U.S. District Judge Robert Hinkle on Wednesday upheld Florida’s rule preventing Medicaid coverage of gender-affirming care for patients of all ages, denying the preliminary injunction sought by the transgender people affected by the policy. The state’s ban on Medicaid coverage disproportionately affects low-income trans people and went into effect on August 21.
The judge’s denial means that relief will not come to trans people affected by the policy as the lawsuit against the rule, led by the Southern Legal Counsel in coordination with Lambda Legal and other groups, continues to work its way through Tallahassee's district court with a new trial date. One of the plaintiffs who sought the move explained to The 19th the effect the Medicaid rule had on their family.
Jade Ladue, parent of K.F., a 13-year-old transgender boy named as a plaintiff in the lawsuit, worries that her son’s anxiety, stomach pains and night terrors will come back if his gender-affirming care was interrupted through the Medicaid coverage ban.
K.F., referred to by his initials in the lawsuit to protect his privacy, receives puberty-blocking medication through an implant that was covered by Medicaid. Ladue attributes her son’s improved mental health to being able to access the care, but also to him being accepted by the family and feeling able to live as himself.
The implant may not be working as effectively as his doctors want it to. If his blood work doesn’t improve by December, K.F. will have to switch to injection medication — which costs about $3,000 out of pocket per dose. Ladue, the sole income earner for her family in Sarasota County, would not be able to afford the medication without Florida Medicaid coverage.
“We live pretty much paycheck to paycheck at this point,” Ladue said. Her family has offered as much support as they can give, but that still wouldn’t cover the monthly costs. “There’s no way we could afford a few grand every month, a couple months.”
Without Medicaid coverage, either getting K.F. his next implant or switching to injected puberty blockers would cost the family money they don’t have. And next year or around his 15th birthday, K.F. may want to start taking testosterone as part of his transition to align his gender expression with his identity.
Seven other states currently exclude gender-affirming care from Medicaid programs, according to the Movement Advancement Project, which tracks LGBTQ+ policy nationwide. In 2019, the Williams Institute found that 152,000 trans adults across the country are enrolled in Medicaid — and many had uncertain access to gender-affirming care.
And even in states without Medicaid exclusions, the care that is covered isn’t always comprehensive, according to a new analysis from the Kaiser Family Foundation.
Only two states — Maine and Illinois — told KFF in a survey conducted last summer that their Medicaid program covers gender-affirming counseling, hormones, surgery, voice therapy and fertility assistance for transgender enrollees. Forty-one states responded to the survey.
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Simone Chriss, an attorney with the Southern Legal Counsel in Florida and director of the organization’s transgender rights initiative, said that while Hinkle’s decision was disappointing, the judge’s reasoning for dismissing the preliminary injunction also offers the plaintiffs a new road map for how to respond during trial.
Hinkle’s dismissal was based on the plaintiffs not bringing claims under the Medicaid Act, she said.
“This is not the end of this by any means,” Chriss said. “I don’t want folks in the state of Florida to feel hopeless … we’ll be fully prepared to make our case.”
Chriss and other attorneys representing the plaintiffs argued that a preliminary injunction was necessary due to “immediate and irreparable harms” the Medicaid coverage ban caused trans Medicaid beneficiaries, including loss of medical care.
Florida’s Agency for Health Care Administration (AHCA), the agency which oversees the state’s Medicaid program, denies that restricting gender-affirming coverage would harm transgender plaintiffs, claiming — in stark opposition to current research — that “most of those with gender dysphoria revert to their birth sex.”
The latest standards of care by The World Professional Association for Transgender Health find that deciding to detransition — to stop the physical effects of medically transitioning for a variety of reasons, including no longer identifying as trans — appears to be rare, and that research often conflates detransitioning with a change in gender identity.
The 2015 U.S. Transgender Survey, the most in-depth examination of transgender life in the country, found that over 60 percent of respondents who detransitioned — roughly 8 percent of everyone in the survey — did so temporarily. Most respondents said they took that route because of family pressure and discrimination, rather than realizing gender transition was not the right path for them.
The Southern Legal Counsel and other groups argue that excluding gender-affirming coverage from Florida Medicaid violates the Equal Protection Clause of the 14th Amendment and Section 1557, the nondiscrimination provision of the Affordable Care Act, by discriminating against transgender Medicaid beneficiaries based on their sex, nonconformity with sex stereotypes and gender identity.
In response, the AHCA says that it is not unlawful or sex-based discrimination to deny Medicaid coverage for procedures treating gender dysphoria — even when those same treatments would be covered for cisgender people under different circumstances, like mastectomies. That stance is at odds with proposed Section 1557 protections sought by the Biden administration. The proposed rule, which just left public comment, would prohibit insurers and healthcare providers that get federal funding, including state Medicaid agencies, from denying services as part of gender-affirming care when that insurer still provides that service to patients for other purposes — if such a denial is based on sex or gender identity.
The AHCA did not return a request for comment on the preliminary injunction, or the agency’s response to it, ahead of Wednesday’s hearing.
Hinkle’s decision on the state’s Medicaid coverage ban comes after another federal judge in Florida this month threw out a lawsuit against the state’s law restricting classroom discussion of gender and sexuality, nicknamed the “Don’t Say Gay” bill by opponents. The judge declined to rule on the constitutionality of the law, but found that the plaintiffs were unable to prove they had standing to make a challenge — and that harm described by the plaintiffs was not tied to enforcement of the law, The Tampa Bay Times reports.
August Dekker, a 28-year-old trans man living in Hernando County, Florida, who is also a plaintiff in the Medicaid case, has been able to maintain his hormone prescription since the Medicaid exclusion went into effect thanks to testosterone’s maximum pre-authorization limit of six months. Since his last Planned Parenthood appointment was in June, he doesn’t have to renew his prescription — and risk losing care — until December.
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