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’ RESPONSE TO DEFENDANTS’ SUPPLEMENTAL BRIEF 

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

I. Defendants’ Failure to Cite Record Evidence for Propositions 

Essential to Their Legal Arguments Dooms Those Arguments.

Defendants’ Supplemental Brief (ECF 171) includes a litany of 

unsupported allegations and bald assertions of “fact” devoid of any citation 

to the record upon which the summary judgment motions are based. Among 

the assertions upon which Defendants’ arguments hinge, but which find no 

support in the record, are the post hoc justifications of cost and efficacy.

First, Defendants reiterate the argument that an uncited “costcontainment directive” (id. at 13) and “cost-saving mission” (id. at 23) justify

the discriminatory Exclusions. (Id. at 14) (providing no citation for any of the 

alleged facts supporting this justification: “DMS addresses growing 

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healthcare costs by running the Plan as cost-effectively as possible. DMS 

anticipates that removal of the gender reassignment exclusion would add 

significant expense to the Plan, and given its directive to contain costs, DMS 

has never advocated for the addition of any category of benefits to the Plan.”) 

The only citation contained in Defendants Supplemental Brief for the 

cost justification is “Doc 125 p. 9,” which offers no support for their position. 

(ECF 171, at 3.) In fact, the only support contained in any of Defendants’

pleadings is the misrepresentation of the record in Defendant [Allende’s] 

Motion for Summary Judgment that “it is loosely estimated that covering 

gender reassignment would increase costs by $0.64 per policy per month” 

... “or a total expense to the state of around $1,350,000 annually.” (ECF 125, 

at 32.) As explained thoroughly in Plaintiffs’ briefing, not only was cost 

explicitly disclaimed as a justification by DMS representatives, but record 

evidence makes unequivocally clear that Defendants have never analyzed 

the financial impact of eliminating the Exclusion nor covering gender 

reassignment in the Plans. (ECF 123, at 14, 45-46; ECF 137, at 3-4, 29-30.)

The “loose estimation” referenced by Defendants comes from a single 

statement from an agency witness who merely speculates a private third 

party might have considered the cost impacts of removing the Exclusions.

The DMS corporate representative, Ryan Stokes, stated in deposition: “we 

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have not done an analysis on that...I think Florida Blue may have done a 

very informal look at their book of business, at what the cost might have 

been.” (ECF 118-09, DMS-Stokes, 83:16-23.) However, this agency witness 

was unaware of what services were considered by Florida Blue in the very 

informal look (id. at 84:16-20), could not recall any details about how this 

information was received by the agency, including whether the Florida Blue 

analysis was even “in writing” (id. at 85:6-19), and conceded that DMS does 

not even know the number of transgender employees or transgender plan 

members in the state (id. at 21:25; see also ECF 118-13, Fillyaw, 211:20-23 

(Q: “[h]as there ever been an analysis of how many transgender individuals 

are covered by the state plans?” A: “No.”).) 

Further, Defendants’ statement regarding the “total expense to the 

state of around $1,350,000 annually” has no record cite in any of Defendants’ 

briefing because no record support exists. Defendants’ primary argument 

that they have “never advocated for the addition of any category of benefits 

to the plan” because of their interest in “cost containment” and avoiding 

adding “significant expense to the Plan” is undercut by the fact that they are 

unable to say whether the removal of the Exclusions would actually save 

money for the state, as they have never analyzed this. (ECF 118-13, at 

119:25-120:9 (Q: “Do you know or does DMS know what the cost would be 

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to eliminate the exclusions for gender reassignment or modification services 

or supplies in the state plans?” A: “No.”); ECF 118-9, at 83:16-84:20) (Q: 

“Does DMS know whether eliminating the gender reassignment exclusion 

would cost more, cost less, or be neutral?” A: “We have not done – to the 

best of my knowledge, we have not done an analysis on that.”).) 

Next, Defendants rehash their unsupported arguments regarding 

efficacy of treatment as a justification for the Exclusions -- which Plaintiffs 

have already addressed comprehensively in prior briefing (see ECF 123, at 

14-15; ECF 137, at 4-6; ECF 139, 14-15) -- but offer no record cites for these 

unsupported “facts.” (ECF 171, at 14) (containing no citations for: “Moreover, 

the Plan exclusion is rationally related to the government’s interest in 

ensuring that the treatments covered by the Plan are effective and 

appropriate for all members. While some gender reassignment surgeries are 

accepted in the medical community, the efficacy of these procedures is not 

clear, and in some cases, is highly controversial and disputed.1 The State 

 

1 Defendants argue that the state has “an important interest in excluding” the

unspecified “gender reassignment surgeries” with purportedly unclear or 

controversial efficacy (ECF 171, at 14), yet they proffer no justification for the 

categorical denial of the non-surgical care that they readily concede the 

Exclusions encompass (ECF 125, at 7 ("The Plan’s exclusion of gender 

reassignment services applies to surgical procedures (including double 

mastectomy, orchiectomy, and facial feminization surgery), physician office 

visits, hormone replacement therapy and related blood work if the associated 

diagnosis is gender dysphoria”)).

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has an important interest in excluding such treatments, particularly given the 

risks, complications, and irreversible nature of many gender reassignment 

services unless and until they can be established as safe and effective for 

the treatment of gender dysphoria.”). In addition to the lack of evidence in 

the record supporting, and the clear record evidence contradicting, these 

statements, Defendants’ attempt to justify the Exclusion by suggesting the 

state has an interest in ensuring any treatment covered by the Plan is 

“effective and appropriate for all members” defies common sense. One 

would be hard pressed to identify any medical treatment that was effective 

and appropriate for all state of Florida employees. Medical care is not onesize-fits-all, but must be provided based on the individual needs of the

specific patient.

Defendant Allende conceded in his Motion for Summary Judgment that 

these treatments were no longer considered “experimental.” (ECF 135, at 

34-36.) Nevertheless, Defendants now raise alleged concerns about the 

treatment of gender dysphoria in minors (id. at 5), yet the only citation 

provided by Defendants is to their prior unsupported argument about the 

“ethics” surrounding minors providing consent to treatment, not the efficacy 

or safety of the treatments themselves. (See, e.g., ECF 125 at 12.) The only 

additional support offered by Defendants are a citation to an out-of-country 

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declaration that was set aside by the Court of Appeal in 2021 (see ECF 156, 

Plaintiffs’ Third Notice of Supplemental Authority) and a citation to a 

sentence from a dissenting opinion in Adams, a bathroom case having 

nothing to do with medical care. (ECF 125, at 28) ("Medical thinking when 

Title IX became law (1972) was firmly opposed to sex-reassignment 

surgery.") Neither of these offer any legitimacy to Defendants’ post hoc 

unsupported “efficacy” justification. 

Further, as explained in Plaintiffs’ briefing, prior to summary judgment 

Defendants expressly denied knowledge of any financial or medical 

justifications for the Exclusions. (See ECF 123, at 14-15; ECF 137, at 3-7; 

ECF 139, at 14-15.) In fact, Defendant DMS conceded in their Reply Brief 

(ECF 140) that there were no known medical or financial justifications for the 

exclusion, but rather than disputing Plaintiffs’ position and providing any 

record evidence to the contrary, Defendants instead argued that “Plaintiffs 

did not ask DMS about the ‘known justifications’ for the Plan’s other 26 

express exclusions, most of which also date back to the 70’s and 80’s, even 

though today they may exclude care deemed medically necessary by a 

physician.” (ECF 140, at 11.) Further, Defendants explicitly stated, and their 

own expert agreed, that gender reassignment or modification services and 

supplies are not currently considered experimental or investigational (ECF 

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123, at 14-15; ECF 137, at 4-6) and that surgical treatment for gender 

dysphoria is widely accepted (ECF 137, at 4-6).

Factual assertions not supported with citations to the record are 

immaterial. To be relevant to the resolution of cross-motions for summary 

judgment, facts need to be raised to the court in summary judgment filings 

with record citations. “There is no burden upon the district court to distill every 

potential argument that could be made based upon the materials before it on 

summary judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 

599 (11th Cir. 1995) (en banc). It is well-established law that “summary 

judgment may only be defeated by pointing to admissible evidence in the 

summary judgment record that creates a genuine issue of material fact.” 

United States v. 5443 Suffield Terr., Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 

2010) (emphasis added); APA Excelsior III, LP v. Windley, 329 F. Supp. 2d 

1328, 1340 n.11 (N.D. Ga. 2004) (“not the Court's duty [to] comb the record

to attempt to find reasons to deny a motion for summary judgment.”); see 

also Chandler v. Volunteers of Am., N. Ala., Inc., 598 F. App'x 655, 663 (11th 

Cir. 2015) (noting counsel's “misimpression that it is the court's job, not 

counsel's, initially to comb through the record, identify the facts supporting 

the plaintiff's legal position, and apply them to the law—all without any 

guidance from counsel”). Because Defendants have never provided record 

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citations to support these contentions, their bald assertions do not support 

their arguments on any of the pending cross-motions for summary 

judgment.

II. Lange Is Binding Precedent That Controls Plaintiffs’ Title VII 

Claims.

The Lange decision addresses a substantially identical Title VII claim 

by a transgender public employee in Georgia. Lange holds that employee 

benefit plans that exclude “[d]rugs for sex change surgery” and “[s]ervices 

and supplies for a sex change and/or the reversal of a sex change” facially 

discriminate against transgender employees in violation of Title VII. Lange v. 

Houston County, 101 F.4th at 793, 798-99 (11th Cir. 2024). That is what 

Florida’s employee benefit plans do as well: the Exclusions prohibit coverage 

for “gender reassignment and modification services and supplies” and 

“sexual reassignment, or modification services or supplies” as well as 

prescriptions for “psychosexual disorders”. (ECF 123, at 2.) Plaintiffs in the 

instant case are equally entitled to judgment as a matter of law for liability 

under Title VII as the plaintiff in Lange.

Lange reiterates the Supreme Court’s longstanding position that 

employer-provided health insurance coverage is compensation under Title 

VII. 101 F.4th at 798-800; see also Newport News Shipbuilding & Dry Dock 

Co. v. E.E.O.C., 462 U.S. 669, 682 (1983). While employers are not required 

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to provide coverage for every possible medical treatment, they cannot 

exclude specific treatments on the basis of sex. “By drawing a line between 

gender-affirming surgery and other operations, the plan intentionally carves 

out an exclusion based on one's transgender status. Lange's sex is 

inextricably tied to the denial of coverage for gender-affirming surgery.” 

Lange, 101 F.4th at 799. Defendants rely on the dissent in Lange, which 

suggests that any exclusion from a health insurance plan is fine so long as it 

is based on cost savings. Id. at 805 (Brasher, J., dissenting). Title VII 

prohibits discrimination based on sex. Costs can be saved, but not at the 

explicit and direct expense of transgender beneficiaries. 29 C.F.R. § 

1604.9(e) (“It shall not be a defense under Title VII to a charge of sex 

discrimination in benefits that the cost of such benefits is greater with respect 

to one sex than the other.”); see also City of Los Angeles, Dep’t of Water & 

Power v. Manhart, 435 U.S. 702, 716-17 (1978) (“[N]either Congress nor the 

courts have recognized [a cost justification] defense under Title VII.”). For 

example, Title VII permits exclusions for bariatric surgery because obesity is 

not a protected category under the statute. Contra Lange, 101 F.4th at 805 

(Brasher, J., dissenting). Furthermore, as discussed above, Defendants’ cost 

defense is a post hoc justification with no support in the record.

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Defendants go to great lengths to explain why the clear holding of 

Lange is wrong and might be vacated by the Eleventh Circuit sitting en banc. 

(ECF 171, at 6-7, 16-25.) But Lange remains binding precedent of the 

Eleventh Circuit, whether the mandate has issued or not. A published opinion 

“is the law in this circuit unless and until it is reversed, overruled, vacated, or 

otherwise modified by the Supreme Court of the United States or by this court 

sitting en banc.” Martin v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992). 

“Withholding mandate has no bearing, though, on this Court's obligation to 

apply a panel's decision as binding precedent.” Poblano v. Russell Cellular 

Inc., 543 F. Supp. 3d 1293, 1295 (M.D. Fla. 2021) (citing Martin). Even if the 

court vacates Lange and rehears the case en banc, that does not mean the 

rationale expressed in Lange becomes irrelevant. It merely ceases to be 

binding authority that must be followed; but the rationale of Lange is 

persuasive and follows the clear logic of Bostock. Further delaying a ruling 

on Plaintiffs’ Title VII claims—which have been submitted for decision since 

2021—will put this issue on hold indefinitely, potentially for years, based on 

Defendants’ hopeful speculation.

Defendants disregard both Lange and Newport News, but this court is 

bound to follow both opinions. Defendants repeatedly rely on General 

Electric Co. v. Gilbert, 429 U.S. 125 (1976), to argue that Exclusions that 

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explicitly target treatments for gender-affirming surgery do not discriminate 

against transgender beneficiaries. (See ECF 171, at 16-18, 20, 23.) But 

Congress repudiated Gilbert, and the Supreme Court declared both the 

holding and the logic of Gilbert were no longer valid. See Newport News, 462 

U.S. at 678 (“When Congress amended Title VII in 1978, it unambiguously 

expressed its disapproval of both the holding and the reasoning of the Court 

in the Gilbert decision.”). The Court went to lengths to explain that Congress 

explicitly repudiated the logic of the key footnote in Geduldig v. Aiello, 417 

U.S. 484 (1974), upon which Defendants rely. See Newport News, 462 U.S. 

at 676-77. While the significance of that footnote from Geduldig continues to 

be contested in the Equal Protection context, after Newport News it has no 

bearing on Title VII. Plaintiffs fully briefed this issue in their Response in 

Opposition to Defendant DMS’s Motion for Summary Judgment. (ECF 136, 

at 5-9.) Defendants’ most recent brief adds nothing new.

The factual record in this case is consistent with the essential facts 

discussed by the Eleventh Circuit in Lange. Plaintiffs are entitled to summary 

judgment declaring the Exclusions violate Title VII.

III. The Exclusions Discriminate Against Transgender Beneficiaries 

in Violation of the Equal Protection Clause.

A. Eknes-Tucker Does Not Change the Fate of the Exclusions

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Similar to Defendants’ loose approach to facts and law regarding Title 

VII, Defendants assert that Eknes-Tucker v. Governor of Ala., 80 F.4th 1205 

(11th Cir. 2023), eradicates any possibility of victory on Plaintiffs’ Equal 

Protection claims. (See ECF 171, at 7-11.) Defendants fail to mention that 

the Eleventh Circuit in Eknes-Tucker, just like Lange, has withheld the

mandate while considering petitions for rehearing en banc. (Compare ECF 

171, at 7, 17 n.5, 25 (noting mandate withheld in Lange, and asking Court to 

withholding ruling on Title VII claim until mandate issued), with ECF 171, at 

7-12, 16, 21 (failing to note mandate withheld in Eknes-Tucker, while asking 

Court to rely on that opinion to resolve Equal Protection claim).)

Plaintiffs recognize that Eknes-Tucker, like Lange, “is the law in this 

circuit unless and until it is reversed, overruled, vacated, or otherwise 

modified by the Supreme Court of the United States or by this court sitting 

en banc.” Martin v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992). But 

unlike Lange, which is factually indistinguishable from the instant case and 

addresses the same issue of exclusions from employer-provided medical 

benefits, Eknes-Tucker addresses regulation of the providers prescribing the

medical care itself, as opposed to health insurance coverage, and only 

applies to medical care for minors, unlike Lange and the case at bar. EknesTucker, 80 F.4th at 1210 (the appeal centers around “Alabama's Vulnerable 

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Child Compassion and Protection Act” which “makes it a crime in the State 

of Alabama to take part in prescribing providing puberty blockers or crosssex hormone treatment to a minor”).

Plaintiffs in their most recent Supplemental Brief thoroughly explain the 

reasons why Eknes-Tucker should not dictate the outcome in the instant 

case. (See ECF 170, at 6-14). The Exclusions are facial classifications based 

on sex that do not withstand any level of scrutiny. Even if Eknes-Tucker 

requires rational basis review of Plaintiffs’ Equal Protection claims, 

Defendants have failed to demonstrate any rational basis in the summary 

judgment record to establish any cost savings, efficacy concerns, or other 

purported non-discriminatory justifications for the Exclusions. (See ECF 170, 

at 17-18.) They merely rehash arguments from their original papers seeking 

summary judgment. Plaintiffs have already demonstrated the lack of record 

support for any non-discriminatory justifications for the Exclusions in their 

Response in Opposition to Defendant [Allende’s] Motion for Summary 

Judgment. (See, e.g., ECF 137, at 3-6.) Defendants also continue to 

proclaim that the Exclusions do not treat men and women differently, but

Plaintiffs rebutted these contentions as well in their original briefing. (See

ECF 137, at 14-27.)

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B. Defendants’ Discriminatory Intent Argument Does Not Change 

the Fate of the Exclusions.

Defendants seek to avoid heightened scrutiny and survive rational 

basis review by alleging a lack of discriminatory intent (ECF 171, at 11-15), 

but as the record demonstrates, this argument is unavailing. (See, e.g., ECF 

123, at 27-29; ECF 137, at 29-34; ECF 139, at 9, 14-17.) While Defendants 

would like this Court to believe they are innocent bystanders to the 

discrimination, arguing “DMS has never advocated for the addition of any 

category of benefits to the Plan” (ECF 171, at 13, 14, 23), this is not 

supported by the record upon which the summary judgment motions are 

based. As shown below, Defendants explicitly acknowledge being made 

aware in at least as early as 2016 that the Exclusions constitute 

impermissible sex discrimination against transgender state employees under

Section 1557 and the Mental Health Parity Act, yet they willfully chose to 

keep the Exclusions in the Plans and did not recommend any changes to the 

legislature. 

First, Defendants misrepresent their discriminatory actions as failure to 

affirmatively advocate for the coverage of additional benefits, as opposed to 

failure to advocate for the removal of an unlawful exclusion that they knew 

discriminated against transgender employees. (Id.; see also ECF 141, at 12 

(“Plaintiffs’ mischaracterization of this history as an affirmative decision by 

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DMS not to change the exclusion... does not create an inference of 

discriminatory intent.”).) Defendants were warned by their third-party 

administrators, upon whose expertise the Department readily admits 

reliance, and by their own contractors, who were retained to review the Plans 

for compliance, that maintaining the Exclusions violated federal 

antidiscrimination laws. (ECF 123, at 27-29; ECF 136, at 23-24.) Defendants

chose not to make changes to the Exclusions, and chose not to share the 

warnings and recommendations with the Legislature, as confirmed by the 

Chief of Staff of DMS. (ECF 118-13, Fillyaw, 214:23-215:4 (in response to 

question “[w]ho made the decision here that no change to the benefit 

document was necessary?” the DMS Chief of Staff Tami Fillyaw responded 

“So I, as a plan administrator, in consultation with the Office of General 

Counsel, would have determined that the exclusion remained in place.”); see 

also at 116:20-117:4 (confirming Mercer informed DMS that Section 1557 

impacted the state plan exclusion for gender reassignment or modification 

services and supplies and confirming DMS “determined not to make any 

changes”); see also 203:16-21 (DMS did not communicate to the Legislature 

the Florida Blue legal team’s opinion that the plan should provide coverage 

for [gender] reassignment surgery)). It is DMS, in fact, who drafts the State 

Plans, including the proposed benefits and exclusions, and then submits to 

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the legislature only for approval. (ECF 118-9, 18:10-12; ECF 118-13, 140:5-

9.) The decision by DMS not to make changes was confirmed by other 

agency witnesses as well. (See, e.g., ECF 118-9, DMS-Stokes, 44:19-22 (Q: 

“So was there was a determination not to make any changes to the gender 

reassignment exclusion by DMS; is that right?” A: “Correct.”).

The effect of the Exclusions is the denial of medically necessary 

gender-affirming care for transgender state employees, which prevents or 

impedes transgender state employees from living in accordance with their 

gender identities. As this court held in Dekker v. Weida and Doe v. Ladapo, 

and as the state of Florida Defendants acknowledged in each of those cases 

(see § III(C) below), "preventing or impeding individuals from pursuing their

transgender identities is not a legitimate, nondiscriminatory state interest.” 

Doe v. Ladapo, No. 4:23-cv-114-RH-MAF, 2024 WL 2947123, at *16 (N.D. 

Fla. June 11, 2024); see also id. at *29 (“whether based on morals, religion, 

unmoored hatred, or anything else, prohibiting or impeding a person from 

conforming to the person’s gender identity rather than to the person’s natal 

sex is not a legitimate state interest. The defendants have acknowledged 

this.”) (emphasis added); see also Dekker v. Weida, 679 F. Supp. 3d 1271, 

1279 (N.D. Fla. 2023).

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Despite Defendants’ clear admissions in the record regarding the lack 

of any rational justification for the Exclusions and the knowledge that the 

Plans continue to exclude care that is not experimental nor investigational,

and which their own expert has admitted is sometimes medically necessary 

for the treatment of gender dysphoria (see supra § I), in addition to the 

understanding that the Exclusions violate the rights of their transgender state 

employees (see supra § III(B)), Defendants have chosen year after year not 

to remove the Exclusions, nor to even recommend their removal to the 

Florida legislature (see supra § I, § III(B)). Plaintiffs have clearly 

demonstrated discriminatory intent.

C. Doe v. Ladapo Supports Plaintiffs’ Equal Protection Claims

Subsequent to the filing of Plaintiffs’ Supplemental Brief, this court 

issued its Order on the Merits in Doe v. Ladapo, a case mentioned in 

Plaintiffs’ Supplemental Brief (ECF 170, at 15), which is more directly 

controlled by Eknes-Tucker than the instant case. The court in Doe 

distinguished the facts proven at trial regarding Florida’s ban on genderaffirming treatment for minors from the narrow preliminary allegations raised 

in the Eknes-Tucker case. 

On June 11, 2024, this Court issued an order after a full trial on the 

merits in Doe, finding that the challenged Florida statute and administrative 

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rules banning access to gender-affirming care for transgender minors, and 

restricting access to gender-affirming care for transgender adults, violated 

the Equal Protection Clause regardless of the level of scrutiny applied. Doe, 

2024 WL 2947123, at *25-38.

Acknowledging that Eknes-Tucker is pending rehearing en banc and 

that the case was presented to the 11th Circuit “on limited claims and an 

abbreviated record,” Judge Hinkle’s order nevertheless addresses the claims 

under both intermediate scrutiny and rational basis. Id. at *11 (“[a]ddressing 

the issues both ways—both as will be proper if Eknes-Tucker remains the 

law of the circuit and as will be proper if the opinion is vacated—may allow 

the circuit to address this case when it gets there without a remand and the 

attendant further delay.”); see also, id. at *12 (“In sum, this order follows 

Eknes-Tucker as the currently binding law of the circuit. But the order 

includes the analysis that would apply both based on, and without regard to, 

Eknes-Tucker.”). The Order further explains, with regard to Eknes-Tucker, 

that circuit decisions are binding on issues of law, not on issues of fact, so 

“to the extent the result there turned only on the facts established by that 

incomplete record, the decision does not control factual findings properly 

made on the complete record in the case at bar. Distinguishing legal from 

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factual issues is not always easy. Addressing all the issues here will help 

ensure nothing is missed.” Id. at *11. 

Like Plaintiffs argue in their Supplemental Brief (ECF 170), Judge 

Hinkle noted that Eknes-Tucker is “only one of four recent Eleventh Circuit 

decisions addressing transgender issues[,]” finding that, “to the extent the 

holdings [in Glenn, Adams, and Lange] are inconsistent, Glenn, as the 

oldest, is binding.” Id. (citing Monaghan v. Worldpay US, Inc., 955 F.3d 855, 

862 (11th Cir. 2020) (“Our adherence to the prior-panel rule is strict, but when 

there are conflicting prior panel decisions, the oldest one controls”).

The state of Florida Defendants have made nearly identical arguments 

in Doe v. Ladapo, Dekker v. Weida, and the instant case. Defendants attempt 

to distinguish decades of binding Supreme Court precedent that drawing 

lines based on sex triggers intermediate scrutiny, by arguing the differential

treatment is based on diagnosis or medical condition, rather than sex. As 

Judge Hinkle aptly noted, “this does not change the fact that this is differential 

treatment based on sex[,]” as “the reason for sex-based differential treatment 

is the purported justification for treating the natal male and natal female 

differently” but the state “cannot avoid [] intermediate scrutiny by saying there 

is a good reason for treating males and females differently.” Doe, 2024 WL 

2947123, at *13. (emphasis in original). The court also rejected the Doe

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Defendants’ argument that it was differential treatment based on diagnosis, 

not transgender status, holding that this distinction was “just semantics.” Id.

at *14 (finding the prohibitions on gender-affirming care in Doe were based 

on transgender status, just like those in Lange, 101 F.4th at 799 (health 

plan’s categorical exclusion of gender-affirming surgery denies coverage 

based on transgender status), and Kadel v. Folwell, 100 F.4th 122, 144-49

(4th Cir. 2024) (en banc) (gender dysphoria diagnosis is a proxy for 

transgender status).2 Thus, the court reasoned “[h]ere, as in Lange and 

 2 In so holding, the Fourth Circuit analyzed and rejected the two arguments 

raised by the Kadel defendants for why gender dysphoria is not a proxy for 

transgender status, arguments that were raised for the same purpose by 

Defendants in the instant case (ECF 125, at 20-24; ECF 135, at 11-13.)

Kadel defendants, relying largely on Geduldig, argued: “(1) not all 

transgender people have gender dysphoria” (including that “not all 

transgender people seek gender-affirming surgery”) and “(2) the policies 

apply to everyone, not just transgender people.” Kadel, 100 F.4th at 143-44.

The Fourth Circuit made quick work of distinguishing Error! Main Document 

Only.Geduldig (id. at 144-47) and demonstrating that Supreme Court 

precedent requires a finding that “gender dysphoria is so intimately related 

to transgender status as to be virtually indistinguishable from it.” Id. at 146. 

This is because the “excluded treatments aim at addressing incongruity 

between sex assigned at birth and gender identity, the very heart of 

transgender status. In contrast to pregnancy—which is a condition that can 

be described entirely separately from a person’s sex—gender dysphoria is 

simply the medical term relied on to refer to the clinical distress that can 

result from transgender status.” Id. The Fourth Circuit also rejected the 

rationale that gender dysphoria is not a proxy for transgender identity 

because “not all transgender people have gender dysphoria,” noting that “a 

law is not immune to an equal protection challenge if it discriminates only 

against some members of a protected class but not others.” Id. at 144. This 

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Kadel, the prohibition of gender-affirming care is based on transgender 

status.” Doe, 2024 WL 2947123 at *14.

The Exclusions, like the challenged provisions in Doe, directly and 

explicitly target transgender people. Id. at *16 (“[t]here is no facially neutral 

decision[,]” as the provisions “explicitly apply only to transgender [people]”). 

This court reasoned that the Doe Defendants’ argument that the laws 

regulated only medical procedures was “akin to saying that prior to Brown v. 

Board of Education, state legislatures acted not to target African Americans 

but only to regulate schools—and that this was not purposeful discrimination 

because all students, black and white equally, were required to go to school 

with students of their same race.” Id. at *16; see also, id. (“[o]ne does not 

need the Arlington Heights factors to discern whether this statute and these 

rules single out transgenders. They plainly do.”).

In finding that the challenged provisions in Doe discriminated on the 

basis of sex, this court applied the simple, but binding, analyses of both 

Bostock and Adams— i.e. if one must know the sex of a person to know 

whether a provision applies to the person, the provision draws a line based 

on sex— to conclude the challenged provisions, like the Exclusions here, did 

 

finding is supported by a litany of Supreme Court precedent establishing that 

“discrimination within a certain class does not mean there is no discrimination 

between classes.” Id. at 144-46 (collecting Supreme Court cases). 

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exactly that. Id. at *13 (“Consider a [person] that a physician wishes to treat 

with testosterone. Under the challenged statute [or Exclusions], is the 

treatment legal or illegal [covered or excluded]? To know the answer, one 

must know the [person’s] sex. If the [person] is a natal male, the treatment is 

legal [covered]. If the [person’ is a. natal female, the treatment is illegal 

[excluded]. This is a line drawn on the basis of sex, plain and simple.” (citing 

Brandt ex. rel. Brandt v. Rutledge, 47 F.4th 661, 669 (8th Cir. 2022), and 

Adams v. St. Johns Cnty., 57 F.4th 791, 801 (11th Cir. 2022) (applying 

intermediate scrutiny to a policy under which entry into a designated 

bathroom was legal or not depending on the entrant’s natal sex.)). 

Similarly, in applying the rationale of this Circuit’s oldest, and thus 

controlling, binding precedent -- Glenn v. Brumby, 663 F.3d 1313 (11th Cir. 

2011) -- this court held that the provisions challenged in Doe also triggered 

intermediate scrutiny because the provisions drew a line based on gender 

nonconformity, which includes transgender status. Id. at *13-14 (noting that 

Eknes-Tucker’s distinguishing of Glenn based on it dealing with employment 

did not explain why that affected the applicable level of scrutiny as opposed 

to the separate question of whether the treatment survived the appropriate 

scrutiny). This court also found that adverse treatment of transgender 

individuals separately warranted heightened scrutiny under Carolene 

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Products, applying the factors from City of Cleburne v. Cleburne Living 

Center, 473 U.S. 432, 447–50 (1985), and concluding that “transgender 

individuals are a discrete and insular minority.” Id. at *14.

Finally, like Defendants in the instant case and in Dekker, the Doe

defendants invoke the same flawed logic of Geduldig to argue that the 

prohibitions on gender-affirming care do not discriminate based on sex 

because there are members of the disfavored class on both sides of the 

classification. Id. at *15. Judge Hinkle makes swift work of distinguishing 

Geduldig, as, under the challenged provision in Geduldig, “men and women 

were treated the same: nobody had health coverage for pregnancy[;]” 

whereas here, cisgender individuals have access to the prohibited medical 

care, but transgender individuals do not. Id. (to know whether treatment with 

one of the prohibited medications is legal, one must know whether the patient 

is transgender, and to know whether treatment with testosterone or estrogen 

is legal, one must know the patient’s natal sex). “This is differential treatment 

based on sex and transgender status. Geduldig is not to the contrary.” Id.

(citing Kadel, 100 F.4th at 145-47).

Like the care categorically denied under the Exclusions, the ban at 

issue in Doe also “flatly den[ied] transgender individuals safe and effective 

medical treatment—treatment with medications routinely provided to others 

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with the state’s full approval so long as the purpose is not to support the 

patient’s transgender identity.” Id. at *5. Doe not only provides support for 

many of Plaintiffs’ arguments, but also relies on similar facts as appear in the 

record of the instant case supporting Plaintiffs’ claims, including: (a) reliance 

on the “well-established standards of care for the treatment of gender 

dysphoria,” which are supported by “the overwhelming weight of medical 

authority” and are widely followed by well-trained clinicians, the U.S. 

Department of Health and Human Services, and every major medical 

organization (Doe, 2024 WL 2947123, at *5-7; compare ECF 123, at 4-7);

(b) overwhelming clinical evidence supporting the need for the treatments 

banned by the Exclusions and demonstrating “the denial of this treatment will 

cause needless suffering for a substantial number of patients and will 

increase anxiety, depression, and the risk of suicide” (Doe, 2024 WL 

2947123, at *7; compare ECF 123, at 4-5); (c) Dr. Levine’s acknowledgment 

that gender-affirming care is sometimes appropriate and should not be 

banned (Doe, 2024 WL 2947123, at *4, 7; compare ECF 123, at 4-6) (the 

state of Florida Defendants rely upon Dr. Levine as an expert in Doe, in Dr. 

Levine is the sole expert relied upon by Defendants DMS and Satter).

Further, like in the instant case, the “laundry list of purported justifications for 

the statute and rules” put forth by the Doe defendants were analyzed and 

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dismissed by this court as “largely pretextual, in any event, do not call for a 

different result.” (Doe, 2024 WL 2947123, at *32-37). 

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. The Court need 

not wait for resolution of pending en banc petitions in the Lange and EknesTucker cases.

Respectfully submitted on this 21st 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

DANIEL TILLEY

Fla. Bar No. 102882

dtilley@aclufl.org

CAROLINE MCNAMARA

Fla. Bar No. 1038312 

cmcnamara@aclufl.org

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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 Response in Opposition 

to Defendants’ Supplemental Brief (ECF 171) contains 5,540 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

Case 4:20-cv-00020-MW-MAF Document 173 Filed 06/21/24 Page 26 of 26