UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMI CLAIRE, KATHRYN LANE,

and AHMIR MURPHY, 

Plaintiffs, 

v. CASE NO.: 4:20-cv-00020-MW-MAF

FLORIDA DEPARTMENT OF 

MANAGEMENT SERVICES, et al., 

Defendants. 

__________________________________________/ 

DEFENDANT, FLORIDA DEPARTMENT OF CORRECTIONS’, 

SECRETARY MARK INCH’S, AND ANDY THOMAS’ MOTION TO 

DISMISS PLAINTIFFS’ AMENDED COMPLAINT

Defendants, Florida Department of Corrections (“FDC”), Mark Inch, in his 

official capacity as Secretary of the Florida Department of Corrections (“Secretary

Inch”), (collectively “FDC Defendants”) and Andy Thomas, in his official capacity 

as Public Defender of the Second Judicial Circuit of Florida (“Mr. Thomas” or the 

“Public Defender”) through undersigned counsel, and pursuant to Rules 12(b)(1) and 

12(b)(6), Fed. R. Civ. P., and N.D. Fla. Loc. R. 7.1, move this Court to dismiss 

Counts III, IV, VII, and VIII of the Amended Complaint, with prejudice. 

Introduction

The Amended Complaint must be dismissed based on several fundamental 

grounds. Plaintiff Ahmir Murphy brings the following counts against the FDC 

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Defendants: Count IV asserts violations of Title VII by the FDC; and Count VIII, 

brought against Secretary Inch in his official capacity as Secretary of the FDC

pursuant to 42 U.S.C. §1983, asserts violations of the Fourteenth Amendment’s 

Equal Protection Clause.

Similarly, Plaintiff Kathryn Lane brings the following counts against the 

Public Defender: Count III asserts violations of Title VII by the Public Defender; 

and Count VII, brought against the Public Defender in his official capacity pursuant 

to 42 U.S.C. §1983, asserts violations of the Fourteenth Amendment’s Equal 

Protection Clause.

Each of these counts must be dismissed with prejudice because Mr. Murphy 

and Ms. Lane (for the purposes of this motion collectively referred to as “Plaintiffs”)

have failed to demonstrate Article III standing. None of the alleged injuries are fairly 

traceable to, or can be redressed by the FDC or the Secretary of FDC or Mr. Thomas. 

This is because by statute, the Florida Department of Management Services 

(“DMS”) has total control and authority over the provision of health insurance for 

state employees, including the Plaintiffs. As such, the actions of the FDC, Secretary

Inch and Mr. Thomas are not fairly traceable to the harm suffered by the Plaintiffs, 

which was solely caused by the actions of the DMS in determining the appropriate 

level of healthcare for state employees.

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Count VIII, styled as an Ex Parte Young claim for prospective injunctive relief 

from a continuing violation of law against Secretary Inch, also fails because it is 

barred by sovereign immunity. Secretary Inch lacks the authority to actually 

implement or enforce the complained-of policies. This destroys the legal fiction that 

Ex Parte Young provides in very limited cases for litigants to obtain relief from states 

in federal courts in situations where such actions for relief would otherwise be 

barred. This same reason also requires the dismissal of Count VII against Mr. 

Thomas.

Counts III and IV of the Complaint, brought pursuant to Title VII alleging sex 

discrimination must also be dismissed for failure to state a cause of action. Plaintiffs 

simply fail to plead any facts establishing that they were treated adversely due to 

their sex.

Facts

The following facts are taken from the Amended Complaint and in the light 

most favorable to the Plaintiffs. None of the facts recited herein should be deemed 

an admission on the part of the moving parties that they are true. 

Mr. Murphy was born female, but identifies as male. (Doc. 34 p. 38 ¶ 165). 

Ms. Lane was born male, but identifies as female. (Doc. 34 p. 29 ¶ 122). Mr. Murphy 

and Ms. Lane were diagnosed with gender dysphoria at or before the alleged 

constitutional and statutory violations occurred. (Doc. 34 pp. 30, 39 ¶¶ 126, 171). 

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According to the Amended Complaint, gender dysphoria is a medical diagnosis for 

the “feeling of incongruence between one’s gender identity and one’s sex assigned 

at birth, and the resulting distress caused by that incongruence. . ..” (Doc. 34 p. 9 ¶ 

25). 

Mr. Murphy alleges that his treating physician recommended he receive a 

double mastectomy and chest reconstruction and deemed both procedures medically 

necessary to treat his gender dysphoria. (Doc. 34 p. 42 ¶¶ 185, 186). Ms. Lane alleges 

that her treating physician recommended she receive facial feminization surgery and 

deemed it medically necessary to treat her gender dysphoria. (Doc. 34 pp. 32-33 ¶¶ 

138, 139). 

Mr. Murphy is employed as a correctional sergeant at Homestead Correctional 

Institution in Florida City for the FDC. (Doc. 34 p. 37-38 ¶163). As a state employee, 

his health insurance is provided by the state of Florida through AvMed. (Doc. 34 pp. 

13-14 ¶¶ 39, 43, 47). Ms. Lane is employed by the Office of the Public Defender in 

the Second Judicial Circuit of Florida, which is headed by Mr. Thomas. (Doc. 34 p. 

29 ¶ 118). As a state employee, her health insurance is provided by the state of 

Florida through Capital Health Plan (“CHP”). (Doc. 34 pp.13-14 ¶¶ 39, 43, 46). 

The state health plan is developed, maintained, and provided to state 

employees by DMS. (Doc. 34 p. 13 ¶¶ 40, 41, 42). Under section VI of the health 

insurance plan documents outlining the coverage provided by AvMed there is a 

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“Limitations and Exclusions” provision, which states “[t]the following services and 

supplies are excluded from coverage under this Plan unless a specific exception is 

noted. Exceptions may be subject to certain coverage Limitations.” (Doc. 20-1 p. 

57). Section VI then goes on to identify 39 different categories of limitation and 

exclusions in the plans, one of which is “gender reassignment or modification 

services and supplies.” (Doc. 20-1 p. 58). 

Likewise, under section VI of the health insurance plan document outlining 

the coverage provided by CHP there is a “Limitations and Exclusion” provision, 

which states “[t]he following services and supplies are excluded from coverage 

under this Plan unless a specific exception is noted. Exceptions may be subject to 

certain coverage Limitations.” (Doc. 19-1 p. 57). Section VI then goes on to identify 

39 different categories of limitations and exclusion in the plans, one of which is 

“gender reassignment or modification services supplies.” (Doc. 19-1 p. 58). 

While the Amended Complaint does not include or attach the AvMed or CHP 

plan documents, they are both referred to extensively therein. The Eleventh Circuit 

has instructed that a district court may consider extrinsic evidence in ruling on a 

motion to dismiss if it is (1) central to the plaintiff’s claim, and (2) its authenticity is 

not challenged. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 

(11th Cir. 2010); see also Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267-68 

(11th Cir. 2002). Plaintiffs’ Amended Complaint is centered around the stateCase 4:20-cv-00020-MW-MAF Document 59 Filed 05/29/20 Page 5 of 31
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provided insurance plans and the gender reassignment exclusion. (Doc. 34 p. 15 ¶ 

54). Obviously, the plan documents are central to the Amended Complaint and their 

authenticity should not be in question. 

Mr. Murphy alleges that on May 13, 2019, his physician sought authorization 

for Murphy to obtain a double mastectomy. (Doc. 34 p. 44 ¶ 193). On May 23, 2019, 

AvMed denied authorization for coverage citing to the exclusion in the state plan for 

gender reassignment or modification services and supplies. (Doc. 34 p. 44 ¶ 194). 

On May 29, 2019, a different physician sought authorization for Mr. Murphy to 

obtain the procedure. (Doc. 34 p. 44 ¶ 195). On June 5, 2019, AvMed denied the 

second authorization request for coverage citing to the exclusion in the state plan for 

gender reassignment or modification services and supplies. (Doc. 34 p. 45 ¶ 196). 

On January 11, 2019, Plaintiff Lane’s physician sent a letter recommending 

that Lane obtain facial feminization surgery. (Doc. 34 p. 33 ¶ 139). CHP denied 

authorization for coverage citing to the exclusion in the state plan for gender 

reassignment or modification services and supplies. (Doc. 34 p. 33 ¶ 140). Ms. Lane 

appealed the denial pursuant to the plan, and CHP again denied the appeal for the 

same reason, as well as for the additional reason that the procedure fell under the 

exclusion for cosmetics surgeries or services. (Doc. 34 p. 33 ¶¶ 141, 142).

Argument 1

 1 Because this Court is surely well-versed in the standard for adjudicating a motion 

to dismiss, it is omitted.

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I. Plaintiffs Lack Article III Standing to Sue the FDC Defendants and Mr. 

Thomas 

All of Plaintiffs’ counts against the FDC Defendants and Mr. Thomas must be 

dismissed pursuant to Rule 12(b)(1), Fed. R. Civ. P., as this Court lacks subject 

matter jurisdiction over these claims. This is because the Plaintiffs cannot establish 

standing to sue the FDC Defendants or Mr. Thomas. To satisfy the constitutional 

restriction of federal courts’ jurisdiction to “cases” and “controversies,” “a plaintiff 

must demonstrate constitutional standing.” Bank of Am. Corp. v. City of Miami, Fla., 

137 S. Ct. 1296, 1302 (2017). “Article III standing requires Plaintiff to show an 

‘injury in fact’ that is ‘fairly traceable’ to the defendant’s conduct and ‘that is likely 

to be redressed by a favorable judicial decision.” Id. The party invoking federal 

jurisdiction bears the burden of proving standing. Hollywood Mobile Estates Ltd. v. 

Seminole Tribe of Fla., 641 F.3d 1259, 1265 (11th Cir. 2000). 

Here, Plaintiffs’ alleged injuries are not fairly traceable to the challenged 

actions of the FDC Defendants or Mr. Thomas. Moreover, a favorable decision by 

this Court on the counts subject to this motion will not result in any remedy that the 

FDC Defendants or Mr. Thomas can provide as a matter of law. Stated another way, 

this Court cannot compel the FDC Defendants or Mr. Thomas to do anything that 

would redress the Plaintiffs’ injuries. Thus, the Plaintiffs cannot establish the 

requisite standing to proceed against the FDC Defendants or the Public Defender

warranting dismissal.

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a. Plaintiffs’ Injuries Are Not Fairly Traceable to the FDC Defendants or 

the Public Defender.

Article III standing requires “a causal connection between the injury and the 

conduct complained of—the injury has to be fairly traceable to the challenged action 

of the defendant, and not the result of the independent action of some third party.” 

Hollywood Mobile Estates, 641 F.3d at 1265 (quoting Lujan v. Defs. of Wildlife, 504 

U.S. 555, 560 (1992)). Here, any injury allegedly suffered by the Plaintiffs via denial 

of coverage for their respective requested procedures, is exclusively tied to the 

independent actions of a third party – DMS. The FDC Defendants and Mr. Thomas

have no control over any aspect of the health insurance provided to state employees 

via the AvMed or CHP state insurance plans. 

The Florida Legislature has expressly declared its intent that DMS “shall be 

responsible for all aspects of the purchase of health care for state employees under 

the state group health insurance plan or plans . . .” §110.123(3)(c), Fla. Stat. (2019) 

(emphasis supplied). The responsibilities assigned and limited to DMS by the 

Legislature include the “determination of health care benefits to be provided” and 

the “negotiation of contracts for health care and health care administrative services.” 

Id.; see also §110.123(5)(a), Fla. Stat. (It is the duty of the DMS to “[d]etermine the 

benefits to be provided and the contributions to be required for the state group

insurance program”). Plaintiffs acknowledge DMS’s statutory responsibilities as to 

the determination and provision of group health insurance for state employees. (Doc. 

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34 ¶¶ 40-43). To be sure, the FDC and the Public Defender are both included in the 

definition of “State Agency” for purposes of the state insurance program.

§110.123(2)(i), Fla. Stat. The Plaintiffs are full-time employees of state agencies as 

defined in §110.123(2)(c) and §110.123(2)(i), Fla. Stat., and have voluntarily elected 

to participate in the group insurance program offered by DMS as an enrollee. 

§110.123(2)(b) & (c), Fla. Stat. 

Nowhere in the Amended Complaint do the Plaintiffs allege that the FDC

Defendants or the Public Defender have any role in, or authority to, implement the 

state health plans, establish exclusions, solicit or choose providers, enter into 

contracts to establish the state health plans, or otherwise control or influence any 

aspect of the state health plans. Further, there is no allegation in the Amended 

Complaint that the FDC Defendants or the Public Defender were in any way 

involved in the decision to deny the Plaintiffs their requested procedures. 

It was solely DMS’s responsibility to select and define the contours of the 

benefits offered under the state health plan that covered Plaintiffs. Because the FDC

Defendants and the Public Defender have no involvement in that process, no conduct 

of the FDC Defendants or the Public Defender is fairly traceable to the injury alleged 

in the Amended Complaint. 

Ultimately, the “fairly traceable” element of Article III standing is essentially 

a threshold showing that there is some causal connection between the injury and the 

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actions of the defendants. See Allen v. Wright, 468 U.S. 737, 757 (1984), abrogated 

in part on other grounds by Lexmark Int’l., Inc. v. Static Control Components, Inc., 

572 U.S. 118 (2014) (holding that causation is a distinct requirement of standing 

apart from whether requested relief might substantially remedy a threatened

constitutional injury). This case is similar to numerous cases in which the Eleventh 

Circuit has found want of facts to establish the “fairly traceable” element of Article 

III standing and a lack of causal connection between the conduct alleged on the part 

of a defendant and the injury suffered. 

For example, in Doe v. Pryor, several plaintiffs sued the Attorney General of 

Alabama to enjoin enforcement of a statute making “deviate sexual intercourse” a 

criminal offense. 344 F.3d 1282, 1285–86 (11th Cir. 2003). While one plaintiff lost 

a custody dispute based on the challenged statute, the Eleventh Circuit held that this 

injury was not “fairly traceable” to the Attorney General because the Attorney 

General played no role in the custody dispute. Id. at 1285. What was lacking in Doe 

is the same as what is lacking here: any connection between the defendant and the 

injury. Id.; see also Hollywood Mobile Estates, 641 F.3d at 1265–67 (holding that 

injury was not fairly traceable to Secretary of the Interior, where there was no 

allegation that Secretary caused any injury, in that case, a forcible eviction of a 

leased property committed by the Seminole Tribe of Florida); Daogaru v. U.S. 

Attorney Gen., 683 F. App'x 824, 825-26 (11th Cir. 2017) (dismissing federal 

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government defendant and finding that defendant’s conduct was not fairly traceable 

to injury in complaint challenging federal firearms law prohibiting the plaintiff from 

possessing a firearm and ammunition in his home, where state law independently 

prohibited plaintiff from possessing a firearm); Allen, 468 U.S. at 753 n.19 (holding 

that parents lacked standing to sue the IRS for their children's diminished ability to 

receive an education in a racially integrated school because, even though this was a 

cognizable injury, “whatever deficiencies exist in the opportunities for desegregated 

education for [plaintiffs'] children might not be traceable to IRS violations of law”).

The instant matter is unlike the case in Arizona Governing Comm. for Tax 

Deferred Annuity and Deferred Comp. Plans v. Norris, 463 U.S. 1073 (1983) which 

found the state of Arizona responsible for a discriminatory fringe benefit plan it 

adopted. In Norris, the plaintiff brought suit against the state of Arizona, the 

Governing Committee responsible for adopting the plan, and several members of the 

Committee. Id. at 1078 (Marshall, J., concurring). Notably, the plaintiff’s employer, 

the Arizona Department of Economic Security, was not itself a defendant. Id. While 

the Supreme Court did note that “an employer that adopts a fringe-benefit scheme 

that discriminates among its employees on the basis of race, religion, sex, or national 

origin violates Title VII regardless of whether third parties are also involved in the 

discrimination” it emphasized the extent of the involvement of the defendants in 

establishing and administering the discriminatory fringe benefit plan in reaching that 

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conclusion. Id. at 1088–89 (Marshall, J., concurring). Indeed, the Supreme Court 

noted the extensive involvement of Arizona’s Governing committee in establishing 

the fringe benefit plan including the fact that it invited insurance companies to 

submit bids outlining the terms on which they would supply benefits, selected the 

companies that were to participate in the plan, and entered into contracts with them 

governing the terms on which benefits were to be provide to employees. Id. It was 

only “under these circumstances” that the Supreme Court held “there can be no 

serious question” that the state was responsible for the discriminatory terms of the 

fringe benefit plan. 463 U.S. at 1089 (Marshall, J., concurring).

Indeed, courts that have based employer liability on participation in third party 

programs that are discriminatory, emphasize the fact that the employer in those 

situations had some control over the terms of the program and therefore can be said 

to have perpetuated that discrimination. See Morgan v. Safeway Stores, Inc., 884 

F.2d 1211, 1214-15 (9th Cir. 1989) (collecting authorities holding the same). The 

Ninth Circuit’s decision in Morgan is directly on point. There, the Ninth Circuit held 

that Safeway was not responsible for alleged discriminatory features of the Safeway 

Credit Union benefit offered to employees because the grocery store did not 

participate in the discriminatory program. Id. at 1215–16. The Ninth Circuit held as 

much because there was no evidence of the participation of Safeway in establishing 

or maintaining the credit union’s alleged discriminatory policy. Id. Safeway did not 

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specify the terms of the program by contract, as in the Norris case, it did not require 

its employees to participate in the alleged discriminatory program, it did not 

establish conditions for receiving the benefits, and it did not develop the terms of the 

program. Id.

Just as in Morgan, the FDC Defendants and the Public Defender have no 

involvement in the development of the state health care plans challenged in this 

action. The FDC and the Public Defender are defined as state agencies under Section 

110.123, which reserves the administration and authority for the state health care 

plans, including engaging in all of the key indicia of participation outlined by the 

Norris and Morgan courts, to DMS. The Amended Complaint does not plead any 

facts demonstrating that the Public Defender or the FDC Defendants solicited any 

plan terms, established any plan terms, entered into any contracts with service 

providers or were part of the process for establishing or administering the state health 

plans. Simply put, “participation” and control over the state health plan on the part 

of these defendants has not been alleged or pled.

Any invitation that the Article III standing requirement, an important 

prudential requirement that speaks to the heart of this Court’s jurisdiction over the 

subject matter of a dispute, can be premised on the Norris case must be rejected as 

inapposite as applied here. Indeed, the plaintiff in the Morgan case argued that 

“participation” in the allegedly discriminatory third party program does not require 

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an active role on the part of the employer relying on the Ninth Circuit’s own 

precedent in Norris v. Arizona Governing Comm. for Tax Deferred Annuity and 

Deferred Comp. Plans, 671 F.2d 330 (9th Cir.1982), which would go on to the 

Supreme Court, as cited supra. The Ninth Circuit plainly rejected this argument, 

noting that the State of Arizona could be held liable because it took an active role in 

administering and developing the program, adopted the plan, and entered into a 

contract governing the terms of the plan, thus specifically agreeing to them. Morgan, 

884 F.2d at 1214-15, n. 1. That active participation was lacking in the Morgan, and 

it is lacking here.

To be sure, the injury need not be “the very last step in the chain of causation”

to be fairly traceable to the defendant, but the conduct of the defendant must have at 

least been a step in that chain. Bennett v. Spear, 520 U.S. 154, 168-69 (1997). In 

Bennett, the plaintiff was found to have standing to sue a federal agency that issued 

an advisory opinion, because the advisory opinion amounted to a “determinative or 

coercive effect upon the action of someone else” leading to injury. Id. at 169. Indeed, 

while another agency took ultimate action in the Bennett case, the exceptional 

circumstances of the advisory opinion led to a finding that the injury was fairly 

traceable to the agency issuing that advisory opinion. Id. at 168-171. In Bennett, the 

government admitted that the specific advisory opinion at issue had a powerful and 

coercive effect on the action of agencies playing a central role in the agency’s 

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decision-making process. Id. at 169. Agencies bore the burden of articulating in its 

administrative record why it decided to go against the advisory opinion and they 

carried a substantial risk in disregarding the advisory opinion because it opened itself 

up to criminal and civil penalties in those circumstances. Id. at 169-170. In fact, the 

advisory opinion at issue in Bennett contained an “incidental take statement” that 

provided that an action was not approved unless it was “in compliance with this 

incidental take statement,” and warning that “[t]he measures described below are 

nondiscretionary, and must be taken.” Id. at 170-71.

This is hardly a situation in which the FDC Defendants or the Public Defender 

caused Plaintiffs an injury by taking an action that had a “determinative or coercive 

effect upon the action of someone else.” Rather, DMS solely controls the State 

Group Health Insurance Plan and its terms.

The allegations in the Amended Complaint simply do not meet the bar for 

standing in this Circuit as recently articulated by the Eleventh Circuit. Jacobson v. 

Fla. Sec'y of State, 957 F.3d 1193 (11th Cir. 2020) (holding that plaintiffs lacked 

Article III standing to sue Secretary of State for dispute over election ballot ordering 

where “Florida law expressly gives a different, independent official control over the 

order in which candidates appear on the ballot”). Indeed, a plaintiff lacks standing 

to challenge a rule if an independent source would have caused her to suffer the same 

injury. Swann v. Sec'y, Georgia, 668 F.3d 1285, 1288–89 (11th Cir. 2012); Charles 

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Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and 

Procedure § 3531.5 (3d ed. 2008) (“Rather than a break in one causal chain, standing 

may be defeated by finding a different cause.”). Here, the Plaintiffs’ injury is 

attributable to DMS, and not fairly traceable to the FDC or Secretary Inch or the 

Public Defender, meriting dismissal of all counts pled against these defendants.

b. Plaintiffs’ Injuries Are Not Redressable by the FDC Defendants or the 

Public Defender 

For an injury to be redressable “it must be likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 

U.S. at 561. “Redressability is established . . . when a favorable decision ‘would 

amount to a significant increase in the likelihood that the plaintiff would obtain relief 

that directly redressed the injury suffered.’” Mulhall v. UNITE HERE Local 355, 

618 F.3d 1279, 1290 (11th Cir. 2010) (quoting Harrell v. Fla. Bar, 608 F.3d 1241, 

1260 n.7 (11th Cir. 2010)). Courts must be able “to ascertain from the record whether 

the relief requested is likely to redress the alleged injury,” Steele v. Nat'l Firearms 

Act Branch, 755 F.2d 1410, 1415 (11th Cir. 1985), and if they cannot, then there is 

no jurisdiction to entertain the action. See DiMaio v. Democratic Nat'l Comm., 520 

F.3d 1299, 1303 (11th Cir. 2008) (dismissing complaint for lack of standing because 

it did not “suggest in any way how [the] ‘injury’ could be redressed by a favorable 

judgment”).

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Plaintiffs seek, inter alia, equitable relief in the form of permanent injunctive 

relief against all of the defendants to: (1) cease enforcement of the State Plan

Exclusion of coverage for “gender reassignment or modification services and 

supplies”; and (2) provide benefits that cover Plaintiffs’ asserted medically 

necessary gender affirming care. (Doc. 34 pp. 62-63). Again, as DMS is the singular 

controlling entity as to the determination and administration of the state health plans 

as provided pursuant to Chapter 110 Fla. Stat., a favorable decision against the FDC

Defendants or the Public Defender will do nothing to redress the Plaintiffs’ alleged 

injuries. The FDC Defendants and the Public Defender have no power or authority 

to require DMS to alter the group health insurance plans already in effect. Moreover, 

the FDC Defendants and the Public Defender could not compel or require DMS, 

notwithstanding the current plans in effect, to provide funds that cover the benefits 

the Plaintiffs seek, nor do the FDC Defendants have any authority to commit state 

funds for such use.

In fact, the FDC, Secretary Inch, and the Public defender are statutorily 

prohibited from doing so as the state of Florida has exclusively made it the province 

and authority of DMS to control such terms. See section I(a), supra. The Eleventh 

Circuit’s opinion in Jacobson is on point. There, the Eleventh Circuit found that 

relief ordered against Florida’s Secretary of State could not redress the injury caused 

by the decision to order candidate names on a ballot in a certain way because 

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nonparty supervisors of election, over whom the Secretary did not have any pertinent 

control, were responsible for ballot ordering. 957 F.3d 1193. No factual allegations 

have been pled to suggest such control exists in the instant matter.

Ultimately, even if the Plaintiffs are successful in the counts against the FDC

Defendants or the Public Defender, the harm suffered by the Plaintiffs cannot be 

redressed by these defendants. As such Plaintiffs lack Article III standing to sue the 

FDC Defendants and the Public Defender. See Doe, 344 F.3d at 1285–86 (holding 

that injuries suffered by plaintiff in custody proceeding by virtue of criminal statute 

would not be redressed through lawsuit against the Alabama Attorney General where 

injunctive relief against the Attorney General would have done nothing to change 

the result the plaintiff suffered in the state court custody proceeding and nothing that 

the court could order the Attorney General refrain from doing would address the 

harm suffered); Hollywood Mobile Estates, 641 F.3d at 1265–67 (holding plaintiff 

could not establish standing against Secretary of the Interior because plaintiff failed 

to show how a judgment against the Secretary would redress the harm caused by a 

third party).

II. Counts VII and VIII, Asserting Equal Protection Clause Violations, are Barred 

by the Doctrine of Sovereign Immunity 

Counts VII and VIII, brought pursuant to Section 1983, are lodged against 

Secretary Inch in his official capacity and Mr. Thomas in his official capacity, 

respectively, and allege a deprivation of rights under the Equal Protection Clause of 

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the Fourteenth Amendment. This claim however is barred by the Eleventh 

Amendment, and, while technically styled as an Ex Parte Young claim, that legal 

fiction should not apply here. 

“Dual sovereignty is a defining feature of our Nation's constitutional 

blueprint.” Sossamon v. Texas, 563 U.S. 277, 283 (2011) (citation omitted). “Upon 

ratification of the Constitution, the States entered the Union ‘with their sovereignty 

intact.’” Id. (citation omitted). It is a fundamental concept of Federalism that states 

yield their sovereignty only with respect to matters exclusively assigned to the 

federal government. See Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 

(1991). This concept underlies the Eleventh Amendment of the Constitution which 

limits the power of federal courts to hear certain lawsuits brought against states. See

U.S. Const. amend. XI; P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 

U.S. 139, 144-46 (1993). The Eleventh Amendment provides that “[t]he Judicial 

power of the United States shall not be construed to extend to any suit in law or 

equity, commenced or prosecuted against one of the United States by citizens of 

another state . . ..” U.S. Const. Amend. XI.

The Amendment has been interpreted by the Supreme Court to forbid lawsuits 

brought by citizens of a state against their own state in federal courts under most 

circumstances. Congress may abrogate state sovereign immunity if it has 

unequivocally expressed its intent to abrogate the immunity and if it has acted 

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pursuant to a valid exercise of power. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 

55 (1996). The doctrine of sovereign immunity has been interpreted to bar suits 

against an unconsenting state brought by private parties regardless of the nature of 

the relief sought. See id.; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 

100 (1984).

Sovereign immunity, as embodied in the Eleventh Amendment, precludes 

actions brought pursuant to Section 1983 against state entities for money damages 

and for injunctive relief. Indeed, state entities and state officials sued in their official 

capacities are not “persons” subject to suit under Section 1983. See Will v. Mich. 

Dep't of State Police, 491 U.S. 58, 70–71 (1989). The state of Florida has not waived 

its immunity to suits under Section 1983. See Gamble v. Fla. Dep't of Health & 

Rehab. Servs., 779 F.2d 1509, 1513-20 (11th Cir. 1986). 

Nevertheless, the Eleventh Amendment and the doctrine of sovereign 

immunity does not preclude suits against state officers in their official capacity for 

prospective injunctive relief when the state officers’ alleged actions are in violation 

of federal law. Ex Parte Young, 209 U.S. 123 (1908); Grizzle v. Kemp, 634 F.3d 

1314, 1319 (11th Cir. 2011). This is because such suits, including suits under Section 

1983, are not treated as suits against the state itself. Will, 491 U.S. at 71 n. 10.

The Ex Parte Young doctrine creates a legal fiction allowing a claim against

a state officer to redress continuing violations of federal law. Verizon Md. Inc. v. 

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Public. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). However, Ex parte Young

cannot “operate as an exception to ... sovereign immunity where no defendant has 

any connection to the enforcement of the challenged law at issue.” Summit Med. 

Assocs., P.C. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999). Thus, before the 

exception applies, the “state officer [named as a defendant in his official capacity 

must have] the authority to enforce an unconstitutional act in the name of the state.” 

Id.

The Equal Protection Clause claims brought pursuant to Section 1983 against 

Secretary Inch and Mr. Thomas in their official capacities must be dismissed 

because, as state law makes clear, Secretary Inch and Mr. Thomas simply have no 

influence, effect, or authority to dictate the terms of the state health plans challenged 

by the Plaintiffs. Indeed, only if a state officer has the authority to enforce an 

unconstitutional act in the name of the state can the Supremacy Clause be invoked 

to strip the officer of his official or representative character and subject him to the 

individual consequences of his conduct. Summit Med. Assocs., P.C., 180 F.3d at 

1341 (citing Ex Parte Young). Where the named defendant lacks any responsibility 

to enforce the statute or scheme at issue the real party in interest is the state and the 

suit remains barred by the Eleventh Amendment. Summit Med. Assocs. P.C., 180 

F.3d at 1341.

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The fact of the matter is that Secretary Inch, as the Secretary of the FDC, and 

Mr. Thomas, as the Second Judicial Circuit’s Public Defender, have no control over 

or authority over the provision of healthcare insurance coverage to state employees 

under Section 110.123. DMS is tasked by statute with establishing the health care 

plans for all state employees. Secretary Inch and Mr. Thomas are not authorized in 

any way to solicit bids for health insurance plans, establish exclusions, enter into 

contracts for the provision of healthcare coverage, or otherwise dictate to any state 

employee the contours of healthcare coverage. That is DMS’s responsibility. 

This case is unlike those that have found a connection sufficient to support an 

Ex Parte Young claim. For example, the Eleventh Circuit in Luckey v. Harris, 860 

F.2d 1012, 1016 (11th Cir. 1988) held that personal action by the defendants causing 

injury is not a necessary condition of injunctive relief against a state official in their 

official capacity, but that the official must still have been responsible for the action 

leading to the injury. While the defendants in that case contended that personal 

action on the part of the official sued was required to defeat Eleventh Amendment 

immunity, the court held all that was required was that the official was “responsible 

for the challenged action.” Id. at 1015. According to the Eleventh Circuit, the state 

officer sued must “by virtue of his office, ha[ve] some connection” with the 

unconstitutional act or conduct complained of whether that connection arises out of 

general law or is specifically created by the act itself. Id. at 1016. 

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In relying on these holdings, the Eleventh Circuit found that the governor of 

Georgia and Georgia judges were proper official defendants in an Ex Parte Young

action challenging systemic deficiencies in the Georgia indigent criminal defense 

system resulting in constitutional deprivation. Id. at 1015-1016. This was because 

the governor was responsible for law enforcement in the state, charged with 

executing the laws faithfully, and had residual power to commence criminal 

prosecutions by state statute. Similarly, Judges were responsible for administering 

the system of representation for indigent criminally accused defendants by state 

statute. This made them appropriate defendants against whom prospective relief 

could be ordered. Id. at 1016.

But this is not a case where alleged deficiencies in a system are being 

challenged against those that are responsible for the system. By statute, neither 

Secretary Inch nor Mr. Thomas has any responsibility for the establishment of the 

state health plans. Far from “some connection,” they have no connection to the harm 

alleged by the Plaintiffs.

Because Secretary Inch and Mr. Thomas lack the authority to establish the 

state health plan or enforce any exclusion that Plaintiffs allege caused them harm, 

the fiction of Ex Parte Young simply does not hold water. See Osterback v. Scott, 

782 F. App'x 856, 858–59 (2019) (holding that suit against the Governor of Florida 

in his official capacity was barred by sovereign immunity and not subject to Ex Parte 

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Young exception because, while the Governor had constitutional and statutory 

authority to enforce the law and oversee the executive branch, the responsibility for 

the enforcement of a challenged provision rested with the Division of Administrative 

Hearings). The non-fiction is that the Amended Complaint is a suit against the state, 

and the challenges lodged against Secretary Inch and Mr. Thomas in their official 

capacities are barred by the doctrine of sovereign immunity.

III. Plaintiffs’ Title VII Claims Against the FDC Defendants and the Public 

Defender in Counts III and IV Must be Dismissed because Plaintiffs Fail to 

Plead Facts Stating a Cause of Action Under Title VII for Sex Discrimination

Plaintiffs’ claims under Title VII against the FDC and the Public Defender 

must be dismissed because they fail to plead facts to support a claim of sex 

discrimination. While Plaintiffs may advance the argument that discrimination 

against someone based on their gender identity is ipso facto discrimination based on 

sex, that argument is not supported by the plain language of Title VII’s text. Further, 

the Amended Complaint fails to state a cause of action for sex discrimination based 

on a sex-stereotyping theory.

Since 1964, Title VII has prohibited employers from “discriminat[ing]” 

against any individual with respect to employment “because of such individual’s ...

sex.” 42 U.S.C. § 2000e-2(a)(1). Title VII was meant to prohibit—actions within the 

terms and conditions of employment that disadvantage one sex as to the other. See 

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). That one sex is 

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treated disadvantageously because of their sex is a threshold showing that, while it 

does not always require a showing that a similarly situated comparator was treated 

less favorably, still must be supported by evidence of disparate treatment of the 

sexes. Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., 

concurring)) (“The critical issue, Title VII’s text indicates, is whether members of 

one sex are exposed to disadvantageous terms or conditions of employment to which 

members of the other sex are not exposed.”). Indeed, Title VII’s sex-discrimination 

ban requires plaintiffs to show “disparate treatment of men and women.” Price 

Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality) (quoting Los Angeles 

Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).

Plaintiffs’ allegations of discrimination in violation of Title VII in the 

Amended Complaint appear to allege that the gender reassignment or modification 

services exclusion in the state group health insurance plan is inherently 

discriminatory on the basis of sex because it discriminates against transgender 

individuals for failing to conform to stereotypes about the sexes. Ultimately though, 

the Amended Complaint fails to plead any facts establishing that the Plaintiffs were 

treated disparately because of their sex by application of the terms of the state health 

plan. Any invitation to extend sex stereotyping jurisprudence to essentially create a

stand-alone stereotyping claim, and not just as evidence to support a disparate 

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treatment claim on the basis of an enumerated protected class in Title VII, must be 

rejected.

The genesis of sex stereotyping claims is the Supreme Court’s decision in 

Price Waterhouse. Crucially, Price Waterhouse did not hold that sex stereotyping is 

per se unlawful, regardless of whether the reliance on stereotypes is used to favor 

one sex over another. If that were the holding, then discrimination against a 

transgender person is per se unlawful as well because transgender men and women 

do not conform with sex stereotypes as to how they should identify themselves, 

which appears to be the claim asserted by the Plaintiffs in the Amended Complaint. 

But Price Waterhouse only makes sex-stereotyping actionable to the extent it 

provides evidence of favoritism of one sex over the other. Id. at 251 (holding that 

sex-stereotyping is not sex discrimination per se, but is only actionable when 

disparate treatment of men and women results from sex stereotypes), see also 

id. (“An employer who objects to aggressiveness in women but whose positions 

require this trait places women in an intolerable and impermissible catch 22: out of 

a job if they behave aggressively and out of a job if they do not. Title VII lifts women 

out of this bind.”) (citations and quotations omitted).

Indeed, the Eleventh Circuit expressly held as much in Evans v. Georgia Reg’l

Hosp., where it held that a gender non-conformity claim is not “just another way to 

claim discrimination based on sexual orientation,” and clarified that its holding in 

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Glenn v. Brumby, was not meant to transform claims of discrimination based on 

transgender status into sex stereotyping claims. 850 F.3d 1248, 1254–55 (11th Cir. 

2017) (citing Glenn v. Brumby, 663 F.3d 1312, 1318–19 (11th Cir. 2011)). The 

plaintiff in Evans argued, citing Glenn, that discrimination because of sexual 

orientation was per se discrimination based on gender non-conformity, because 

sexual attraction to a member of the same sex was contrary to a stereotypes about to 

whom members of a certain sex should be attracted. Id. at 1254-55. The Eleventh 

Circuit held that because there was no evidence of gender non-conformity beyond 

Ms. Evans’ status as a lesbian, she could not prevail on her sex discrimination claim. 

Id. Gender non-conformity discrimination is not just another way to claim 

discrimination based on sexual orientation, but rather is a distinct avenue of relief in 

a sex discrimination claim. Id. at 1255. As Judge Pryor clarified in his concurrence 

in Evans, sex stereotyping claims are ultimately about behavior and not status. 

Evans, 850 F.3d at 1259 (J. Pryor, concurring).

Glenn does not stand for the proposition that discrimination against a 

transgender person for being transgender is discrimination on the basis of gender 

non-conformity and therefore sex discrimination. At best, statements suggesting this 

to be the case in Glenn, relying solely on law review articles, are dicta as it was not 

essential to the holding. See Glenn, 663 F.3d at 1316. Indeed, and to the contrary, 

Glenn’s holding is that “discrimination against a transgender individual because of 

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her gender non-conformity is sex discrimination, whether it's described as being on 

the basis of sex or gender.” Id. at 1317. That does not mean that discrimination 

against a transgender individual is inherently sex discrimination or discrimination 

against someone on the basis of a stereotype about the sexes is actionable, without 

any evidence that one sex was treated disadvantageously as compared to the other.

To be sure, if the law of the Circuit were otherwise, the Eleventh Circuit could 

not have reached the result it did in Bostock v. Clayton Cty. Bd. of Comm’rs., where 

it held that Title VII does not prohibit discrimination based on sexual orientation. 

723 F. App'x 964 (11th Cir. 2018), cert. granted sub nom. Bostock v. Clayton Cty., 

Ga., 139 S. Ct. 1599 (2019). The same rationale applies in equal force to claims

centered on the inherent gender non-conforming aspects of transgender individuals.

While it is true that Title VII has been interpreted to apply to situations that 

Congress might not have contemplated when it enacted the statute, a reading of Title 

VII’s prohibition of sex discrimination to include discrimination as alleged here, as 

a form of sex-stereotyping or otherwise, goes beyond the limits of the text. Indeed, 

the Supreme Court in Oncale, interpreted Title VII to apply to male-on-male sexual 

harassment, something not contemplated by Congress when enacting Title VII in 

1964. As the Supreme Court explained:

[S]tatutory prohibitions often go beyond the principal evil to cover 

reasonably comparable evils, and it is ultimately the provisions of our 

laws rather than the principal concerns of our legislators by which we 

are governed. Title VII prohibits “discriminat [ion] ... because of ... 

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sex” in the “terms” or “conditions” of employment. Our holding that 

this includes sexual harassment must extend to sexual harassment of 

any kind that meets the statutory requirements.

Oncale, 523 U.S. at 80. Fundamentally though, interpreting Title VII to prohibit 

claims of discrimination based on sex-stereotyping claims centered on status rather 

than behavior and a showing that a stereotype resulted in the disadvantageous 

treatment of someone based on sex, is not a result that inures from the text of Title 

VII.

Plaintiffs have not pled that they have been treated disadvantageously from 

the opposite sex. Plaintiffs essentially allege that the State Group Health Insurance 

Plan’s exclusion causes them harm because they do not conform to gender 

stereotypes as transgender individuals. But this does not suffice to establish a claim 

under Title VII which focuses, again, on the disadvantages of one sex as to the other.

Indeed, the terms of the State Group Health Insurance Plan apply the same way to 

males and females. For these reasons, the Plaintiffs fail to allege facts to establish 

that the exclusion operates to disadvantage one sex as to the other or is facially 

discriminatory on the basis of sex in any way.

To read the statute otherwise goes beyond the outer limits of Title VII’s text 

even if it is ambiguous on this point. Even ambiguous statutes should not be 

interpreted in a way that would have major policy implications, as Congress “does 

not alter the fundamental details of a regulatory scheme in vague or ancillary 

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provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. 

Am. Trucking Ass'n, 531 U.S. 457, 468 (2001), see also, e.g., Gonzales v. 

Oregon, 546 U.S. 243, 267 (2006) (same). The allegations in the Amended 

Complaint as pled by the Plaintiffs simply fail to state cognizable claim under Title 

VII, warranting dismissal of those claims as to the FDC and the Public Defender. 

Conclusion

For the foregoing reasons, the FDC Defendants and the Public Defender

request that this Court dismiss Count’s III, IV, VII, and VIII of the Amended 

Complaint, with prejudice.

Respectfully submitted this 29th day of May, 2020. 

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

Florida Bar No. 100391

E-mail: jslanker@sniffenlaw.com

MICHAEL P. SPELLMAN

Florida Bar No. 937975

E-mail: mspellman@sniffenlaw.com

MARK K. LOGAN

Florida Bar No. 0494208

E-mail: mlogan@sniffenlaw.com

SNIFFEN & SPELLMAN, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

Telephone: (850) 205-1996

Facsimile: (850) 205-3004

Attorneys for the FDC Defendants and the

Public Defender

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WORD COUNT CERTIFICATION

This document complies with the word limits set forth in N.D. Fla. Local Rule 

7.1(F), and contains 7,437 words, which includes all portions of this motion, even 

those permitted to be excluded from this word count by Local Rule.

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

CERTIFICATE OF SERVICE

The undersigned certifies that on this 29th day of May, 2020, a true and correct 

copy of the foregoing was electronically filed in the U.S. District Court, Northern 

District of Florida, using the CM/ECF system which will send a notice of electronic 

filing to all counsel of record.

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

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