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 DEFENDANTS’ RESPONSE 

TO PLAINTIFFS’ SUPPLEMENTAL BRIEF 

I. It is Black Letter Law That This Court Must Follow Eleventh Circuit

Each Plaintiff has a Title VII claim, and these claims are controlled by 

Lange v. Houston Cnty., 101 F.4th at 793, 798-99 (11th Cir. 2024). 

Defendants continue to ask this Court to simply ignore binding precedent, 

based on no more than the State’s disagreement with the Eleventh Circuit’s 

decision in Lange. (See generally ECF 171, at 16-18; ECF 172, at 2-8.)

However, Defendants’ opinion that “Lange was wrongly decided” (ECF 171, 

at 16) and their “concern” about the hypothetical consequences of the

Eleventh Circuit’s holding on other conditions (id. at 6) does not compel nor 

permit this Court to ignore Lange (and Glenn v. Brumby, 663 F.3d 1312 (11th 

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Cir. 2011)).1

By contrast, Plaintiffs’ arguments regarding the equal protection claim

explain that this Court should rule in Plaintiffs’ favor and show how to do so 

while following the Eleventh Circuit’s ruling in Eknes-Tucker v. Gov’r of Ala., 

80 F.4th 1205 (11th Cir. 2023). (See generally ECF 161, at 6-14; ECF 170, 

at 6-19; ECF 173, at 11-13, 17-25.) However, as Plaintiffs notified the Court,

only one Plaintiff - Kathryn Lane - still has standing to seek injunctive relief 

under equal protection. (ECF 170, at 2-3.) While Plaintiff Lane has

demonstrated2 that she can succeed on her equal protection claim under the 

appropriate applicable heightened scrutiny standard, and indeed under any 

level of review, this Court can avoid the constitutional issue by resolving this 

case under Title VII, as explained below (see infra, at 3-6).

 

1 Despite Defendants’ attempts at creative reframing to support their position 

that only Eknes-Tucker, Geduldig, and Dobbs are binding and relevant to this 

analysis, the Eleventh Circuit in Eknes-Tucker did not overrule Glenn v. 

Brumby, nor did the Supreme Court in Dobbs overrule U.S. v. Virginia, 518 

U.S. 515, 555 (1996), which demands that all sex classifications be subject 

to heightened scrutiny. Defendants disregard that lower courts are bound to 

follow Supreme Court precedent “even if the lower court thinks the precedent 

is in tension with some other line of decisions.” Mallory v. Norfolk S. Ry. Co., 

600 U.S. 122, 136 (2023) (quotation omitted).

2 (See ECF 170, at 6-1; ECF 173, at 11-25.)

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II. This Court Can Resolve This Case on Plaintiffs’ Title VII Claims

As Plaintiffs noted in their Supplemental Brief and Response Brief 

(ECF 170, at 10-14; ECF 173, at 22), and as Defendants noted in their 

Response Brief (ECF 172, at 10), there is a difference of opinion in the 

Circuits with regard to the appropriate level of scrutiny to apply when 

analyzing equal protection claims involving gender-affirming medical care.

The Fourth, Eighth, and Ninth Circuits have held that prohibitions on genderaffirming medical care violate the equal protection clause when subject to 

heightened scrutiny. Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661 (8th Cir. 

2022) (affirming preliminary injunction); Poe ex rel. Poe v. Labrador, No. 

1:23-cv-269, 2024 WL 170678 (9th Cir. 2024) (refusing to stay preliminary 

injunction); Kadel v. Folwell, 100 F.4th 122 (4th Cir. 2024) (affirming 

permanent injunction on state ban on coverage). The Sixth and Eleventh 

Circuits have reversed preliminary injunctions based on application of 

rational basis review. Eknes-Tucker, 80 F.4th 1205 (reversing preliminary 

injunction); L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023) 

(same on 2–1 vote), cert. granted, United States v. Skrmetti, No. 23-477, 

2024 WL 3089532 (MEM) (June 24, 2024).

3 The Supreme Court’s grant of

 

3 Plaintiffs note that the cases relied upon by Defendants in support of their 

position, Eknes-Tucker and L.W., involve regulations on the prescribing of 

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certiorari is to consider the narrow issue of whether Tennessee’s categorical 

ban on gender-affirming care for transgender adolescents violates the equal 

protection clause. Id.

With the uncertainty of how the Supreme Court will resolve this issue, 

this Court could utilize the principle of constitutional avoidance and resolve 

the instant case on Plaintiffs’ Title VII claims without reaching the 

constitutional equal protection issue. See generally Ashwander v. Tenn. 

Valley Auth., 297 U.S. 288, 341, 345-46 (1936) (Brandeis, J., concurring) 

(setting out fundamental principles of constitutional adjudication, including 

that, “The Court will not ‘anticipate a question of constitutional law in advance 

of the necessity of deciding it’”) (quoting earlier authorities in part); see also 

Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988) (“A 

fundamental and longstanding principle of judicial restraint requires that 

 

gender-affirming care applicable only to minors; whereas the majority of the 

cases relied upon by Plaintiffs, including Kadel, Dekker, and Lange involve

facts that are similar or identical to the instant case, i.e. prohibitions on health 

insurance coverage for all state employees. Additionally, both cases relied 

upon by Defendants, Eknes-Tucker and L.W., are based on limited 

preliminary injunction records, whereas the two district court decisions cited 

by Plaintiffs were based on a full record following a trial on the merits. Brandt 

v. Rutledge, 677 F. Supp. 3d 877, 922 (E.D. Ark. 2023); Doe v. Ladapo, No. 

4:23-cv-114-RH-MAF, 2024 WL 2947123, at *39-40 (N.D. Fla. June 11, 

2024); see also Dekker v. Weida, 679 F. Supp. 3d 1271 (N.D. Fla. 2023)

(concluding a rule and statute banning coverage of gender-affirming care 

under Florida’s Medicaid program violated the equal protection rights of 

transgender Medicaid beneficiaries after a two-week trial.)

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courts avoid reaching constitutional questions in advance of the necessity of 

deciding them.”), quoted with approval in Williamson v. Brevard Cnty., 928 

F.3d 1296, 1316-17 (11th Cir. 2019). 

Neither the Supreme Court’s consideration of L.W., nor the Eleventh 

Circuit’s potential en banc review of Eknes-Tucker, will change the analysis 

of the Title VII claims presented in this case. In fact – right or wrong –

Defendants have gone to great lengths in their briefing to distinguish Title VII 

from the equal protection clause, in an effort to convince this Court that 

Bostock has no bearing on Plaintiffs’ equal protection claims and applies only 

in the employment context. The Supreme Court and the Eleventh Circuit 

have made clear, however, that the type of facial discrimination contained in 

the Exclusions violates the plain language of Title VII. See Bostock v. Clayton 

County, 140 S. Ct. 1731, 1743 (2020); Lange, 101 F.4th at 798-99; Copeland 

v. Ga. Dep't of Corr., 97 F.4th 766, 775 (11th Cir. 2024); Glenn, 663 F.3d 

1312. (See also ECF 170, at 3-6; ECF 173, 8-11.) Plaintiffs have detailed in 

prior briefing why binding case law requires the rejection of Defendants’ 

arguments that the Exclusions are not facially discriminatory nor 

discrimination because of sex under Title VII. (ECF 172, § II- III, at 2-8; ECF 

136, at 5-27.)

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III. Defendants’ Arguments Hinge on Assumptions That Elide

Common Sense

Defendants hypothesize that Plaintiffs’ position, which is supported by 

Lange and Bostock, is “[p]resumably based on their understanding that 

classification based on certain medical treatments constitutes facial sex 

discrimination.” (ECF 172, at 2-3.) Defendants are wrong, however, as 

Plaintiffs’ position is based on the plain language of the Exclusions,4 which, 

on their face, explicitly make clear that the treatments are excluded if, and 

only if, the purpose of the treatment is “gender reassignment or modification” 

or “sexual reassignment or modification” – something that cannot be 

determined without comparing the member’s sex assigned at birth before the 

treatment to how the member’s sex or gender would be impacted by the 

treatment (i.e. whether their “sex” or “gender” has been “reassigned” or 

“modified”).

Defendants’ argument that exclusions for gender-affirming medical 

care do not classify based on sex hinges on the assumption that not all 

transgender people experience gender dysphoria. In fact, Defendants boldly 

claim that they “have demonstrated that transgender persons regardless of 

 

4 It is important to note that Defendants have chosen to keep the Exclusions 

in the State Plans despite warnings specifically about their conflict or 

potential conflict with federal nondiscrimination provisions prohibiting sexbased discrimination. (ECF 123, at 27-29; ECF 173, at 14-17.) 

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their natal sex do not all experience gender dysphoria, just as not all women 

experience pregnancy or pregnancy-related disabilities.” (ECF 172, at 12.) 

The only record evidence cited by Defendants for this assertion (ECF 125, 

at 6-7), offers no support for Defendants’ statements. Defendants cite four 

lines from a single deposition transcript for their position that “[s]ome, but not 

all, transgender individuals experience gender dysphoria.” (id., quoting 

Doc.121-16, Gorton 40:21-24.)5 However, this exchange does not provide 

any context as to why a transgender individual may not suffer from dysphoria 

– i.e. because they received gender-affirming care and no longer feel 

dysphoria related to their gender. See Kadel, 100 F.4th at 144, n.17 (noting 

that “transgender people without gender dysphoria may not suffer from 

gender dysphoria because they were treated for it”) (emphasis in original). 

 

5The additional language that Defendants rely on (ECF 125, at 6-7) to assert 

that they “have demonstrated that transgender persons regardless of their 

natal sex do not all experience gender dysphoria, just as not all women 

experience pregnancy or pregnancy-related disabilities” (ECF 172, at 12) is 

equally unavailing. There, Defendants argued that “[s]ome, but not all, 

individuals diagnosed with gender dysphoria seek to physically change their 

bodies in a manner which aligns with their gender identity as a means of 

easing their dysphoria.” (ECF 125, at 6.) But this lacks citation to the record. 

The only assertion with any footing in the evidentiary record is that only a 

small number of patients seen by one of Plaintiffs’ experts have sought 

“reassignment surgery” for their gender dysphoria. (Id.) Defendants then 

state, devoid of any record cites, that “some individuals with gender 

dysphoria may change their name or gender designation. Others may seek 

hormone therapy.” (Id. at 6-7) (no record citations).

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This lack of dysphoria may stem from being able to live in accordance with 

their gender identity, rather than never having experienced gender 

dysphoria. 

Looking to the record in this case, however, shows that gender 

dysphoria is a severe but treatable condition, and without access to genderaffirming care, transgender individuals experience serious psychological 

distress, depression, anxiety, self-harm, and suicidality. (See, e.g., ECF 123, 

at 4-6); see also Doe, 2024 WL 2947123, at *7 (“denial of this treatment will 

cause needless suffering for a substantial number of patients and will 

increase anxiety, depression, and the risk of suicide”). Unlike pregnancy, 

which is not the defining characteristic of womanhood, the Exclusions are 

based on a characteristic that defines membership in the excluded group. 

See e.g., Glenn, 663 F.3d at 1316. Living in accord with one’s gender identity 

rather than sex assigned at birth, which the excluded care enables, is the 

defining characteristic of a transgender person.

Defendants have not even endeavored to provide any justifications nor 

record cites that would support banning access to non-surgical treatments

for gender dysphoria, such as cross-sex hormones, which Defendants 

readily admit are excluded under the State Plans. (ECF 122-4, at 9 (ROG 

53: “Admit that the State Plans do not permit coverage of hormone 

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replacement therapy as treatment for gender dysphoria.” RESPONSE: 

“Admitted.”); id. at 5 (Defendants explicitly admit “some gender-affirming 

care may be medically necessary to treat specific patients’ gender dysphoria, 

depending on each specific patient’s circumstances”).) Yet the Exclusions 

prohibit coverage for all employees who need the excluded care for the 

treatment of their gender dysphoria regardless of the patient’s specific 

circumstances. ECF 123, at 7-8, 11-12, 16-19; see generally, Doe, 2024 WL 

2947123, at *34 (“Worse, the statute and rules make the same decision for 

everybody, without considering any patient’s individual circumstances. The 

statute and rules do this in contravention of widely accepted standards of 

care.”).

Next, Defendants seek to avoid heightened scrutiny and disclaim 

discriminatory intent by continuing to make the tautological argument that 

“transgender individuals are entitled to the same coverage as all State Health 

Plan members” (ECF 172, at 4-5), which is akin to saying “the law applies 

equally to all to whom is applies” – an argument that the Fourth Circuit rightly 

found “elides common sense.” Kadel, 100 F.4th at 147-58; see also 

McLaughlin v. Florida, 379 U.S. `84, (1964) (the Supreme Court explicitly 

rejected the line of reasoning relied upon by Defendants, making clear that 

the notion –that a law does not discriminate if it applies equally to all –made 

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no sense). Defendants rely on this flawed argument throughout their briefing. 

(See, e.g., ECF 172, at 13 (the State Plan allows a transgender male to 

receive hormone therapy for “an endocrine disorder or any other covered

condition”); id. at 14 (“transgender women along with and all other plan 

members are entitled to coverage for facial plastic surgery to treat a covered

condition”); ECF 125, at 8 (“[h]owever, if the member requires treatment for 

a covered medical diagnosis” then “the service would be covered”); id. (“[n]o 

covered services are denied because a member identifies as transgender”); 

id. at 24-25 (“this argument ignores the fact that both transgender and 

cisgender individuals – regardless of natal sex – might require and receive 

mastectomy for a covered condition, such as cancer”).) As plaintiffs have 

explained at length (ECF 136, at 10-16), this argument fails. The proper 

focus of the constitutional inquiry is the group for whom the law is a 

restriction, not the group for whom the law is irrelevant, see City of Los 

Angeles v. Patel, 576 U.S. 409, 418 (2015), and Title VII does not merely 

ensure equal treatment between groups of men and women, but rather it 

focuses on the individual. See Bostock, 140 S. Ct. at 1748 (“Title VII’s plain 

terms and [the Court’s] precedents don’t care if an employer treats men and 

women comparably as groups...”). Myriad Supreme Court cases illustrate 

the absurdity of Defendants’ “the law applies equally to all to whom is 

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applies” argument, upon which Defendants’ positions largely hinge. See 

Kadel, 100 F.4th at 147-48 (collecting Supreme Court cases with examples, 

i.e. “[a] tax on wearing a kippot would apply to non-Jews and Jews alike, but 

would affect only Jews[;]” and “[a] ban on same-sex marriage would apply to 

straight, gay, lesbian, and bisexual people equally, but would affect only gay, 

lesbian, and bisexual people;[]” and “a literacy test only required of people 

whose ancestors were not allowed to vote before 1866 would apply to 

everyone, but would affect only Black people.”).

Finally, despite the fact that the Exclusions facially discriminate on the 

basis of sex, Plaintiffs have nevertheless demonstrated discriminatory intent, 

as thoroughly detailed in prior briefing. (ECF 173, at 14-17.) Additionally, the 

state of Florida recently codified the Exclusions challenged in the instant 

case into statute through Senate Bill 254 (SB 254), creating Fla. Stat. § 

286.311, a law which prohibits the use of state funds, including by a state 

group health insurance program, for “sex-reassignment prescriptions or 

procedures.” Fla. Stat. § 286.311(2); see ECF 170, at 19-21. Defendant DMS 

is the agency responsible for administering the state group health insurance 

program. (ECF 123, at 19-20.) The statutory provision codifying the 

Exclusions challenged in this case was determined by this Court to have 

been “motivated in substantial part by the plainly illegitimate purposes of 

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disapproving transgender status and discouraging individuals from pursuing 

their honest gender identities.” Dekker, 679 F. Supp. 3d at 1293; Id. at 1292 

(“the State's disapproval of transgender status—of a person's gender identity 

when it does not match the person's natal sex—was a substantial motivating 

factor in enactment of the challenged rule and statute[;]” and “this case 

involves invidious discrimination against transgender[ people].”).

IV. Conclusion

The undisputed facts in the record support summary judgment in favor 

of Plaintiffs on their Title VII claim against DMS and on their equal protection 

claim against Allende. Defendants’ motion for summary judgment should be 

denied as their claims are not supported legally or factually. 

Respectfully submitted on this 28th day of June, 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

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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, 

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 Defendants’ 

Response in Opposition to Plaintiffs’ Supplemental Brief (ECF 172) contains

2,616 words, which includes headings, footnotes, and quotations, but does 

not include case style, signature block or Certificates of Word Count and 

Service.

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/s/ Simone Chriss

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that, on June 26, 2024, I electronically filed the 

foregoing with the Clerk of the Court by using the CM/ECF system.

/s/ Simone Chriss

Counsel for Plaintiffs

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