The U.S. Supreme Court heard arguments on Dec. 4, 2024, in US v. Skrmetti, a case about Tennessee’s law banning gender-affirming care for minors and if it violates the Constitution’s equal protection guarantee. (Photo by Kevin Dietsch/Getty Images)
A panel of judges seemed inclined to wait for the U.S. Supreme Court to rule on Tennessee’s ban on gender-affirming care for minors before deciding whether to uphold or strike down Florida’s ban, which also restricts treatments for transgender adults.
The U.S. Court of Appeals for the Eleventh Circuit heard oral arguments Wednesday morning in the state’s appeal asking the court to uphold the ban on puberty blockers and hormone replacement therapy for minors with gender dysphoria and increased regulation of treatments for trans adults.
Conservative justices lean toward allowing Tennessee’s ban on gender affirming care
‘Should we wait?’
During the hearing in Miami, two of the judges overseeing the case brought up the pending ruling from the Supreme Court. The conservative-leaning Supreme Court appeared willing to side with Tennessee during the December oral arguments, but a decision likely won’t come until June.
“Should we wait for further legal developments from the Supreme Court before deciding this case?” asked Judge Adalberto Jordan, who was appointed by Barack Obama. “I mean, you have a stay … so the state of Florida is not being harmed at the moment by the district court’s order, in a practical sense — I know the judgment is there — and so I’m wondering whether or not it makes sense to wait at least a little while and see what if anything happens.”
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Lower court deemed the law unconstitutional
A different set of judges of the appellate court in August allowed Florida to temporarily enforce the 2023 law. That decision reversed a July ruling by U.S. District Judge Robert Hinkle in Tallahassee in which he reaffirmed his block on the ban while the case brought by parents of trans kids and trans adults went through appeals.
“It is demoralizing and heart-wrenching to live in a state that has politicized my child’s very existence, weaponizing the power of the state to attack her basic rights and dignities,” wrote Jane Doe, the mother of plaintiff Susan Doe, in a press release following the oral arguments.
“As a mother who simply wants to protect and love my child for who she is, I pray that the Eleventh Circuit will affirm the district court’s thoughtful and powerful order, restoring access to critical health care for all transgender Floridians. No one should have to go through what my family has experienced.”
Court documents identify the parents of the trans children in the case under pseudonyms to protect their privacy. During the December 2023 trial in Tallahassee, Doe wept as she talked about telling her then-12-year-old about the ban. “I didn’t know how to explain to her that there were people in this world who would do this to her,” Doe said on the stand.
Florida is in favor of waiting for the Supreme Court decision
Mohammad Jazil, the attorney representing the state, said it would be better to wait to see if the Supreme Court applies “heightened scrutiny,” or a closer examination typically used to determine if a law violates a constitutional right, in its decision.
In a back-and-forth between Judge Andrew Brasher and the plaintiff’s attorney, Adam Unikowsky, the judge also signaled that the appellate court would wait. Brasher said the Florida and Tennessee laws were the same. However, the Tennessee ban only applies to minors and not adults’ ability to seek transition treatment.
“I’m not trying to make you divine the mind of the district court, but do you think the district court would have reached this result had the Supreme Court said that exactly the same law was constitutional in Tennessee?” Brasher, a Trump-appointed judge, said.
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‘Florida doesn’t need to be right’
Unikowsky maintained that Hinkle ruled adequately in determining that the law was unconstitutional because it was motivated by purposeful discrimination against transgender people and not based on legitimate medical concerns about the treatments.
“What the district court did here is distinguished between a law that’s motivated by a medical justification — like these treatments are just bad for children, and they make them less healthy — rather than a law that’s motivated by just a bare desire for people not to transition,” Unikowsky said.
“It would just be better in the view of the state of Florida if people had secondary sex characteristics corresponding to their natal sex. That’s an interest that the district court characterized as reflective of hostility towards a group of people and it’s an interest the state hasn’t defended.”
Firing back at Unikowsky, Jazil said the notion that the state doesn’t think people should transition was “simply incorrect.” He also said the law came from medical concerns.
“The state of Florida doesn’t need to be right,” Jazil said. “The state of Florida is putting forward the fact that it has concerns about these treatments. Now, whether or not it’s right may be fleshed out down the road as we get more longitudinal studies.”
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