UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMI CLAIRE, et al.,

Plaintiffs,

vs. Case No. 4:20-cv-00020-MW/MAF 

FLORIDA DEPARTMENT OF 

MANAGEMENT SERVICES, et al., 

Defendants.

_______________________________/

PLAINTIFFS’ REPLY TO DEFENDANT’S RESPONSE TO 

COURT’S ORDER FOR SUPPLEMENTAL BRIEFING 

Plaintiffs file this Reply to Defendant’s Response to Plaintiffs’ 

Supplemental Brief (ECF 182) to address an argument raised and briefed by 

Defendant DMS for the first time in this case regarding the abrogation of 

sovereign immunity under Title VII. (ECF 183, at 8-15.)

Defendant Allende raised sovereign immunity as a defense to 

Plaintiffs’ Equal Protection claims (ECF 125, at 33-34) (“Eleventh 

Amendment Immunity bars the claim for injunctive relief against [Allende]”), 

but Defendant Allende is no longer party to this case and Plaintiffs’ Equal 

Protection claims were dismissed by this Court (ECF 177, at 2-3) 

(“Defendant Allende’s motion for summary judgment, ECF No. 125, is due to 

be denied as moot.”).This defense was never raised nor briefed by 

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Defendant DMS with regard to Plaintiffs’ Title VII claims.

Defendant DMS’ argument that Eleventh Amendment immunity 

precludes Plaintiffs from recovering damages under Title VII in this case fails 

for two reasons. First, this Court already concluded that Plaintiffs’ claims 

“brought pursuant to Title VII ... are not barred by the Eleventh Amendment.” 

(ECF 95, at 8 n.2); see infra § I. Second, it is firmly established that, in 

subjecting States to liability under Title VII of the Civil Rights Act, Congress 

both clearly expressed its intent to abrogate the Eleventh Amendment 

immunity of state employers, and validly did so pursuant to its authority under 

Section 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445 

(1976). Defendant concedes this. (ECF 183, at 8) (“It has long been held that 

Title VII derives its authority to apply to the states from Section 1 and Section 

5 of the Fourteenth Amendment.”), but argues for a novel approach without 

merit or support. See infra § II.

Finally, Plaintiffs briefly clarify a misstatement by Defendant regarding 

the lack of personal benefit conferred upon Plaintiff Lane by the Court’s

granting of permanent injunctive relief in this case. (ECF 183, at 4-8.) As 

made clear by Defendant’s own admissions and abundant record testimony, 

Plaintiff Lane is currently employed by Defendant and thus subject to the 

discriminatory Exclusions, and, because she needs ongoing genderCase 4:20-cv-00020-MW-MAF Document 186 Filed 10/22/24 Page 2 of 15
affirming care, the discrimination will likely persist in the future. See infra §

III.

I. THIS COURT CONCLUDED PLAINTIFFS’ TITLE VII CLAIMS 

ARE NOT BARRED BY THE ELEVENTH AMENDMENT

Like Plaintiffs, this Court has not had the opportunity to address the 

application of the Eleventh Amendment to Plaintiffs’ Title VII claims against 

Defendant DMS, as such defense was only raised in Defendant Allende’s 

Motion for Summary Judgment on Plaintiffs’ Equal Protection Claims. (ECF 

125, at 33-34.) Defendant Allende is no longer a party to this action, and 

Plaintiffs’ Equal Protection claims were dismissed by this Court. (ECF 177, 

at 2-3.) 

However, this Court previously addressed the application of the Eleventh 

Amendment to Plaintiffs’ Title VII claims in its Order on Defendantemployers’ Motions to Dismiss. (ECF 95, at 8.) There, the Court explicitly 

stated that “unlike Counts II-IV [Plaintiffs’ Title VII claims], Counts VII-VIII 

[Plaintiffs’ Equal Protection claims under 42 U.S.C. § 1983] do not fall within 

an exception to state sovereign immunity.” (ECF 95, at 8) (citing U.S. Const. 

amend XI) (emphasis added). This Court explained that “Counts II-IV are 

brought pursuant to Title VII and are not barred by the Eleventh 

Amendment.” (Id. at n.2) (citing Allen v. Ala. State Bd. of Educ., 816 F.2d 

575, 577 (11th Cir. 1987)). 

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II. ELEVENTH AMENDMENT IMMUNITY DOES NOT PRECLUDE 

PLAINTIFFS FROM RECOVERING DAMAGES UNDER TITLE VII

The Supreme Court has long held that “[t]here is no dispute that in 

enacting the 1972 Amendments to Title VII to extend coverage to the States 

as employers, Congress exercised its power under § 5 of the Fourteenth 

Amendment.” Fitzpatrick, 427 U.S. at 453 n.9 (citing H.R. Rep. No. 92-238, 

p. 19 (1971); S. Rep. No. 92-415, pp. 10-11 (1971)); see also In re Emp. 

Discrimination Litig. Against State of Ala., 198 F.3d 1305, 1317 (11th Cir. 

1999) (the Eleventh Circuit held “we have no hesitation in concluding that 

Congress unequivocally expressed its intent to abrogate the states' Eleventh 

Amendment immunity when it amended Title VII to cover state and local 

governments”). 

The 1972 Amendments to Title VII authorized federal courts to award 

money damages in favor of a private individual against a state government 

that subject that individual to discrimination on the basis of race, color, 

religion, sex, or national origin. Fitzpatrick, 427 U.S. at 447-48 (emphasis 

added).1 This Court concluded that the State Plan Exclusions at issue in this 

1 Congress did so based on “a broad pattern of discrimination[,] combining documented 

instances of intentional discrimination by state governments with extensive numerical 

evidence of race- and gender-based disparities in pay and promotions.” Claude Platton,

Title VII Disparate Impact Suits Against State Governments after Hibbs and Lane, 55 

Duke Law Journal 641, 661 (2005) (“after reviewing its gender-discrimination 

jurisprudence, the Court concluded that ‘Congress responded to this history of 

discrimination by abrogating State’s sovereign immunity” in Title VII.) As the Supreme 

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case, which are implemented and administered by Defendant DMS, 

subjected Plaintiffs to discrimination on the basis of sex in violation of Title 

VII. (ECF 177, at 14-16.) The Eleventh Amendment does not preclude 

Plaintiffs from recovering money damages in this case, and Defendant’s 

arguments to the contrary are unavailing.

In light of binding authority from the Supreme Court and the Eleventh 

Circuit that disposes of this argument, this Court does not need to undertake 

the “congruence and proportionality” analysis that Defendant incorrectly 

alleges is required.

Defendant does not dispute that Congress abrogated the State’s 

sovereign immunity by enacting the 1972 amendments to Title VII, pursuant 

to section 5 of the Fourteenth Amendment, providing a private right of action 

for damages against States. (ECF 183, at 8; Fitzpatrick, 427 U.S. at 456; see 

also Quern v. Jordan, 440 U.S. 332, 344 (1979) (the Supreme Court affirmed 

this, noting that “the statute made explicit reference to the availability of a 

private action against state and local governments”)). Nor do they dispute 

that, in doing so, Congress both “unequivocally expresse[d] its intent to 

abrogate” the Eleventh Amendment immunity and “acted ‘pursuant to a valid 

Court noted in Nevada Dep’t of Human Resources v. Hibbs, “Congress responded to this 

history of discrimination by abrogating State’s sovereign immunity in Title VII of the Civil 

Rights Act of 1964.” 538 U.S. 721, 729 (2003).

Case 4:20-cv-00020-MW-MAF Document 186 Filed 10/22/24 Page 5 of 15
exercise of power.’” See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 55 

(1996) (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). Defendant does

not dispute that when Congress enacts a statute that regulates conduct 

prohibited by the Constitution, there is no need to examine the record before 

Congress to determine whether Congress could have reasonably concluded 

the remedy was appropriate. This is because when a statute simply codifies 

the protections of Section 1 of the Fourteenth Amendment, it is by definition 

appropriate Section 5 legislation because the statute is congruent and 

proportional to the targeted constitutional harm. See City of Boerne v. Flores, 

521 U.S. 507, 517-519. Finally, Defendant does not, and could not, dispute 

that Title VII’s prohibition of disparate treatment on the basis of sex codifies 

the protections of Section 1 of the Fourteenth Amendment. 

Rather, in raising this new defense, Defendant seeks to redefine 

“discrimination on the basis of sex” to exclude discrimination against 

transgender people, in direct conflict with the Supreme Court’s clear holding 

in Bostock v. Clayton Cnty., Ga., 590 U.S. 644 (2020). Bostock held that 

“discrimination based on homosexuality or transgender status necessarily 

entails discrimination based on sex; the first cannot happen without the 

second.” Id. at 669. Defendant’s position also ignores that this Court already 

concluded, in a well-reasoned Order based on an extensive record, that the 

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“facially discriminatory state group insurance plan” violates Title VII’s 

prohibition on discrimination on the basis of sex. (ECF 77, at 11-16) 

(concluding that “there is no dispute of material fact with respect to 

Defendant DMS’s liability under Title VII”). The “congruence and 

proportionality” test that Defendant now asks this Court to apply is only 

appropriate when there is a dispute as to whether Congress unequivocally 

intended to abrogate the States’ Eleventh Amendment immunity and acts

pursuant to a valid grant of constitutional authority. Neither is in dispute here

because the Supreme Court has already addressed this issue.

The Supreme Court has consistently made clear that: (1) Congress 

clearly expressed its intent to abrogate State’s Eleventh Amendment 

immunity in enacting Title VII (Quern, 440 U.S. at 344; Fitzpatrick, 427 U.S. 

at 452); (2) Congress’s abrogation was valid (Fitzpatrick, 427 U.S. at 453, & 

n.9); and (3) discrimination that targets transgender people for disparate 

treatment falls within Title VII’s prohibition of sex based discrimination 

(Bostock, 590 U.S. at 669-70). As such, there is no need for reexamination 

of the record to determine whether Congress identified “a history and pattern 

of employment discrimination by the States.” Such inquiry is only 

necessitated when the statutory prohibition places greater limits on States 

than the Constitution. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 

Case 4:20-cv-00020-MW-MAF Document 186 Filed 10/22/24 Page 7 of 15
356, 356-57 (2001). Despite Defendant’s continued attempt to reframe the 

discrimination at issue in this case, the State Plan Exclusions plainly 

discriminate on the basis of sex, which is prohibited by both the Fourteenth 

Amendment (City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 

440-41 (1985)) and Title VII (42 U.S.C. § 2000e-2(a); see also Glenn v. 

Brumby, 663 F.3d 1312 (11th Cir. 2011)). No further inquiry is required.2

In Bostock, the Supreme Court addressed and dismissed the very 

arguments that Defendant now raises. (ECF 183, at 12-13) (arguing that 

nothing in Title VII, nor the Pregnancy Discrimination Act or the related 

congressional record, "reflects that Congress contemplated gender 

dysphoria" or "medical treatments related to gender dysphoria").

In Bostock, the employers contended that "few in 1964 would have expected 

Title VII to apply to discrimination against homosexual and transgender 

persons," which they claimed was evidenced by the fact that "homosexuality 

and transgender status can't be found on th[e] list" of Title VII's "protected 

characteristics" and were thus "implicitly excluded from Title VII's reach." 590 

U.S. at 669-673. The Court thoroughly analyzed and ultimately dismissed 

2 This is reenforced by the precedent Defendant cites in support of its argument. See

Garrett, 531 U.S. at 365 (noting that Section 5 legislation reaching beyond the scope of 

Section 1’s actual guarantees must exhibit congruence and proportionality between the 

injury to be prevented or remedies and the means adopted to that end.) There, the Court 

looked to the record for evidence of constitutional violations only because it determined 

the statutory protections were incongruent with the constitutional protections. 

Case 4:20-cv-00020-MW-MAF Document 186 Filed 10/22/24 Page 8 of 15
employers' position that Congress did not intend for Title VII to prohibit 

discrimination on these bases, as "discrimination based on homosexuality or 

transgender status necessarily entails discrimination based on sex; the first 

cannot happen without the second." Id. at 669 ("Nor is there any such thing 

as a 'canon of donut holes,' in which Congress’s failure to speak directly to 

a specific case that falls within a more general statutory rule creates a tacit 

exception. Instead, when Congress chooses not to include any exceptions 

to a broad rule, courts apply the broad rule. And that is exactly how this Court 

has always approached Title VII.").

In fact, in making its argument regarding Eleventh Amendment immunity, 

Defendant relies exclusively on cases involving statutes wholly irrelevant to 

the issues or claims present in the instant case. This is because the law is 

clear; Defendant cannot point to any case which has held sovereign 

immunity protects a state from liability for damages in a Title VII case. 

Instead, Defendant only cites cases discussing statutes inapplicable to 

this case. (ECF 183, at 8-15 (citing cases regarding statutory prohibitions 

related to disability based discrimination (Garrett, 531 U.S. 356 (Title I of 

the Americans with Disabilities Act (“ADA”)); Panzardi-Santiago v. Univ. of 

Puerto Rico, 200 F. Supp. 2d 1 (D.P.R. 2002) (Title II of ADA); Dupree v. 

Owens, 92 F. 4th 999 (11th Cir. 2004) (Title V of ADA); Nat’l Ass’n of the 

Case 4:20-cv-00020-MW-MAF Document 186 Filed 10/22/24 Page 9 of 15
Deaf v. Fla., 980 F.3d 763 (11th Cir. 2020) (Title II of ADA); Ass’n for 

Disabled Ams., Inc. v. Fla. Int’l Univ., 405 F. 3d 954 (11th Cir. 2005) (same));

age based discrimination (Kimel v. Fla. Bd. of Regents, 528 U.S. 62 

(2000)3 (Age Discrimination in Employment Act (“ADEA”)); statutory 

prohibitions related to pregnancy and abortion (Geduldig v. Aiello, 417 

U.S. 484 (1974) (regulating pregnancy); Gen. Elec. Co. v. Gilbert, 429 U.S. 

125 (1976) (same); Dobbs v. Jackson Women’s Health Org., 597 U.S. 236 

(2022) (regulating abortion); Bray v. Alexandria Women’s Health Clinic, 506 

U.S. 263 (1993) (same)); and other unrelated statutory provisions

(Coleman v. Ct. of App. of Md., 566 U.S. 30 (2012) (Family Medical Leave 

Act “FMLA”); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. 

Bank, 527 U.S. 627 (1999) (Patent Remedy Act)).4 None of these cases 

3 In Kimel, upon which Defendant heavily relies, the Court specifically distinguished 

legislation that addresses discrimination on the basis of gender from those based on age 

at issue in that case. 528 U.S. at 83 (“Age classifications, unlike governmental conduct 

based on race or gender, cannot be characterized as ‘so seldom relevant to the 

achievement of any legitimate state interest that laws grounded in such considerations 

are deemed to reflect prejudice and antipathy.’ Cleburne v. Cleburne Living Center, Inc., 

473 U. S. 432, 440 (1985). Older persons, again, unlike those who suffer discrimination 

on the basis of race or gender, have not been subjected to a ‘history of purposeful unequal 

treatment.’”) (citation omitted) (emphasis added).

4 In conducting an analysis of the Equal Pay Act (“EPA”), the Eleventh Circuit 

distinguished the cases relied upon by Defendant in their abrogation argument. “Unlike 

the legislative records in the ADEA, RFRA, and the Patent Remedy Act, the legislative 

record of the Equal Pay Act reflects that Congress did find substantial gender-based wage 

discrimination in the workplace.” Hundertmark v. State of Fla. Dep't of Transp., 205 F.3d 

1272, 1276-77 (11th Cir. 2000) (concluding EPA’s prohibition on gender-based 

discrimination in pay “and other employment benefits” was congruent with decisions and 

practices prohibited by the Constitution, satisfying congruence and proportionality test as 

Case 4:20-cv-00020-MW-MAF Document 186 Filed 10/22/24 Page 10 of 15
hold that states retain sovereign immunity in Title VII cases.

The Supreme Court and the Eleventh Circuit have both clearly held that

Congress abrogated sovereign immunity under the Eleventh Amendment 

when it applied Title VII to the states. Fitzpatrick, 427 U.S. at 453; In re Emp. 

Discrimination Litig. Against State of Ala., 198 F.3d at 1317; Wu v. Thomas, 

863 F.2d 1543, 1550 (11th Cir. 1989) (reversing the district court, the 

Eleventh Circuit found “[b]ecause appellants' claim under 42 U.S.C. § 2000e 

arises under Title VII of the 1964 Act, no eleventh amendment barrier 

exists[,]” and further noting the availability of equitable relief and damages 

awards under Title VII). Defendant’s sovereign immunity argument is without 

merit and Plaintiffs can recover damages against Defendant under Title VII. 

III. PERMANENT INJUNCTIVE RELIEF IS PROPER, AS PLAINTIFF 

LANE WILL PERSONALLY BENEFIT 

Plaintiffs seek to clarify for this Court a misstatement by Defendant

regarding the lack of personal benefit conferred upon Plaintiff Lane by the 

Court’s granting of permanent injunctive relief in this case. (ECF 183, at 4-

8.) As this Court concluded, based on Defendant’s own admissions, the care 

that Plaintiff Lane currently needs, and will continue to need, is subject to the 

State Plan Exclusions. (ECF 177, at 14) (“Defendant DMS admits that the 

a valid exercise of Congress’s enforcement powers under § 5 of the Fourteenth 

Amendment).

Case 4:20-cv-00020-MW-MAF Document 186 Filed 10/22/24 Page 11 of 15
challenged exclusion ‘prohibits coverage’ of hormone replacement therapy, 

double mastectomy, orchiectomy, and any other form of surgical treatment 

to treat gender dysphoria.”) (citation omitted). Plaintiff Lane has been 

prescribed hormone replacement therapy as medically necessary treatment 

for her gender dysphoria since 2012 (ECF No. 122-19, at 18:22-19:2), she 

will continue to need such treatment, and Defendant admits that “the state 

plans do not permit coverage for hormone replacement therapy as treatment 

for gender dysphoria” (ECF No. 122-4 at 9; see also id. at 14) (“Admitted” 

that the “State Plan Exclusion prohibits coverage of hormone replacement 

therapy to treat gender dysphoria.”).

Additionally, a requirement for receiving her hormone replacement 

therapy is that Plaintiff Lane obtains blood work/labs and has office visits with 

her provider to monitor the hormone therapy (ECF 122-19, at 20:15-18), 

which Third Party Administrators of the State Plans, who are tasked with 

administering the Exclusions, testified are excluded when needed for “sexual 

reassignment” (ECF 118-14, at 19:2-20:24) (Florida Blue testified the 

Exclusions incorporate “labs, X-rays, office visits, psychotherapy, surgery”), 

see also id. at 31:12-16 (all diagnosis codes for “gender identity disorders” 

are excluded from coverage); ECF 118-4, at 24:3-7, 37:24-38:15) (Capital 

Health Plan follows Florida Blue’s guidelines on which services fall under the 

Case 4:20-cv-00020-MW-MAF Document 186 Filed 10/22/24 Page 12 of 15
Exclusions); ECF 118-2, at 9:9-10:5, 15:17-17:18 (AvMed testified that the 

diagnosis code for gender dysphoria (F64) triggers the application of the 

Exclusions). 

As a current state of Florida employee, Plaintiff Lane also may require 

additional gender-affirming surgeries as treatment for her gender dysphoria, 

in addition to the denied procedure at issue in this case. (ECF 122-19, at 

58:15-59:12.) These procedures would be denied under the Exclusions

because they are for the treatment of gender dysphoria. (ECF 122-4, at 14 

(“Admitted” that “the State Plan Exclusion prohibits coverage of any form of 

surgical treatment to treat gender dysphoria”).

In suggesting that Eleventh Circuit precedent requires a finding against 

permanent injunctive relief here, Defendant relies only on cases inapposite 

to the instant case. (ECF 183, at 4-8.) For example, in Carmichael (id. at 5-

6), permanent injunctive relief was deemed inappropriate despite a 

successful claim against a former employee for race-based discrimination 

because the plaintiff was no longer employed by defendant and had not 

sought reinstatement. Carmichael v. Birmingham Saw Works, 738 F.2d 

1126, 1136 (11th Cir. 1984). Unlike the employee in Carmichael, Plaintiff 

Lane continues to be employed by Defendant and, because she needs 

ongoing gender-affirming care, the discrimination will likely persist in the 

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future.

For the reasons set forth above, Plaintiffs dispute Defendant’s 

misstatement that permanent injunctive relief would not benefit Lane.

Further, as set forth above and in Plaintiffs’ Response to Supplemental 

Briefing (ECF 182, at 3-9), even if the Court concludes Plaintiff Lane’s facial 

feminization surgery would have been excluded as “cosmetic,” it does not 

change the fact that Plaintiff Lane continues to be employed by the state, 

continues to be subjected to the discriminatory Exclusions, and would 

personally benefit from a permanent injunction in this case. 

Respectfully submitted on this 22nd day of October, 2024.

/s/ Simone Chriss 

SIMONE CHRISS 

Fla. Bar No. 124062

simone.chriss@southernlegal.org

JODI SIEGEL 

Fla. Bar No. 511617

jodi.siegel@southernlegal.org

Southern Legal Counsel, Inc.

1229 NW 12th Avenue

Gainesville, FL 32601

(352) 271-8890

DANIEL TILLEY

Fla. Bar No. 102882

dtilley@aclufl.org

CAROLINE MCNAMARA

Fla. Bar No. 1038312 

cmcnamara@aclufl.org

ACLU Foundation of Florida

4343 West Flagler St., Suite 400, 

Case 4:20-cv-00020-MW-MAF Document 186 Filed 10/22/24 Page 14 of 15
Miami, FL 33134

(786) 363-2714

ATTORNEYS FOR ALL PLAINTIFFS

JEFFREY HEARNE

Fla. Bar No. 512060

jhearne@legalservicesmiami.org

JOCELYN ARMAND

Fla. Bar No.44264

jarmand@legalservicesmiami.org

Legal Services of Greater Miami, Inc.

4343 W Flagler Street, Suite 100

Miami, FL 33134

(305) 438-2403

ATTORNEYS FOR PLAINTIFF 

MURPHY 

CERTIFICATE OF WORD COUNT

Pursuant to N.D. Loc. R. 7.1(F), I certify this Reply to Defendant’s 

Response to this Court’s Order for Supplemental Briefing contains 3,090

words, which includes headings, footnotes, and quotations, but does not 

include case style, signature block or Certificates of Word Count and Service.

/s/ Simone Chriss

Counsel for Plaintiffs

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