UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMI CLAIRE and KATHRYN LANE,

Plaintiffs, 

v. CASE NO.: 4:20-cv-00020-MW-CAS 

FLORIDA DEPARTMENT OF 

MANAGEMENT SERVICES; JONATHAN

SATTER, in his official capacity as 

Secretary of the Florida Department of

Management Services; UNIVERSITY OF 

FLORIDA BOARD OF TRUSTEES;

MORTEZA HOSSEINI, in his official

Capacity as Chair of the University of

Florida Board of Trustees; THOMAS

KUNTZ, DAVID BRANDON, JAMES 

HEAVENER, LEONARD JOHNSON,

MICHAEL MURPHY, DANIEL O’KEEFE,

RAHUL PATEL, MARSHA POWERS,

JASON ROSENBERG, ROBERT STERN,

RAY THOMAS, and ANITA ZUCKER, in

their official capacities as Members of the 

University of Florida Board of Trustees; 

and ANDY THOMAS, in his official capacity

as Public Defender of the Second Judicial

Circuit of Florida,

Defendants. 

__________________________________________/ 

DEFENDANT ANDY THOMAS’ 

MOTION TO DIMISS PLAINTIFFS’ COMPLAINT

Defendant Andy Thomas, in his official capacity as Public Defender of the 

Second Judicial Circuit of Florida (“Mr. Thomas” or “Public Defender Defendant”)

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 1 of 29
2 of 29

through undersigned counsel, and pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. 

Civ. P., and N.D. Fla. Loc. R. 7.1, moves this Court to dismiss Counts III and VI of 

the Complaint, with prejudice.

Introduction

The Complaint must be dismissed based on several fundamental grounds.

Plaintiff Kathryn Lane (“Plaintiff” or “Ms. Lane”) brings the following counts 

against the Public Defender Defendant: Count III asserts violations of Title VII; and 

Count VI, brought pursuant to 42 U.S.C. §1983, asserts violations of the Fourteenth 

Amendment’s Equal Protection Clause.

Each of these counts must be dismissed with prejudice because Plaintiff has

failed to demonstrate standing. None of the alleged injuries is fairly traceable to, or 

can be redressed by the Public Defender Defendant. This is because by statute, the 

Florida Department of Management Services (“DMS”) has total control and 

authority over the provision of health insurance for state employees, including the 

Plaintiff. As such, the actions of the Public Defender Defendant are not fairly 

traceable to the harm suffered by the Plaintiff, which was solely caused by the 

actions of the State in determining the appropriate level of healthcare for state

employees.

Count VI, styled as an Ex Parte Young claim for prospective injunctive relief 

from a continuing violation of law against state officers, also fails because it is barred

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 2 of 29
3 of 29

by sovereign immunity. The relief sought is essentially retrospective and not 

prospective, and Mr. Thomas lacks the authority to actually implement the 

complained-of policies. Both are factors that destroy the legal fiction that Ex Parte 

Young provides in very limited cases for litigants to obtain relief from states in 

federal courts in situations where such actions for relief would otherwise be barred.

Finally, Count III must be dismissed for failure to state a claim. Title VII does 

not prohibit discrimination based on gender identity, and the actions complained of 

do not state an actionable claim for sex-stereotyping discrimination. While the 

Public Defender Defendant is sympathetic to and has supported Ms. Lane in her 

efforts to seek coverage for her requested procedure, the Public Defender Defendant 

in no way discriminated against the Plaintiff, and this Court can obviously only 

afford Ms. Lane remedies based on the law as it is written. The law here, Title VII, 

simply does not afford Plaintiff a remedy on the facts alleged.

Facts

The following facts are taken from the Complaint and in the light most 

favorable to the Plaintiff. None of the facts recited herein should be deemed an 

admission on the part of the moving party that they are true. That said, the facts as 

set forth herein and in the complaint, simply do not provide a basis for relief against 

the Public Defender Defendant.

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 3 of 29
4 of 29

Plaintiff, Ms. Lane was born male, but identifies as female. (Doc.1, p. 29 ¶ 

118). Plaintiff was diagnosed with gender dysphoria at or before the alleged 

constitutional and statutory violations occurred. (Doc. 1, p. 30 ¶ 122). According to 

the Complaint, gender dysphoria is a medical diagnosis for the “feeling of 

incongruence between one’s gender identity and one’s sex assigned at birth, and the 

resulting distress caused by that incongruence. . ..” (Doc. 1 p. 8 ¶ 22). Plaintiff Lane 

alleges that her treating physician recommended she receive facial feminization 

surgery and deemed it medically necessary to treat her gender dysphoria. (Doc. 1 pp. 

32-33 ¶¶ 134, 135). 

Plaintiff Lane is employed by the Office of the Public Defender in the Second 

Judicial Circuit of Florida, which is headed by Mr. Thomas. (Doc. 1 p. 29 ¶ 114). As 

a state employee, her health insurance is provided by the state of Florida through 

Capital Health Plan (“CHP”). (Doc. 1 pp.12-14 ¶¶ 36, 40, 43). 

The state health plan is developed, maintained, and provided by DMS. (Doc. 

1 pp. 12-13 ¶¶ 37, 38, 39). Under section VI of the health insurance plan document 

outlining the coverage provided by CHP there is a “Limitations and Exclusion” 

provision, which states “[t]he following services and supplies are excluded from 

coverage under this Plan unless a specific exception is noted. Exceptions may be 

subject to certain coverage Limitations.” (Doc. 19-1 p. 57). Section VI then goes on 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 4 of 29
5 of 29

to identify 39 different categories of limitations and exclusion in the plans, one of 

which is “gender reassignment or modification services supplies.” (Doc. 19-1 p. 57). 

While the Complaint does not include the CHP document (Doc. 19-1), it is 

referred to extensively therein. The Eleventh Circuit has instructed that a district 

court may consider extrinsic evidence in ruling on a motion to dismiss if it is (1) 

central to the plaintiff's claim, and (2) its authenticity is not challenged. SFM 

Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); see 

also Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267-68 (11th Cir. 2002). 

Plaintiff’s Complaint is centered around the state-provided insurance plan and the 

gender reassignment exclusions are also referred to repeatedly. (Doc. 1 p. 15 ¶ 50).

Obviously, the plan document is central to the complaint and its authenticity should 

not be in question.

On January 11, 2019, Plaintiff Lane’s physician sent a letter recommending 

that Lane obtain facial feminization surgery. (Doc. 1 p. 33 ¶ 135). CHP denied 

authorization for coverage citing to the exclusion in the state plan for gender 

reassignment or modification services or supplies. (Doc. 1 p. 33 ¶ 136). Lane 

appealed the denial pursuant to the plan, and CHP again denied the appeal for the 

same reason, as well as for the additional reason that the procedure fell under the 

exclusion for cosmetics surgeries or services. (Doc. 1 p. 33 ¶¶ 137, 138).

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 5 of 29
6 of 29

It is this denial upon which the Plaintiff premises her Complaint, but 

fundamentally, Plaintiff fails to alleges any fact connecting the Public Defender

Defendant to this decision or to the establishment of the state plan. 

Argument 1

I. Plaintiff Lacks Article III Standing to Sue the Public Defender Defendant. 

Both of Plaintiff’s Counts against the Public Defender Defendant must be 

dismissed pursuant to Rule 12(b)(1), Fed. R. Civ. P., as this Court lacks subject 

matter jurisdiction over the Plaintiff’s claims. This is because the Plaintiff cannot

establish standing to sue the Public Defender Defendant. To satisfy the constitutional 

restriction of federal courts’ jurisdiction to “cases” and “controversies,” “a plaintiff 

must demonstrate constitutional standing.” Bank of Am. Corp. v. City of Miami, Fla., 

137 S. Ct. 1296, 1302 (2017). “Article III standing requires Plaintiff to show an 

‘injury in fact’ that is ‘fairly traceable’ to the defendant’s conduct and ‘that is likely 

to be redressed by a favorable judicial decision.” Id. The party invoking federal 

jurisdiction bears the burden of proving standing. Hollywood Mobile Estates Ltd. v. 

Seminole Tribe of Fla., 641 F.3d 1259, 1265 (11th Cir. 2000). 

To be sure, litigants must establish standing to sue under Title VII, but the 

burden under Title VII is weightier than the Article III standard. Only a “person 

 1 Because this Court is surely well-versed in the standard for adjudicating a motion 

to dismiss, it is omitted.

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 6 of 29
7 of 29

aggrieved” may file suit under Title VII. 42 U.S.C. § 2000e–5(b), (f)(1). 

Standing for those “aggrieved” under Title VII must be construed more narrowly 

than the outer boundaries of Article III. Thompson v. N. Am. Stainless, LP, 562 U.S. 

170, 177-78 (2011). Instead of Article III standing, the proper test to 

determine standing under Title VII is the “zone of interests” test. Id. at 177. Under 

this test, review must be denied “if the plaintiff's interests are so marginally related 

to or inconsistent with the purposes implicit in the statute that it cannot reasonably 

be assumed that Congress intended to permit the suit.” Id. (quoting Clarke v. Secs.

Indus. Assn., 479 U.S. 388, 399–400 (1987)). Moreover, the plain terms of Title VII 

only make actionable instances where an employer, as defined by the statute, takes 

an adverse employment action against an employee. 42 U.S.C. § 2000e—2(a).

Here, Plaintiff’s alleged injuries are not fairly traceable to the challenged 

actions of the Public Defender Defendant. In fact, the injuries are not traceable to 

this Defendant at all. Moreover, a favorable decision by this Court on the Counts 

subject to this motion will not result in any remedy that the Public Defender 

Defendant can provide as a matter of law. Stated another way, this Court cannot 

compel the Public Defender to do anything that would redress the Plaintiff’s injuries.

Thus, Plaintiff cannot establish the requisite standing to proceed against the Public 

Defender Defendant warranting dismissal.

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 7 of 29
8 of 29

A. Plaintiff’s Injuries Are Not Fairly Traceable to the Public Defender 

Defendant

Article III standing requires “a causal connection between the injury and the 

conduct complained of—the injury has to be fairly traceable to the challenged action 

of the defendant, and not the result of the independent action of some third party.” 

Hollywood Mobile Estates, 641 F.3d at 1265 (quoting Lujan v. Defs. of Wildlife, 504 

U.S. 555, 560 (1992)). Here, any injury allegedly suffered by the Plaintiff via denial 

of coverage for her requested procedure, is exclusively tied to the independent 

actions of a third party – DMS. The Public Defender Defendant has no control over

any aspect of the health insurance provided to state employees via the CHP state 

insurance plan. 

The Florida Legislature has expressly declared its intent that DMS “shall be 

responsible for all aspects of the purchase of health care for state employees under 

the state group health insurance plan or plans . . .” §110.123(3)(c), Fla. Stat. (2019) 

(emphasis supplied). The responsibilities assigned DMS by the Legislature include 

the “determination of health care benefits to be provided” and the “negotiation of 

contracts for health care and health care administrative services.” Id.; see also

§110.123(5)(a), Fla. Stat. (It is the duty of the DMS to “[d]etermine the benefits to 

be provided and the contributions to be required for the state group insurance 

program”). Plaintiff Lane acknowledges DMS’s statutory responsibilities as to the 

determination and provision of group health insurance for state employees. (Doc. 1 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 8 of 29
9 of 29

¶ 37-40). To be sure, the Public Defender’s Office is a “State Agency” for purposes 

of the state insurance program. §110.123(2)(i), Fla. Stat. The Plaintiff is a full-time 

employee of a state agency as defined in §110.123(2)(i), Fla. Stat., and has 

voluntarily elected to participate in the group insurance program offered by DMS as 

an enrollee. §110.123(2)(b) & (c), Fla. Stat.

Nowhere in the Complaint does Plaintiff allege that the Public Defender 

Defendant has any role in, or authority to, implement the state health plans, establish 

exclusions, solicit or choose providers, or otherwise control or influence any aspect 

of the state health plans. Further, there is no allegation in the Complaint that the 

Public Defender Defendant was in any way involved in the decision to deny the 

Plaintiff her requested procedures. The hands of state agencies such as the Public 

Defender Defendant are tied because those agencies must offer the health plans

selected by DMS, exclusions and all.

It was solely DMS’s responsibility, both by statute and in practice, to select 

and define the contours of the benefits offered under the state health plan. Because 

the Public Defender Defendant had no involvement in that process, no conduct of 

the Public Defender Defendant is fairly traceable to the injury alleged in the 

Complaint.

Indeed, ultimately, the “fairly traceable” element of Article III standing is 

essentially a threshold showing that there is some causal connection between the 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 9 of 29
10 of 29

injury and the actions of the defendants. See Allen v. Wright, 468 U.S. 737, 757 

(1984) (holding that causation is a distinct requirement of standing apart from 

whether requested relief might substantially remedy a threatened constitutional 

injury). This case is similar to numerous cases in which the Eleventh Circuit has

found want of facts to establish the “fairly traceable” element of Article III standing

and a lack of causal connection between the conduct alleged on the part of a 

defendant and the injury suffered.

For example, in Doe v. Pryor, several plaintiffs sued the Attorney General of 

Alabama to enjoin enforcement of a statute making “deviate sexual intercourse” a 

criminal offense. 344 F.3d 1282, 1285–86 (11th Cir. 2003). While one plaintiff lost 

a custody dispute based on the challenged statute, the Eleventh Circuit held that this 

injury was not “fairly traceable” to the Attorney General because the Attorney 

General played no role in that custody determination. Id. at 1285. What was lacking 

in Doe is the same as what is lacking here: any connection between the defendant 

and the injury. Id.; see also Hollywood Mobile Estates, 641 F.3d at 1265–67 (holding 

that injury was not fairly traceable to Secretary of the Interior, where there was no 

allegation that Secretary caused any injury, in that case, a forcible eviction of a 

leased property committed by the Seminole Tribe of Florida); Daogaru v. U.S. 

Attorney Gen., 683 Fed. App'x 824, 825-26 (11th Cir. 2017) (dismissing federal 

government defendant and finding that defendant’s conduct was not fairly traceable 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 10 of 29
11 of 29

to injury in complaint challenging federal firearms law prohibiting the plaintiff from 

possessing a firearm and ammunition in his home, where state law independently 

prohibited plaintiff from possessing a firearm); Allen, 468 U.S. at 753 

n.19, abrogated in part on other grounds by Lexmark Intern., Inc. v. Static Control 

Components, Inc., 572 U.S. 118 (2014) (holding that parents lacked standing to sue 

the IRS for their children's diminished ability to receive an education in a racially 

integrated school because, even though this was a cognizable injury, “whatever 

deficiencies exist in the opportunities for desegregated education for [plaintiffs'] 

children might not be traceable to IRS violations of law”).

If the bar for the “fairly traceable” element of Article III standing is as low as 

the facts of the Complaint suggest, then any denial of a benefit under the state plan 

by insurance providers such as CHP, could lead to state agencies being hauled into 

court to defend an action it had nothing to do with. Just as in those situations, the 

decision to deny a particular claim for benefits, perhaps for cosmetic dentistry or 

laser eye surgery, could lead to liability for a state agency even though it was in no 

way involved in that determination. 

This simply is not the bar for standing in this Circuit. As the Eleventh Circuit 

has noted, a plaintiff lacks standing to challenge a rule if an independent source 

would have caused her to suffer the same injury. Swann v. Sec'y, Georgia, 668 F.3d 

1285, 1288–89 (11th Cir. 2012); Charles Alan Wright, Arthur R. Miller & Edward 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 11 of 29
12 of 29

H. Cooper, Federal Practice and Procedure § 3531.5 (3d ed. 2008) (“Rather than a 

break in one causal chain, standing may be defeated by finding a different cause.”).

Here, you can substitute the Public Defender Defendant for any state agency, and 

the result would be the same because that result is compelled by DMS and not Mr. 

Thomas. Nothing is more probative of the lack of standing.

B. Plaintiff’s Injuries Are Not Redressable by the Public Defender 

Defendant

For an injury to be redressable “it must be likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 

U.S. at 561. “Redressability is established . . . when a favorable decision ‘would 

amount to a significant increase in the likelihood that the plaintiff would obtain relief 

that directly redressed the injury suffered.’” Mulhall v. UNITE HERE Local 355, 

618 F.3d 1279, 1290 (11th Cir. 2010) (quoting Harrell v. Fla. Bar, 608 F.3d 1241, 

1260 n.7 (11th Cir. 2010)). Courts must be able “to ascertain from the record whether 

the relief requested is likely to redress the alleged injury,” Steele v. Nat'l Firearms 

Act Branch, 755 F.2d 1410, 1415 (11th Cir. 1985), and if they cannot, then there is 

no jurisdiction to entertain the action. See DiMaio v. Democratic Nat'l Comm., 520 

F.3d 1299, 1303 (11th Cir. 2008) (dismissing complaint for lack of standing because 

it did not “suggest in any way how [the] ‘injury’ could be redressed by a favorable 

judgment”).

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 12 of 29
13 of 29

Plaintiff, along with her co-Plaintiff, Jami Claire, seeks, inter alia, equitable 

relief in the form of permanent injunctive relief against all of the defendants to: (1) 

cease enforcement of the State Plan Exclusion of coverage for “gender reassignment 

or modification services and supplies”; and (2) provide benefits that cover Plaintiffs’ 

medically necessary gender affirming care. (Doc. 1 p. 51). Again, as DMS is the 

singular controlling entity as to the determination and administration of the state 

health plans as provided pursuant to Chapter 110 Fla. Stat., a favorable decision 

against the Public Defender Defendant will do absolutely nothing to redress the 

Plaintiff’s alleged injuries. The Public Defender Defendant has no power or 

authority to require DMS to alter the group health insurance plans already in effect. 

Moreover, the Public Defender Defendant could not compel or require DMS, 

notwithstanding the current plans in effect, to provide funds that cover the benefits 

the Plaintiff seeks, nor does the Public Defender Defendant have any inherent 

statutory authority to commit state funds for such use. 

In fact, Mr. Thomas is statutorily prohibited from doing so as the state of 

Florida has exclusively made it the province and authority of DMS to control such 

terms. See section I(a), supra. Accordingly, even if the Plaintiff is successful in 

Counts III or VI, the harm suffered by Plaintiff cannot be redressed by the Public 

Defender Defendant. As such Plaintiff lacks Article III standing to sue the Public 

Defender Defendant. See Doe, 344 F.3d at 1285–86 (holding that injuries suffered 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 13 of 29
14 of 29

by plaintiff in custody proceeding by virtue of criminal statute would not be 

redressed through lawsuit against the Alabama Attorney General where injunctive 

relief against the Attorney General would have done nothing to change the result the 

plaintiff suffered in the state court custody proceeding and nothing that the court 

could order the Attorney General refrain from doing would address the harm 

suffered); Hollywood Mobile Estates, 641 F.3d at 1265–67 (holding plaintiff could 

not establish standing against Secretary of the Interior because plaintiff failed to 

show how a judgment against the Secretary would redress the harm caused by a third 

party).

II. Count VI, Asserting Equal Protection Clause Violations, is Barred by the 

Doctrine of Sovereign Immunity 

Count VI, brought pursuant to Section 1983, is lodged against Mr. Thomas in 

his official capacity, and alleges a deprivation of rights under the Equal Protection 

Clause of the Fourteenth Amendment. This claim however is barred by the Eleventh 

Amendment, and, while technically styled as an Ex Parte Young claim, that legal 

fiction should not apply here. 

“Dual sovereignty is a defining feature of our Nation's constitutional 

blueprint.” Sossamon v. Texas, 563 U.S. 277, 283 (2011) (citation omitted). “Upon 

ratification of the Constitution, the States entered the Union ‘with their sovereignty 

intact.’” Id. (citation omitted). It is a fundamental concept of Federalism that states 

yield their sovereignty only with respect to matters exclusively assigned to the 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 14 of 29
15 of 29

federal government. See Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 

(1991). This concept underlies the Eleventh Amendment of the Constitution which 

limits the power of federal courts to hear certain lawsuits brought against states. See

U.S. Const. amend. XI; P.R. Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 

U.S. 139, 143-46 (1993). The Eleventh Amendment provides that “[t]he Judicial 

power of the United States shall not be construed to extend to any suit in law or 

equity, commenced or prosecuted against one of the United States by citizens of 

another state . . ..” U.S. Const. Amend. XI.

The Amendment has been interpreted by the Supreme Court to forbid lawsuits 

brought by citizens of a state against their own state in federal courts under most 

circumstances. Congress may abrogate state sovereign immunity if it has 

unequivocally expressed its intent to abrogate the immunity and if it has acted 

pursuant to a valid exercise of power. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 

55 (1996). The doctrine of sovereign immunity has been interpreted to bar suits 

against an unconsenting state brought by private parties regardless of the nature of 

the relief sought. See id.; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 

100 (1984).

Sovereign immunity, as embodied in the Eleventh Amendment, precludes

actions brought pursuant to Section 1983 against state entities for money damages

and for injunctive relief. Indeed, state entities and state officials sued in their official 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 15 of 29
16 of 29

capacities are not “persons” subject to suit under Section 1983. See Will v. Mich.

Dep't of State Police, 491 U.S. 58, 70–71 (1989). The state of Florida has not waived 

its immunity to suits under Section 1983. See Gamble v. Fla. Dep't of Health & 

Rehab. Servs., 779 F.2d 1509, 1513-20 (11th Cir. 1986). 

Nevertheless, the Eleventh Amendment and the doctrine of sovereign 

immunity does not preclude suits against state officers in their official capacity for 

prospective injunctive relief when the state officers’ alleged actions are in violation 

of federal law. Ex Parte Young, 209 U.S. 123 (1908); Grizzle v. Kemp, 634 F.3d 

1314, 1319 (11th Cir. 2011). This is because such suits, including suits under Section 

1983, are not treated as suits against the state itself. Will, 491 U.S. at 71 n. 10.

The Ex Parte Young doctrine creates a legal fiction allowing a claim against 

a state officer to redress continuing violations of federal law. Verizon Md. Inc. v. 

Public. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). However, only prospective 

injunctive or declaratory relief may be sought against a state official under Ex Parte 

Young. See Green v. Mansour, 474 U.S. 64, 68 (1985); Fla. Ass'n of Rehab. 

Facilities, Inc., 225 F.3d 1208, 1219 (11th Cir. 2000). The exception does not allow 

a plaintiff “to adjudicate the legality of past conduct.” Summit Med. Assocs., P.C. v. 

Pryor, 180 F.3d 1326, 1337-38 (11th Cir. 1999) (“Ex parte Young requires the 

allegation of an ongoing and continuous violation of federal law.”)

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 16 of 29
17 of 29

Moreover, Ex parte Young cannot “operate as an exception to ... sovereign 

immunity where no defendant has any connection to the enforcement of the 

challenged law at issue.” Id. at 1341. Thus, before the exception applies, the “state 

officer [named as a defendant in his official capacity must have] the authority to 

enforce an unconstitutional act in the name of the state.” Id.

The Equal Protection Clause claims brought pursuant to Section 1983 against 

Mr. Thomas in his official capacity must be dismissed because, while the count is 

pled in a manner suggesting Plaintiff seeks only prospective declaratory and 

injunctive relief to redress ongoing violations of the law, the Complaint reflects an 

attempt to dress-up claims for the monetary redress of a past harm as a request for 

prospective injunctive relief. Further, as state law makes clear, Mr. Thomas simply 

has no influence, effect, or authority to dictate the terms of the state health plans 

challenged by the Plaintiff.

A. The Count Against Mr. Thomas in his Official Capacity is, in Essence, 

Brought Against the State and for Retrospective Monetary Relief

The Ex Parte Young fiction does not apply if the prospective relief sought by 

a plaintiff is the functional equivalent of money damages. In those situations, where 

the damages are "measured in terms of a monetary loss resulting from a past breach 

of a legal duty," sovereign immunity would bar a claim even brought against state 

officials in their official capacities. Edelman v. Jordan, 415 U.S. 651, 668 (1974). 

“[W]hen the action is in essence one for the recovery of money from the state, the 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 17 of 29
18 of 29

state is the real, substantial party in interest and is entitled to invoke its sovereign 

immunity from suit even though individual officials are nominal defendants.” Ford 

Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945) (overruled on other 

grounds). 

Here, while Plaintiff alleges she is seeking only prospective declaratory and 

injunctive relief to redress an ongoing violation of the law on the part of Mr. Thomas, 

the Complaint cannot avoid the application of the doctrine of sovereign immunity 

merely through creative pleading. Contrary to the tenor of the Complaint, it is clear 

the Plaintiff actually seeks a declaration that the denial of her requested procedure

and the application of the gender-identity exclusion was unlawful. This is not a case 

where the Complaint pleads an ongoing violation of a federal law, or the entitlement 

to prospective injunctive relief against state officials in anything but a nominal sense.

Indeed, “cases in which that relief is intended indirectly to encourage 

compliance with federal law through deterrence or simply to compensate the victim” 

are not appropriate for Ex Parte Young actions. See Fla. Ass'n of Rehab. Facilities, 

Inc., 225 F.3d at 1219. Ex Parte Young actions are for those situations in which the 

remedies end a continuing violation of federal law and are necessary to vindicate 

federal interest in securing the supremacy of the law, but not where the interest is 

compensatory or deterrence. Id. at 1291-21. The instant matter is essentially an 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 18 of 29
19 of 29

appeal of a past denial of claims for benefits under the plan, dressed up as a claim 

for prospective injunctive relief.

Seminole Tribe of Fla. v. Fla. Dep't of Revenue, 750 F.3d 1238 (11th Cir. 

2014), is instructive. There, the Eleventh Circuit considered whether Ex Parte 

Young applied where a tribe sought a declaratory judgment that it was exempt from 

Florida’s fuel tax. The Eleventh Circuit found the State was the “real, substantial 

party in interest” because the suit was in essence “a suit for monetary relief to be 

financed by the Florida fisc.” Id. at 1244. The Court reasoned that the “relief that the 

Tribe seeks is equitable in name only[,]” because, due to the structure of Florida's 

tax laws, a “declaratory ruling that the Tribe is exempt from the tax would amount 

to a judgment that the Tribe is entitled to a refund under Florida law” money that 

necessarily would have to come from state coffers. Id. The Court noted the refund 

would amount to a money judgment against Florida. Id. The Court also noted that, 

even if the relief sought “could conceivably be described as prospective in 

nature[,]” the relief is nothing “other than an award of damages.” Id.

Just as in Seminole Tribe, the Plaintiff here seeks relief that is prospective and 

equitable in name only. The effect of finding that the terms of the state health plan 

or its application to Plaintiff is unconstitutional, is to redress a past harm suffered by 

Plaintiff and require the state to expend monies to fund the procedures Plaintiff 

contends were unlawfully denied. This is hardly akin to the proper cases for 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 19 of 29
20 of 29

prospective injunctive relief appropriately brought against state officials in their 

official capacities to cease ongoing violations federal law, for example, to require 

state officials to remove a display of the Ten Commandments from a state capitol 

building; Van Orden v. Perry, 545 U.S. 677 (2005); or to challenge state officials on 

the constitutionality of a statute concerning school prayer, Wallace v. Jaffree, 472 

U.S. 38 (1985). The distinction makes a difference, and warrants dismissal of the 

Count VI as to Mr. Thomas in his official capacity. See Fla. Ass'n of Rehab. 

Facilities, Inc., 225 F.3d at 1221 (“[T]he Eleventh Amendment's immunity is 

triggered when a declaration or injunction effectively calls for the payment of state 

funds as a form of compensation for past breaches of legal duties by state officials”)

B. Mr. Thomas Lacks any Authority to Enforce the State Health Plan 

Exclusion

Just as the Public Defender Defendant cannot redress any harm suffered by 

Plaintiff, he is not authorized to establish or enforce the terms of the exclusion in the 

state health plans, rendering an Ex Parte Young claim inappropriately pled against 

Mr. Thomas in his official capacity. Under Ex Parte Young, a litigant must bring her

case “against the state official or agency responsible for enforcing the allegedly 

unconstitutional scheme.” Osterback v. Scott, 782 Fed. App'x 856, 858–59 (11th Cir. 

2019) (quoting ACLU v. The Florida Bar, 999 F.2d 1486, 1490 (11th Cir. 1993). 

Indeed, unless the state officer sued in his official capacity has some 

responsibility to enforce the statute or provision at issue, the "fiction" of Ex parte 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 20 of 29
21 of 29

Young cannot operate. Only if a state officer has the authority to enforce an 

unconstitutional act in the name of the state can the Supremacy Clause be invoked 

to strip the officer of his official or representative character and subject him to the 

individual consequences of his conduct. Summit Med. Assocs., P.C, 180 F.3d at 1341

(citing Ex Parte Young). Where the named defendant lacks any responsibility to 

enforce the statute or scheme at issue the real party in interest is the state and the suit 

remains barred by the Eleventh Amendment. Summit Med. Assocs., 180 F.3d at 

1341.

The fact of the matter is that Mr. Thomas, as the Public Defender of the 

Second Judicial Circuit, employs state employees. DMS is tasked by statute with 

establishing the health care plans for all state employees, exclusions and all. Mr. 

Thomas is not authorized in any way to solicit bids for health insurance plans, 

establish exclusions, or otherwise dictate to any state employees the contours of 

healthcare coverage. That is DMS’s responsibility. Indeed, Mr. Thomas was not 

involved in the decision to even deny the Plaintiff’s claims for benefits.

Because Mr. Thomas lacks the authority to establish the state health plan or 

enforce any exclusion that Plaintiff alleges caused her harm, the fiction of Ex Parte 

Young simply does not hold water. See Osterback, 782 Fed. App'x at 858–59

(holding that suit against the Governor of Florida in his official capacity was barred 

by sovereign immunity and not subject to Ex Parte Young exception because, while 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 21 of 29
22 of 29

the Governor had constitutional and statutory authority to enforce the law and 

oversee the executive branch, the responsibility for the enforcement of a challenged 

provision rested with the Division of Administrative Hearings). The non-fiction is 

that the Complaint is a suit against the state, and the challenge lodged against Mr. 

Thomas in his official capacity is barred by the doctrine of sovereign immunity.

III. Plaintiff’s Title VII Claim Against Mr. Thomasin Count III Must be Dismissed 

because Title VII’s Prohibition Against Sex Discrimination Does Not 

Encompass Discrimination Based on Gender Identity 

Plaintiff’s claims under Title VII against the Public Defender Defendant must 

be dismissed because transgender status or gender identity is not a protected class 

under the statute. While Plaintiff may advance the argument that discrimination 

against someone based on her gender identity is ipso facto discrimination based on 

sex, that argument is not supported by the plain language of Title VII’s text and is 

inconsistent with the ordinary and common meaning of the term “sex” when the 

statute was enacted. The argument that gender identity is encompassed within 

discrimination based on sex, is also foreclosed by binding precedent in the Eleventh 

Circuit.

Since 1964, Title VII has prohibited employers from “discriminat[ing]” 

against any individual with respect to employment “because of such individual’s ... 

sex.” 42 U.S.C. § 2000e-2(a)(1). Title VII does not define the term “sex.” “It is a 

fundamental canon of statutory construction that, unless otherwise defined, words 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 22 of 29
23 of 29

will be interpreted as taking their ordinary, contemporary, common meaning.” 

Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014). More specifically, courts 

look at the ordinary meaning of the term at the time Congress enacted the statute.” 

Perrin v. U.S., 444 U.S. 37, 42 (1979); New Prime, Inc. v. Oliveira, 586 U.S. __, 

139 S. Ct. 532, 539 (2019).

It cannot be gainsaid that at the time that Congress enacted Title VII in 1964, 

that the term “sex” was not meant to encompass gender identity. Indeed, ordinary 

common usage of the term sex in 1964 meant biologically male or female, based on 

reproductive organs. Sex, Webster’s New World Dictionary of the American 

Language (College ed. 1962) (“either of the two divisions of organisms 

distinguished as male or female”); Sex, The American Heritage Dictionary of the 

English Language (1st ed. 1969) (“[t]he property or quality by which organisms are 

classified according to their reproductive functions”). Gender identity did not appear 

in federal law until 1990 when Congress enacted the Americans with Disabilities 

Act and excluded protection for “gender identity disorders.” 42 U.S.C. 12211(b)(1).

Furthermore, while one can make the argument that a hyper-literal reading of 

the prohibition, “because of sex” in Title VII would extend to situations in which 

employees are treated differently because of their gender identity, this Court has 

already rejected that argument. Winstead v. Lafayette Cnty. Bd. of Cnty. Com'rs, 197 

F. Supp. 3d 1334, 1343-1344 (N.D. Fla. 2016). Conceivably the Plaintiff might 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 23 of 29
24 of 29

argue that had her gender identity been consistent with her sex assigned at birth, her

requested procedures would not have been denied. But such an argument ignores the 

fact that Title VII requires a showing that one sex is being treated differently than 

the other. As pled, a transgender male is treated no differently, worse or better, than 

a transgender female, rendering this construction out of step with what Title VII was 

meant to prohibit—actions within the terms and conditions of employment that 

disadvantage one sex as to the other. See Oncale v. Sundowner Offshore Servs., Inc., 

523 U.S. 75, 80 (1998).

Finally, discrimination based on gender identity is not akin to sex-stereotyping 

discrimination, and this is not a case where the Plaintiff has even pled facts to support 

that she has been treated differently from the other sex based on a stereotypical view 

of the sexes. Discrimination based on gender identity is not just another way to claim 

gender-nonconformity discrimination. To hold otherwise, misreads Supreme Court 

and Eleventh Circuit precedent.

The genesis of such claims is the Supreme Court decision in Price Waterhouse 

v. Hopkins. 490 U.S. 228 (1989). Crucially, Price Waterhouse did not hold that sex 

stereotyping is per se unlawful, regardless of whether the reliance on stereotypes is 

used to favor one sex over another. If that were the holding, then discrimination 

against a transgender person is per se unlawful as well because transgender men and 

women do not conform with sex stereotypes as to how they should identify 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 24 of 29
25 of 29

themselves. But Price Waterhouse only makes sex-stereotyping actionable to the 

extent it provides evidence of favoritism of one sex over the other. Id. at 251 

(holding that sex-stereotyping is not sex discrimination per se, but is only actionable 

when disparate treatment of men and women results from sex stereotypes). See also 

id. ("An employer who objects to aggressiveness in women but whose positions 

require this trait places women in an intolerable and impermissible catch 22: out of 

a job if they behave aggressively and out of a job if they do not. Title VII lifts women 

out of this bind.") (citations and quotations omitted).

Indeed, the Eleventh Circuit expressly held as much in Evans v. Georgia 

Regional Hospital, where it held that a gender non-conformity claim is not “just 

another way to claim discrimination based on sexual orientation,” and clarified that 

its holding in Glenn v. Brumby, was not meant to transform claims of discrimination 

based on transgender status into sex stereotyping claims. 850 F.3d 1248, 1254–55 

(11th Cir. 2017) (citing Glenn v. Brumby, 663 F.3d 1312, 1318–19 (11th Cir. 2011)). 

As Judge Pryor clarified in his concurrence in Evans, sex stereotyping claims are 

ultimately about behavior and not status. Evans, 850 F.3d at 1259 (J. Pryor, 

concurring). To be sure, if the law of the Circuit was otherwise, the Eleventh Circuit 

could not have reached the result it did in Bostock v. Clayton Cty. Bd. of 

Commissioners, where it held that Title VII does not prohibit discrimination based 

on sexual orientation. 723 Fed. App'x 964 (11th Cir. 2018), cert. granted sub nom.

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 25 of 29
26 of 29

Bostock v. Clayton Cty., Ga., 139 S. Ct. 1599 (2019). The same rationale applies in 

equal force to claims centered on the inherent gender non-conforming aspects of 

transgender individuals.

While it is true that Title VII has been interpreted to apply to situations that 

Congress might not have contemplated when it enacted the statute, a reading of Title 

VII’s prohibition of sex discrimination to include discrimination based on gender 

identity, as a form of sex-stereotyping or otherwise, goes beyond the limits of the 

text. Indeed, the Supreme Court in Oncale, interpreted Title VII to apply to maleon-male sexual harassment, something not contemplated by Congress when enacting 

Title VII in 1964. As the Supreme Court explained:

[S]tatutory prohibitions often go beyond the principal evil to cover 

reasonably comparable evils, and it is ultimately the provisions of our 

laws rather than the principal concerns of our legislators by which we 

are governed. Title VII prohibits “discriminat [ion] ... because of ... 

sex” in the “terms” or “conditions” of employment. Our holding that 

this includes sexual harassment must extend to sexual harassment of 

any kind that meets the statutory requirements.

Oncale, 523 U.S. at 80. Fundamentally though, interpreting Title VII to prohibit 

claims of discrimination based on gender identity or sex-stereotyping claims

centered on status rather than behavior and a showing that a stereotype resulted in 

the disadvantageous treatment of someone based on sex, is not a result that inures 

from the text of Title VII.

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 26 of 29
27 of 29

Indeed, a proper comparator in the instant matter is a transgender male that 

is seeking a procedure otherwise covered by the exclusion. If a transgender male, 

someone similarly situated to the Plaintiff in all material respects, but outside of her 

protected class, was afforded better treatment than the Plaintiff, a sex discrimination 

claim would be stated. To read the statute otherwise goes beyond the outer limits of 

Title VII’s text even if it is ambiguous on this point. Even ambiguous statutes should 

not be interpreted in a way that would have major policy implications, as 

Congress "does not alter the fundamental details of a regulatory scheme in vague or 

ancillary provisions—it does not, one might say, hide elephants in mouseholes." 

Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 468 (2001). See also, e.g., Gonzales 

v. Oregon, 546 U.S. 243, 267 (2006) (same).

Of course, the Supreme Court is set to resolve these issues this term. See R.G. 

& G.R. Harris Funeral Homes, Inc. v. E.E.O.C., 139 S. Ct. 1599 (2019). The Public 

Defender Defendant welcomes that decision from the Supreme Court. To be sure, 

Mr. Thomas and his office actively assisted Ms. Lane in her attempts to obtain her 

requested procedure. The Public Defender is sensitive to the needs of all of their 

employees, including, of course, the Plaintiff. 

Nevertheless, under the Constitution, judges have the power to say what the 

law is, not what it should be. The people who ratified the Constitution authorized 

courts to exercise “neither force nor will but merely judgment.” The Federalist No. 

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 27 of 29
28 of 29

78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). This Court, 

like all federal courts, is bound by Article III of the Constitution to interpret the law 

as Congress enacted and to effectuate that law as the will of the people. 

Notwithstanding the support of Mr. Thomas’ office as to his employee’s quest for 

state plan benefits, which he is permitted to do in his best judgment and in response 

to the people he serves, this Court is bound by the language of the text of Title VII 

and precedent interpreting that text. Title VII simply does not support a cognizable 

claim as pled in the Complaint, warranting dismissal. 

Conclusion

For the foregoing reasons, the Public Defender Defendant requests that this 

Court dismiss Count’s III and VI of the Complaint, with prejudice.

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 28 of 29
29 of 29

Respectfully submitted this 27th day of February, 2020. 

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

Florida Bar No. 100391

E-mail: jslanker@sniffenlaw.com

MICHAEL P. SPELLMAN

Florida Bar No. 937975

E-mail: mspellman@sniffenlaw.com

MARK K. LOGAN

Florida Bar No. 0494208

E-mail: mlogan@sniffenlaw.com

SNIFFEN & SPELLMAN, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

Telephone: (850) 205-1996

Facsimile: (850) 205-3004

Attorneys for the Public Defender Defendant

WORD COUNT CERTIFICATION

This document complies with word limits set forth in N.D. Fla. Local Rule 

7.1(F), and contains 6,642 words, which includes the headings, footnotes, and 

quotations, but does not include the case style, signature block or Certificates of 

Word Count and Service.

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

CERTIFICATE OF SERVICE

The undersigned certifies that on this 27th day of February, 2020, a true and 

correct copy of the foregoing was electronically filed in the U.S. District Court, 

Northern District of Florida, using the CM/ECF system which will send a notice of 

electronic filing to all counsel of record.

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

Case 4:20-cv-00020-MW-MAF Document 19 Filed 02/27/20 Page 29 of 29