By Hadley Chance | Staff Editor

March 22, 2024

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To be transgender, non-binary, two-spirit, or any gender outside of the binary in the United States can be lonely and scary. It often feels like the other shoe will drop, and suddenly, our rights will be gone. There is an expectation that all will be lost; sometimes, there is nothing to hold on to. While this article will talk about what is gloom and doom-worthy, there are glimmers and sprinkles of light that we can hold on to within the law and outside of it.

The law often feels like it is not on the side of Trans folx, especially when it comes to our healthcare. 2023 brought a massive burst of anti-trans healthcare bills, with a whopping 185 bills, a jump from 35 bills in 2022.[1] As of March 2024, 132 bills have been proposed (and several passed) since the start of this year.[2] These health care bills sway from criminalizing parents of minors seeking gender-affirming care to restricting adults from getting the gender-affirming care they depend on.[3]

Take Florida’s 2023 healthcare bill, titled Treatment for Sex Reassignment, which restricts and overburdens trans adults seeking health care. The law requires transgender people seeking to get new prescriptions or to continue their gender-affirming care to meet with only doctors.[4] This excludes other health practitioners, including far more accessible nurse practitioners and physician’s assistants.[5] Clinics have stopped serving transgender patients seeking gender-affirming care due to these restrictions and the confusion that comes with them.[6]

Florida, luckily for those seeking to protect the right to healthcare for transgender people, has written itself into a corner, creating a potential dunk for a discriminatory challenge on the basis of sex, particularly for the prescription of Hormone Replacement Therapy (HRT) in transgender patients. Another Florida statute states that a nurse practitioner or physician assistant can prescribe any drug so long as they have submitted proof of license and operate under a physician.[7]

HRT is a common treatment used by transgender patients to replace the hormones of their gender assigned at birth with hormones of their actual gender, but trans people aren’t the only people who use HRT.[8] Cisgender women and men use HRT for common health ailments like menopause or hypogonadism.[9] There is no interference in the prescription of HRT to cisgender patients in the Florida Statute. That same statute puts a significant burden on trans folx seeking HRT.[10] Nurse practitioners and physician assistants can still prescribe HRT for cis patients.

With hope and logic, this cannot fly under a Court’s review. In Bostock v. Clayton County, the Supreme Court held that discrimination against transgender people falls under Title VII sex discrimination, which is subject to intermediate scrutiny.[11] Further, the Court defined discrimination as “treating that individual worse than someone similarly situated.”[12] Here, indeed, transgender folks are being treated far worse than their cisgender counterparts, who do not have to jump through hoops to get HRT. Applying Bostock to this context, there is distinct, disparate treatment set out specifically for transgender people.

To pass muster under intermediate scrutiny, Florida’s law must serve important governmental objectives, and the discriminatory means employed must be substantially related to achieving those objectives.[13] As the Florida legislation states no reason for the discriminatory nature of the law or any explanation for why the Florida Legislature specifically decided to change how transgender people (specifically transgender adults) can get prescribed HRT, it is likely to fail when held under intermediate scrutiny.[14]

There are small glimmers where, when challenged in court, this discrimination can be overturned. There is hope that this horrific trend of criminalizing our gender-nonconforming bodies will come to an end. When I look around at my trans friends, I still see hope: two are slated to get top surgery this spring, and I can’t wait to see the queer joy this brings them. I have hope for the future. As more queer lawyers come of age, I know we will give the judiciary hell for trying to erase our bodies. Above all, we will dance, sing, and bring lawsuits to protect each other.

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[1] Tracking the Rise of Anti-Trans Bills in the U.S., Trans Legislation Tracker, https://translegislation.com/learn (last visited Mar. 15, 2024).  

[2] Id.

[3] Minami Funakoshi and Disha Raychaudhuri, The Rise of Anti-Trans Bills in the U.S., REUTERS (Aug. 19, 2023), https://www.reuters.com/graphics/USA-HEALTHCARE/TRANS-BILLS/zgvorreyapd/.

[4] Treatment for Sex Reassignment, ch. 2023-90, 2023 Fla. Laws 254.

[5] See Id. (showing that Florida’s law only allows physicians to prescribe gender-affirming care); see also Jake Miller, A Fourth of U.S. Health Visits Now Delivered by Non-Physicians, HARVARD MEDICAL SCHOOL (Sept. 14, 2023), https://hms.harvard.edu/news/fourth-us-health-visits-now-delivered-non-physicians.

[6] Thalia Beaty et al., Transgender Adults in Florida Are Blindsided That A New Law Also Limits Their Access To Health Care, AP (Jun. 4, 2023), https://apnews.com/article/florida-transgender-health-care-adults-e7ae55eec634923e6593a4c0685969b2.

[7] Fla. Stat. § 464.012 (3(a)) (2023).

[8] Cécile A. Unger, Hormone Therapy for Transgender Patients, Translational Andrology & Urology (Dec. 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5182227/. 

[9] Mayo Clinic Staff, Hormone Therapy: Is It Right For You?, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/menopause/in-depth/hormone-therapy/art-20046372 (last visited Oct. 25, 2023); Mayo Clinic Staff, Testosterone Therapy: Potential Benefits And Risks As You Age, Mayo Clinic, https://www.mayoclinic.org/healthy-lifestyle/sexual-health/in-depth/testosterone-therapy/art-20045728 (last visited Oct. 25, 2023).

[10]See Treatment for Sex Reassignment, ch. 2023-90, 2023 Fla. Laws 254 (showing there is no mention of cisgender patient’s access to HRT).

[11] Bostock v. Clayton Cty. 140 S. Ct. 1731, 1745 (2020).

[12] Id. at 1740 (2020).

[13] Adams v. Sch. Bd. Of St. Johns Cnty., 57 F.4th 791, 801 (11th Cir. 2022) (citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).

[14] Treatment for Sex Reassignment ch. 2023-90, 2023 Fla. Laws 254.