1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMI CLAIRE, KATHRYN LANE, 

and AHMIR MURPHY 

Plaintiffs, 

v. CASE NO. 4:20-cv-0020-MW-CAS 

FLORIDA DEPARTMENT OF 

MANAGEMENT SERVICES and 

PEDRO ALLENDE, in his official 

Capacity as Secretary of the Florida 

Department of Management Services. 

Defendants. 

________________________________ 

DEFENDANTS’ SUPPLEMENTAL BRIEF

Pursuant to the Court’s Orders on Supplemental Briefing (Docs 164, 166 and 

167) and the Parties’ Joint Response to Order for Supplemental Briefing (Doc. 165)

Defendants, FLORIDA DEPARTMENT OF MANAGEMENT SERVICES and 

PEDRO ALLENDE,

1

respond as follows:

Procedural History

Plaintiffs are transgender individuals employed by the State of Florida who 

were denied coverage under the State Health Plan for gender-affirming surgical 

interventions because of the Plan’s exclusion for gender/sexual modification or 

1 Pedro Allende is the current Secretary of DMS. See Rule 25(d), Fed. R. Civ. Pro. 

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reassignment services and supplies. Plaintiff Claire, a transgender female, seeks an 

orchiectomy; Plaintiff Murphy, a transgender male, seeks a mastectomy; and 

Plaintiff Lane, a transgender female, seeks facial feminization surgery. (Doc. 125 p. 

12-15.)

Plaintiffs filed suit on January 30, 2020, alleging that the Plan exclusion for 

gender/sexual reassignment is facially discriminatory in violation of Title VII of the 

Civil Rights Act of 1964 and the Equal Protection Clause. (Doc.34 p. 49, 57-58).

On February 8, 2021, Defendants DMS and Allende moved for summary 

judgment. (Docs. 125 and 126.) Defendants argued that the Plan exclusion was not 

a sex-based classification; that it was facially neutral; and that there was no evidence 

of discriminatory intent. (Docs. 125, 126, 140, 141.) Plaintiffs also moved for partial 

summary judgment. (Doc. 123.)

On January 17, 2023, the parties provided supplemental briefing regarding the 

impact of the Eleventh Circuit’s en banc decision in Adams by & through Kasper v.

Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 813 (11th Cir. 2022), which defined sex as 

an immutable, biological characteristic and confirmed the viability of Geduldig’s 

rationale to find that a policy impacting transgender individuals does not facially 

discriminate based on sex where, as here, there is a lack of identity between the 

policy and protected class. (Doc. 160.) 

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On April 24, 2024, this Court afforded the parties an opportunity to provide

supplemental briefing (Doc. 164), and subsequently asked the parties to address the 

Eleventh Circuit’s recent opinion in Lange v. Houston Cnty., 101 F.4th 793 (11th 

Cir. 2024). (Doc. 167.)

Factual Summary

A full account of the undisputed evidence is set forth in Defendant Allende’s

Motion for Summary Judgment (Doc. 125 p. 3-12) and Defendants’ Response in 

Opposition to Plaintiffs’ Motion for Partial Summary Judgment. (Doc. 135 p. 1-8.) 

A synopsis of the relevant evidence is as follows:

The State Employees Health Plan has existed since at least 1979. The Plan is 

subject to annual approval by the Florida Legislature, and the addition of any 

covered benefit requires Legislative approval and funding. Fla. Stat. § 110.123(5); 

(Doc 125 p. 3-4.) DMS has no authority to amend the State Health Plan without prior 

legislative approval. Moreover, since at least 2016, DMS has only suggested 

administrative changes for the purposes of cost savings; it has not advocated for the 

addition of any category of benefits. (Doc. 125 p. 9.)

The Plan documents define the applicable coverage terms, and not all services 

deemed medically necessary by a member’s clinician are covered. (Doc.125 p. 4.)

For example, the Plan excludes coverage for elective abortions, custodial care such 

as home health or skilled nursing facilities, cosmetic surgery, dental care, eye care, 

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hearing aids, fertility treatment, penile and testicular prosthesis, recreational therapy, 

speech therapy, sleep therapy, weight reduction services, tobacco cessation, and 

cardiac rehabilitation, among other exclusions. (Doc. 125 p. 4-5.)

At issue in this lawsuit is the Plan exclusion for “gender reassignment or 

modification services and supplies.” (Doc. 121-4 p. 60; Doc.121-5 p. 53.) This 

exclusion includes surgical interventions and hormone replacement therapy if the 

associated diagnosis is gender dysphoria or something similar and the only purpose 

is gender reassignment. (Doc. 125 p. 7.)2 However, if the member is prescribed a 

surgical procedure or hormone replacement therapy for a covered medical diagnosis 

(for example, an endocrine disorder) in addition to gender dysphoria, the service 

would be covered if all coverage criteria are met. In addition, psychotherapy and 

psychological testing and evaluation are covered services under the Plan even when 

the only underlying diagnosis necessitating treatment is gender dysphoria. (Doc. 125 

p. 7-8.)

Gender/sexual reassignment services have never been covered by the State 

Health Plan. The express written exclusion first appeared in plan documents in the 

2 The only treatments denied to Plaintiffs, and therefore at issue in this lawsuit, are 

double mastectomy, orchiectomy, and facial feminization surgery. 

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late 1970s, at which time gender/sexual reassignment surgery was considered 

experimental and investigational. (Doc. 125 p. 8-9.)3

Transgender individuals are entitled to the same coverage as all other State 

Health Plan members. No Plan members are denied covered services because they 

identify as transgender. In addition, gender markers (whether the member is male or 

female) are not used to rule out the provision of services for a specific member. (Doc. 

125 p. 8; Doc. 141 p. 5.)

Although some gender/sexual reassignment services are accepted in the 

medical community, some experts still question whether there is sufficient research 

to establish the efficacy of these treatments for gender dysphoria. Moreover, there 

are risks, complications, and limitations associated with these procedures, along with 

concerns about informed consent, particularly with respect to the use of puberty 

blockers and cross-sex hormones in minors. (Doc. 125 p. 10-12.)

Argument

Plaintiffs contend that the Plan exclusion for gender/sexual reassignment 

services facially discriminates against transgender individuals, and that 

classifications affecting transgender persons necessarily discriminate based on sex. 

3

It is undisputed that in the 2000s almost all health insurance plans in the United 

States contained similar exclusions. In 2016, the majority of large employer health 

insurance plans excluded coverage for reassignment surgery. (Doc. 125 p. 9.)

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Because the Plan at issue simply excludes a category of medical treatments, 

Plaintiffs’ argument would require this Court to find that gender/sexual reassignment 

services constitute a proxy for biological sex, which neither the Equal Protection 

Clause nor Title VII supports. The Eleventh Circuit’s holdings in Eknes-Tucker v.

Governor of Alabama, 80 F.4th 1205 (11th Cir. 2023) and Adams v. Sch. Bd. of St.

Johns Cnty., 57 F.4th 791 (11th Cir. 2022), along with the Supreme Court holdings 

in Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022) and Geduldig v. 

Aiello, 417 U.S. 484 (1974), compel a finding that the Plan exclusion classifies based 

on medical treatment, not biological sex, for purposes of the Equal Protection Clause 

claim. Accordingly, this Court should enter summary judgment in favor of 

Defendant Allende.

The Eleventh Circuit’s recent holding in Lange v. Houston Cnty., 101 F.4th

793 (11th Cir. 2024) that a health plan exclusion for gender-affirming care 

necessarily discriminated on the basis of sex for purposes of a Title VII claim, while

presently controlling, misapplied existing Title VII precedent and disregarded

United States Supreme Court precedent regarding whether medical treatments can 

be considered a proxy for sex. It also set forth a concerning precedent that threatens 

myriads of other conditions that have been excluded from the State Health Plan for 

decades simply based on the fact that they may relate to reproductive characteristics,

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affect a particular sex, or affect one sex more than another; the precise issue 

Geduldig sought to avoid fifty years ago. 

Furthermore, the mandate in Lange has been withheld, and a request for en 

banc rehearing has been filed. See Order, Lange, No. 22-13626 (11th Cir. May 14, 

2024); Petition for Rehearing En Banc, Lange, No. 22-13626 (11th Cir. June 3, 

2024). As such, Defendants ask this Court to withhold ruling on the Title VII claim 

until after the mandate in Lange is issued.

I. The State Health Plan Exclusion for Gender/Sexual Reassignment 

Services Does Not Violate the Equal Protection Clause

Lange does not address the Equal Protection Clause issue. 101 F.4th at 797 

n.2. Instead, binding Eleventh Circuit precedent compels a finding that the State 

Health Plan exclusion is facially neutral, and that Plaintiffs’ claims fail as a matter 

of law because the record contains no evidence of discriminatory intent. 

A. Classifications based on medical treatments impacting transgender 

persons are not “because of sex” as held by the Eleventh Circuit in 

Eknes-Tucker. 

This Court is bound by the Eleventh Circuit’s holding in Eknes-Tucker v. 

Governor of Ala., 80 F.4th 1205 (11th Cir. 2023). In Eknes-Tucker, parents and 

healthcare providers challenged an Alabama law prohibiting the use of puberty 

blockers and cross-sex hormones for the purpose of altering sex or affirming gender 

identity inconsistent with sex assigned at birth. 80 F.4th at 1210-1213. The plaintiffs 

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argued that the law amounted to sex-based classification subject to heightened 

scrutiny under the Equal Protection Clause because the language of the statute used 

sex-based terms and stereotyped “on the basis of gender nonconformity.” Id. at 1227.

In rejecting this argument, the Eleventh Circuit held that the challenged 

statute targeted specific medical interventions; it did not classify on the basis of sex. 

Id. at 1227. The Court reasoned that “the statute does not discriminate based on sex” 

because (1) it did not establish an unequal regime for males and females, but rather 

treated all minors the same; and (2) its reference to sex-specific medical treatments

simply acknowledged medical realities and did not amount to an improper sex-based 

classification as contemplated by the Equal Protection Clause. Id. at 1228. 

The Eknes-Tucker Court acknowledged that classifying based on sex-specific 

medical treatments did not indirectly amount to classification on the basis of gendernonconformity. Id. at 1228-29. Citing the Supreme Court’s holding in Dobbs v.

Jackson Womens Health Org., 597 U.S. 215 (2022), the Eleventh Circuit noted that

even if gender nonconformity itself was a suspect class, “the regulation of a course

of treatment that only gender nonconforming individuals can undergo would not

trigger heightened scrutiny unless the regulation were a pretext for invidious

discrimination against such individuals.” Id. at 1229-1230. Therefore, prohibiting 

treatment for gender dysphoria does not discriminate “based on sex,” even when the 

prohibited medical interventions are necessarily “sex-based” due to the biological 

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realities regarding those procedures. Id. at 1228; see also, Nguyen v. I.N.S., 533 U.S.

53, 68 (2001) (finding that statutory recognition of inherent biological differences 

does not necessarily constitute a gender-stereotyping in violation of the equal 

protection clause.)

The Court rejected the argument that Bostock v. Clayton Cnty., 590 U.S. 644, 

654 (2020) and Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) compelled a 

finding that the Alabama statute amounted to sex-stereotyping. First, the Court 

distinguished Bostock on two grounds. The Court noted that the text of the Equal 

Protection Clause was different than the text of Title VII, the law at issue in Bostock. 

Id. at 1228-29. But more importantly, the Court emphasized the “different factual 

context” involved in Eknes-Tucker and Bostock. Eknes-Tucker involved a law 

regulating specific medical treatments, not an employment decision which 

intentionally penalized a transgender individual for not conforming with the

employer’s stereotypes about biological sex. Id. at 1229.

Similarly, in distinguishing Brumby,

4

the Court found that the statute at issue

“targets certain medical interventions for minors meant to treat the condition of

gender dysphoria; it does not further any particular gender stereotype. Insofar as [the

4 Brumby held that the Equal Protection Clause prohibited an employer from firing 

a transgender employee for failing to adhere to certain expectations and stereotypes 

associated with the employee's biological/natal sex.

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Act] involves sex, it simply reflects biological differences between males and

females, not stereotypes associated with either sex.” Id.

Finally, the Court rejected the argument that the statute was subject to

heightened scrutiny because it classified based on transgender status, apart from sex.

Id. at 1230. First, the Court noted that transgender status is probably not a quasisuspect class in and of itself. Notwithstanding, the Court also found that even if

transgender status is a suspect class, “the regulation of a course of treatment that, by 

the nature of things, only transgender individuals would want to undergo, would not 

trigger heightened scrutiny unless the regulation is a pretext for invidious 

discrimination against such individuals.” Id. at 1230.

The holding in Eknes-Tucker compels a finding that the State Health Plan 

exclusion for gender/sexual reassignment services does not classify based on sex. 

Just like the statute in Eknes-Tucker, the Plan exclusion at issue simply excludes a 

class of treatments for a specific medical condition – it does not treat males or 

females differently. Moreover, there is no evidence that the exclusion is a pretext for 

invidious discrimination based on sex. 

B. The Plan exclusion is facially neutral because it does not treat men and

women differently.

The mere fact that a policy references sex or gender, does not mean that it is 

facially discriminatory. Eknes-Tucker, 80 F.4th at 1228 (holding that while the 

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statute discussed sex and identified the applicable cross-sex hormones for each sex, 

it did not treat the sexes differently); see also, Kadel v. Folwell, 100 F.4th 122, 167 

(4th Cir. 2024) (Richardson dissenting) (“[D]etermining whether a law facially 

classifies based on sex thus involves more than a mere word search for particular 

terms. Rather, we must examine whether the policy uses those terms to draw

distinctions between the sexes.”)

The Plan exclusion for gender/sexual reassignment surgery, while it 

references gender, does not classify based on biological sex; rather, it is an exclusion 

for medical treatment applicable to all Plan members, regardless of biological sex.

See also, Eknes-Tucker, 80 F.4th at 1228-30; L. W. v. Skrmetti, 83 F.4th 460, 480 

(6th Cir. 2023); Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974); Saks v. Franklin 

Covey Co., 316 F.3d 337, 347 (2d Cir. 2003); In re Union Pacific Railroad 

Employment Practices Litigation, 479 F.3d 936, 943–45 (8th Cir. 2007). As such, 

the Plan exclusion is facially neutral.

C. There is no evidence that Defendants acted with discriminatory intent.

Even if the facially neutral Plan exclusion has a disparate impact on 

transgender individuals, it does not violate the Equal Protection Clause, or warrant 

heightened scrutiny review, because Plaintiffs have not come forward with any 

evidence to suggest that that the exclusion is a pretext for invidious discrimination 

because of sex. Pers. Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 276 (1979). 

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As the Supreme Court held in Dobbs, “[t]he regulation of a medical procedure that 

only one sex can undergo does not trigger heightened constitutional scrutiny unless 

the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination 

against members of one sex or the other.’” 597 U.S. at 236; see also, Eknes-Tucker,

80 F.4th at 1229–30 (“the regulation of a course of treatment that only gender

nonconforming individuals can undergo would not trigger heightened scrutiny

unless the regulation were a pretext for invidious discrimination against such

individuals.”)

To prevail on their equal protection claims, Plaintiffs must show intent to 

discriminate because of sex. Eknes-Tucker, 80 F.4th at 1229-30; see also, Bannum, 

Inc. v. City of Fort Lauderdale, 157 F.3d 819, 822 (11th Cir. 1998); Strickland v. 

Alderman, 74 F.3d 260, 264 (11th Cir. 1996); Feeney, 442 U.S. at 274. While the 

impact of the policy “is an ‘important starting point’ . . . purposeful discrimination 

is ‘the condition that offends the Constitution.’”) Feeney, 442 U.S. at 274. Moreover, 

to establish discriminatory purpose there must be evidence showing that the 

decision-maker selected a particular course of action because of, not merely in spite 

of, its adverse effects upon the protected group. Id. at 279.

Here, just as in Eknes-Tucker, there is no evidence that the reasons articulated 

for the exclusion are a pretext for invidious discrimination based on sex. On the 

contrary, the evidence establishes that the exclusion has always existed and was 

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added to the Plan documents over 40 years ago, when gender-affirming procedures 

were considered experimental and investigational industry-wide. The evidence also 

affirmatively establishes that the Florida Legislature is the only entity that can add 

benefits to the State Health Plan and that in light of its cost-containment directives, 

DMS has never advocated for the addition of any category of benefits to the Plan. 

There is simply no evidence that DMS intentionally selected a course of action 

because of its adverse impact on a particular group of people because of sex. Feeney, 

442 U.S. at 279.

D. The Plan exclusion survives rational basis scrutiny.

Because the facially neutral Plan exclusion classifies on the basis of medical 

treatment, not because of sex, and there is no evidence of invidious discrimination,

the Plan exclusion is only subject to rational basis scrutiny, which it easily satisfies. 

See Dobbs, 597 U.S. at 222; Ecknes-Tucker, 80 F.4th at 1230. Rational basis scrutiny 

is highly deferential; it considers whether there is any conceivably rational basis for 

the policy, not whether that basis was actually considered. F.C.C. v. Beach

Communications, Inc., 508 U.S. 307, 315 (1993); Joel v. City of Orlando, 232 F.3d 

1353, 1358 (11th Cir.2000); Ecnes-Tucker, 80 F.4th at 1225; Strickland, 830 F.2d at 

1114.

Here, the exclusion was undisputedly put in place in the late 1970s when 

gender reassignment was universally considered experimental. Moreover, the State 

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of Florida has a legitimate interest in keeping healthcare costs low because the Plan 

is financed with State funds. See Maher v. Roe, 432 U.S. 464, 479 (1977) (holding 

that states are afforded wide latitude in choosing among competing demands for 

limited public funds); Geduldig, 417 U.S. at 495-96 (“There is nothing in the 

Constitution [] that requires the state to subordinate or compromise its legitimate 

interests [in cost containment] solely to create a more comprehensive social 

insurance program than it already has.”).

DMS addresses growing healthcare costs by running the Plan as costeffectively as possible. DMS anticipates that removal of the gender reassignment 

exclusion would add significant expense to the Plan, and given its directive to 

contain costs, DMS has never advocated for the addition of any category of benefits 

to the Plan. 

Moreover, the Plan exclusion is rationally related to the government’s interest 

in ensuring that the treatments covered by the Plan are effective and appropriate for 

all members. While some gender reassignment surgeries are accepted in the medical 

community, the efficacy of these procedures is not clear, and in some cases, is highly 

controversial and disputed. The State has an important interest in excluding such 

treatments, particularly given the risks, complications, and irreversible nature of 

many gender reassignment services unless and until they can be established as safe

and effective for the treatment of gender dysphoria. 

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Therefore, because the Plan exclusion is facially neutral and survives rational 

basis scrutiny, Defendant Allende is entitled to judgment in his favor. 

II. Plaintiffs’ Title VII Claim Fails as a Matter of Law

Title VII makes it unlawful for an employer to discriminate against an 

employee “because of” sex. 42 U.S.C. § 2000e-2(a)(1); Bostock v. Clayton Cnty., 

590 U.S. 644, 657–58 (2020). Plaintiff can prevail by establishing that the exclusion 

facially discriminates because of sex, or by proffering evidence that plaintiffs were 

treated less favorably than similarly situated employees, because of an intent to 

discriminate based on sex. 

“Because of sex” means because of biological/natal sex. Bostock, 590 U.S at

1741–42; see also, Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 807, 812-814

(11th Cir. 2022) (holding that “sex” under Title IX unambiguously means 

“biological sex, i.e. discrimination between males and females”). Sex does not 

include “gender identity” or transitioning status Adams, 57 F.4th at 813; EknesTucker, 80 F.4th at 1230. Rather, Supreme Court and Eleventh Circuit cases

prohibiting discrimination against transgender individuals, like Bostock and 

Brumby, found underlying discrimination based on biological sex. Adams, 57 F.4th 

at 814 (“[T]here simply is no alternative definition of ‘sex’ for transgender persons 

as compared to nontransgender persons...”)

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A. The exclusion is not facially discriminatory under Title VII.

The Plan does not facially discriminate based on biological sex. To establish 

facial discrimination under Title VII, Plaintiffs must show that but for their 

biological/natal sex, Plaintiffs would have been treated differently. Bauer v. Lynch,

812 F.3d 340, 347–48 (4th Cir. 2016) (citing City of Los Angeles, Dept. of Water &

Power v. Manhart, 435 U.S. 702, 715 (1978)). Here, changing Plaintiffs’ biological 

sex would not change the outcome; thus, Plaintiffs cannot show that but-for their 

sex, they would have been treated differently. See Skrmetti, 73 F.3d at 419. Sex is 

not the determining factor. 

A regulation targeting specific medical interventions is not one that classifies

based on a suspect characteristic. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 135 

(1976); see also, Eknes-Tucker, 80 F.4th at 1227. Excluding reassignment surgery

impacts the biological sexes equally. Because the Plan exclusion addresses treatment 

for a psychological condition and does not “establish an unequal regime for males 

and females,” it is not facially discriminatory. See Eknes-Tucker, 80 F.4th at 122;

see also, Standridge v. Union Pac. R.R. Co., 479 F.3d 936, 943-45 (8th Cir. 2007); 

Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104, 1109 (9th Cir. 2006).

B. Lange was wrongly decided.

The Eleventh Circuit’s recent decision in Lange v. Houston County, 101 F.4th 

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793 (11th Cir. 2024), while presently controlling,

5 was wrongly decided and does 

not follow precedent. In Lange, an employee challenged a county health plan’s 

exclusion for sex change surgery. Id. at 796-97. The Court held that the exclusion

was facially discriminatory because of its impact on transgender persons.

Relying on Bostock, the Court held that discrimination based on transgender 

status violated Title VII, and “because transgender persons are the only plan 

participants who qualify for gender-affirming surgery, the Plan denies health care 

coverage based on transgender status,” and therefore violates Title VII. Id. at 798-

99.

6 However, the Lange opinion ignores the Supreme Court’s rationale in Bostock

and contradicts the Supreme Court’s holdings in Geduldig and Dobbs that regulation 

of medical conditions associated with one sex does not amount to sex-based 

discrimination.

First, binding precedent has already rejected the argument that a policy which 

disparately impacts one sex is necessarily discriminatory based on sex. See Gilbert, 

5 The mandate in Lange has been withheld, and a request for en banc rehearing has 

been filed. Defendants ask this Court to withhold ruling on the Title VII claim until 

after the mandate in Lange is issued.

6 This same logic was rejected with respect to pregnancy-related medical conditions. 

See Gilbert, 429 U.S. at 138–40. The rationale of Gilbert, adopted from Geduldig,

is still good law. Even though pregnancy only impacts one sex, the term “because of 

sex” under Title VII had to be expressly amended to provide sex-based protections 

for pregnancy. 42 U.S.C.A. § 2000e(k). Title VII has not been amended to include 

protection for gender dysphoria or related treatments.

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429 U.S. at 138–40 (holding that insurance plan that excluded coverage for 

pregnancy-related disabilities did not violate Title VII); see also, Geduldig, 417 U.S. 

at 496 n.20 (“While it is true that only women can become pregnant[,] it does not 

follow that every legislative classification concerning pregnancy is a sex-based 

classification”); Bray, 506 U.S. at 270 (holding that, though abortion is “engaged in

exclusively” by women, discriminatory intent could not be presumed); Dobbs, 597

U.S. at 236 (holding that a state's regulation of abortion is not a sex-based 

classification). 

Here, the Plan exclusion is farther removed from sex than the medical 

conditions at issue in Gilbert, Geduldig, Dobbs, and Bray because gender/sexual 

reassignment services are used by both biological males and females alike – not just 

by one sex. Because sexual/gender reassignment services are farther removed from 

biological sex than pregnancy or abortion, Supreme Court precedent compels a 

finding that such treatment is not a proxy for sex. 

Contrary to the Court’s reasoning in Lange, the Supreme Court opinion in 

Bostock does not compel a different conclusion. Bostock does not create a new 

suspect class. In Bostock, the Court affirmed that Title VII prohibits treating an 

individual worse because of biological sex than others who are similarly situated. 

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Bostock v. Clayton Cty., 590 U.S. 644 (2020).

7 Stated differently, “if changing the 

employee's sex would have yielded a different choice by the employer—a statutory 

violation has occurred.” Id. at 660.

In Bostock, the Court concluded that discrimination against the transgender 

employee was unequivocally discrimination based on biological sex. The Court 

made clear: “An employer who fires an individual for being homosexual or 

transgender fires that person for traits or actions it would not have questioned in 

members of a different sex. Sex plays a necessary and undisguisable role in the 

decision; exactly what Title VII forbids.” Id. at 651-52.

But the State Health Plan exclusion does not treat Plaintiffs differently 

because of their sex, nor, as the Bostock Court framed the analysis, does it 

intentionally penalize an employee identified as male at birth for traits or actions that 

it tolerates in an employee identified as female at birth. Id. at 659-60. Rather, the 

exclusion applies equally to all employees regardless of their natal sex or how they 

identify. See Lange, 101 F.4th at 806 (Brasher dissenting).

For example –changing Plaintiff Murphy’s natal sex (female) would not alter 

the coverage decision. No Plan member, regardless of natal sex, gender identity, or 

transgender status can obtain a mastectomy for the purpose of gender reassignment 

7 The Court accepted a definition of “sex” as “status as either male or female [as] 

determined by reproductive biology,” Id. at 655.

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under the Plan. Moreover, biological males are not treated more favorably than 

Murphy when it comes to obtaining a mastectomy under the Plan.

Similarly, natal females who seek gender/sexual reassignment services are no 

more entitled to coverage than natal males seeking the same procedures. Similarly, 

both natal males and natal females who seek to change their reproductive organs are 

not entitled to coverage under the Plan. Biological sex is not the determinative factor.

See also, Kadel, 100 F.4th at 181 (Richardson dissenting).

Unlike the situation presented in Bostock, where the simple mental exercise 

of changing the plaintiff’s sex revealed sex to be a but-for cause of the adverse action 

at issue, sex is not directly implicated by the exclusion. Plaintiffs challenge a health 

plan exclusion for a specific category of medical treatment – gender/sexual 

reassignment services – which is sought by some, but not all, individuals with a 

specific psychiatric diagnosis – gender dysphoria – which is present in some, but not 

all, transgender individuals, whose identities necessarily relate to reproductive 

characteristics of both biological sexes. But this is no different from the attenuated 

manner in which pregnancy or abortion relate to sex – a relationship insufficient to 

establish a legally meaningful connection under Title VII. See, e.g., Geduldig, 417 

U.S. 484; Gilbert, 429 U.S. 125. In fact, treatments for gender dysphoria are much 

farther removed from biological sex than pregnancy because gender dysphoria 

impacts both sexes.

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Plaintiffs’ assertion that the exclusion facially discriminates based on “gender 

nonconformity” is not persuasive. Even under a sex-stereotype theory, Plaintiffs

must still prove that the employer’s decision was motivated by sex. Price 

Waterhouse v. Hopkins, 490 U.S. 228, 250-52 (1989). Title VII prevents disparate 

treatment. Lewis v. City of Union City, 918 F.3d 1213, 1223 (11th Cir. 2019). The 

doctrine of gender nonconformity is not an independent vehicle for relief. Evans v. 

Georgia Regl Hosp., 850 F.3d 1248, 1260-61 (11th Cir. 2017) (Pryor, J., 

concurring); Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1092 (5th Cir. 

1975); Equal Employment Opportunity Comm'n v. Catastrophe Mgmt. Sols., 852 

F.3d 1018, 1030 (11th Cir. 2016); Price Waterhouse, 490 U.S. at 251.

Moreover, the exclusion of medical treatments which relate to sex-based

reproductive characteristics does not implicate sex-based stereotypes. Eknes-Tucker,

80 F.4th at 1229 (“Insofar as section 4(a)(1)-(3) involves sex, it simply reflects 

biological differences between males and females, not stereotypes associated with 

either sex.”); see also, Skrmetti, 73 F.4th at 421.

A sex stereotype is a generalization about the relative capabilities of, or

socially acceptable behavior for, members of each sex. See Brumby, 663 F.3d at

1316 (defining a stereotype as “failing to act and appear according to expectations 

defined by gender”); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-725

Case 4:20-cv-00020-MW-MAF Document 171 Filed 06/05/24 Page 21 of 26
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(1982) (explaining that the Equal Protection Clause “must be applied free of fixed 

notions concerning the roles and abilities of males and females”).

However, the Plan does not condition coverage based on whether a treatment 

aligns with or departs from a patient's sex. Nor does it bar certain persons from 

treatment if they do not identify with their sex. Instead, the Plan grants or withholds

coverage based on a patient's diagnosis. See Geduldig, 417 U.S. at 496 n.20. The 

different coverage accorded to treatments for different diagnoses is therefore based 

on medical and biological reality, which is not a stereotype.

There is no evidence that any biological sex-based stereotypes played a role 

in the coverage decisions at issue. DMS does not know how Plaintiffs, or any of the 

other hundreds of thousands of Plan participants, identify or present when Plan 

exclusions are applied. DMS does not know if they identify as transgender or nontransgender. The Plan is only concerned with making coverage decisions based on 

the Plan documents, which exclude a multitude of medical treatments and services, 

some of which may fall more heavily on one sex than another. (Doc. 136 p. 18-20.) 

None of these decisions are based on stereotypes about how Plaintiffs should act or 

behave. 

Plaintiffs argue that gender dysphoria / gender reassignment services is a 

proxy for transgender persons and therefore biological sex. However, more is needed 

to establish a violation of Title VII. That a law targets something closely associated 

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with a protected class cannot alone support a presumption of discriminatory intent. 

See Standridge v. Union Pac. R.R. Co., 479 F.3d 936, 943-45 (8th Cir. 2007); 

Gilbert, 429 U.S. at 139 (applying the holding in Geduldig to a Title VII case).

To establish that the exclusion discriminates based on sex, plaintiffs must 

come forward with evidence of intent to discriminate. Ricci v. DeStefano, 557 U.S. 

557, 577 (2009). Here, Plaintiffs have not, and cannot, rebut Defendants’ articulated 

reasons for the exclusion or establish any evidence of discriminatory intent. It is 

undisputed that the exclusion was created when gender-affirming care was 

experimental; DMS cannot add coverage without legislative approval; and DMS, in 

keeping with its cost-saving mission, has never advocated for the addition of any 

service to the Plan.

C. Plaintiffs cannot identify any similarly situated comparators.

Plaintiffs fail in their attempt to identify similarly situated members of the 

State Health Plan outside their protected class treated more favorably. Instead, they 

allege that non-transgender women, for example, are treated more favorably than 

transgender men because non-transgender women are entitled to coverage for 

mastectomy following cancer, while mastectomy to treat gender dysphoria is not 

covered. But this argument fails to show mistreatment based on biological sex. In 

fact, both transgender and non-transgender individuals – regardless of natal sex –

are entitled to mastectomy for a covered medical condition.

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Moreover, Plan members suffering from conditions like cancer are not 

similarly situated to Plan members seeking gender/sexual reassignment services to 

treat gender dysphoria. Lewis, 918 F.3d at 1227. Gender dysphoria is a mental health 

condition identified in the Diagnostic and Statistical Manual for Mental Disorders. 

A more appropriate analysis would be to compare Plaintiffs to Plan membersseeking 

surgical interventions to treat a psychiatric condition – all of whom do not have 

coverage under the Plan. See e.g., Standridge, 479 F.3d at 943-45 (holding that an 

exclusion for all forms of contraception did not discriminate against women and that 

a broad comparison to the category of preventative medicines did not satisfy the 

similarly situated analysis).

The Plan exclusion treats members the same regardless of sex. Whether a nontransgender male seeks penile prosthesis to treat a psychosexual dysfunction, or a 

transgender female seeks orchiectomy to treat gender dysphoria, the Plan is nondiscriminatory in its exclusion of coverage. (Doc. 125 p. 5, 25-26.) Therefore, 

Plaintiffs cannot establish that they were treated differently than similarly situated 

persons, or that Defendants unequally applied the facially neutral policy for the 

purpose of discriminating. 

D. Plaintiffs have no evidence of pretext to rebut Defendants’ legitimate 

reasons for the exclusion.

The crux of a Title VII disparate treatment claim is intentional discrimination.

Lewis, 918 F.3d at 1223; Catastrophe, 852 F.3d at 1026. Because the Plan exclusion 

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is not facially discriminatory based on biological sex, Plaintiffs must come forward 

with evidence of pretext to rebut DMS’s articulated legitimate reasons for the 

exclusion. (Doc. 126 p. 10-11, 14-15; Doc. 140 p. 11-12.) 

Plaintiffs argue that no such evidentiary showing is required because Bostock

(and now Lange) mandate a finding that the exclusion is facially discriminatory 

because of sex. As discussed at length above, this argument is flawed and contrary 

to law. The exclusion is facially neutral; therefore, Plaintiffs must come forward 

with evidence of intent to discriminate based on sex, which they have not done. As 

such, Plaintiffs have not established liability under Title VII. 

WHEREFORE, for the reasons set forth herein, and in Defendants’ previous 

memoranda in support of summary judgment (Docs. 125, 126, 135, 140, 141 and 

160), this Court should grant summary judgment in favor of Defendant Allende on 

the Equal Protection claim and withhold ruling on the Title VII claim until mandate 

is issued in Lange.

Respectfully submitted this 5

th day of June 2024.

HENRY BUCHANAN, P.A.

/s/ Miriam R. Coles

MIRIAM R. COLES

Florida Bar No. 58402

mcoles@henryblaw.com

J. STEVEN CARTER

Florida Bar No. 896152

Post Office Drawer 14079

Case 4:20-cv-00020-MW-MAF Document 171 Filed 06/05/24 Page 25 of 26
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Tallahassee, Florida 32317-4079

(850) 222-2920: Telephone

(850) 224-0034: Facsimile

Counsel for Defendants 

CERTIFICATE OF WORD COUNT

Pursuant to Local Rules 5.1 and 7.1, undersigned counsel certifies that this 

motion consists of 5,659 words and is typed in Times New Roman, font size 14.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been 

electronically filed via the CM/ECF system which will send electronic notification 

to all counsel of record on this 5

th day of June 2024.

/s/ Miriam R. Coles

ATTORNEY

Case 4:20-cv-00020-MW-MAF Document 171 Filed 06/05/24 Page 26 of 26