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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 Order for Supplemental Briefing (Doc. 158) requiring 

the parties to address how the en banc decision in Adams affects the merits of 

Plaintiffs’ claims and whether the parties wish to file amended summary judgment 

papers, Defendants, Florida Department of Management Services and Pedro 

Allende1

 (hereinafter collectively “DMS”), respond as follows:

The Eleventh Circuit’s holding in Adams solidifies the outcome already

compelled by federal law: under the Equal Protection Clause and Title VII, “sex” is

1 Pedro Allende is the current Secretary of DMS and is automatically substituted as 

the proper party, pursuant to Rule 25(d), Fed. R. Civ. Pro. 

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defined as an immutable, biological characteristic, and the facially neutral State 

Health Plan exclusion for gender/sexual reassignment services, as a treatment for 

gender dysphoria, does not discriminate based on sex or sex-based stereotypes. 

I. Procedural History of Adams and Plaintiffs’ Reliance on Original 

Adams Opinion.

The original Adams opinion was issued on August 7, 2020. This opinion held

that heightened scrutiny applied to a school’s sex-based bathroom policy and that, 

because there was no substantial relationship between the school’s interest in student 

privacy and excluding a transgender male student from the boys’ restroom, the 

bathroom policy violated the Equal Protection Clause. Adams v. Sch. Bd. of St. Johns 

Cnty., 968 F.3d 1286, 1303 (11th Cir. 2020). Plaintiffs cited the original Adams 

opinion for the proposition that a policy impacting transgender individuals is 

necessarily a sex-based classification warranting the application of heightened 

scrutiny. (See Doc. 137 p. 17; Doc. 139 p. 12.)

The original Adams opinion was vacated and superseded by Adams v. Sch. Bd. of 

St. Johns Cnty., 3 F.4th 1299 (11th Cir. 2021), on July 14, 2021. This second opinion 

attempted to narrow its holding by defining the issue as an as-applied challenge in 

the context of a transgender student’s ability to use the bathroom based on gender 

identity, rather than ruling on the constitutionality of sex-based bathrooms. 

Then, on August 23, 2021, the Eleventh Circuit vacated the second Adams 

opinion and granted rehearing en banc. Adams v. Sch. Bd. of St. Johns Cnty., 9 F.4th

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1369, 1372 (11th Cir. 2021). The en banc Adams opinion was issued on December 

30, 2022. Adams v. Sch. Bd. of St. Johns Cnty., 18-13592, 2022 WL 18003879 (11th

Cir. Dec. 30, 2022). 

In its en banc opinion, the Eleventh Circuit held that a public-school policy to 

separate bathrooms based on biological sex2 was a lawful, sex-based classification

because it satisfied heightened scrutiny. Adams, 2022 WL 18003879 at 11. The 

Court also held that, for the purpose of constitutional analysis, “sex” referred to the 

immutable characteristic of biological sex determined solely by the accident of birth; 

therefore, the plaintiff’s gender identity was not dispositive for the adjudication of 

the equal protection claim because gender identity is not akin to biological sex. Id. 

at 10. The Court also held that the bathroom policy at issue did not impermissibly

discriminate against transgender students because the policy did not adopt sex-based 

stereotypes. Id. at 10-12.

II. Adams’ Impact on Plaintiffs’ Claims. 

Plaintiffs’ primary argument is that the State Health Plan exclusion for

gender/sexual reassignment services facially discriminates against transgender 

individuals and that classifications affecting transgender persons necessarily 

discriminate based on sex requiring heightened scrutiny review, which they claim 

2 Biological sex is akin to the concept of “natal sex” or “sex assigned at birth.” 

Biological sex is the status of being male or female based on reproductive biology. 

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Defendants cannot satisfy. (Doc. 123 p. 3, 31.) Plaintiffs also argue that because 

they purportedly receive less benefits under the State Health Plan than cisgender

state employees,3 the Plan facially discriminates based on sex in violation of Title 

VII. (Doc. 29-33.) Plaintiffs’ arguments require this Court to find that, on its face, a 

class of treatments for a medical condition constitutes a proxy for biological sex, 

which neither the Equal Protection Clause nor Title VII supports. Adams further 

dispels this assertion. 

A. Adams’ definition of “sex” and reliance on Geduldig defeats 

Plaintiffs’ Equal Protection claim. 

In Adams, the Eleventh Circuit makes clear that the Supreme Court’s sexdiscrimination jurisprudence is based solely on biological sex. Adams, 2022 WL 

18003879 at 7 n.6, 10, 12, 14. As Adams clarifies, the Supreme Court’s opinion in 

Bostock v. Clayton County does not render transgender status a proxy for biological 

sex. Id. at 10.

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3 All Plan members are entitled to the same coverage under the Plan. No Plan 

member can receive coverage for gender/sexual reassignment services or other 

surgical interventions to treat a psychiatric condition, regardless of their biological 

sex or transgender status. Moreover, regardless of biological sex or gender identity, 

any Plan member is entitled to receive a covered treatment if it is medically 

necessary to treat a covered medical condition. (Doc. 125 p. 8; Doc. 135 p. 3-4.) 

4 See 207 L. Ed. 218 (2020). The Eleventh Circuit also noted in Adams that it had 

“grave doubt” that transgender persons constitute a quasi-suspect class. 2022 WL 

18003879 at 7 n.5.

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Moreover, Adams confirms that a policy impacting transgender students does 

not facially discriminate based on sex or transgender status when there is a “lack of 

identity” between the policy and a protected class. Id. at 12 (citing Geduldig v. 

Aiello, 417 U.S. 484, 496-97 (1974)). In Adams, the Eleventh Circuit adopted the 

rationale of Geduldig, establishing that Geduldig is binding precedent applicable to 

the present action.5

 

Applying the rationale of Adams and Geduldig, the Plan exclusion is facially 

neutral because it equally impacts both biological sexes. Given Adams’ definition of 

sex, this ends the constitutional analysis. 

But the State Health Plan exclusion lacks identity with transgender status as 

well. Just like the medical condition of pregnancy at issue in Geduldig, which the 

Supreme Court found lacked identity with the biological female sex because not all 

women experience pregnancy, so too the Plan exclusion for gender/sexual 

reassignment services lacks identity with transgender status because not all 

5

 In Geduldig, the Supreme Court held that a disability insurance plan complied with 

the Equal Protection Clause even though it declined to cover pregnancy-related 

disabilities. Id. at 494. The Court found that the plan did not classify on the basis of 

sex because it distinguished between conditions. Id. at 496–97. The Court concluded 

the exclusion created two groups – pregnant and nonpregnant people. Id. at 496 n.20. 

Although “the first group is exclusively female,” the Court explained, “the second 

includes members of both sexes,” which revealed a “lack of identity” between 

pregnancy and sex. Id. The present case is farther removed from sex than Geduldig 

because unlike pregnancy, the condition at issue (gender dysphoria) impacts both 

men and women, and the exclusion only impacts one class of treatments for the 

condition rather than the condition itself.

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transgender individuals require or seek gender/sexual reassignment services as a 

treatment for gender dysphoria.6 Moreover, the Plan excludes all surgical or medical 

procedures prescribed to treat a purely psychological condition – whether sought by 

cisgender or transgender Plan members, further exemplifying the lack of identity 

between the Plan exclusion and biological sex or transgender status. (Doc. 125 p. 7, 

20, 22-23; Doc. 135 p. 12, 24.)

Moreover, the Plan exclusion, much like the bathroom policy at issue in 

Adams, does not rely on impermissible sex-based stereotypes. Adams, 2022 WL 

18003879 at 12. The State Health Plan exclusion does not depend on how an 

employee acts or identifies; rather, it delineates coverage based only on medical 

conditions or medical services or supplies. In fact, the Plan would equally exclude 

sexual/gender reassignment services for persons attempting to detransition (a not 

uncommon phenomenon where previously transgender individuals revert their 

gender identity back to their natal sex), indicating that the exclusion does not 

promote or punish gender non-conformity. (Doc. 118-20 p. 14-16, 138-139; Doc.

118-12 p. 69-70, 111-113; Doc. 87 p. 25-26.) 

6 The record evidence establishes that there are many individuals who are gender 

nonconforming, some of whom self-identify as transgender. Among those

individuals, only some experience gender dysphoria, and even fewer individuals 

diagnosed with gender dysphoria seek gender reassignment services. (Doc. 135 p. 

2.)

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At most, Plaintiffs’ challenge amounts to a claim that the Plan exclusions have

a disparate impact on transgender persons; however, “a disparate impact alone does 

not violate the Constitution.” Id. at 12. Rather, for a disparate impact analysis, 

Plaintiffs must prove that “an otherwise neutral policy is motivated by purposeful 

discrimination,” which Plaintiffs have not and cannot show. Id. citing Pers. Adm’r

of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (“[D]iscriminatory purpose implies 

that the decisionmaker . . . selected or reaffirmed a particular course of action at least 

in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable 

group.”) 

Just like the bathroom policy enacted by the school board in Adams, which 

the Eleventh Court held was not created because of its adverse effect upon 

transgender students, id. at 13, there is no evidence that the State Health Plan 

exclusion was created or enforced by DMS because of any discriminatory purpose. 

Rather, the challenged Plan exclusion has been in place since at least the 1970s,

when gender/sexual reassignment was universally considered experimental, and

predating the more recent surge in requests for such treatments; the exclusion for 

gender/sexual reassignment services is one of many exclusions7 affecting all Plan 

7 The State Health Plan excludes coverage for medical procedures to treat a purely 

psychological condition, such as penile implant to treat psychologically induced 

erectile dysfunction. As of January 1, 2018, the State Health Plans also excluded 

coverage for elective abortions, custodial care such as home health or skilled nursing 

facilities, cosmetic surgery, dental care, eye care, hearing aids, fertility testing and 

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members regardless of sex or transgender status; and it is undisputed that DMS 

cannot add coverage to the State Health Plan without Legislative direction. (Doc. 

125 p. 4, 9.) 

B. Adams’ definition of “sex” confirms that rational basis review

applies to the State Health Plan exclusion. 

Distinguishable from the present case, the bathroom policy in Adams was 

undisputedly based on biological sex, thereby triggering heightened scrutiny review. 

Adams, 2022 WL 18003879 at 5-6. On the other hand, the State Health Plan 

exclusion of one class of treatments for a medical condition is facially neutral and 

not based on sex; therefore, rational basis scrutiny applies. See Dobbs v. Jackson’s 

Health Org., 213 L. Ed. 2d 545, 142 S. Ct. 2228, 2245-46 (2022) (holding that “the 

regulation of a medical procedure that only one sex can undergo does not trigger 

heightened constitutional scrutiny” without a showing of intent to discriminate based 

on sex); Glenn v. Brumby, 724 F. Supp. 2d 1284, 1306-07 (N.D. Ga. 2010), aff'd, 663 

F.3d 1312 (11th Cir. 2011) (holding that discrimination based on gender identity 

disorder, a medical condition, is analyzed under rational basis review).8

 

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. 5.) 

8 The Eleventh Circuit’s decision in Glenn did not address the District Court’s ruling 

on the plaintiff’s claim for Medical Condition Discrimination. See Glenn, 663 F.3d 

at 1321 (holding that plaintiff’s cross-appeal on the district court’s grant of summary 

judgment on plaintiff’s medical discrimination claim was moot). 

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Adams’ definition of sex in the Equal Protection context requires such a result. 

Adams holds, just like Bostock, that sex is the status as either male or female as 

determined by reproductive biology. Adams, 2022 WL 18003879 at 7 n.6, 10, 12, 

14; Bostock v. Clayton County, 140 S.Ct. at 1739. Thus, sex is an immutable 

characteristic, i.e. “an accident of birth,” thereby justifying heightened scrutiny

review. Adams, 2022 WL 18003879 at 10. 

Here, however, Plaintiffs essentially argue that the Court should compare 

transgender persons to cisgender persons without regard to biological sex, (See Doc. 

123 p. 30, 35; Doc. 136 p. 15, 23-24. See also, Doc. 141 p. 7-10), thereby asking the 

Court to construe sex as something less than immutable, and assert that they are 

being discriminated against by the Plan’s exclusion, which does not provide statefunding for medical treatments that surgically change one’s reproductive 

characteristics based on a psychological condition. Plaintiffs’ efforts to 

recharacterize the definition of sex is not recognized by the Eleventh Circuit; based 

on Plaintiffs’ own theory, the immutable characteristic of biological sex is not 

implicated, and heightened scrutiny does not apply. 

Here, the Plan exclusion, which serves a legitimate government purpose of 

containing costs and ensuring public health and safety, easily satisfies rational basis 

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review. (Doc.125 p. 30-32; Doc.135 p.33-35; Doc. 141 p.14-15.) But the Plan would 

also satisfy a heightened scrutiny analysis as well. (Doc. 135 p. 35-36.)

To satisfy heightened scrutiny, a policy must (1) advance an important 

governmental objective and (2) be substantially related to that objective. Adams, 

2022 WL 18003879 at *7. 

Just like the important interest public schools have in ensuring the privacy and 

safety of its students, which were served by the bathroom policy, id. at 8-9, the State 

has an important interest in enacting health policies that protect the health and wellbeing of its employees and their family members. Here, the State Health Plan 

exclusion was put in place in the late 1970s when gender reassignment was 

universally considered experimental. (Doc. 125 p. 9, 28.) While advocacy efforts 

have led to gender reassignment’s growing acceptance in recent years, the efficacy 

of these treatments is still not scientifically established; and in the case of children 

and minors, is highly controversial and disputed. (Doc. 125 p. 11, 32; Doc. 118-20 

p. 54, 66-69; Doc. 87 p. 18-25.) After all, these treatments modify healthy anatomy, 

often permanently. The State has an important interest in excluding such medical 

treatment and procedures, particularly given the serious risks and complications of 

many gender/sexual reassignment services, unless and until they can be established 

as universally safe and effective and approved by the people’s representatives as 

ethically and fiscally acceptable. 

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C. Adams’ definition of sex defeats Plaintiffs’ Title VII claim. 

The Adams opinion has a similar impact on Plaintiffs’ Title VII claims as 

well.9 Plaintiffs rely on Bostock for the proposition that excluding gender 

reassignment surgery “unavoidably discriminates against persons with one sex 

identified at birth and another today.” (Doc. 136 p. 12.) However, one’s 

“transitioning status” is not within the definition of sex. 

As Adams makes clear, “because of sex” means because of biological/natal 

sex. 2022 WL 18003879 at 14-15 (holding that “sex” under Title IX unambiguously 

means “biological sex, i.e. discrimination between males and females”). Sex under 

Title VII does not include “gender identity.” Id. at 15. Rather, previous Supreme 

Court and Eleventh Circuit cases addressing transgender discrimination, like 

Bostock and Glenn, were premised on discrimination based on biological sex – 

“neither case reads ‘gender identity’ into the definition of ‘sex.’” Adams, 2022 WL 

18003879 at 15 (“There simply is no alternative definition of ‘sex’ for transgender 

persons as compared to nontransgender persons under Title IX.”) 

9 Because Title IX and Title VII both prohibit sex discrimination, they are often 

interpreted similarly. Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896 (1st Cir. 

1988), aff'd, 759 F. Supp. 40 (D.P.R. 1991); Does v. Covington Cnty. Sch. Bd. of 

Educ., 930 F. Supp. 554, 574 fn. 15 (M.D. Ala. 1996).

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Here, Plaintiffs cannot show that they were discriminated against based on 

their biological sex. No Plan members are entitled to gender/sexual reassignment 

services, regardless of whether they are males or females. 

Moreover, Plaintiffs’ efforts to demonstrate that a policy affecting some 

transgender individuals necessarily invokes sex-stereotypes are unpersuasive. 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 cisgender. 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.

Because Plaintiffs have failed to show that the Plan exclusion discriminates based 

on biological sex, Plaintiffs’ Title VII claim fails.

D. Amended Summary Judgment Memoranda. 

Defendants do not believe that the submission of amended memoranda (Docs. 

125, 126, 135, 140 and 141) is necessary, in light of the opportunity provided by this

Court to submit the present supplemental brief addressing Adams. However, 

Defendants will gladly submit amended papers updating citations and incorporating 

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argument based on the en banc Adams opinion if the Court determines that it would

aid in the resolution of the Parties’ motions or if Plaintiffs seek leave to amend. 

Respectfully submitted this 17th day of January 2023. 

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 

scarter@henryblaw.com 

Post Office Drawer 14079 

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 2957 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 17th day of January 2023. 

/s/ Miriam R. Coles 

ATTORNEY

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