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The feds dispute Florida's arguments on transgender health care ruling

Protesters hold signs at a rally in support of transgender youth, Thursday, Feb. 23, 2017, at the Stonewall National Monument in New York. They were demonstrating against President Donald Trump's decision to roll back a federal rule saying public schools had to allow transgender students to use the bathrooms and locker rooms of their chosen gender identity. The rule had already been blocked from enforcement, but transgender advocates view the Trump administration action as a step back for transgender rights. (AP Photo/Kathy Willens)
Kathy Willens
Protesters hold signs at a rally in support of transgender youth, Thursday, Feb. 23, 2017, at the Stonewall National Monument in New York.

The Biden administration last week asked a federal judge to reject Florida’s attempt to block a new health-care rule that seeks to prevent discrimination based on gender identity.

U.S. Department of Justice attorneys, in a 36-page brief, argued that U.S. District Judge William Jung should deny a preliminary injunction sought by Florida and other plaintiffs in a lawsuit filed in May.

The lawsuit stems from a federal rule, issued in April, that affects programs such as Medicaid and the Children’s Health Insurance Program, which operates as KidCare in Florida.

The rule is designed to help carry out a law that prevents discrimination in health-care programs that receive federal money. The law prevents discrimination based on “sex,” and the rule applies that to include discrimination based on gender identity.

READ MORE: Federal ruling on Florida transgender law welcome, but 'damage has already been done'

Florida contends that the rule improperly seeks to override state efforts to restrict treatments such as hormone therapy and puberty blocks for transgender people — and threatens lost money for the state and managed-care plans that help operate state health-care programs.

But in the brief filed Thursday, the Justice Department attorneys wrote that the lawsuit is “premised on several misapprehensions” about the rule and argued that the preliminary-injunction motion should be rejected.

The brief said, for example, the rule “does not set a standard of care or require the provision of any particular service. Nothing in the rule overrides a clinician’s medical judgment as to whether a service is medically necessary or appropriate for any patient.”

Also, the brief, filed on behalf of the U.S. Department of Health and Human Services and the federal Centers for Medicare & Medicaid Services, disputed a state suggestion that the rule reflects a determination that “gender transition” is medically necessary.

“The rule does not displace the judgment of providers as to the medical necessity of gender affirming care, so long as a refusal of care is not based on animus or bias or a pretext for discrimination,” the brief said.

In addition, the brief pointed to a 2020 U.S. Supreme Court decision in an employment-related case, Bostock v. Clayton County. That opinion said it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

While the health-care rule involves a different law, the brief said the rule “provides that discrimination on the basis of gender identity is prohibited sex discrimination … for that same reason. Plaintiffs’ arguments to the contrary ignore the statutory language and are rooted in hypothetical future disagreements with HHS (the Department of Health and Human Services) about possible applications of the rule that do not reflect anything in the rule itself.”

Gov. Ron DeSantis’ administration and the Republican-controlled Legislature during the past two years have made a series of controversial decisions to prevent treatments for transgender people diagnosed with gender dysphoria. That has included barring Medicaid coverage for treatments such as hormone therapy and puberty blockers.

The decisions — which are similar to moves by Republican leaders in other states — have spurred a series of legal battles that continue to play out.

U.S. District Judge Robert Hinkle last week ruled that a 2023 Florida law and regulations prohibiting the use of puberty blockers and hormone therapy to treat children for gender dysphoria and making it harder for trans adults to access care are unconstitutionally discriminatory and were motivated by “animus” toward transgender people. DeSantis’ administration said it would appeal.

Florida Attorney General Ashley Moody also has joined Alabama, Georgia and South Carolina in challenging a new Biden administration rule on sex-based discrimination in education programs. That lawsuit alleges, in part, that the Biden administration has overstepped its legal authority in extending regulations to apply to discrimination based on sexual orientation and gender identity. The Biden administration has urged an Alabama federal judge to reject the states’ efforts to block that rule.

Plaintiffs in the lawsuit challenging the health-care rule are the state, the Florida Agency for Health Care Administration, the Florida Department of Management Services and the Catholic Medical Association. The Agency for Health Care Administration runs the Medicaid program, which is jointly funded by the state and federal governments. The Department of Management Services oversees a massive health-insurance program for state employees and retirees.

The rule is designed to carry out part of the federal Affordable Care Act prohibiting discrimination in health-care services. But the state contends federal health officials have overstepped their authority and violated a law known as the Administrative Procedure Act.

“Under the (rule), Florida may not refuse reimbursement or coverage for gender-change interventions on the ground that they are ‘experimental’ and not medically necessary health care treatments,” the lawsuit said. “The (rule) would therefore require covering puberty blockers, cross-sex hormones, surgeries and related services to treat gender dysphoria under Florida Medicaid, CHIP (the Children’s Health Insurance Program) and other state programs … contrary to Florida law.”
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