Previously:
From:
Zinnia Jones and Heather McNamara
Gender Analysis
Seminole County, Florida
To:
Paul Vazquez, J.D.
Executive Director, Board of Medicine/MQA
4052 Bald Cypress Way, Bin #C03
Tallahassee, FL 32399-3253
Danielle Terrell
Executive Director, Board of Osteopathic Medicine/MQA
4052 Bald Cypress Way, Bin #C06
Tallahassee, FL 32399-3256
Re: Proposed Rules 64B8-9.019 and 64B15-14.014 F.A.C. (“Standards of Practice for the Treatment of Gender Dysphoria in Minors”)
Short title: Gender Analysis FLBOM complaint 2
To the Florida Board of Medicine and Florida Board of Osteopathic Medicine:
This message is a followup to our December 2, 2022 complaint and call for a rule hearing on the Boards’ trans youth care bans (Gender Analysis FLBOM complaint 1). Gender Analysis of Seminole County, Florida reiterates our call for the Boards of Medicine to repeal proposed rules 64B8-9.019 and 64B15-14.014 due to extensive irregularities, undisclosed biases and conflicts of interest during the rulemaking process. We repeat our previous objections as stated in our first complaint, and we now bring to your attention several additional issues that have emerged over the past two months. These recent developments further confirm that the trans youth care bans were the fixed outcome of a fatally compromised process and should be invalidated in their entirety by the Boards at the upcoming February 10, 2023 joint meeting.
1. The June 2 GAPMS report and attached expert reports against gender-affirming medical care, which were the basis for the Department of Health’s rulemaking petition to the BOM, were crafted outside of the Agency for Health Care Administration’s normal processes for conducting evidence reviews.
In petitioning the Board to initiate rulemaking targeting gender-affirming care (July 28 petition), the Florida Department of Health cited AHCA’s June 2 GAPMS report, which asserted that there was “insufficient evidence that sex reassignment through medical intervention is a safe and effective treatment for gender dysphoria”. This determination relied on five expert reports solicited by the state of Florida, and as we explained in our previous complaint (see section 1), three of these reports – a majority – were authored by members of the Catholic Medical Association (Quentin L. Van Meter, Patrick W. Lappert, and G. Kevin Donovan). This private organization’s members hold a religious commitment explicitly stating that they can never approve of any transition treatments as part of a standard of care (Declaration of Mario Dickerson, November 4, 2021). Because a majority of the reports were by experts who would never be able to endorse gender-affirming care even if the evidence were overwhelmingly in its favor, the selection of these experts may have served to guarantee the state of Florida’s desired finding against transition treatment.
Recent filings in the case Dekker v. Weida (previously Dekker v. Marstiller) have provided confirmation that the GAPMS report was the result of a non-standard, external, and ultimately illegitimate process. In a June 27, 2022 email, AHCA analyst Jeffrey English explained to chief medical officer Christopher R. Cogle that the June 2 report “did not come through the traditional channels and was not handled through the traditional GAPMS process” (Exhibit 4, January 20, 2023):
If you will excuse me, I feel obligated to include this information: I was not informed or consulted, did not in any way participate, and did not write the GAPMS concerning gender dysphoria treatment. That particular GAPMS did not come through the traditional channels and was not handled through the traditional GAPMS process. Every report I have written represents my best effort at determining the most timely and accurate information available on the subject under consideration. I do not cherry pick data or studies and would never agree to if I were so asked. All I can say about that report, as I have read it, is that it does not present an honest and accurate assessment of the status of the current evidence and practice guidelines as I understand them to be in the existing literature. I sincerely apologize if I come across as a bit agitated about it, but as the “GAPMS guy” around here, lots of assumptions have been made by those who do not know me well. I’m a different sort of person than the author of that report. I can’t speak for them. I conduct myself and my work with integrity and I do not play favorites, yay or nay. Full stop, period.
English, who routinely worked on the process of developing GAPMS determinations for coverage of treatments under Florida Medicaid, believed that this outside report did not present an “honest and accurate assessment” of the evidence for gender-affirming care and sought to distance himself from it for that reason. In a response, Cogle praised English’s assessment: “thank you for standing up for the true credibility of the GAPMS process.” The Florida Board of Medicine accepted the FLDOH’s petition based on a report conducted without credibility and outside of the normal standards that would be applied to a GAPMS determination.
Notably, English described the GAPMS determination process as sometimes taking two years or more:
I believe there are currently about seven completed that are still awaiting review and approval from leadership. Some of them have been written for over two years. I have re-reviewed them and made any necessary updates concerning coverage, research, etc. I typically do that twice a year.
For comparison, the authors of the evidence review in Attachment C (Brignardello-Petersen & Wiercioch, 2022) stated that they began their literature search on April 23, 2022. A privilege log filed by AHCA in Dekker v. Weida reveals that on May 5, 2022, less than two weeks after beginning their search, coauthor Romina Brignardello-Petersen was already emailing AHCA staff Jason Weida, Andrew Sheeran and Devona Pickle on the subject of “Evidence evaluation draft reports” (Exhibit 3, January 13, 2023). This is an extremely abbreviated timeline for a thorough review of any treatment, let alone several treatments under the umbrella of gender-affirming care (puberty blockers, feminizing or masculinizing hormone therapy, and various gender-affirming surgeries). Had the GAPMS determination been conducted through the usual processes of the AHCA, it almost certainly would not have produced the rushed and broadly deficient June 2 report (see Alstott et al., 2022).
Most damningly, Florida Medicaid issued a previous GAPMS determination in 2016 allowing coverage of puberty blockers for the treatment of gender dysphoria (Exhibit 5 in Dekker v. Weida, January 20, 2023):
While the Agency cannot make a blanket determination on puberty suppression therapy for gender dysphoria, we also cannot categorically exclude this treatment for children. Clinical guidelines from the Endocrine Society do recommend this therapy for certain adolescents, albeit based upon a combination of weak and very weak evidence. In certain circumstances, the risks of not treating an adolescent may be worse than the potential long-term consequences of treatment. Moreover, it is noted extensively in the literature that adolescents contending with gender dysphoria often experience a myriad of emotional, physical, and societal challenges. Unresolved, the distress can manifest into a host of behavioral health problems including depression, anxiety, and suicidal ideation and self-mutilation. Florida pays for services for children when they protect life and /or prevent significant disability or harm, in accordance with the state’s medical necessity definition.
Although the evidence was considered weak or very weak, this was not cited as grounds for a blanket coverage exclusion. This necessarily precludes any kind of wider ban on healthcare providers offering this gender-affirming care regardless of insurance coverage, as required by the Boards’ trans youth care bans. The June 2, 2022 GAPMS determination similarly found the evidence for gender-affirming care, including puberty blockers, to be “low or very low quality”, but now recommended a blanket coverage exclusion. This indicates that the quality of the evidence was irrelevant to this coverage decision, serving as mere pretext for the arbitrary and capricious determination of the June 2 report.
2. The GAPMS determination and attached reports are the subject of an ongoing legal dispute regarding whether they were developed to provide an objective evaluation of evidence or to assist one party’s arguments in litigation.
In Dekker v. Weida, the AHCA attempted to claim that emails between AHCA staff and the expert report authors should be excluded from discovery on the grounds that these are privileged work products (Exhibit 3, January 13, 2023). However, this privilege can only be asserted when the work was “prepared with the primary motivating purpose of aiding in possible litigation” (Plaintiffs’ motion to compel production, January 20, 2023). In a January 31 order, the court ruled that if these reports were intended to advance an argument in litigation, AHCA could not also claim that the development of these reports was the organic result of a good-faith effort to evaluate evidence objectively (Amended order compelling discovery, January 31, 2023):
One issue resolved against the defendants at the hearing was their claim of work-product protection for communications with experts in the rulemaking process. The experts provided opinions ostensibly relied on as a basis for the rule that was later adopted and that the plaintiffs now challenge. … The defendants do not assert documents created solely in connection with that process are protected. But they say these documents were created not only for rulemaking purposes but also for use in litigation they knew would come after adoption of the rule.
… Davis holds that work-product protection can apply to a document created when litigation was not imminent, if the “primary motivating purpose behind the creation of the document was to aid in possible future litigation.” Davis, 636 F.2d at 1040. Even if this leaves room in an appropriate circumstance for protection of documents created for dual purposes — not just when the primary purpose was to aid in future litigation — the experts at issue here were an essential part of the mandated rulemaking process. Either the experts were retained to assist in an honest evaluative process — in which event their communications were not within work-product protection — or the rulemaking process was a sham and the real goal was to prevail in the anticipated litigation — a possibility the defendants could embrace to win the discovery battle only by acknowledging that the rulemaking process was fatally flawed, or nearly so. At the hearing, the defendants denied that the rulemaking process was flawed or that the experts’ opinions were not actually considered as part of that process.
Nonetheless, Matthew Brackett – the AHCA program consultant who authored the GAPMS report outside of normal processes – has stated that these experts were only included in anticipation of litigation (Declaration of Matthew Brackett, January 25, 2023):
14. Normally, GAPMS reports do not contain reports from experts. See Attachments G-K. However, because litigation was practically guaranteed, the agency sought expert reports from Dr. Brignardello-Petersen, Dr. Cantor, Dr. Van Meter, Dr. Lappert, and Dr. Donovan, and attached those reports to the GAPMS Report.
If the GAPMS determination and attached expert reports were prepared for the purpose of supporting one party’s arguments in a legal dispute, there is no place for them in this nonpartisan state agency’s process of developing scientific evaluations of evidence. These evaluations are meant to account for the state of the evidence evenhandedly regardless of the outcome; they are fundamentally not meant to be crafted around the goal of advancing one side’s case in court. Internal communications regarding the origin and intentions of these reports are a subject of ongoing litigation in Dekker v. Weida, and relevant information is almost certain to emerge over the next several months prior to the scheduled trial in May. Because this pending information may come to bear on the key legal question of whether the GAPMS determination was intended for policy or for litigation, the Boards should indefinitely postpone any enactment or consideration of the trans youth care bans that were based on this determination.
3. By advancing the trans youth care bans, the “apolitical” Boards of Medicine have facilitated the clearly political goals of the Agency for Health Care Administration and the Executive Office of the Governor.
At the November 4, 2022 joint meeting of the Boards, BOM executive director Paul Vazquez stated that these are intended to be apolitical agencies:
[03:26] PAUL VAZQUEZ: The Boards of Medicine and Osteopathic Medicine are apolitical bodies that have the primary mission of protecting the people of the state of Florida. As with any issue before them, the boards intend to look at the available science and appropriate standard of care, while putting aside any personal feelings on the issues before them today.
This is incompatible with the BOM’s choice to act on a rulemaking petition that emerged from the politically-motivated AHCA reports. The AHCA’s privilege log indicates that AHCA employees Jason Weida, Josefina Tamayo, Simone Marstiller, and Mary Clemmons-Hare had a series of email conversations from August 15-16, 2022 on the subject of “ADF Celebration of Promise to America’s Parents” (Exhibit 3, January 13, 2023). This includes an email to Maureen Furino at the Executive Office of the Governor, noted as “Email between AHCA General Counsel and EOG General Counsel’s Office regarding ADF request to interview Chief of Staff.” On August 19, AHCA chief of staff Jason Weida appeared at the Alliance Defending Freedom’s “Celebration of the Promise to America’s Parents” conference and spoke with ADF senior counsel Matt Sharp:
[1:26:50] MATT SHARP: And I really do encourage those that are tuning in today, download this report, it’s fantastic, it is thorough, it is well documented, it is that exact quality evidence that’s so often lacking from the Biden HHS. And it ought to be something that should serve as perhaps a model for other states to follow of doing this investigation, doing the work to help guide doctors of what is best for children. It is not what’s being pushed by HHS and some of these other radical groups, but is the exact type of evidence that you described there. Final question for you: we’ve talked about the Promise to America’s Parents today, and one of those aspects of the promise is helping parents be empowered to make the best medical decisions for their children. So in your view, how does what Governor DeSantis in Florida and in your department, how is what you’re doing helping fulfill that promise of keeping parents in charge of making best medical decisions for their kids?
[1:27:45] JASON WEIDA: Absolutely, and before we get to that, our report is very easy to find. If you go to the Agency for Health Care Administration in Florida, you Google that or you can just Google ‘Let Kids Be Kids Florida’. We have a whole website that lists not only the report, we refer to it as the GAPMS report, but also all the expert reports that were attached to it and a bunch of other resources. So I encourage everybody to look at that if you haven’t already. But you know, I want to make clear, and other people have said this too but it’s very important, and as a state official I think it’s important that I say it here, is that government should never take the place of a parent. And in Florida, you know, thanks to the leadership of Governor DeSantis, we have been able to take a parent’s rights approach to legislation over the last couple years. And you see this earlier this year in 2022, the governor signed the parental rights in education bill. The year before that, he signed a parent’s bill of rights bill. And this is just the beginning. Thanks to his leadership, we’re going to continue going down the path that Florida has been going, and so just stay tuned for more to come out of Florida.
Weida has openly acknowledged that the GAPMS report was meant to further Governor DeSantis’ goals within a framing of parental rights, and clearly considers the AHCA to be cooperating enthusiastically in the ADF’s overarching “Promise to America’s Parents” campaign, which accuses schools of promoting “the falsehood that a boy can become a girl or vice-versa”. Participation in this activity is unambiguously political: the Alliance Defending Freedom is a conservative Christian legal and political advocacy group with an extensive history of anti-gay and anti-trans activity. The ADF has litigated against conversion therapy bans (Tingley v. Ferguson) and argued on behalf of the Catholic Medical Association and others to criminalize gay sex in Lawrence v. Texas (Brief in support, February 18, 2003). Matt Sharp has expressed the ADF’s opposition to trans people’s genders and gender-affirming care in broad terms regardless of age, declaring that the group believes “gender ideology attacks the truth that every person is either male or female” (New York Times, January 25, 2023). This is an explicitly political movement animated by an ideology that opposes any meaningful presence of queer and trans people in society.
Executive director Vazquez states that the role of the Board of Medicine is to “look at the available science and appropriate standard of care, while putting aside any personal feelings on the issues”. Yet AHCA’s chief of staff has presented the GAPMS report, cited in the petition to the Board, as serving a political agenda of “parental rights”. This rhetorical framing is a misdirect and an obvious fig leaf: the actions of AHCA and the BOM have intruded on parents’ rights to determine that transitioning is the best medical decision for their trans child. Meanwhile, trans adults on Medicaid – including transgender parents – no longer have their medically necessary transition treatments covered as a result of the AHCA’s incoherent and partisan interpretation of “parental rights”.
As apolitical agencies, the Boards of Medicine should not be participating in a political campaign to advance the agenda of Governor DeSantis. Unfortunately, DeSantis has additionally politicized the BOM rulemaking process by using the public comments on the proposed bans as an audition: first identifying doctors who will support the trans youth care bans, and then appointing them to the “apolitical” Boards to promote his agenda on this one issue. Dr. Gregory J. Coffman of Orlando Health Physician Associates sent a letter in support of the ban to the BOM on September 19, 2022 in advance of the October 28 joint meeting (p. 518 of the October 28 public book), and was appointed to the Board of Medicine on December 28, 2022. Dr. Matthew R. Benson and Dr. Monica M. Mortensen at Nemours Children’s Health Jacksonville submitted a letter supporting the ban on September 26 (pp. 1308-1313 of public book); Mortensen was then appointed to the Board of Osteopathic Medicine on December 6, and Benson was appointed to the BOM on December 28.
Appointing board members for a political purpose – advancing one item of the governor’s right-wing agenda against a minority group – is contrary to the purpose of the Boards, undermining both their credibility and their competence in addressing a wide variety of significant regulatory and public health issues. For example, new Board members Benson and Mortensen argued in their letter that “nonjudgmental exploratory psychodynamic therapy” should be provided as an alternative to gender-affirming medical care. However, their sources in support of this “therapy” included a case report of a trans teenager who was held against their will in a psychiatric hospital for nearly two years until they disavowed their gender (Davenport & Harrison, 1977), a clearly judgmental and alarmingly coercive approach that would substantially disrupt any adolescent’s development and socialization. The Boards of Medicine have no place supporting this as an appropriate treatment for the transgender youth of Florida.
Benson and Mortensen’s other sources consist of small case series and low-quality expert opinion from several individuals working with the fringe anti-trans group Society for Evidence-Based Gender Medicine (SEGM) (D’Angelo et al., 2021; Levine & Lothstein, 1981). Members and affiliates of SEGM have played key roles in the AHCA and BOM rulemaking process, including AHCA expert report author Quentin Van Meter and Dr. Patrick K. Hunter on the Board of Medicine. The AHCA’s privilege log in Dekker v. Weida also shows that chief of staff Jason Weida was corresponding with SEGM’s Ema Syrulnik on June 29, 2022 on “Followup thoughts” (Exhibit 3, January 13, 2023); this was noted as “Email between General Counsel, Chief of Staff, and consultant regarding GAPMS Report.” Although SEGM endorses an “exploratory psychotherapy that is neither ‘affirmation’ nor ‘conversion’” in D’Angelo et al., SEGM affiliate Quentin Van Meter has told a religious conference that “what we all agree on is that the affirmation, from social to medical to surgical, is an abomination for these children, it is the wrong thing to do” (God’s Voice conference, “The Growing Deception of Transgender Medicine”, 53:23). This approach is not an open-ended exploration, but a gender identity change effort. SEGM’s Stephen Levine, a clinical supervisor of AHCA’s paid expert witness Miriam Grossman (purchase order C0550C), attended a May 2022 panel with other SEGM members on “psychotherapy helping people to desist, what we call desist or detransition through psychotherapy” (Deposition in Brandt v. Rutledge). Additionally, Levine acknowledged in the foreword to Evans & Evans (2021), a book coauthored by SEGM’s cofounder Marcus Evans, that there is not compelling data for this exploratory psychotherapy:
What is known about the outcome of psychotherapies for trans-identified young people and adolescents? This book’s erudite chapters about highly defensive intrapsychic development provide evidence that some psychotherapies can enable some patients to decide to desist from a trans identity. Those of us who have faith in the benefit of such work regardless of the patients’ ultimate decisions about their gender expressions do not have compelling data to support our faith.
The political appointments of Matthew Benson and Monica Mortensen have thus established a voice for evidence-free, faith-based anti-trans conversion therapy at the Boards of Medicine, in furtherance of one Republican governor’s partisan agenda. This spiraling travesty illustrates why the Boards must repeal the trans youth care bans and refuse to participate any further in this right-wing political campaign against transgender equality. Additionally, Board members Dr. Monica Mortensen, Dr. Gregory Coffman and Dr. Matthew Benson should be required to disclose any communications on trans health and policymaking with the Executive Office of the Governor, the AHCA, and members of SEGM and related groups (including but not limited to Gender Exploratory Therapy Association, Genspect, Institute for Comprehensive Gender Dysphoria Research, American College of Pediatricians, Catholic Medical Association, Christian Medical & Dental Associations, Explore Consultation, and the Integrated Psychology Clinic). These members should then resign to prevent further damage to what little public trust remains in the apolitical Boards.
(For additional information on gender exploratory therapy, please see Gender Analysis, “Florida’s newest Boards of Medicine appointees wrote an anti-trans letter calling for gender ‘exploratory’ therapy”, January 29, 2023.)
4. Numerous individuals participating in the rulemaking process have a history of involvement with organizations advocating dangerous anti-gay conversion therapy.
Several AHCA expert report authors, at least one member of the Board of Medicine, and multiple expert witnesses retained by Florida during this process hold memberships in conservative Christian activist groups that have endorsed anti-gay conversion therapy. Quentin Van Meter is president of the American College of Pediatricians (ACPeds), a group that originated in 2002 to protest the American Academy of Pediatrics’ support of same-sex adoption. In May 2017, ACPeds coauthored a letter with the Catholic Medical Association and Christian Medical & Dental Associations in opposition to bans on anti-gay conversion therapy (“ACPeds, AAPS, CMDA and CMA Support Minors’ Right to Therapy”). Their letter promoted therapy for “exploring potential factors” allegedly “underlying” same-sex attraction, such as “social media use and social contagion”. The authors incorrectly assert that sexual orientation change efforts – what they call “heterosexual affirming therapy” – are not harmful, and that adults can “increase their heterosexual potential in psychotherapy”. The Catholic Medical Association has independently issued statements and publications endorsing anti-gay conversion therapy: “Homosexuality and Hope” (2003) promotes the Catholic Church’s official ex-gay group Courage International as a way to achieve “freedom from homosexual behavior”, and “The Holy Alliance” (2019) directs readers to the Alliance for Therapeutic Choice, formerly known as NARTH.
As previously noted, AHCA expert report writers Quentin Van Meter, Patrick W. Lappert and G. Kevin Donovan are also members of the Catholic Medical Association; Lappert additionally serves on the board of Courage International. DeSantis appointee Dr. Patrick K. Hunter on the Board of Medicine is a CMA member as well. Andre Van Mol, a member of both ACPeds and CMDA, served as a state-selected expert at the July 8, 2022 AHCA rule hearing and submitted a declaration in Dekker v. Weida (Redacted defendants’ appendix, October 3, 2022). Miriam Grossman, who also appeared as a state expert at the AHCA hearing, is a “psychiatric consultant” with ACPeds (Trumbull, Cretella & Grossman, 2015) and has personally endorsed anti-gay conversion therapy in her work with clients (Grossman, February 13, 2013). Finally, the founding president of ACPeds Dr. Joseph Zanga submitted a declaration in support of the AHCA in Dekker v. Weida.
To be absolutely clear, anti-gay and anti-trans conversion therapies are ineffective, unproven, and inherently dangerous. These unscientific therapies are rejected by major professional medical organizations (Forsythe et al., 2022):
Sexual orientation and gender identity change efforts (SOGICE) (also called conversion therapy) are dangerous, discredited practices rooted in false beliefs that being lesbian, gay, bisexual, transgender, queer, or questioning (LGBTQ) is pathologic. Based on evidence that SOGICE is ineffective and detrimental, the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, and other medical, mental health, and human rights organizations formally oppose it.
United Nations expert on sexual orientation and gender identity Victor Madrigal-Borloz has said conversion therapies are “inherently discriminatory, that they are cruel, inhuman and degrading treatment, and that depending on the severity or physical or mental pain and suffering inflicted to the victim, they may amount to torture” (UN OHCHR, July 13, 2020). Conversion therapies are intrinsically and unavoidably pathologizing toward sexual and gender minorities: they reduce being gay or trans to a temporary illness afflicting straight cis people, rather than an equal human existence lived out every day by thousands of Floridians.
It should be alarming to the Boards that this rulemaking process intimately involved at least seven individuals from groups promoting these discriminatory and cruel practices. Their extensive infiltration makes clear that this is not a narrow effort focused only on limiting access by minors to certain gender-affirming treatments, but part of a broader agenda to prevent anyone of any age from being queer or trans. The Boards of Medicine cannot ethically participate in this partisan, unscientific, inherently prejudiced endeavor. By continuing to support the trans youth care ban, the Boards are recklessly risking the health and safety of the public they are charged with protecting.
We again call on the Florida Board of Medicine and Florida Board of Osteopathic Medicine to repeal proposed Rules 64B8-9.019 and 64B15-14.014 F.A.C. or indefinitely postpone these rules from taking effect.
Zinnia Jones, Gender Analysis
Heather McNamara, Gender Analysis
February 7, 2023
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