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 COURT’S ORDER 

FOR SUPPLEMENTAL BRIEFING 

In its August 1, 2024, Order, this Court held that Plaintiffs established 

as a matter of law that the State Plan Exclusions are facially discriminatory 

in violation of the Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e 

et. seq. (“Title VII”). The Court granted Plaintiffs’ motion for partial summary 

judgment and found Defendant DMS liable under Title VII after concluding 

that “the exclusion of state plan health insurance coverage for gender 

reassignment or modification services and supplies violates Title VII as a 

facially discriminatory policy.” (ECF 177, at 15.) This Court also set forth the 

remaining question “as to Plaintiffs’ remedies for the Title VII violations.” (Id.

at 17.)

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Following a telephonic scheduling conference on August 16, 2024, this 

Court issued an Order for Briefing Schedule for supplemental briefing by the 

parties “regarding available relief and the effect the Eleventh Circuit’s 

decision to vacate the Lange decision pending rehearing en banc has on 

Plaintiffs’ claims moving forward.” (ECF 179). 

The purpose of Title VII is “to make persons whole for injuries suffered 

on account of unlawful employment discrimination.” Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 418 (1975); U.S. E.E.O.C. v. Massey Yardley Chrysler 

Plymouth, Inc., 117 F.3d 1244, 1251 (11th Cir. 1997); see also Smith v. Bd.

of Trustees of Univ. of Fla., No. 1:04-CV-106, 2007 WL 1526844, at *1 (N.D. 

Fla. May 24, 2007) (once discrimination has been proven, presumption 

arises that plaintiff is entitled to all appropriate remedies; purpose of 

remedies is to “provide make-whole relief for past discrimination and to deter 

discriminatory actions in the future”) (internal citations omitted). A wide range 

of remedies is available to victims of Title VII discrimination through the 

statutes enacted by Congress in furtherance of this goal. See 42 U.S.C. § 

2000e-5(g) (authorizing equitable relief); 42 U.S.C. § 1981a (authorizing 

compensatory and punitive damages).

Plaintiffs have been discriminated against under Title VII, and as set 

forth below, seek to be made whole through permanent injunctive relief, 

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declaratory relief, reimbursement for out-of-pocket expenses resulting from 

the discriminatory denial of necessary medical care, and attorneys’ fees and 

costs. As outlined below, this Court can enter the requested relief based on 

the summary judgment record. Plaintiffs also seek to be made whole by an 

award of compensatory damages in an amount to be determined at trial.

I. Plaintiffs Request This Court Issue Permanent Injunctive Relief, 

Declaratory Relief, and Award Damages for the Title VII Violations

A. Plaintiffs Are Entitled to Permanent Injunctive Relief to 

Prevent Defendant from Continuing to Enforce the 

Discriminatory Exclusions

As requested in their Amended Complaint (ECF 34, at 62), and as 

argued in their Motion for Summary Judgment (ECF 123, at 47-49), Plaintiffs 

request that this Court grant permanent injunctive relief under Title VII to 

prevent Defendant from continuing to enforce the discriminatory State Plan 

Exclusions. 

Title VII authorizes courts to grant broad injunctive relief to prevent 

future unlawful employment practices as required by the specific 

circumstance of the case. 42 U.S.C. § 2000e-5(g)(1); Int’l. Bhd. Of 

Teamsters v. U.S., 431 U.S. 324, 364–65 (1977); Franks v. Bowman Transp. 

Co., 424 U.S. 747, 763-64 (1976). This Circuit has held that, in Title VII 

cases, “injunctive relief may benefit individuals not party to the action, and 

that classwide injunctive relief may be appropriate in an individual action.”

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Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1136 (11th Cir. 

1984); see also Hutchings v. U.S. Indus., Inc., 428 F.2d 303, 311 (5th Cir. 

1970) (“The trial judge in a Title VII case bears a special responsibility in the 

public interest to resolve the employment dispute, for once the judicial 

machinery has been set in train, the proceeding takes on a public character 

in which remedies are devised to vindicate the policies of the Act, not merely 

to afford private relief to the employee.”).

In this case, the Court held that the State Plan Exclusions 

(“Exclusions”) discriminate against Plaintiffs on the basis of sex in violation 

of Title VII and granted Plaintiffs’ motion for summary judgment on their Title 

VII claims. (ECF 177, at 14-16.) Defendant has clearly demonstrated its

intent to maintain the Exclusions and to continue discriminating against 

transgender employees. (See ECF 173, at 14-17) (detailing record evidence 

demonstrating that Defendants have willfully chosen to keep the Exclusions 

in the plans, despite being made aware that they may constitute 

impermissible sex discrimination by their third-party administrators and 

through this litigation; ECF 123, at 27-29; ECF 136, at 24-25).

Indeed, the Florida Legislature has further entrenched this 

discrimination through the 2023 enactment of Fla. Stat. § 286.311, a law that 

prohibits the use of state funds, including by a state group health insurance 

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program, for “sex-reassignment prescriptions or procedures.” See Fla. Stat. 

§ 286.311(2); see also ECF 170, at 19-21. DMS is intentionally engaging in 

enforcing the discriminatory Exclusions, which is an unlawful employment 

practice. See 42 U.S.C. § 2000e-5(g)(1).

Defendant’s liability has been established (ECF 177, at 14-16), and 

injunctive relief is necessary to vindicate the policies of Title VII. See

Hutchings, 428 F. 2d. at 311. While a court generally has discretion to grant 

injunctive relief, “this discretion has been severely limited in cases involving 

ongoing discrimination. In such instances, this court has stated that 

‘injunctive relief is mandatory absent clear and convincing proof that there is 

no reasonable probability of further noncompliance with the law.’” In re Nat’l 

Airlines, Inc., 700 F.2d 695, 697 (11th Cir. 1983) (quoting N.A.A.C.P. v. City 

of Evergreen, Ala., 693 F.2d 1367, 1370 (11th Cir.1982)).1 In fact, in Title VII 

1 This Court’s summary judgment order details undisputed facts supporting 

this conclusion, as DMS has the authority to – but has chosen not to – make 

clarifications to its benefit documents based on federal law and to ask the 

legislature to “make the appropriate changes” to the State Plan benefits 

documents to comply with federal law. (ECF 177, at 7.) Despite being made 

aware as early as 2016 that the Exclusions may conflict with federal law 

(ECF 173 at 14-15), and despite being made aware, as early as January 

2020, that the Exclusions were causing real and significant harm to 

transgender state employees like Plaintiffs Claire, Lane, and Murphy (ECF 

1; ECF 34), and despite DMS denouncing knowledge of any known 

justification for the Exclusions (ECF 177, at 7-8), Defendants continue to 

justify and enforce the discriminatory Exclusions. In Title VII cases, the 

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cases, “district courts have not merely the power but the duty to render a 

decree which will so far as possible eliminate the discriminatory effects of the 

past as well as bar like discrimination in the future.” Teamsters, 431 U.S. at 

364-65 (citing Albemarle, 422 U.S. at 421, 418). Indeed, “[t]he issuance of a 

permanent injunction upon a finding of past violations of Title VII is 

mandatory.” Harmond v. Cavazos, No. 1:89-CV-2030-ODE, 1991 WL 

130848, at *1 (N.D. Ga. Apr. 29, 1991); see also N.A.A.C.P., 693 F.2d at

1370. In this case, the Court found that the Exclusions violate Title VII, and 

accordingly, a permanent injunction precluding Defendant from further 

enforcement of the discriminatory Exclusions is a necessary and appropriate 

remedy.2

The scope of an injunction is not limited to imminent repetition of the 

exact circumstances proven to establish liability; instead, an injunction is 

proper if “the employer's discriminatory conduct could possibly persist in the 

future.” Bruso v. United Airlines Inc., 239 F.3d 848, 864 (7th Cir. 

burden is on the Defendant to “prove that the violation is unlikely to recur.” 

E.E.O.C. v. Massey, 117 F. 3d. at 1254. It is undisputable that Defendant 

has not carried its burden, and there is no “clear and convincing proof” that 

Florida will comply with its Title VII obligations. 

2 As set forth in the prayer for relief in Plaintiffs’ Amended Complaint (ECF 

34), Plaintiffs sought permanent injunctive relief to cease enforcement of the 

Exclusions, and permanent injunctive relief to prohibit DMS from “soliciting 

and accepting bids and granting contracts for health insurance plans that 

contain an exclusion of coverage for gender-affirming care.” (ECF 34, at 62.)

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2001); accord Hudson v. Chertoff, 484 F. Supp. 2d 1268, 1272 (S.D. Fla. 

2007) (following Bruso). Here, even if Plaintiff Lane were able to obtain the 

gender-affirming procedure sought in this action using her own funds, or if a

jury were to award no damages to Ms. Lane for her specific denial of 

coverage, so long as she remains a state-employee and subject to the 

Exclusions, further denials of gender-affirming care of any sort “could 

possibly persist in the future.” Id.3 Therefore, this Court must enjoin future 

application of the Exclusions to protect Ms. Lane as well as other 

transgender state employees.

Further, the scope of the injunction is not limited to the plaintiffs in this 

case. Eleventh Circuit precedent allows district courts to grant such relief to 

“benefit individuals not party to the action, and that classwide injunctive relief 

may be appropriate in an individual action.” Carmichael, 738 F.2d at 1136 

(emphasis added); see also Meyer v. Brown & Root Const. Co., 661 F.2d 

369, 373 (5th Cir. 1981) (explaining the “essential nature of Title VII suits” -

where “[a]n individual who brings a Title VII suit ‘takes on the mantel of the 

sovereign,’” as [t]he clear purposes of Title VII are to eliminate discrimination 

and recompense those who have suffered from it.”) (internal citations 

3 ECF 118-9, Lane, at 58:15-59:12 (detailing additional gender-affirming 

procedures Plaintiff Lane may need or seek in the future that would be 

categorically excluded under the State Plan Exclusions). 

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omitted).) Additionally, “[t]he vindication of constitutional rights and the 

enforcement of a federal statute serve the public interest almost by 

definition.” League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 

1155, 1167 (N.D. Fla. 2012). Since injunctions for Title VII violations take on 

a public benefit to prevent future discriminatory acts, Rau v. Apple-Rio Mgmt. 

Co., 85 F. Supp. 2d 1344, 1352 (N.D. Ga. 1999), aff'd, 251 F.3d 161 (11th 

Cir. 2001), it further benefits the public to ensure that no other state 

employee receives health insurance that discriminates based on sex.

Permanent injunctive relief should be granted pursuant to this Court’s

“broad authority and discretion to order equitable remedies for unlawful 

employment action” Smith, 2007 WL 1526844, at *1, and this Court’s duty to 

“render a decree which will so far as possible eliminate the discriminatory 

effects of the past as well as bar like discrimination in the future.” Kilgo v. 

Bowman Transp., Inc., 789 F.2d 859, 880 (11th Cir.1986).

Additionally, while Plaintiffs maintain that a “same decision” defense 

does not apply and has no bearing on the outcome of this case (see Infra §

I(D)), even if the Court did find that Defendant had succeeded with such a 

defense, the defense does not preclude a Title VII plaintiff from other forms 

of redress, including injunctive relief. 42 U.S.C. § 2000e-5(g)(2)(B); Chavez 

v. Credit Nation Auto Sales, LLC, 641 F. App'x 883, 889 (11th Cir. 2016)

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(where plaintiff proves violation of Title VII, and defendant employer proves 

that it would have taken the same employment action in the absence of the 

illegal motivating factor, court may grant declaratory or injunctive relief and 

attorney's fees and costs, but shall not award damages or order 

reinstatement).

For the reasons set forth above, Plaintiffs are entitled to a permanent 

injunction prohibiting Defendant or its agents from enforcing the 

Exclusions to deny medically necessary gender-affirming care for the 

treatment of gender dysphoria to state of Florida employees, including but 

not limited to Ms. Lane. The court may enter permanent injunctive relief at 

this time based upon the undisputed facts supporting Plaintiffs’ motion for 

summary judgment. 

B. Plaintiffs Are Entitled to a Declaratory Judgment

Plaintiffs are entitled to a declaration of their rights pursuant to 28

U.S.C. § 2201. Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129

(2007). In fact, a court “may declare the rights and other legal relations of 

any interested party seeking such declaration, whether or not further relief is 

or could be sought.” Rau, 85 F. Supp. 2d at 1352 (quoting 28 U.S.C. § 2201); 

see also Fed. R. Civ. P. 57.

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Plaintiffs request that this Court enter a declaration that Defendant’s

policy of categorically excluding all medically necessary gender-affirming

care in the State Plans violates Title VII of the Civil Rights Act.

4

Additionally, while Plaintiffs maintain that a “same decision” defense

does not apply and has no bearing on the outcome of this case (see Infra §

I(D)), even if the Court did find that Defendant had succeeded with such a 

defense, the defense does not preclude a Title VII plaintiff from other forms 

of redress, including declaratory relief, injunctive relief, and attorneys’ fees. 

See Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1242-44 (11th Cir. 

2016); Chavez, 641 F. App'x at 889; see also ECF 177, at 3 n.1. Like the 

permanent injunctive relief, the Court may enter declaratory relief based on 

the undisputed facts in the summary judgment record. 

C. Plaintiffs Are Entitled to Damages

(1) Compensatory Damages

As set forth in this Court’s Order, the Exclusions constitute a “facially 

discriminatory employer action under Title VII.” (ECF 177, at 14.) Defendant 

4 As set forth in the prayer for relief in the Amended Complaint, Plaintiffs 

sought a declaration that Defendants are in violation of Title VII. (ECF 34, at 

62; see also ECF 123 at 3 (Plaintiffs respectfully request that this Court enter 

“a declaration that Defendant’s policy of categorically excluding medically 

necessary gender-affirming care in the State Plans violates Title VII of the 

Civil Rights Act of 1964”).

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unlawfully discriminated against Plaintiffs on the basis of sex by denying 

health insurance coverage for their gender-affirming medical care, and 

Defendant was held to be “liable for the Title VII violation” based on its 

“administration of the facially discriminatory state group insurance plan and 

challenged exclusion[.]” (Id. at 15-16.) 

As such, Plaintiffs are entitled to recover compensatory damages for 

the garden variety mental and emotional suffering that they experienced as 

a result of the discriminatory Exclusions and will present evidence of these 

damages at trial. Compensatory damages are authorized under 42 U.S.C. §

1981a(a)(1), which allow a prevailing plaintiff to be awarded compensatory

damages for “future pecuniary losses, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other 

nonpecuniary losses.” Id. § 1981a(b)(3). Plaintiffs may be compensated for 

“intangible, psychological injuries” including emotional harm, humiliation, 

insult, and emotional distress. See Ferrill v. The Parker Grp., Inc., 168 F.3d 

468, 476 (11th Cir. 1999); Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th 

Cir. 1985). Compensatory damages are capped under 42 U.S.C. § 

1981a(b)(3), which requires, in the case of an employer who has more than 

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500 employees (such as Defendant DMS5), the damages award shall not 

exceed $300,000 for each plaintiff. 42 U.S.C. § 1981a(b)(3)(D).

To recover compensatory damages for emotional distress, plaintiffs 

must prove actual injury, but “[t]he injury in civil rights cases may be 

intangible” and “need not be financial or physical but may include damages 

for humiliation and emotional distress.” Stallworth, 777 F.2d at 1435, citing 

Carey v. Piphus, 435 U.S. 247, 263-64 & n.20 (1978). Further, damages for 

emotional distress “need not be proven with a high degree of specificity” and 

“may be inferred from the circumstances as well as proved by the testimony.” 

Ferrill, 168 F.3d at 476. 

The Eleventh Circuit has made clear that a plaintiff’s own testimony is 

sufficient to support an award of compensatory damages for emotional 

distress, and such damages need not be proven through medical evidence. 

See Bogle v. McClure, 332 F.3d 1347, 1359 (11th Cir. 2003) (upholding 

compensatory damages award of $500,000 per plaintiff for emotional 

distress experienced by plaintiffs based on their own testimony that the 

adverse employment action made them feel “upset,” “embarrassed,” 

5 According to DMS Bureau Chief Ryan Stokes, as of November 2020, there 

were 141,000 state employees enrolled in state group health insurance with 

363,000 members (employees, spouses and dependents). (ECF 118-9, 

DMS-Stokes, at 25:25-26:12.)

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“humiliated,” and “ashamed,” where plaintiffs “presented no independent 

medical evidence of mental or physical harm”); Marable v. Walker, 704 F.2d 

1219, 1220-21 (11th Cir. 1983) (holding plaintiff’s testimony about being 

embarrassed and humiliated by employer’s actions was sufficient to support 

compensatory damages award, rejecting defendant’s arguments that 

evidence of pecuniary loss, psychiatric disturbance, effect on social activity, 

or physical symptoms were needed); Stallworth, 777 F.2d at 1435 (finding 

plaintiff’s testimony about “emotional stress, loss of sleep, marital strain and 

humiliation because of violation of his civil rights” was sufficient to support 

award of $100,000 in compensatory damages for emotional distress).

Plaintiffs seek compensatory damages for the emotional distress that 

they endured as a result of Defendant causing them to be denied medically 

necessary healthcare in violation of Title VII. (ECF 123, at 13) (collecting 

record testimony of Plaintiffs Claire, Murphy, and Lane). 

As a result of Defendant’s discriminatory policy, Plaintiff Claire will 

testify she has experienced emotional distress, desperation, fear, stress, 

anxiety, and physical risk. (See ECF 118-5, Claire, 55:21-58:3, 66:11-67:22) 

(detailing impact of unequal treatment, being deemed a “second class” 

employee in terms of healthcare, after more than 33 years as a dedicated 

state employee; the desperation associated with needing treatment for 

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gender dysphoria; the emotional distress caused by constant fear of a lifethreatening blood clot due to denial of the needed procedure; and the impact 

on quality and enjoyment of life). 

As a result of Defendant’s discriminatory policy, Plaintiff Murphy will 

testify he has experienced emotional distress, humiliation, anxiety, fear, and 

negative impacts on his employment. (See ECF 118-23, Murphy, 59:11-

61:3) (detailing experiences of having to “hide” himself every day, being 

unable to breathe during his long work shifts because of the painful and 

constricting chest binder he had to wear due to denial of the needed 

procedure); (ECF 121-03, at 7-8) (detailing embarrassing and stigmatizing 

incidents at work due to being perceived as female)). 

As a result of Defendant’s discriminatory policy, Plaintiff Lane will 

testify she has experienced emotional distress, humiliation, stress, and 

anxiety. (See ECF 118-9, Lane, 75:23-76:25) (explaining the feeling of being 

“viewed as undesirable and unwanted and lesser than by the State of 

Florida” and being “seen as worthless” and “not worthy of the same health 

coverage” as non-transgender employees, which has increased stress levels 

and anxiety.) 

Each of the Plaintiffs will testify at trial about the emotional distress 

they experienced because of Defendant’s discriminatory Exclusions.

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To make Plaintiffs whole as required under Title VII, Plaintiffs are

entitled to reimbursement for the out-of-pocket expenses they incurred 

caused by Defendant’s discriminatory Exclusions. Congress “vested broad 

equitable discretion in the federal courts to ‘order such affirmative action as 

may be appropriate, which may include, but is not limited to, reinstatement 

or hiring of employees, with or without back pay . . . , or any other equitable 

relief as the court deems appropriate.’” Franks, 424 U.S. at 763 (quoting 42 

U.S.C. § 2000e-5(g)(1)). See also Rivers v. Wash. Cnty. Bd. of Educ., 770 

F.2d 1010, 1012 (11th Cir. 1985) (per curiam) (“[t]he district court has broad, 

equitable discretion to grant any equitable relief it deems appropriate to make 

persons whole for injuries suffered on account of unlawful employment 

discrimination.”).

Courts have exercised their equitable powers under 42 U.S.C. § 

2000e-5(g)(1) to award victims of unlawful employment discrimination 

damages for their actual out-of-pocket expenses. The Equal Employment 

Opportunity Commission, the agency charged with enforcing Title VII, has 

made clear that “[c]ompensatory damages are awarded to compensate a 

complaining party for losses or suffering inflicted due to the discriminatory 

act or conduct.” Equal Emp. Opportunity Comm'n, No. Dec. 915.002, 1992 

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WL 189089, at *4 (July 14, 1992) (“EEOC Guidance”). Compensatory 

damages “may be had for any proximate consequences which can be 

established with requisite certainty” and includes “damages for past 

pecuniary loss (out-of-pocket loss), future pecuniary loss, and nonpecuniary 

loss (emotional harm).” Id.

Compensatory damages under Title VII can include compensation for 

“moving expenses, job search expenses, medical expenses, psychiatric 

expenses, physical therapy expenses, and other quantifiable out-of-pocket 

expenses that [we]re incurred as a result of the [Defendant's] discriminatory 

conduct.” Schroer v. Billington, No. 05-1090 (JR), 2009 WL 1543686, at *4 

(D.D.C. Apr. 28, 2009) (awarding transgender plaintiff past pecuniary losses 

for therapy sessions and two dental procedures as expenses incurred as a 

result of Defendant’s discriminatory conduct); EEOC Guidance, at *4-5. Such

past pecuniary losses are “not included in the [stautory] caps and are fully 

compensable where actual out-of-pocket losses can be shown.” Id. at *4. 

“Once a defendant is found liable for the plaintiff's injury,” as the Court 

held in this case (ECF 177), “the District Court has a great deal of discretion 

in deciding the level of damages to be awarded.” Ferrill, 168 F.3d at 476 

(citation omitted). As set forth below, Plaintiffs have incurred out-of-pocket 

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expenses that they would not have incurred but for Defendant’s unlawful 

Exclusions.

Plaintiff Claire will submit out-of-pocket expenses related to the denial 

of the insurance claim at issue in this lawsuit in the amount of $18,970.33 

that she paid for the denied surgery, including anesthesia, mandatory 

electrolysis required prior to surgery, and the required consultations with 

urologist and surgeon. Plaintiff Murphy will submit out-of-pocket expenses in 

the amount of $9,518.00 he paid for the denied surgery and the chest binding 

materials used prior to obtaining the needed double mastectomy. Plaintiff 

Lane will submit out-of-pocket expenses in the amount of $550 she paid for 

consultations and evaluations for the denied surgery. Plaintiff Lane has been 

unable to pay out-of-pocket to obtain the needed facial feminization surgery. 

The Court, after hearing the undisputed evidence, should award

Plaintiffs out-of-pocket costs pursuant to its authority under 42 U.S.C. § 

2000e-5(g)(1) to grant “any other equitable relief as the court deems 

appropriate.” See Tompkins v. Darr, No. 4:11-CV-93, 2013 WL 6198209, at 

*2 (M.D. Ga. 2013) (“It is also clear that for [Title VII] violations, an employee 

may recover compensatory damages and equitable relief. It is the jury's role 

to determine whether illegal discriminatory conduct occurred and whether an 

employee should recover compensatory damages. It is the judge's role to 

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determine whether equitable relief is appropriate. Equitable relief may be

appropriate even if a jury does not award compensatory damages.”) 

(citations omitted).

(2) Attorneys’ Fees and Costs

In Title VII actions, a prevailing party is entitled to recover their

attorneys' fees and related expenses. 42 U.S.C. § 2000e–5(k); Fed. R. Civ. 

P. 54(d); see also Royal Palm Props., LLC v. Pink Palm Props., LLC, 38 

F.4th 1372, 1376 (11th Cir. 2022) (“[T]here are two requirements for a party 

to reach prevailing party status. First, the party must be awarded some relief 

on the merits of its claim by the court. Second, the party must be able to point 

to a resolution of the dispute which materially altered the legal relationship 

between the parties.”) (citations omitted). 

This Court concluded that the Exclusions violate Title VII, granting 

Plaintiffs’ motion for summary judgment as to Title VII. (ECF 177.) Thus, 

attorneys’ fees and costs are appropriate in this case. Plaintiffs will seek such 

relief in accordance with the Federal Rules of Civil Procedure and Local 

Rules following a jury trial on damages in this case.

Additionally, while Plaintiffs maintain that a “same decision” defense 

does not apply and has no bearing on the outcome of this case (see Infra §

I(D)), even if the Court did find that Defendant had succeeded with such a 

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defense, the defense does not preclude a Title VII plaintiff from other forms 

of redress, including attorneys’ fees and costs. See 42 U.S.C. § 2000e5(g)(2)(B); Quigg, 814 F.3d at 1242-44.

D. Plaintiff Lane’s Relief is Not Limited By the “Same 

Decision” Defense

A footnote in the Court’s Order on summary judgment raised the “same 

decision” defense with respect to Ms. Lane’s Title VII claim. (ECF 177, at 3 

n.1.) The Court raised the same decision defense in the context of whether, 

absent the discriminatory Exclusion for gender-affirming care, Ms. Lane’s 

requested procedure would have been denied under the plan’s cosmetic 

procedure exclusion. (Id. at 2-3 & n.1.) 

The Court then posed the question for the parties as to what impact, if 

any, a “same decision” defense would have on Ms. Lane’s ability to obtain 

damages under Title VII.6 (Id. at 3 n.1.) In the paragraph preceding the 

footnote where the “same decision” defense was discussed, the Order found 

that Ms. Lane’s Equal Protection claim was due to be dismissed for lack of 

6 The Court notes, however, that while a successful same decision defense 

serves as a complete bar to liability in the § 1983 context, it does not serve 

as a complete bar under Title VII, as plaintiffs can still seek other forms of 

redress, including declaratory relief and attorneys’ fees. (ECF 177, at 3, n.1.)

Additionally, 42 U.S.C. § 2000e-5(g)(2)(B) provides that in cases where the 

employer prevails on the “same decision” defense, the court may grant 

declaratory relief, injunctive relief, and attorney’s fees and costs.

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standing, based upon the Court’s analysis that “her desired medical 

procedure would continue to be excluded from coverage under the 

unchallenged cosmetic procedures exclusion.” (Id. at 2-3.)

7

 

Below, Plaintiff Lane seeks to clarify the record on the standing issue 

and to address the Court’s question as to the applicability of the “same 

decision” defense.

As an initial matter, the burden to plead and prove the 

“same-decision” defense is on the defendant. See, e.g., Hunter v. 

Underwood, 471 U.S. 222, 228 (1985); see also Fed. R. Civ. P. 8(c) (“In 

responding to a pleading, a party must affirmatively state any avoidance or 

affirmative defense.”). The “same decision” defense originated in a First 

Amendment case called Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977). The Eleventh Circuit has recognized that Mt. Healthy

is an affirmative defense, and that the burden is on defendants to plead and 

7 The facts and law supporting Plaintiff Lane’s ability to obtain damages 

under Title VII and the inapplicability of the “same decision” defense (infra § 

(I)(D)) also support a finding that dismissal of Plaintiff Lane’s Equal 

Protection claim based on standing was incorrect. Plaintiffs maintain that 

this Court can resolve the case on Plaintiffs’ Title VII claims without reaching 

the constitutional equal protection issue (ECF 175, at 3-5), but Plaintiffs note 

this position in the event that the Court’s finding on redressability for Plaintiff 

Lane’s equal protection claim impacts this Court’s analysis of the relief 

sought under Title VII. 

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prove such defense. See Stanley v. City of Dalton, 219 F.3d 1280, 1292 

(11th Cir. 2000). 

As this Court acknowledged,8 Defendant did not raise this defense nor 

brief this issue at any point throughout this case. While Defendant’s Answer 

to Plaintiffs’ Amended Complaint asserts fifteen defenses and affirmative 

defenses (ECF 57, at 21-24), the “same decision” defense was not among 

them, nor did Defendant act upon their reserved “right to amend their 

defenses and affirmative defenses as the cases progresses based on the 

facts that may be learned through discovery.” (Id. at 24.) Nor did Defendant 

cite Mt. Healthy or the Title VII cases applying Mt. Healthy in any of their 

briefings. 

For the same reason that the “same decision” defense does not bar 

recovery of damages under Title VII for Ms. Lane, it similarly does not 

preclude or impact any of Plaintiffs’ requested relief, including permanent 

injunctive relief.

The Court accurately summarized the facts related to Defendant’s 

denial of Ms. Lane’s needed procedure: she was denied, and continues to 

8 “Here, given the unclear record with respect to any ‘same decision’ defense 

and Defendant DMS’s failure to brief this issue, questions of fact remain as 

to whether Ms. Lane is precluded from obtaining damages under Title VII.” 

(ECF 177, at 3, n.1.) 

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be denied, coverage for facial feminization surgery based on the challenged 

coverage exclusion for “gender reassignment or modification services and 

supplies;” the denial of the pre-authorization of her surgery was based 

exclusively on the gender reassignment exclusion; after submitting an 

appeal of the denial, an additional exclusion (the cosmetic surgery exclusion) 

was added as a basis for the denial. (ECF 177, at 2.) However, Plaintiff Lane

seeks to correct the record and clarify the Court’s statement that “Ms. Lane 

is not challenging the state plan’s cosmetic procedure exclusion.” (Id.) Based 

upon this premise, the Court concluded that it could not order injunctive relief 

that would redress Ms. Lane’s injury, due to what was deemed a “failure to 

demonstrate redressability as to prospective injunctive relief[.]” Plaintiffs 

recognize that the Court’s analysis on this point was specific to the dismissed 

Equal Protection claim, however clarification on this point is required to 

adequately address the “same decision” defense’s impact on relief under 

Title VII. 

In Plaintiffs’ motion for partial summary judgment, they made clear they 

were challenging the “State Plan Exclusions,” which were defined as 

“exclusions that work together to categorically exclude coverage for 

medically necessary gender-affirming care, including exclusions for ‘gender 

reassignment and modification services or supplies,’ ‘cosmetic 

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surgery/services,’ ‘sexual reassignment or modification services or supplies,’ 

and prescriptions for ‘psychosexual disorders’ (Exclusions).” (ECF 123 at 2) 

(emphasis added); see also ECF 136, at 3, n.2 (same); ECF 137, n.1 

(same).) Additionally, Plaintiffs explicitly stated in their motion that “[t]he 

State Plans’ categorical exclusion of medically necessary gender-affirming 

care includes cosmetic surgery to improve a transgender ‘member’s 

appearance or self-perception’” (citing ECF 122-23, at 59; ECF 122-24, at 

33). Because Plaintiffs challenged the cosmetic exclusion when applied in 

tandem with the discriminatory “gender reassignment” exclusion to exclude 

needed care for transgender state employees like Ms. Lane, failure to

separately challenge the cosmetic exclusion should not serve as a bar to any 

of Plaintiffs’ requested relief.9

9 Additionally, according to Fed. R. Civ. P. 54 (c), “every final judgment shall 

grant the relief to which the party in whose favor it is rendered is entitled, 

even if the party has not demanded such relief in the party's pleadings.” This 

rule permits, “or perhaps even requires[,] the trial judge to grant relief to 

which a party is entitled even if not requested in the prayer for relief[.]” Rau, 

85 F. Supp. 2d at 1350. The only exception is where failure to demand the 

relief granted prejudices the opposing party. Id. Thus, even if the Court finds 

that Plaintiffs did not separately challenge the cosmetic exclusion, it is 

undisputable that Defendant received sufficient notice that Plaintiffs 

challenged the “cosmetic exclusion” in addition to the gender reassignment 

exclusion, permitting this Court to grant the requested relief related to the 

cosmetic exclusion.

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Though it was never mentioned, even if Defendant had raised and 

briefed the “same decision” defense, it would be of no avail. As Plaintiffs 

detailed in their summary judgment briefing, including citations to extensive 

record evidence and testimony, the “gender reassignment” categorical 

exclusion and the “cosmetic” categorical exclusion work in unison to 

categorically exclude coverage of care uniquely specific to transgender 

employees. (ECF 123, at 8 (explaining that “under the cosmetic exclusion’s 

guidelines, certain types of ‘gender reassignment’ surgery, such as facial 

feminization, are categorically denied without allowing for an individualized 

determination of whether the surgery is medically necessary to treat gender 

dysphoria”); see also ECF 136, at 28 (“Cosmetic procedures for any purpose 

other than ‘gender reassignment’ are analyzed under the State Plan’s 

general coverage criteria, which provide for coverage of cosmetic services, 

including ‘any service to improve the appearance or self-perception of an 

individual,’ under certain circumstances.”) (internal citations omitted).) 

The procedures sought by Ms. Lane would otherwise be reviewed for 

medical necessity, but the “gender reassignment” exclusion prevents that 

process. All procedures for purposes of “gender reassignment” are 

categorically excluded, thus they are never subjected to medical necessity 

analysis or coverage criteria under the cosmetic exclusion. (ECF 123, at 8-

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10, 15-17, 36-37 (collecting record evidence demonstrating that facial 

feminization surgery to treat gender dysphoria is categorically excluded; and 

because of the gender reassignment exclusion, a claim for coverage of facial 

feminization surgery, the purpose of which is to treat gender dysphoria, is 

not subjected to a medical necessity analysis nor assessed for coverage 

under the cosmetic exclusion); see also ECF 136, at 27-31.) While facial 

feminization surgeries for the purpose of gender reassignment are not 

covered, the same procedures are covered for other medical reasons such 

as sinus issues, congenital deformity or the result of an accident. (ECF 118-

3, CHP-Frost, 22:19-25, 40:14-43:1.) 

Defendant cannot say with any degree of certainty, and unquestionably 

has not shown, that Ms. Lane’s needed facial feminization procedures 

“would continue to be excluded from coverage” under the “cosmetic 

procedures” Exclusion. Such a conclusion would be speculative, at best. (Id.

at 25:21-26:11 (CHP Representative stated that a claim such as Ms. Lane’s 

“could also fall under the cosmetic” exclusion) (emphasis added).) However, 

due to the Exclusions, DMS expressly precludes Ms. Lane from 

demonstrating the treatments she seeks are medically necessary and within 

one of the cosmetic and reconstructive surgery exceptions simply because 

she is a transgender woman.

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Thus, Plaintiffs have shown that because of the “gender reassignment” 

exclusion, Ms. Lane’s requested procedure was never subjected to a 

medical necessity analysis as it otherwise would have been, even if the state 

deemed it to be a “cosmetic” surgery. Defendant has made no showing it

would have made the “same decision” to deny coverage regardless of the 

gender reassignment exclusion, which this Court has held constitutes 

discrimination based on sex. Therefore, even if Defendant had raised the 

“same decision” defense, it would fail under the facts of this case. See Quigg, 

814 F.3d at 1242 (holding defendants’ “same decision” defense – which 

requires the employer to demonstrate it “would have taken the same action 

in the absence of the impermissible motivating factor” (2000e–5(g)(2)(B)) –

failed). Like the Eleventh Circuit held in Quigg, after looking at the evidence 

in this case, “no genuine issue exists as to whether [Defendant DMS] would 

have made the same decision absent illegal bias.” Id. at 1243-44 (evidence 

put forth by school board defendants “would not provide sufficient evidentiary 

support that their decisions were made without regard to sex”); see ECF 136, 

at 5 (DMS contends that Exclusion expressly using the words “gender” and 

“sex” to define what is excluded are not a sex-based exclusions) (citing ECF 

122-23, at 60, 62; ECF 122-24, at 36)).

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Thus, the “same decision” defense is inapplicable in this case and this 

Court’s ordering of injunctive relief would redress Ms. Lane’s injury, as it 

would allow the requested procedure to be subjected to medical necessity 

analysis.10

II. Eleventh Circuit’s Decision to Vacate the Lange Decision Pending 

Rehearing En Banc Does Not Foreclose Plaintiffs’ Claims

A. Impact of Vacated Opinions Pending Rehearing En Banc

Once an opinion is vacated, it has no precedential effect and cannot 

be considered as expressing a view of the Eleventh Circuit. Fair Fight Action, 

Inc. v. Raffensperger, 413 F. Supp. 3d 1251, 1278 (N.D. Ga. 2019);

see United States v. Sigma Int'l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002).

However, the Court may give the vacated opinion persuasive value if

the Court thinks that the vacated opinion deserves it. Cf. Friends of 

Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1218 (11th Cir. 

2009) (“We are free to give statements in a vacated opinion persuasive value 

10 Plaintiffs’ summary judgment briefing lays out why these procedures, even 

if deemed “cosmetic” for cisgender individuals, are medically necessary 

treatments for gender dysphoria for some transgender individuals. (ECF 136,

at 27-31 (even Defendant’s expert agreed the procedures sought by Ms. 

Lane can be medically necessary for the treatment of gender dysphoria); see 

also ECF 122-16, at 3 (WPATH Position Statement clarifying these 

procedures are “not ‘cosmetic’ or ‘elective’ . . . [i]n some cases, such surgery 

is the only effective treatment for the condition”).)

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if we think they deserve it.”); see also United States v. W.B.H., 664 F.3d 848, 

853 n.3 (11th Cir. 2011).

B. Impact of the Eleventh Circuit Vacating Lange

The Eleventh Circuit’s opinion in Lange v. Houston County, 101 F.4th 

793 (11th Cir. 2024), did not create new principles of law, rather it reiterated

principles based in longstanding Supreme Court and Eleventh Circuit 

precedent. As such, regardless of the decision reached by the Court en banc

in Lange, the rationale expressed in the now vacated Lange opinion remains 

intact, as it follows the clear logic of the Supreme Court’s decisions in 

Newport News Shipbuilding & Dry Dock Co. v. EEOC (“Newport News”), 462 

U.S. 669 (1983), Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020), and 

City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702 

(1978), and the Eleventh Circuit’s decisions in Glenn v. Brumby, 663 F.3d 

1312 (11th Cir. 2011), and Copeland v. Ga. Dep’t of Corr., 97 F. 4th 766 

(11th Cir. 2024).

Title VII makes it unlawful for an employer to “discriminate against any 

individual with respect to his [or her] compensation, terms, conditions, or 

privileges of employment, because of such individual’s race, color, religion, 

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has 

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long held that employer-provided health insurance coverage is 

compensation under Title VII. See Newport News, 462 U.S. at 682. While 

employers are not required to provide coverage for every possible medical 

treatment, they cannot exclude specific treatments on the basis of sex. The 

Supreme Court has made clear that “discrimination based on...transgender 

status necessarily entails discrimination based on sex” as prohibited under 

Title VII. Bostock, 140 S. Ct. at 1746-47. This is because an employer who 

discriminates based on transgender status is intentionally treating that 

employee differently “because of their sex.” Id. at 660-61 (“[H]omosexuality 

and transgender status are inextricably bound up with sex...[T]o discriminate 

on these grounds requires an employer to intentionally treat individual 

employees differently because of their sex.”); see also Glenn, 663 F. 3d. at 

1316 (“[T]he very acts that define transgender people as transgender are 

those that contradict stereotypes of gender-appropriate appearance and 

behavior.”); Copeland, 97 F. Supp. at 775 (quoting Bostock, 140 S. Ct. at 

1743); Winstead v. Lafayette Cnty. Bd. of Cnty. Comm’rs, 197 F. Supp. 3d 

1334, 1345 (N.D. Fla. 2016) (quoting Glenn, 663 F.3d at 1316).

Additionally, in the April 2024 enforcement guidelines issued by the 

U.S. Equal Employment Opportunity Commission (EEOC), the agency 

clarified that sex-based harassment under Title VII “includes harassment 

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based on sexual orientation or gender identity[.]” (U.S. Equal Emp. 

Opportunity Comm’n, EEOC-CVG-2024-1, Enforcement Guidance on 

Harassment in the Workplace (2024).) 

In this case, “the undisputed facts demonstrate that the challenged 

exclusions apply only to transgender members, as only transgender

individuals would seek the gender-affirming treatment that is excluded from 

coverage.” (ECF 177, at 14.) Thus, the Exclusions explicitly target 

transgender employees for differential treatment, discriminating on the basis 

of sex and transgender status. Additionally, fifty years of Supreme Court 

precedent confirm that what DMS is subjecting Plaintiffs to constitutes

unlawful sex stereotyping. (See ECF 139, at 6-9.) Meanwhile, Defendant’s 

arguments rely upon theories that both the Supreme Court and Congress 

have flatly rejected. (See ECF 136, at 5-10; ECF 139, at 2-9.) 

In analyzing Title VII claims, where an employer’s policy or practice 

discriminates against a protected characteristic, no further proof of disparate 

intent is needed. See Bostock, 140 S. Ct. at 1745-46; see also Int’l Union, 

United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson 

Controls, Inc., 499 U.S. 187, 199 (1991) (holding that “[w]hether an 

employment practice involves disparate treatment through explicit facial 

discrimination does not depend on why the employer discriminates but rather 

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on the explicit terms of the discrimination”). As this Court concluded in its 

Order on summary judgment, the Exclusions discriminate on the basis of sex 

and transgender status, constituting facial discrimination which can only be 

defended as a bona fide occupational qualification, which Defendant failed 

to argue in this case. (ECF 177, at 12-13.) 

As Plaintiffs have demonstrated in extensive briefing both pre-dating 

and post-dating the vacated Lange decision, Plaintiffs’ Title VII claims are 

supported by decades of binding precedent. (See ECF 123, at 30-43; ECF 

136; ECF 139, at 1-9; ECF 170, at 3-6; ECF 173, at 1-11.) The Eleventh 

Circuit’s vacating of Lange pending en banc review does not necessitate a 

different outcome on Plaintiffs’ Title VII claims. In concluding that Defendant 

DMS is liable under Title VII based on its administration of the Exclusions, 

which were held to be a facially discriminatory employer action, this Court 

correctly applied the decades of binding Supreme Court and Eleventh Circuit 

precedent firmly supporting that conclusion. (ECF 177, at 11-16.)

III. The Eleventh Amendment Does Not Impact Relief Sought by 

Plaintiffs

In Defendant DMS’s Answer to Plaintiffs’ Amended Complaint (ECF 

57, at 22), Defendant asserted the following affirmative defense: “One or 

more of the Plaintiffs’ claims is barred by the doctrine of Sovereign Immunity 

and/or Eleventh Amendment immunity, including but not limited to, any claim 

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for money damages.” This was reiterated during the August 16, 2024, status 

conference with the Court, at which time counsel for Defendant raised that 

Eleventh Amendment immunity impacted Plaintiffs’ ability to seek 

compensatory damages. 

Defendant DMS has never argued or briefed the Eleventh Amendment 

nor the doctrine of Sovereign Immunity, rather only Defendant Allende 

(formerly Defendant Satter) – who is no longer a party to this case, as the 

claims against him were dismissed – made such an argument. (ECF 125, at 

33-34.) Plaintiffs addressed this argument from Defendant Allende in their 

summary judgment briefing. (ECF 137, at 37-38 (explaining the relief sought 

was not barred by the Eleventh Amendment, as Defendant Allende 

mischaracterized the relief sought by Plaintiffs as “retroactive payment of 

benefits” as opposed to prospective injunctive relief prohibiting future 

enforcement of the discriminatory Exclusions).)

The Eleventh Amendment does not serve as a defense for Defendant 

DMS under Title VII. Exceptions to Eleventh Amendment immunity exist if 

the state waives immunity and consents to suit in federal court, or if Congress 

abrogates the state’s immunity by statute. Huang v. Johnson, 251 F.3d 65, 

69-70 (2d Cir. 2001). Congress has abrogated the State’s sovereign 

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

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authority of section 5 of the 14 Amendment. Fitzpatrick v. Bitzer, 427 U.S. 

445, 456 (1976). 

IV. Conclusion

Plaintiffs respectfully request that this Court award declaratory and 

injunctive relief and out-of-pocket costs under Title VII, and schedule a jury 

trial to award compensatory damages.

Respectfully submitted on this 13th day of September, 2024.

/s/ Simone Chriss 

SIMONE CHRISS 

Fla. Bar No. 124062

simone.chriss@southernlegal.org

JODI SIEGEL 

Fla. Bar No. 511617

jodi.siegel@southernlegal.org

Southern Legal Counsel, Inc.

1229 NW 12th Avenue

Gainesville, FL 32601

(352) 271-8890

DANIEL TILLEY

Fla. Bar No. 102882

dtilley@aclufl.org

CAROLINE MCNAMARA

Fla. Bar No. 1038312 

cmcnamara@aclufl.org

ACLU Foundation of Florida

4343 West Flagler St., Suite 400, 

Miami, FL 33134

(786) 363-2714

ATTORNEYS FOR ALL PLAINTIFFS

JEFFREY HEARNE

Case 4:20-cv-00020-MW-MAF Document 182 Filed 09/13/24 Page 33 of 34
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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 to Court’s Order 

for Supplemental Briefing contains 7,063 words, which includes headings, 

footnotes, and quotations, but does not include case style, signature block 

or Certificates of Word Count and Service.

/s/ Simone Chriss

Counsel for Plaintiffs

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