In March 1990, people with disabilities
made their way up the capitol steps to
demand, and demonstrate the need
for, equal access. The Americans with
Disabilities Act passed four months
later.
© Tom Olin Collection, MSS-294.
Ward M. Canaday Center for Special
Collections, The University of Toledo
Libraries
Civil Rights
Advocating for Access to Health Care
for Transgender People
In May 2023, Lowenstein joined a team of public interest lawyers from the Human Rights Campaign Foundation, the National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders (GLAD), and Southern Legal Counsel in challenging Florida’s ban on transition-related health care for transgender youth. The case, Doe v. Ladapo, got off to a promising start. In June, a federal district court in Florida issued a preliminary injunction preventing the state from enforcing the ban against the parents and children who brought the case. The injunction permitted these families to initiate treatments to postpone puberty in their transgender children, enabling the development of the children’s bodies in conformity with their gender identities. These children were already living as the boys or girls they felt themselves to be, and they risked serious psychological harm if denied the medical care they needed to prevent the development of secondary sex characteristics at odds with their gender identities and lived experience.
The court’s order was refreshingly honest. For example, the court found that “the plaintiffs’ motivation is love for their children and the desire to achieve the best possible treatment for them. This is not the state’s motivation.” The court also held that banning transition-related treatment for trans youth violates the Equal Protection Clause because it discriminates on the basis of sex and on the basis of transgender status, targeting “a discrete and insular minority.”
While the preliminary injunction motion was pending, Florida enacted additional restrictions on transition-related medical care for adults. Unlike children, adults can get treatment, but they must overcome several new barriers to do so.
Worse yet, the United States Court of Appeals for the Eleventh Circuit, which covers much of the Southeast, issued a decision in August that calls into question the preliminary injunction in Florida. The Eleventh Circuit held that an Alabama federal court should not have preliminarily enjoined Alabama’s parallel ban on transition-related care for transgender children. The Court of Appeals reasoned that parents have no right to secure such treatment for their children and that the Alabama ban did not discriminate on the basis of sex. Moreover, the court held that legal classifications based on transgender status do not violate the Equal Protection Clause so long as the restrictions are rational, and the court found several acceptable rationales for the ban on transition care for trans children. The only possible way to challenge such a ban, the court held, is to show that it is a “mere pretext designed to effect an invidious discrimination” against trans people.
The firm argued and won a motion to certify classes of children and adults so that any further court orders will apply to trans people beyond the named plaintiffs. Lowenstein and its co-counsel then returned to federal court for trial in December. The team offered extensive evidence that the Florida ban and restrictions were motivated, as the trial court intimated in its original preliminary injunction decision, “by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities.” We anticipate that the trial court will issue a decision in early 2024.