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’ SUPPLEMENTAL BRIEF IN SUPPORT OF 

MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs moved for summary judgment on the liability of Defendant 

Florida Department of Management Services (DMS) under Title VII and of 

Defendant Pedro Allende1 under the Equal Protection Clause. (ECF 123.) 

Defendants DMS (ECF 126) and Allende (ECF 125) also moved for summary 

judgment. Plaintiffs update the Court on their employment status, new

caselaw under each claim, and changes in state law since the previous 

supplemental briefing (ECF 160, 161) on the parties’ motions for summary 

judgment.

 1 Pursuant to Fed. R. Civ. P. 25(d), Mr. Allende is automatically substituted 

as the current Secretary of the Florida Department of Management Services.

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 1 of 23
2

I. Plaintiffs’ Standing

Plaintiffs Kathryn Lane, Ahmir Murphy, and Jami Claire are 

transgender individuals who are current or former employees of the state of 

Florida. Each Plaintiff suffered injury in fact during their employment because 

their employer-sponsored health insurance benefits provided by DMS and 

Secretary Allende contain discriminatory Exclusions2 that prevent coverage 

for gender-affirming care through those employment benefits.

Plaintiff Kathryn Lane continues to be employed by the Office of the 

Public Defender in the Second Judicial Circuit of Florida in Tallahassee, a 

component of state government. The Exclusions deny her medical coverage 

for necessary medical care (ECF 123, at 7-13, 29-30, 36-38), this injury is 

fairly traceable to Defendants, which will be redressed by declaring the 

Exclusions unlawful and enjoining Defendants from applying the Exclusions 

to Ms. Lane (id. at 46-50). See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-

61 (1992). In addition, as Plaintiff Lane will prove at trial, she is entitled to 

compensatory damages, including emotional distress and out-of-pocket 

 2 The State Plans contain exclusions that work together to categorically 

exclude coverage for medically necessary gender-affirming care, including 

exclusions for “gender reassignment and modification services and 

supplies,” “cosmetic surgery/services,” “sexual reassignment, or modification 

services or supplies,” and prescriptions for “psychosexual disorders” 

(Exclusions).

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 2 of 23
3

costs for care that would have been covered but for the Exclusions, from 

Defendant DMS pursuant to Title VII.

Plaintiffs Jami Claire and Ahmir Murphy are no longer state employees, 

but during their years of employment they suffered harm by being unable to 

receive necessary medical care because of the Exclusions. (ECF 123, at 7-

13, 29-30, 35-38.) Further, as Plaintiffs Claire and Murphy will prove at trial, 

they are also entitled to damages, including emotional distress and out-ofpocket costs for care that would have been covered but for the Exclusions. 

Mr. Murphy and Ms. Claire have been injured by the Exclusions, and those 

injuries are fairly traceable to Defendant DMS and can be redressed through 

compensatory damages pursuant to Title VII. (Id. at 46-50.); see also Lujan,

504 U.S. at 560-61. 

II. Title VII Claim Against Defendant DMS

Since Plaintiffs’ motion in 2021, the Eleventh Circuit has unequivocally 

held that under Title VII “discrimination against transgender individuals ... is 

discrimination ‘because of sex.’” Copeland v. Ga. Dep't of Corr., 97 F.4th 

766, 775 (11th Cir. 2024) (quoting Bostock v. Clayton Cnty., 140 S. Ct. 1731, 

1743 (2020)). The Circuit applied Bostock to a claim under Title VII and found 

that the harassment, humiliation, and intimidation of a transgender sergeant 

at a Georgia state prison constituted a hostile work environment. Id. at 780.

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 3 of 23
4

More directly on point to the instant case, the Eleventh Circuit recently 

held that an employer’s health insurance plan with “a blanket denial of 

coverage for gender-affirming surgery” violated Title VII by discriminating 

against the plaintiff, a transgender woman, “and other transgender persons.” 

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

mandate withheld, App. Doc., ECF 82 (May 14, 2024). The Circuit concluded 

that the blanket denial of coverage discriminated based on transgender 

status and therefore “no further proof of disparate intent is needed.” Id. at 

798. 

The Circuit rejected arguments similar to the ones made by Defendant 

DMS in opposition to Plaintiffs’ motion. First, DMS’ argument that Plaintiffs 

need to proffer evidence of discriminatory intent (See ECF 126, at 9, 14-15; 

ECF 135, at 25-28), is directly contradicted by Lange. 101 F.4th at 798. 

Second, Defendant argued that its health insurance plan does not 

discriminate on the basis of sex because the plan provides the same benefits 

and exclusions to all employees and therefore does not treat transgender 

members any differently than cisgender members. (ECF 126, at 5-9; ECF 

135, at 9-10.) The Eleventh Circuit, however, concluded that because 

transgender participants are the only participants who would seek and 

qualify for gender-affirming surgery, the “plan denied health care coverage 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 4 of 23
5

based on transgender status.” Lange, 101 F.4th at 799. Third, Defendant’s 

argument that transgender or cisgender status is irrelevant to the plan’s 

coverage decisions is without merit as transgender status is the basis for 

denial. (ECF 126, at 12-14; ECF 135, at 23-25.)

Furthermore, Defendant DMS’ attempt to distinguish Bostock by 

contending that Florida’s health plan’s “exclusion applies equally to all 

employees regardless of their natal sex or how they identify” (ECF 126, at 8) 

is clearly wrong under Lange’s holding. The Lange court put to rest 

Defendant’s position that “[c]onstruing ‘because of sex’ to mean ‘because of 

transitioning status’ is not endorsed by the Supreme Court in Bostock.” (ECF 

135, at 16.) According to the Eleventh Circuit, that is exactly how Bostock

(and the Eleventh Circuit) interprets Title VII. Lange, 101 F.4th at 798; 

Copeland, 97 F.4th at 775. 

Lange also made clear that the defendant Houston County was liable 

as an employer under Title VII even though the plaintiff worked directly for 

the Sheriff and not Houston County; this is because the Sheriff had delegated 

to Houston County the administration and provision of health insurance. 

Lange, 101 F.4th at 800. “In accepting such a delegation, Houston County 

qualified themselves as an agent and employer under Title VII.” Id. Similarly, 

the state agencies here who directly employ plaintiffs have delegated to 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 5 of 23
6

Defendant DMS to administer and provide the state health plan. Accordingly, 

Defendant DMS is liable under Title VII for its discriminatory blanket 

exclusion of gender-affirming care.

The Eleventh Circuit’s recent cases in Lange and Copeland support 

Plaintiffs’ claim that Defendant DMS is an employer liable under Title VII for 

providing a health plan that excludes coverage for transgender employees. 

The Plan is facially discriminatory on the basis of sex because genderaffirming care is unique to a transgender person’s treatment of gender 

dysphoria. (See ECF 123, at 30-43.)

III. Equal Protection Claim Against Defendant Allende

The same conclusion under Title VII should also apply under the Equal 

Protection Clause of the Fourteenth Amendment to the U.S. Constitution: 

state laws or regulations that discriminate against transgender persons are 

discrimination on the basis of sex. Courts have divided, however, on whether 

to follow the clear logic of Bostock or not, with differences depending on the 

specific type of state law at issue and the asserted state interests in that law.

Defendant Allende’s position in this litigation has been that “the coverage 

exclusion for gender reassignment surgery and related procedures is not 

based on a member’s sex or even on their transgender identity; rather, is an 

across-the-board exclusion of a class of medical treatments applicable to all 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 6 of 23
7

members, regardless of sex.” (ECF 125, at 20.) This, he deems, makes the 

Exclusions a facially neutral classification, subject only to rational basis 

review, and requiring evidence of intentional discrimination. (ECF 125, at 19-

21.) But this “no discrimination” argument is not the correct reading of the 

Exclusions and not the most persuasive reading of the caselaw.

Plaintiffs explained in their previous supplemental brief (ECF 161, at 6-

14) why these arguments were unpersuasive as of January 2023, and why 

this court should reject the “no discrimination” argument as applied to the 

Exclusions at issue here. Below, Plaintiffs explain why subsequent Equal 

Protection caselaw in the Eleventh Circuit (Eknes-Tucker) does not foreclose 

their equal protection claims. Then, Plaintiffs examine a Fourth Circuit en 

banc opinion directly supporting their position (Kadel), and a similar case 

from this court that is in accord (Dekker). Finally, Plaintiffs argue that, even 

if this court is persuaded that Eknes-Tucker requires rational basis review of 

discrimination in state-sponsored health insurance plans, the Exclusions lack 

any rational basis and should be declared unconstitutional and enjoined. 

A. Eknes-Tucker

The Eleventh Circuit addressed an Equal Protection argument in 

Eknes-Tucker v. Gov’r of Ala., 80 F.4th 1205 (11th Cir. 2023) mandate

withheld, App. Doc. 22-11707 ECF 132 (Sept. 25, 2023). A state of Alabama 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 7 of 23
8

law made it a crime to provide medical care to minors that involved 

prescribing puberty blockers or cross-sex hormones for treating a 

discordance between the minor’s biological sex and sense of gender identity.

Id. at 1210. On May 13, 2022, the district court granted Plaintiffs’ motion for 

preliminary injunction as to their equal protection claim, enjoining the criminal 

ban on the provision of care to minors because the Act classified “on the 

basis of gender nonconformity and therefore on the basis of sex.” Id. at 1227

(citing Bostock v. Clayton County, 140 S. Ct. 1731 (2020) and Glenn v. 

Brumby, 663 F.3d 1312 (11th Cir. 2011)). However, on August 21, 2023, the

Circuit concluded that the statute did not discriminate on the basis of sex and 

applied the rational basis standard. There are several reasons why EknesTucker does not control the outcome of the instant case.

First, it is important to note that the Eleventh Circuit specifically 

distinguished equal protection analysis from Title VII. 80 F.4th at 1228-29.

The Circuit did not undermine the holding nor reasoning of Bostock nor 

Glenn, rather the Court observed that “[b]ecause Bostock ... concerned a 

different law (with materially different language) and a different factual 

context, it [bore] minimal relevance to [that] case”, id. at 1229, and found that

Brumby “discussed [equal protection] as applied to a particular factual 

scenario, i.e. one where an employer fired an employee for failing to adhere 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 8 of 23
9

to certain expectations and stereotypes associated with the employees’ 

sex[;]” which was “not the scenario presented [t]here”, id.

3 Thus, the 

discussion above stands regarding the liability of Defendant DMS under Title 

VII.

Second, Eknes-Tucker concluded that the Alabama law limits specific 

medical treatments for minors, and therefore was a distinction based on age, 

which is not a suspect classification under the Equal Protection Clause. Id. 

at 1230. That stands in stark contrast to the instant case: the Exclusions 

challenged by Plaintiffs apply to every person covered by the State Plans 

regardless of age and treat them differently only because of sex.

Third, Alabama’s law made it a crime to provide the medical care at 

issue in that case. Florida’s Exclusions, however, do not make it illegal to 

obtain gender-affirming care. Instead, the state of Florida has determined 

that it will not pay for transgender state employees to have insurance for 

lawful healthcare based upon that person’s sex.

For these reasons, Eknes-Tucker does not require this court to apply 

rational basis review to Plaintiffs’ Equal Protection claims. Plaintiffs suggest 

that the Fourth Circuit’s recent equal protection analysis in Kadel regarding 

 3 The Circuit acknowledged that the Alabama law at issue “restricts a specific 

course of medical treatment that, by the nature of things, only gender 

nonconforming individuals may receive.” 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 9 of 23
10

a state’s health insurance plan, discussed in the following section, provides 

more direct guidance and, because of the factual distinctions, can be applied 

consistently with Eknes-Tucker.

B. Kadel v. Folwell

The United States Court of Appeals for the Fourth Circuit sitting en 

banc in Kadel v. Folwell, No. 22-1721, and Anderson v. Crouch, No. 22-1927,

issued an order on April 29, 2024, regarding the constitutionality of 

categorical exclusions of coverage for gender-affirming medical care in the 

North Carolina State Health Plan and West Virginia Medicaid Program, 

respectively. Kadel v. Folwell, 100 F.4th 122 (4th Cir. 2024) (en banc). Like 

Plaintiffs argue in the instant case, the Fourth Circuit held that the Exclusions 

discriminated based on gender identity and sex, were therefore subject to 

intermediate scrutiny, and that they could not meet that heightened standard.

Compare Id. at 141-42 with ECF 123, at 43-46 and ECF 137, at 14-18, 27-

32.

Kadel is more directly on point for Plaintiffs’ claims against Defendant 

Allende than Eknes-Tucker because Kadel considers equal protection claims 

raised by transgender state employees. Like the Exclusions in the State 

Plans created and administered by Defendants in the instant case, see supra

note 2, the North Carolina State Health Plan contained a coverage exclusion 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 10 of 23
11

for “[t]reatment or studies leading to or in connection with sex changes or 

modifications and related care.” Kadel, 100 F.4th at 133 (emphasis added).

The Fourth Circuit confirmed these exclusions involve medical care 

that is unique to, and would only be sought by, transgender individuals. Id.

at 148-49 (the surgeries that are excluded are “surgeries that only 

transgender people would get;” as “cisgender people would not seek any 

treatment for gender dysphoria” and thus the exclusion “is only relevant to 

transgender individuals”). The Eleventh Circuit in Lange agrees, as 

discussed above, that “[b]ecause transgender persons are the only plan 

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

care coverage based on transgender status.” Lange, 101 F.4th at 799.

4

Like the State Plans challenged in the instant case, the North Carolina 

State Health Plan is administered by third-party administrators (see Kadel,

100 F.4th at 134-35; ECF 123, at 13); the administrators do not get to decide 

what benefits to cover as the state health plans alone determine benefits and 

exclusions in the Plan Benefit Booklets (100 F.4th at 135; ECF 123, at 18, 

21); coverage is provided for some behavioral health services, including 

 4 The Court further noted that this finding is supported by the 11th Circuit’s 

decision in Glenn v. Brumby, “where we held that an individual may not ‘be 

punished because of his or her perceived gender-nonconformity.’ 663 F.3d 

1312, 1319 (11th Cir. 2011).” Id.

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 11 of 23
12

psychotherapy (100 F.4th at 135 n.3; ECF 123, at 17); and the “important 

government interests” put forth by the North Carolina State Health Plan -

which the District Court and Fourth Circuit readily dismissed - were “cost & 

efficacy” (100 F.4th at 137-38; ECF 125, at 31-32). Meanwhile, the West 

Virginia defendants, like the Defendants in the instant case, “admit they do 

not know why [the exclusion] was adopted, nor are they are aware of what 

information, if any, the Program relied on in adopting the exclusion.” (100 

F.4th at 140; ECF 137, at 30 (“Defendants DMS and [Allende] ... confirmed 

there are no known justifications for the Exclusions” and Defendants’ 

“witnesses expressly disavowed the justifications upon which Defendant 

[Allende] now seeks to rely.”); see also ECF 123, at 14-15; ECF 137, at 3-5).

In an attempt to avoid the conclusion that the Exclusions discriminate 

based on gender identity and sex and fail intermediate scrutiny, the Kadel

defendants, like Defendant Allende (ECF 125, at 20-21), argued the 

exclusions distinguished on the basis of diagnosis and thus only had to 

withstand rational basis review. 100 F.4th at 141. The Kadel defendants

claimed the exclusions were facially neutral because: (a) treatments for 

gender dysphoria “are excluded from coverage for everyone, regardless of 

their gender identity,” id. at 142; (b) the 

exclusions “do not explicitly mention transgender people,” rather only types 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 12 of 23
13

of treatments, i.e. treatments for gender dysphoria, id. at 143; and (c) gender 

dysphoria is not a proxy for transgender identity, as “not all transgender 

people have gender dysphoria” and “the policies apply to everyone” id. at

143-44. (See ECF 125, at 19-23; ECF 135, at 10-12; ECF 141, at 7-10.) The 

Fourth Circuit found these arguments unavailing. Rightly so.

The Exclusions challenged by Plaintiffs facially discriminate on the 

basis of sex. As Kadel held regarding similar exclusions, this is “textbook sex 

discrimination”5 as one cannot determine whether the State Plan will cover a 

certain patient’s surgery without referencing their sex (or some synonym). 

100 F.4th at 153-54 (citing Bostock, 140 S. Ct. at 1742-49 (2020)). “It can’t 

be done.” Bostock, 140 S. Ct. at 1746. It is impossible to determine whether 

a particular treatment would lead to “sexual reassignment or modification” or 

 5 Kadel reasoned that: “Certain gender-affirming surgeries that could be 

provided to people assigned male at birth and people assigned female at 

birth are provided to only one group under the policy. Those surgeries 

include vaginoplasty (for congenital absence of a vagina), breast 

reconstruction (post-mastectomy), and breast reduction (for gynecomastia). 

Anderson, J.A. 304, 332, 2385–87, 2418–27. Those assigned female at birth 

can receive vaginoplasty and breast reconstruction for gender-affirming 

purposes, but those assigned male at birth cannot. And those assigned male 

at birth can receive a mastectomy for gender-affirming purposes, but those 

assigned female at birth cannot. In other words, when the purpose of the 

surgery is to align a patient’s gender presentation with their sex assigned at 

birth, the surgery is covered. When the purpose is to align a patient’s gender 

presentation with a gender identity that does not match their sex assigned at 

birth, the surgery is not covered.” 100 F.4th at 153. 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 13 of 23
14

“gender reassignment or modification” – and thus, whether the State Plan 

Exclusions apply – without comparing the member’s sex assigned at birth 

before the treatment to how it might be impacted by the treatment (i.e. 

whether their “sex” or “gender” has been “reassigned” or “modified”). The 

Eleventh Circuit in Eknes-Tucker refused to extend Bostock’s Title VII 

reasoning to equal protection challenges to criminal bans on specific medical 

procedures, because Bostock did not “deal[] with the Equal Protection 

Clause as applied to laws regulating medical treatments.” Eknes-Tucker, 80 

F.4th at 1228. But that is not the situation at issue in the case at bar, where 

the Exclusions do not in any way regulate medical treatments. Instead, the 

Exclusions refuse to pay for legal medical treatments that Plaintiffs have 

been forced to pay for out of their own pockets. The logic of Bostock applies 

more clearly to equal protection challenges involving discrimination in 

employment benefits. Kadel demonstrates why that is so, and Eknes-Tucker

does not require a different result. 

Plaintiffs’ equal protection claims against Defendant Allende should be 

evaluated under heightened scrutiny, and this court should grant summary 

judgment on that basis as argued by Plaintiffs in support of their motion for 

summary judgment.

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 14 of 23
15

C. Dekker v. Weida

This Court recently had the opportunity to weigh in on some of the 

issues presented in the instant case in Doe v. Ladapo, No. 4:23-cv-114 (N.D. 

Fla., Hinkle J.) and, more directly on point, Dekker v. Weida, No. 4:22-cv00325 (N.D. Fla., Hinkle, J.). Dekker involved a challenge to the state of 

Florida’s coverage exclusion of treatments for gender dysphoria in all plans 

provided to Florida Medicaid beneficiaries regardless of age. 

Judge Hinkle held that the exclusion of coverage for treatments for 

gender dysphoria for all adult and minor Florida Medicaid beneficiaries 

constituted discrimination on the basis of sex and gender nonconformity. 

Dekker v. Weida, 679 F. Supp. 3d 1271, 1289-91 (N.D. Fla. 2023) (appeal 

pending). Like Defendant Allende, the state of Florida defendants in Dekker 

argued that the exclusion did not discriminate based on sex because “the 

reason for the treatment—the diagnosis—is different for the natal male and 

natal female.” Id. at 1290. This Court reasoned that “this does not change 

the fact that this is differential treatment based on sex. The reason for sexbased differential treatment is the purported justification for treating the natal 

male and natal female differently—the justification that must survive 

intermediate scrutiny. One can survive—but cannot avoid—intermediate 

scrutiny by saying there is a good reason for treating a male and female 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 15 of 23
16

differently.” Id. (emphasis in original). 

Defendants DMS and Allende expressly disavowed any purported 

justifications for the Exclusions in the instant case, but even if their alleged 

interest in “efficacy” were not a post hoc rationalization, they still could not 

satisfy their burden. (ECF 125, at 32; ECF 135, at 34-35; ECF 141, at 3).6 In 

Dekker, the state of Florida’s argument “that gender-affirming medical care—

puberty blockers, cross-sex hormones, and surgery—were not supported by 

generally accepted medical standards and were instead experimental” was 

held by the Court to be “not supported by the evidence” and “contrary to 

generally accepted medical standards.” 679 F. Supp. 3d at 1281; see also

id. at 1296 (“[t]he great weight of medical authority supports these 

treatments[;]” and “[n]o country in Europe—or so far as shown by this record,

anywhere in the world—entirely bans these treatments or refuses to pay for 

them.”)

For these reasons, Dekker is in accord with Kadel and supports 

Plaintiffs’ arguments in favor of summary judgment on their equal protection 

claims against Defendant Allende. 

 6 Defendant’s other post hoc justification, based on “cost,” is plainly a nonstarter. (See ECF 125, at 31-32.) See also Kadel, 100 F. 4th at 156-57; see 

also, Mem'l Hosp. v. Maricopa Cnty., 415 U.S. 250, 263 (1974) (“[A] state 

may not protect the public fisc by drawing an invidious distinction between 

classes of its citizens.”).

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 16 of 23
17

D. In the Alternative, the Exclusions Cannot Survive Rational 

Basis Review

Plaintiffs maintain that the Exclusions are sex-based classifications 

and should be analyzed under heightened scrutiny. However, as Plaintiffs 

have explained in their motions, even if this Court were to subject them to 

rational basis review, the Exclusions fail.

First, Defendants disclaimed knowledge of the original or current 

rationale for the Exclusions. Defendants’ witnesses proffered that the only 

known justification was that the exclusions have “existed for a long time.”

(ECF 123, at 14-15; ECF 137, at 3-5; ECF 139, at 14-15.) Secretary 

Allende’s predecessor “admits he knows of no current financial or medical 

justifications for the exclusion, and also admits that gender reassignment 

services are not currently considered experimental or investigational.” (ECF 

123, at 45-46.)

Second, the only purported justification finding any support in the 

record is that the Exclusions have “always existed” and were added to the 

plan “over 40 years ago.” (ECF 137, at 2-5, 32-34 (citing ECF 125, at 28))

As Plaintiffs argued in their opposition to Defendant Allende’s motion for 

summary judgment, “[c]ost savings do not justify the differential treatment of 

transgender employees with a medical need for gender-affirming medical 

care from other state employees who receive insurance coverage for 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 17 of 23
18

treatment of other medical conditions.” (ECF 137, at 33.)

There is no legitimate governmental interest in denying state 

employees who are transgender equal protection under the law. (See id. at 

32-34; ECF 139, at 14-17.) This Court recently held, in analyzing a similar 

categorical coverage exclusion adopted by the state of Florida, that “[t]here 

is no rational basis for a state to categorically ban these treatments or to 

exclude them from the state's Medicaid coverage.” Dekker, 679 F.Supp.3d 

at 1286. There is similarly no rational basis for the Exclusions at issue here. 

Through expert witness reports, depositions, and summary judgment 

briefing, which concluded in March 2021, Plaintiffs showed that the 

Exclusions were inconsistent with current scientific and medical consensus 

regarding these treatments and contrary to the widely accepted, evidencebased, authoritative standards of care for the treatments at issue. (See, e.g.,

ECF 123 at 4-7; ECF 139, at 15-16). In addition to the evidence produced by 

Plaintiffs in this case, Defendants’ own Third Party Administrators 

recommended changes to the State Plans regarding coverage of care for 

transgender individuals. (ECF 123, at 27-29).7 Despite all of this information, 

 7 For example, Florida Blue changed its policies and guidelines in 2017 to 

include coverage for gender-affirming healthcare and recommended to DMS 

that the PPO State Plan provide coverage for gender reassignment surgery 

based on the Affordable Care Act’s nondiscrimination provision (Section 

1557); Mercer Health and Benefits’ compliance analysis of the State Plans 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 18 of 23
19

Defendants have chosen not to remove or revise the Exclusions.

In Dekker, Judge Hinkle reasoned – in explaining an alternative 

additional basis that triggers intermediate scrutiny – that adverse treatment 

of transgender individuals constitutes discrimination against a discrete and 

insular minority. 679 F. Supp. 3d, at 1290-91 (citing City of Cleburne v. 

Cleburne Living Ctr., 473 U.S. 432 (1985) in support of the point that 

meaningful rational basis scrutiny requires meaningful analysis, and finding

neither the Defendants in City of Cleburne nor the state Defendants in 

Dekker could withstand meaningful analysis.) The Defendants have put forth 

no rational basis to support the Exclusions at issue in the instant case. 

IV. Changes in State Law

Since the parties filed their motions for summary judgment, Florida 

enacted 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.” See Fla. Stat. § 286.311(2). “Sex-reassignment 

prescriptions or procedures,” as defined in Florida Statute § 456.001(9),

includes all procedures covered under the Exclusions that Plaintiffs seek to 

cover through this case.

 

in 2018 resulted in a “red flag” regarding the Exclusions for 

“transgender/gender dysphoria conditions.”

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 19 of 23
20

This change in state law does not impact the underlying federal legal 

bases of Plaintiffs’ claims or the relief sought by Plaintiffs. Plaintiffs’ 

Amended Complaint (ECF 34) seeks: (1) A declaration that Defendants are 

in violation of the Equal Protection Clause and Title VII; (2) Permanent 

injunctive relief to cease enforcement of the State Plan Exclusion for 

coverage of “gender reassignment or modification services or supplies,” and 

provide benefits that cover Plaintiffs’ medically necessary gender-affirming 

care; (3) Permanent injunctive relief with respect to Defendant Florida 

Department of Management Services to prohibit the Department from 

soliciting and accepting bids, and granting contracts for health insurance 

plans that contain an exclusion of coverage for gender-affirming care. 

If the Court rules that Defendants violated Title VII and the Equal 

Protection Clause, it can provide the full relief sought in Plaintiffs’ amended 

complaint without regard to Florida Statute § 286.311 “because federal laws

are ‘the supreme Law of the Land ... any Thing in the Constitution or Laws 

of any State to the Contrary notwithstanding,’ U.S. Const. Art. VI, Cl. 2, ‘state 

law that conflicts with federal law is ‘without effect.’” Gallardo by & through

Vassallo v. Dudek, 963 F.3d 1167, 1174 (11th Cir. 2020), aff'd sub nom.

Gallardo by & through Vassallo v. Marstiller, 596 U.S. 420 (2022). Title VII 

contains an anti-preemption provision which allows states to have 

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 20 of 23
21

employment laws different than federal law, however the statute expressly 

states that the state law cannot “purport to require or permit the doing of any 

act which would be an unlawful employment practice under this subchapter.” 

42 U.S.C. §2000e-7; see also Bradshaw v. Sch. Bd. of Broward Cnty., Fla., 

486 F.3d 1205, 1211 (11th Cir. 2007) (States cannot “interfere with Title VII 

by requiring or permitting acts that Title VII would forbid”).

Additionally, this Court in Dekker declared Fla. Stat. § 286.311(2)8

invalid to the extent it “categorically ban[s] Medicaid payment for puberty 

blockers and cross-sex hormones for the treatment of gender dysphoria.” 

679 F. Supp. 3d at 1299. For these reasons, Florida cannot rely on a state 

law to shirk its obligations under federal law or to avoid compliance with an 

injunction from this Court.

V. Conclusion

For the reasons stated above, Plaintiffs continue to be entitled to 

summary judgment as requested in their motion (ECF 123), and the Court 

 8 SB 254, the bill that created Fla. Stat. § 286.311, contained a clerical typo 

and referred to the new statute as Fla. Stat. § 286.31. See 

https://www.flsenate.gov/Session/Bill/2023/254. The Dekker opinion 

continues this clerical typo by invalidating Fla. Stat. § 286.31(2), which 

prohibits state expenditures on travel to another state to receive services that 

are intended to support an abortion. 679 F. Supp. 3d at 1299. It is clear from 

the text of the opinion that the court meant to invalidate Fla. Stat. § 286.311, 

which prohibits state expenditures on sex-reassignment prescriptions or 

procedures.

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 21 of 23
22

should deny the motions for summary judgment sought by Defendants 

Allende (ECF 125) and DMS (ECF 126).

Respectfully submitted on this 5th day of June, 2024.

/s/ Simone Chriss 

Counsel for Plaintiffs

CERTIFICATE OF WORD COUNT

Pursuant to N.D. Loc. R. 7.1(F), I certify this Response to the Court’s 

Order for Supplemental Briefing (ECF 164) contains 4,113 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

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

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 22 of 23
23

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 SERVICE

I HEREBY CERTIFY that on this 5th day of June, 2024, a true and 

correct copy of the foregoing has been filed with the Court electronically

utilizing its CM/ECF system, which will transmit a notice of electronic filing 

to all Plaintiffs’ and Defendants’ counsel of record registered with the Court 

for that purpose.

/s/ Simone Chriss

Simone Chriss

Counsel for Plaintiffs

Case 4:20-cv-00020-MW-MAF Document 170 Filed 06/05/24 Page 23 of 23