023
On October 13, 2023, EPPC scholars Eric Kniffin, Mary Rice Hasson, and Rachel N. Morrison filed three briefs in an appeal before the Eleventh Circuit Court of Appeals, Dekker v. Weida, that involves a legal challenge to Florida’s rule prohibiting state Medicaid dollars from funding “gender transition interventions,” including harmful and irreversible cross-sex hormones and surgeries for children. The lawsuit was brought by four children and young adults who identify as transgender.
The first brief by EPPC Fellows Eric Kniffin and Mary Rice Hasson draws upon Hasson’s work in the EPPC’s Person and Identity Project. The brief marshals the best social science and cites legal trends in America and across the globe, citing nearly ninety different sources, to counter the trial court’s claim that “[t]he overwhelming weight of medical authority supports treatment of transgender patients with [puberty blockers] and cross-sex hormones.”
The brief argues:
Respectfully, the district court got it wrong. Contrary to the district court’s characterization, the Defendants-Appellants do not deny that “[g]ender identity is real.” The Agency merely disagrees with Plaintiffs-Appellees—and with some voices in an ongoing debate—about the best way to treat children that presently identify with a gender that is at odds with their sex.
The reality, as shown below, is that there is no national or international medical consensus regarding an authoritative standard of care for the treatment of gender dysphoria or the use of transitioning treatments. This lack of medical consensus has been recognized by the federal government, is reflected in state action, and continues to generate controversy in the medical profession. . . .
[T]he district court’s claims about the state of ongoing scientific and political debate in this area and its attacks on the Agency’s motives are inappropriate and unjustified. Amicus urges the Court to affirm the reasonableness of the Agency’s challenged rule and reverse the decision below.
The second brief by EPPC Fellow Eric Kniffin was submitted on behalf of three “detransitioners” Walt Heyer, Ted Halley, and Billy Burleigh—biological males who suffered deep confusion and distress regarding his gender identity from an early age. Each was convinced by licensed healthcare professionals that “gender-transition” interventions would resolve his dysphoria and permit him to live a healthy, well-adjusted life. Yet after going through the gender transition process, including cross-sex hormones and surgeries, all three found that transitioning did not make them happy. Transitioning did not solve their confusion and depression, and in fact, made it worse.
As the brief explains:
Amici are interested in this case because they believe that the challenged Florida rule is good policy. They believe the rule looks out for the best interests of vulnerable people suffering from gender dysphoria. Amici hope that through sharing their painful journeys the Court will better understand the issues at stake in this case. Amici hope the challenged Florida rule is upheld. It is too late for them, but Amici hope that this policy will help others confused about their gender identity pause and reconsider before they make the same irreversible and life-altering harmful mistakes they did.
The third brief was submitted on behalf of former civil rights officials, including EPPC Fellow, Director of EPPC’s HHS Accountability Project, and former Equal Employment Opportunity Commission attorney Rachel Morrison. The brief, drafted by former director of the Department of Health and Human Services Office for Civil Rights Roger Severino, draws heavily from EPPC’s public comment submitted in opposition to HHS’s proposed Section 1557 rule and was joined by three other former HHS OCR attorneys.
The brief argues:
If Congress wanted to make Medicaid cover sterilizing cross-sex hormones and surgeries in transgender-identifying minors, it could have, but it did not. Lacking clear Congressional authorization, Plaintiffs instead turn to Section 1557 of the Affordable Care Act (ACA) which prohibits “sex” discrimination—through incorporation of Title IX—in certain federally funded health programs and activities, to impose a new standard of care for Medicaid using experimental treatments on minors. Appellees’ arguments are not minor errors. Rather, they are so fundamentally inconsistent with health care civil rights law as to turn it on its head….
A ruling for Appellees would radically remake American health care by replacing science-based medicine with ideology-driven mandates. To accept Appellees’ premises contradicts long-standing scientific understandings of human biology and thereby endangers public health. The Appellees’ arguments cannot be easily cabined to Medicaid because Section 1557 applies to all federally funded health programs or activities. As such, a decision for Appellees would eventually drive out hospitals and medical providers that cannot in good conscience perform sterilizing surgeries on children because they too receive substantial federal funding, especially to serve poor and rural communities.
Moreover, a ruling for Appellees will predictably result in the infliction of devastating permanent physical and psychological harm to children whose doctors will reasonably feel bound to place them on puberty blockers and cross-sex hormones and to sterilize them through the removal of healthy reproductive organs for fear of being sued for “gender identity discrimination” under Section 1557. The risks of inflicting severe physical and psychological trauma to families by not only encouraging, but mandating, medical “transition” and social conversion of children, ostensibly to the other sex, cannot be understated and includes an elevated risk of suicide. For these reasons, [Florida has] ample grounds to prevent the many other grave harms identified in this brief when such harms are not only not mandated by Congress, but go against the very statute the Appellees rely on.
Each of the briefs urges the court to uphold Florida’s rule prohibiting state Medicaid dollars from funding “gender transition interventions.”