Advocates prepare for legal challenge to ban on transgender medical care for kids

Meanwhile, the rulemaking process has grown more complicated

By: - December 9, 2022 7:00 am

Trans activists left the October 2022 Florida Board of Medicine rule-making committee meeting yelling, “The blood is on your hands,” to conduct a “die-in” protest just outside the meeting. Credit: Erin Reed

The DeSantis administration’s drive to deny gender-affirming care to young people in Florida has been hitting snags, including a split between two key oversight boards and publication of the wrong email address to file public comments by one of those boards.

At the same time, Southern Legal Counsel, which provides legal representation in civil rights issues, along with other LGBTQ+ advocates are gearing up for a court challenge to the ban on such care if it takes effect, according to Simone Chriss, an attorney and director of the organization’s Transgender Rights Initiative.

In a phone conversation this week with the Florida Phoenix, Chriss stressed that the process of adopting new rules related to the care will take some time. No date for the required public hearing had been scheduled as of Thursday.

“While we hope that the Boards of Medicine and Osteopathic Medicine will listen to the myriad patients, parents, physicians, lawyers, and experts who submitted comments urging them not to take this drastic action to ban Florida physicians from providing medically necessary, gender-affirming health care, we stand ready to challenge these discriminatory rules in court if the boards decide to implement them,” Chriss said.

“Similar bans prohibiting doctors and parents from providing and seeking evidence-based medical care for transgender minors have been challenged in other states, and those lawsuits have each resulted in preliminary or permanent injunctions enjoining the state from enforcing the discriminatory bans.”

The process includes a 21-day public comment that allows written responses to the two medical boards, which period ended on Dec. 5, according to the Florida Administrative Register. Administered by the Florida Department of State, the register is published online as part of Florida’s rulemaking process “to increase public access to Florida government.”

The Florida Board of Osteopathic Medicine was established by the state to ensure safe practices by osteopathic physicians, who focus on the musculoskeletal system and preventative treatments, including lifestyle changes, according to the Florida Osteopathic Medical Association.

The Board of Medicine is responsible for ensuring that physicians practicing in Florida meet minimum requirements to ensure safe practices. Both types of doctors can perform surgery and prescribe medicine in hospitals, clinics, and private practices, according to the osteopathic association.

Differing rules

Both boards published proposed transgender-care rules in the Administrative Register on Nov. 14, but the osteopathic rules appear more lenient; their draft language would allow osteopathic doctors to perform nonsurgical treatments for minors enrolled in clinical trials at medical institutions.

But the Board of Medicine refused to approve any such exception in its new set of rules, triggering a divide between the two boards.

Chriss sees both sets of rules as unnecessary, part of a political campaign by the DeSantis administration to marginalize trans youth and their caregivers. Gov. Ron DeSantis argues these therapies are unproven, although they represent the established standards of care in these cases.

“The boards of Medicine and Osteopathic Medicine have pushed forward with a politically-motivated rule-making process to restrict access to gender-affirming care despite the overwhelming weight of the evidence and Florida medical providers with expertise in this area making clear that this will harm transgender children in the state of Florida,” Chriss said.

” I requested public hearings on both proposed rules, as permitted by Florida statute, and we await the notice of public hearing announcing the date, time, and location of these hearings.”

Florida Surgeon General Joseph Ladapo said in written statement following release of the draft rules:

“Friday’s vote from the boards of Medicine and Osteopathic Medicine will protect our children from irreversible surgeries and highly experimental treatments. I appreciate the integrity of the boards for ruling in the best interest of children in Florida despite facing tremendous pressure to permit these unproven and risky treatments. Children deserve to learn how to navigate this world without harmful pressure, and Florida will continue to fight for kids to be kids.”

21-day extension

The process has already been delayed by 21 days due to an error by the osteopathic board, which issued a “notice of change” on Tuesday through the Administrative Register correcting the contact information for executive director Danielle Terrell, according to records.

Terrell has been designated to receive the comments, but the board got her email wrong the first time, listing it as “.com” instead of “.gov,” Chriss told the Phoenix.

As for any public comments already in hand, the state hasn’t released them yet and it’s unclear whether it will. Neither board has responded to multiple requests for details.

On Tuesday, DeSantis appointed three new members to the osteopathic board, including Christopher Creegan, Dr. Monica Mortensen, and Dr. Gregory Williams, according to a press release from the governor’s office.

Gender dysphoria is the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics, according to the Mayo Clinic.

The new rules are both entitled “Standards of Practice for the Treatment of Gender Dysphoria in Minors,” but they differ in one major aspect: The osteopathic board would allow for an exception to the treatment ban for minors undergoing clinical trials through Florida medical schools.

“Nonsurgical treatments for the treatment of gender dysphoria in minors may continue to be performed under the auspices of Institutional Review Board (IRB)-approved, investigator-initiated clinical trials conducted at any of the Florida medical schools,” according to the draft rule for osteopathic doctors.

The clinical trials “must include long-term longitudinal assessments of the patients’ physiologic and psychologic outcomes,” according to the document.

The Florida Department of Health noted in an email to the Phoenix last month that the osteopathic board’s nonsurgical research exception would require “extensive protocols and assessments.”

IRBs are administered through the health department; the surgeon general “appoints all members for a term of three years, which may be renewed,” according to the health department.

“An institutional review board is a committee that reviews research to ensure it is ethical and that participants are protected,” according to the department. “The purpose … is to review research involving human participants to ensure participants are protected and the research meets ethical standards.”

IRBs are housed at various universities in Florida, including the University of Florida in Gainesville and Florida State University in the state’s capital.

At U.F., IRBs “review research involving human subjects to ensure the welfare and rights of research participants are protected as mandated by federal and state laws, local policies, and ethical principles,” according to U.F.’s website.

Advocates speak out

During a joint board meeting on Nov. 4 in Orlando, the osteopathic board approved its clinical trial exception, while the Board of Medicine disapproved that language.

James Lopresti is a mental health counselor and founder of SunServe, a social service agency that works with the LGTBQ+ community, including minors and their families.

“On Nov. 4, they diverged, significantly, which is really an amazing disagreement, and it really could cause a significant amount of confusion for what is to happen,” Lopresti said in a phone conversation.

“So, that means that if a university will have an investigative study about the impact long-term of those prescriptions and hormones then only doctors who are DOs [doctor of osteopathic] would be allowed to participate in that. That’s totally unworkable and we know that. How do you make that happen?”

Bryce Hackmeyer, an advocate for transgender rights, told the Phoenix “the impact would be a very complex enforcement of these rules.”

Only a doctor of osteopathic medicine could “take part in the IRB,” he said. “What struck me during these meetings was the boards’ unfamiliarity of their authority and their ignorance.”

“I would think these physicians would make a very educated decision,” he said. “This was very rushed. A lot of the same points were made repeatedly.”

“My overall, opinionated thoughts on the issue are that the Florida Board of Medicine is overstepping their mandate in a political move to give Gov. DeSantis a win in the broader right-wing culture wars that seem to have seized every level of government in Florida, down to our most local school boards,” May Márquez, a transgender activist, said in an email to the Phoenix.

“Normally, the Board of Medicine only uses its rulemaking powers to restrict procedures that pose a clear and present danger to the public, specifically procedures that have already harmed people and that have caused complaints to be filed to the board.”

How treatment works

Lopresti of SunServe said that, usually, mental health clinicians “trained in the standards of care” for treating youth with gender dysphoria work with families “to help them assess whether the child is consistent in their self-identification as a gender other than the one that was assigned to them at birth.”

Transgender minors undergoing clinical trials at Florida medical institutions could only receive nonsurgical treatments, such as hormone therapies, according to the rules for osteopathic doctors.

“And if that is the case, then that young person is an appropriate candidate for hormone blockers, which delay the process of the development of secondary sex characteristics,” Lopresti said.

He added that there can be complications to these treatments. “But we as mental health professionals only present them” to the doctors, “saying this is what we are observing with the family and the child,” he said.

“And there needs to be a team approach, where the family and the child, the mental health professional involved with the family, and the physician become that team to figure out what is the best move forward for that young person.”

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Issac Morgan
Issac Morgan

Issac Morgan is a 2009 graduate of Florida A&M University's School of Journalism, and a proud native of Tallahassee. He has covered city council and community events at the Gadsden County Times, worked as a sports news assistant at the Tallahassee Democrat, a communications specialist for the Florida Department of Agriculture and Consumer Services, and as a proofreader at the Florida Law Weekly.