What we’ve all been waiting for: Third amended complaint and motion for preliminary injunction filed against Florida SB 254 adult trans care restrictions, including the ban on nurse practitioner prescribers and the mandated in-person consent forms

Posted on August 1, 2023 by Zinnia Jones

Key takeaways:

  • SB 254 created arbitrary and capricious roadblocks to nearly every trans adult in Florida seeking to continue their prescribed gender-affirming hormone therapy, with new restrictions and bans on the care we can receive from physicians, nurse practitioners, and telehealth providers. The only purpose of this law was to disrupt our ongoing care.
  • Because most trans adults in Florida receive their hormone therapy prescriptions from nurse practitioners or over telehealth, thousands of trans people have had their existing relationship with their provider severed by a legislative act, leaving a much smaller number of physicians available to handle this large number of patients. On July 21, the plaintiffs in Doe v. Ladapo added new legal challenges to these adult care restrictions.
  • You can help support Florida’s trans community and gender-affirming care providers by donating to SPEKTRUM Health, an NP-led nonprofit gender clinic fighting to restore access to hormone therapy for 2,500 patients, and donating to Southern Legal Counsel, an LGBTQ+ legal nonprofit leading the charge against SB 254’s adult care restrictions.

Since May 17, Florida SB 254 (Chapter No. 2023-90) has severely disrupted the established gender-affirming care prescriptions of thousands of transgender adults in Florida. While SB 254 codifies the Boards of Medicine and Osteopathy’s administrative bans on gender-affirming medical treatment for youth, several of its provisions go much further, obstructing all trans adults from continuing to access their ongoing medically necessary treatment and putting this care entirely out of reach for most people. An estimated 16,200 trans youth and 94,900 trans adults in Florida are affected by these bans – the second-largest population of trans people in the United States. The case Doe et al. v. Ladapo et al., initially filed in March on behalf of transgender minor plaintiffs and their parents, now includes an amended complaint (accepted July 27) with additional challenges to the sections of SB 254 restricting care for adults (ECF No. 114-1).

Background

SB 254 requires that adult trans patients receive gender-affirming prescriptions only from a physician rather than their established providers such as nurse practitioners or physician assistants, requires that physicians use state-mandated “informed consent” forms filled with medical falsehoods, and requires that we provide this initial consent in-person rather than over telemedicine. In this way, trans adults in Florida seeking gender-affirming medical treatment from any provider now face effectively insurmountable obstacles to obtaining this care or continuing to receive their already-prescribed medications.

What’s in SB 254?

SB 254, sponsored by Sen. Clay Yarborough and incorporating Rep. Randy Fine’s similar HB 1421, was signed into law with immediate effect on May 17, 2023, instantly cutting off thousands of trans people from their ongoing medical care:

  • Section 3 effectively codifies the Florida Agency for Health Care Administration’s exclusion of Medicaid coverage for gender-affirming care, prohibiting the use of state funds for these treatments.
    • Status: Section 3 was declared invalid by a June 21 order in Dekker et al. v. Weida et al. (ECF No. 246).
    • Additionally, the now-closed record of the Dekker v. Weida district court trial, including all exhibits and trial testimony, was incorporated into the ongoing Doe v. Ladapo record in its entirety by agreement of all parties (ECF No. 88). For the purposes of the trial, what took place in Dekker v. Weida is now by definition part of what took place in Doe v. Ladapo.
  • Section 4 subsection 8 declares that “sex” is “either male or female” and is defined by genitalia present at birth, sex chromosomes, and “naturally occurring sex hormones”. Subsection 9(a) defines “sex-reassignment prescriptions or procedures” as treatments used “to affirm a person’s perception of his or her sex if that perception is inconsistent with the person’s sex as defined in subsection (8)”.
  • Section 5:
    • Subsection 1 bans providers from offering those defined “sex-reassignment prescriptions or procedures” to minors. 1(a) and 1(b) provide for trans youth currently receiving care to continue this treatment under “standards of practice” to be adopted by the Boards of Medicine and Osteopathy.
      • Status: Sections 5(1) and 5(5) were narrowly enjoined on June 6 in Doe v. Ladapo for three trans youth plaintiffs, their parents, and their healthcare providers (ECF No. 90 at 42-43).
    • Subsection 2 requires providers of gender-affirming care for trans adults to use “informed consent” forms adopted by the medical boards, and requires that these forms be signed in-person, prohibiting the use of telehealth appointments for an initial prescription.
      • These forms were not created and adopted by the boards until July 7, creating seven weeks of uncertainty and disruption for physicians and their patients who had no apparent way of continuing their prescriptions (ECF No. 114-1, ¶ 2).
      • The current forms contain incorrect medical information and misleading statements that would misinform patients, so these mandated forms cannot serve as valid consent (ECF Nos. 115-5, 115-6, 115-7).
    • Subsection 3 restricts “sex-reassignment prescriptions and procedures” to physicians (MDs and DOs), prohibiting nurse practitioners and physician assistants from prescribing these treatments to affirm a trans person’s gender.
      • Until SB 254, nurse practitioners with prescribing authority had been able to prescribe gender-affirming hormone therapy in all 50 states, and gender-affirming uses of certain medications were never previously identified as a target for any regulation of APRN-NPs. Nurse practitioners provide a high quality of care comparable to that of physicians and play an essential role as general and specialist providers throughout the healthcare system (ECF No. 115-8).
    • Subsection 4 requires a new, separate consent form to be signed by trans patients “for any new prescription for a pharmaceutical product not previously prescribed to the patient”.
    • Subsection 5 (narrowly enjoined in Doe v. Ladapo) defines disciplinary action for providers: 5(b) specifies a third-degree felony for those providing this care to trans minors, and 5(c) specifies a first-degree misdemeanor for providing this care to trans adults in violation of section 5(2).
  • Section 6 subsection 5 requires the Florida Department of Health to suspend the license of any provider who violates section 5(1).
  • Section 7 creates civil liability and a cause of action for “personal injury” to a minor resulting from “sex-reassignment prescriptions or procedures”, with a 20-year statute of limitations.

The third amended complaint and associated filings (see “Selected filings in Doe v. Ladapo; July filings”) include four new adult plaintiffs whose access to care was directly blocked by SB 254, and now challenge section 5 subsections 2 through 5, asking that SB 254’s restrictions on trans adults be enjoined (ECF Nos. 115, 115-10). These filings move for a class action encompassing the classes of all trans minors and all trans adults in Florida affected by SB 254’s restrictions, and expanding injunctive relief to these classes (ECF Nos. 120, 121). If the motion is successful, a preliminary injunction could restore the ability of nurse practitioners to prescribe gender-affirming care to all trans Floridians, and the Boards of Medicine rules created due to SB 254 would no longer be binding on physicians providing this care.

Selected filings in Doe v. Ladapo

  • 1 Complaint for declaratory and injunctive relief – 3/23/2023
  • 5 Plaintiffs’ notice of similar case – 3/24/2023
  • 29 First amended complaint for declaratory and injunctive relief – 4/24/2023
  • 59 Second amended complaint for declaratory and injunctive relief – 5/18/2023 (adding challenges to portions of SB 254 sections 4, 5 and 7 that apply to transgender minors)
  • 88 Notice of non-objection – 6/5/2023
  • 90 Preliminary injunction – 6/6/2023 (narrow injunction in favor of three minor plaintiffs and their parents)
  • 108 Notice of appeal – 6/26/2023

July filings

  • 113 Joint report – 7/20/2023
  • 114 Plaintiffs’ motion for leave to file a third amended complaint and join new plaintiffs – 7/21/2023
    • 114-1 Third amended complaint for classwide declaratory and injunctive relief
  • 115 Plaintiffs’ motion for preliminary injunction – 7/24/2023
    • 115-1 Declaration of Kai Pope
    • 115-2 Declaration of Lucien Hamel
    • 115-3 Declaration of Olivia Noel
    • 115-4 Declaration of Rebecca Cruz Evia
    • 115-5 Expert declaration of Dan H. Karasic, M.D.
    • 115-6 Expert declaration of Daniel Shumer, M.D.
    • 115-7 Expert declaration of Dr. Loren Schechter
    • 115-8 Expert declaration of Vernon Langford, DNP, APRN-CNP, FNP-C
    • 115-9 Supplemental expert declaration of Kenneth W. Goodman, PhD, FACMI, FACE
      • 58-1 Expert declaration of Kenneth W. Goodman, PhD, FACMI, FACE – 5/18/2023
    • 115-10 [Proposed] Preliminary injunction order
  • 116 Plaintiffs’ memorandum of law – 7/24/2023
  • 117 Scheduling order – 7/27/2023
  • 120 Plaintiffs’ motion for class certification – 7/31/2023
  • 121 Plaintiffs’ memorandum of law in support of their motion for class certification and appointment of class counsel – 7/31/2023

Press releases

Latest coverage

Selected filings in Dekker v. Weida

  • 199 Plaintiffs’ trial brief – 4/28/2023
  • 200 Plaintiffs’ memorandum of law in opposition to defendants’ motion for summary judgment – 4/28/2023
  • 218 Amended joint pretrial stipulations – 5/8/2023
  • 233 First amended complaint – 5/18/2023
  • 246 Order: Findings of fact and conclusions of law – 6/21/2023
  • 247 Judgment – 6/22/2023

Boards of Medicine emergency rules

  • Emergency 64B8ER23-7: Board of Medicine – Sex-reassignment Standards of Practice in Minors – July 7, 2023 (Notice 27305129) (and Board of Osteopathic Medicine equivalent 64B15ER23-9)
  • Emergency 64B8ER23-8: Board of Medicine – Mandatory Standardized Informed Consent for Sex-reassignment Prescriptions or Procedures in Adults – July 7, 2023 (Notice 27305226) (and Board of Osteopathic Medicine equivalent 64B15ER23-10)

Boards of Medicine “informed consent” forms

From Florida Board of Medicine Online Resources (Board of Osteopathic Medicine forms are equivalent).

Gender-affirming care for minors (puberty pausers and hormone therapy)

Gender-affirming care for adults (hormone therapy and surgery)

Background coverage

About Zinnia Jones

My work focuses on insights to be found across transgender sociology, public health, psychiatry, history of medicine, cognitive science, the social processes of science, transgender feminism, and human rights, taking an analytic approach that intersects these many perspectives and is guided by the lived experiences of transgender people. I live in Orlando with my family, and work mainly in technical writing.
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