Totally Tubular Tallahassee Judge Rules For Trans Health Coverage In Florida

Chief US District Judge Mark Walker has been having a heck of a good time kicking Ron DeSantis around lately.

Late on Thursday Walker ruled in favor of three trans plaintiffs in Claire v. Florida Department of Management Services. Claire is a suit brought in 2020 alleging illegal discrimination in conditions and benefits of employment on the basis of sex. At issue was whether Florida could ban coverage for certain medicines and medical procedures when prescribed for the benefit of trans people, when those same medicines and procedures are available to and covered for others. Walker ruled that Florida cannot, paving the way for state employees, retirees, and dependents to receive trans-related medical care and have it paid for by each person’s medical benefits.

Despite the huge recent focus on coverage and availability of trans-related medical care for minors, the right has been moving ahead with plans to eliminate all trans health are. Frequently this begins not with outlawing procedures, but rather by denying coverage for all trans people of any age, and this effort isn’t new.

Surprisingly enough, though DeSantis has moved Florida down a resolutely cis-sexist path, he isn’t responsible for the Florida DMS policy at the heart of the case. One DMS official testifying in the case, Ryan Stokes, said that to the best of his knowledge, “those exclusions have always been there.” The court, however, traced the explicit exclusions back to the 1970s. (Coverage might have been denied previously, but the procedures weren’t common enough to merit an explicit exclusion that the court could find.) Many other states, including California and possibly other very liberal ones, have had such exclusionary policies in the past, but dropped them over the years.

Florida being Florida, the state refused to modernize. So despite the lack of any basis in law, DMS continued doing in 2016 doing what it had regularly done once a decade or so over the years and took bids from insurers on providing benefit plans to state employees. Multiple bidders were accepted representing different types of plans and collections of benefits (including PPOs and plans that covered more alternative medicine options in exchange for higher employee costs). However, per the guidance issued at the beginning of the process, every plan banned coverage for “gender reassignment and modification services and supplies.”

The part of Judge Walker’s order that details this history is galling. The previously mentioned Ryan Stokes first asserted that the coverage ban was mandated by statute. The defense that he was only doing what was required of him quickly collapsed when he was asked which statute required the ban. Unable to answer, he retreated and said that the mandate might be in a “plan document.” Another DMS officer, Tami Fillyaw, was the previous deputy head of DMS and its then-current chief of staff in 2020. The court recounts her testimony this way:

To her knowledge, there is no medical or financial reason for the “gender reassignment” exclusion. Instead, Ms. Fillyaw testified that the exclusion “has been on the books for some time,” and “[t]here was not a reason for [her] to ask why there was such an exclusion.”

The state discriminated against trans people in medical plans for no better reason than it had always discriminated against trans people, and not a single soul even cared to know why.

Of course, as Judge Walker noted, the same medicines and procedures are routinely covered for others. Estrogen therapy, for instance, is prescribed as safe and effective for peri-menopausal and post-menopausal women for a number of relatively minor symptoms and situations, like for skin health and vaginal moisture, that may affect how a woman manifests her gender through the attributes of her body.

This case revolved around surgical procedures, but here, too, more than one diagnosis can lead to medically indicated orchiectomy or mastectomy (two of the procedures denied to the plaintiffs). Judge Walker wrote pointedly about this:

Defendant DMS admits that the challenged exclusion “prohibits coverage” of hormone replacement therapy, double mastectomy, orchiectomy, and any other form of surgical treatment to treat gender dysphoria. But coverage is provided for mastectomies, orchiectomies, and certain cosmetic procedures if necessary to treat other qualifying conditions. [citations omitted]

This case turned on Bostock v. Clayton County, a 2020 precedent in which the Supreme Court noted that no one can discriminate on the basis of trans identity or experience without discriminating on the basis of sex, because those categories make no sense without first knowing one’s sex. Bostock interpreted Title VII of the Civil Rights Act of 1964, and Title VII is the section which bans discrimination in employment. As a result Walker had little flexibility to decide otherwise. Indeed the court of appeal for the 11th Circuit on which he sits already had a case directly on point with respect to employee medical benefits and anti-trans exclusions.

That said, Walker was nominated by President Barack Obama and may have enjoyed the result, whether or not he had any choice in his ruling. After all, this is the same judge who ruled Florida’s Parental Rights in Education Act grossly unconstitutional in how it required teachers to use certain pronouns for themselves, whether or not they would choose the same words if they were free to do so.

More than one news outlet called his decision in that case, Katie Wood v. Florida Department of Education, a “rebuke” or “strongly worded.” (NBC was one.) The quote that Yr Wonkette likes second best, which seems not to have made it into much coverage at the time, was this one:

Defendants make the circular argument that while the pronouns and titles Ms. Wood uses in school are a matter of public concern for the State of Florida, they cannot be a matter of public concern for Ms. Wood. But the State of Florida can’t politicize deeply personal matters only to then deprive citizens of First Amendment protections on the ground that those matters are indeed deeply personal.

But if you really want to hear a judge that’s on the side of righteousness and knows it, you have to read his closing in the order enjoining the state from dictating Katie Wood’s pronouns to her.

This Court is reminded of Walt Whitman’s “Song of Myself,” a gleefully sweeping masterpiece of American poetry that opens with these lines:

I celebrate myself, and sing myself,
And what I assume you shall assume,
For every atom belonging to me as good belongs to you.

In sharing her preferred title and pronouns, Ms. Wood celebrates herself and sings herself—not in a disruptive or coercive way, but in a way that subtly vindicates her identity, her dignity, and her humanity. Section 1000.071(3) has silenced her and, by silencing her, forced her to inhabit an identity that is not her own. The State of Florida has not justified this grave restraint, and so the United States Constitution does not tolerate it. Ours is a Union of individuals, celebrating ourselves and singing ourselves and being ourselves without apology.

Yr Wonkette looks forward eagerly to every damn case against Florida’s anti-trans statutes heading right to Chief Judge Mark Walker’s door.

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