“Unrestrained Puberty”: Notes on the Florida Loss

A ban on pediatric gender medicine is struck down by a crusading judge

“it is fanciful to believe that all the many medical associations who have endorsed gender-affirming care … have so readily sold their patients down the river”

Judge Robert Hinkle, Doe v. Ladapo (2024)

Edited 6/16/2024 to add information, as indicated below.

A federal judge in Florida struck down that state’s ban on pediatric gender medicine (PGM) today, following a trial that took place in December. It’s the second PGM-ban case to get this far, after Arkansas’s ban fell last year. Case documents, including today’s decision, are available at GLAD’s website. It’s called Doe v. Ladapo.

The plaintiffs, who included trans-identified kids and their parents, were represented by GLAD, the National Center for Lesbian Rights, Human Rights Campaign, and some private firms – mostly the same team that’s litigating a PGM ban in Alabama. Added 6/16/24: The judge also relied on a record created in a related case by Lambda Legal, the biglaw firm Pillsbury, and other attorneys. (Links to my coverage of Arkansas and Alabama are at the bottom.)

The judge, Robert Hinkle, was appointed to the bench by President Bill Clinton in 1996, after many years in private practice in Tallahassee. 

Ordinary liberals are ignorant about PGM. This decision is a rude reminder of that. (Place bets in the comments on who Hinkle’s favorite MSNBC anchor is.) In this post I’ll sketch out the legal reasoning and share what aggravated me most.

Please note I have not followed this case before today. I’m assuming everything the judge says about it is true – I’m not checking his citations against a transcript or anything like that.

This case addressed a few related trans legal issues. I’m only focusing on the big one: whether the US Constitution allows states to ban PGM.

The Judge’s Insubordination

A central question of PGM ban lawsuits is whether “transgender status” should be a protected characteristic, like race or sex. If it is, then the state has to meet a higher burden when arguing that its laws related to transgender status are justified. (I wrote about this in more detail regarding Arkansas’ PGM lawsuit, Brandt.)

Florida is within the federal 11th Circuit Court of Appeals. That court decided transgender status is not a protected characteristic in a ruling on an early-stage motion in Alabama’s PGM lawsuit.

Hinkle should have adopted that standard. Instead, he basically says the 11th Circuit might change its mind – and writes as though transgender status is a protected characteristic. (He also argues for reaching the same outcome using the 11th Circuit’s standard; and makes a number of other legal arguments about why he doesn’t need to follow the Alabama precedent.) So it’s likely that the 11th Circuit will reverse him on appeal. But it might not – that Alabama ruling came from a 3-judge panel, not the whole bench sitting “en banc.” 

What’s interesting is Hinkle’s saucy style. He just lays out whatever logic he wants, heedless of precedent. Then he ends many passages with: “Or so this order would hold absent” the 11th Circuit ruling.

The State “Admitted It”

Florida seems to have followed roughly the same playbook as Arkansas, meaning it accepted the basic tenets of PGM but argued kids should wait until their 18th birthday before partaking of cross-sex hormones and elective surgeries. (Again, I have not read Florida’s briefs.)

Here’s how the judge characterized the parties’ gender identity dispute:

“With extraordinarily rare exceptions not at issue here, every person is born with external sex characteristics, male or female, and chromosomes that match. As the person goes through life, the person also has a gender identity—a deeply felt internal sense of being male or female. …The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear. The defendants, speaking through their attorneys, have admitted it.”

I can imagine why gender-critical lawyers might accept the irrational gender-identity framing in certain scenarios – namely when it’s a side issue. With PGM bans, it’s not a side issue. The states need to go for the jugular and discredit the whole gender industry, otherwise the weight of “expert authority” will crush them.

That’s what happened here. Florida tried to fight fire with fire by calling Stephen Levine as an expert witness. He’s a reformist gender doctor who thinks, basically, trans-identified kids should have to sit through a lot of therapy before getting castrated. 

It’s possible to defend PGM bans without an expert witness who believes in gender identity. For example, you could call an expert on athletes’ steroid abuse to testify to the harm testosterone causes to teen girls; then call an expert on youth mental health to explain that withholding T from trans-identified girls doesn’t make them kill themselves.

For Shame, Stephen Levine

Levine also served as an expert witness in Arkansas’ failed defense of its PGM ban. In that case he testified that he opposed the ban. Apparently he pulled the same stunt in Florida:

“Dr. Levine explain[ed] that medical intervention such as puberty blockers and hormones should be carefully prescribed and monitored but not banned[.]”

Levine testified in Arkansas that he had serious concerns about PGM and hadn’t referred a minor for interventions in years. When riding the gender critical media circuit he holds himself out as being very skeptical of PGM. So why does he undermine all his testimony – much of which, in Arkansas, was helpful and smart – by saying he opposes the PGM ban? 

Levine doesn’t actually want to transition kids (right?) so the issue is theoretical for him. He shouldn’t be pontificating on theoretical legal issues. That’s not what doctors are for.

Stephen Levine, please stop saying you oppose laws that you know are protecting vulnerable kids.

The Plaintiffs’ Experts

Unlike Florida’s star witness, the plaintiffs’ experts actually testified in support of their side’s positions. And the judge swooned:

“The record includes testimony of well-qualified doctors who have treated thousands of transgender patients with GnRH agonists and cross-sex hormones over their careers and have achieved excellent results. I credit the testimony of Dr. Dan Karasic (psychiatrist), Dr. Daniel Shumer (pediatric endocrinologist), Dr. Aron Janssen (child and adolescent psychiatrist), Dr. Brittany Bruggeman (pediatric endocrinologist), Dr. Johanna Olson-Kennedy (specialist in pediatrics and adolescent medicine), and Dr. Armand Antommaria (pediatrician and bioethicist). I credit their testimony that denial of this treatment will cause needless suffering for a substantial number of patients and will increase anxiety, depression, and the risk of suicide.”

Yes, that’s Dan Karasic of WPATH Files fame (the trial concluded before that was published). That’s Johanna Olson-Kennedy, who says youth mastectomies aren’t a big deal because girls can get breast implants if they change their mind. And that’s the suicide myth, treated as fact.

I have to wonder if some of those experts gave testimony that was “cumulative,” that is, improperly redundant. It seems the plaintiffs indulged in an ostentatious show of force and Hinkle should have whittled the witness list down.

Meet The Kids

Plaintiff Gavin is a little girl who has always preferred boy clothes:

“Gavin is terrified of puberty because he does not want to develop female characteristics. If Gavin is unable to receive treatment, his mental health will deteriorate. His mother fears she ‘will lose the essence’ of her child.”

Plaintiff Susan is a little boy who has always said he’s a girl:

“For Susan, the benefits [of puberty blockers] outweigh the risks. Susan’s biggest fear is ‘what she calls turning into a boy.’ Susan is fully socially transitioned and known at school as a girl. Denying Susan gender-affirming treatment would be severely detrimental to her mental health. Susan’s parents are committed to ensuring Susan receives necessary care so that she can continue ‘flourishing and living her life like a normal kid.’”

Harms

Apparently Florida did manage to get the downsides of PGM into the record. Here’s what Hinkle makes of them: 

“The defendants assert there are risks attendant to treatment with GnRH agonists (puberty blockers) and cross-sex hormones. Indeed there are. There are legitimate concerns about fertility and sexuality that a child entering puberty is not well-equipped to evaluate and for which parents may be less-than-perfect decisionmakers. There is a risk of misdiagnosis, though the requirement in the standards of care for careful analysis by a multidisciplinary team should minimize the risk. There is a risk that a child later confronted with the bias that is part of our world will come to believe it would have been better to try to pass as cisgender. 

“There also are studies suggesting not that there are but that there may be additional medical risks. An unreplicated study found that sheep who took GnRH agonists became worse at negotiating a maze, at least for a time. Another study showed a not-statistically-significant but nonetheless-concerning decrease in IQ among cisgender children treated for central precocious puberty with GnRH agonists. These and other studies cited by the defendants would surely be rated low or very-low quality on the GRADE scale and, more importantly, are not very persuasive. …

“For some class members, a failure to start GnRH agonists soon will result in unrestrained puberty consistent with their natal sex. They will live with the consequences for the rest of their lives.”

Medical Consensus

In Arkansas, the judge hissed and sneered when confronted with evidence that the “medical consensus” in favor of PGM was manufactured, and that activists were suppressing dissent. Hinkle took this evidence a little more seriously:

“Where there is bigotry, there are usually—one hopes, always—opponents of bigotry. It is hardly surprising that doctors who understand that transgender identity can be real, not made up—doctors who are willing to provide supportive medical care—oppose anti-transgender bigotry.

“It sometimes happens that opponents of bigotry deem opposing viewpoints bigoted even when they are not. And it sometimes happens that those with opposing viewpoints are slow to speak up, lest they be accused of bigotry. These dynamics could affect a medical association’s consideration of transgender treatment. The record suggests these dynamics have affected the tone and quality of debate within WPATH. It is entirely possible that the same dynamics could have affected the tone and quality of debate within other associations. Even so, it is fanciful to believe that all the many medical associations who have endorsed gender-affirming care, or who have spoken out or joined an amicus brief supporting the plaintiffs in this litigation, have so readily sold their patients down the river. The great weight of medical authority supports these treatments.”

Transphobia

Recall the debate about whether transgender status should be a protected characteristic. One of Hinkle’s arguments for saying “yes” is that the PGM ban was motivated by anti-trans “animus.” He defines animus broadly:

“[A]nimus against transgenders includes not only bias of the kind sometimes directed at racial or ethnic minorities or women but also a belief that transgenders should not exist at all—or should not be allowed to pursue their transgender identities.”

Hinkle means that it is wrong to say “there is no such thing as transgender identity–that transgender identity is just ideological or made up or wokeism.” He quotes “hateful comments” from state legislators:

“I can say I’m a porcupine, but that doesn’t make it so.”

“[W]e believe in science, and we believe in biology. And there are X chromosomes and there are Y chromosomes, and what you’re born . . . with is what science said you are. And so you don’t get to play ‘choose your own adventure’ and change it.”

“[W]e cannot speak something into existence that doesn’t exist. We cannot change our sex.”

Hinkle adds:

“Nobody who voted for the bill expressed disagreement or called the sponsors out.” 

A final example of animus:

“One of the sponsors also said the ‘truth is there’s no such thing as someone being able to change their sex.’ This completely misunderstands gender identity and shows, quite accurately, that the sponsor does not believe gender identity is real.”

Buck up, though:

“For some, the denial that transgender identity is real—the opposition to transgender individuals and to their freedom to live their lives—is not different in kind or intensity from the animus that has attended racism and misogyny … In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice.”

No Surgery

Added 6/16/24:

The plaintiffs didn’t challenge the state’s ban on pediatric gender surgery, so that part of the law remains in effect. This is great. In Brandt the plaintiffs pretended gender surgery on minors never happened, yet also attacked the ban on it — and the lawyers for the state didn’t seem to confront that contradiction.

My Strange Bedfellow

Some of the Florida legislators who backed the PGM ban invoked religion in an inoffensive way (“God doesn’t make mistakes”). But then there was this one guy …

“The legislator said to transgender Florida citizens who spoke at the hearing that they were ‘mutants living among us on Planet Earth.’ He raised his voice and said, ‘[T]his is Planet Earth, where God created men, male and women, female!’ He continued: ‘[T]he Lord rebuke you Satan and all of your demons and imps that come parade before us. That’s right I called you demons and imps who come and parade before us and pretend that you are part of this world.’”

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This decision is, to me, a reminder of the importance of humility. Judge Hinkle believes he’s a Disney prince who just rescued the young transgenders of Florida from growing pubic hair. He doesn’t know that gender identity was made up by discredited sexologists and muscled into law by autogynephiles. 

He doesn’t know that a Florida celebrity named Jazz Jennings was castrated at age 17 (“At least insofar as has been shown by this record, no transgender minor has ever been castrated or intentionally sterilized in Florida or elsewhere.”).

He thinks that gender identity is always either “male or female,” and that trans identity is “extraordinarily rare[.]”

He doesn’t know that nice people and his fellow liberals oppose PGM because they think the practice is exploitative, deceptive, cruel, homophobic and misogynistic (“whether based on morals, religion, unmoored hatred, or anything else, prohibiting or impeding a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest”).

Edit 6/16/24:

Hinkle did actually know that trans identity stopped being rare among Florida youths around 2016. He also knew psychiatrists are broadly skeptical of how pediatric gender medicine is practiced because it is not evidence-based, among other damning facts. That’s thanks to an excellent expert report filed by Kristopher Kaliebe, a child and adolescent psychiatrist in Tampa. Among other qualifications, Kaliebe has treated youth diagnosed with gender dysphoria.

Hinkle wrote off the report without naming Kaliebe by simply stating the states’ medical witnesses “testified not based on their professional expertise but based on their ideology.” This is the same legal reasoning the Arkansas judge used to toss out that state’s expert testimony.

I struggle with how to end this. What analysis of Judge Hinkle can I offer? The guy let his ego get the better of him and now kids are going to suffer.

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Related…

• My posts on Arkansas’s PGM ban

• My post on the attorney-ethics imbroglio in Alabama’s PGM ban lawsuit