Large sections of a 2023 Florida law protecting minors from gender transition procedures were declared unconstitutional on Tuesday. In a 105-page decision (Doe v. Lapado), Federal Judge Robert Hinkle of the Northern District of Florida issued a wide-angle, permanent injunction against the law, replacing an earlier preliminary injunction that applied only to a handful of individuals.
The injunction allows any Florida health care provider — not just doctors — to prescribe puberty-blocking drugs and cross-sex hormones (the prohibition on gender transition surgeries for minors was not challenged) to minors with gender dysphoria as soon as they show the first signs of puberty. The injunction also overturned administrative rules and consent forms that sought to regulate the lucrative gender transition industry.
Hinkle, a Clinton appointee, made no attempt to conceal his political bias in this diatribe. In response to Florida’s plea that legislation was needed because medical organizations endorsing gender transition procedures for minors are practicing “good politics, not good medicine,” he retorted, “if ever a pot called a kettle black, it is here.”
Yet Hinkle himself sullied his bench in the messy muddle of politics. He second-guessed the legislature’s medical fact-finding, with his discussion becoming so granular as to analyze evidence of “‘low’ or ‘very low’ quality as those terms are used in the GRADE system.” Without any basis in law, the judge also substituted his own philosophical tenets for those of the legislature, proclaiming repeatedly that “gender identity is real” and dismissing lawmakers who disagreed as “those who incorrectly but sincerely believe that gender identity is not real but instead just a choice.” If indeed “this is a politically fraught area,” then the appropriate posture for Judge Hinkle would be to defer to the political process.
Hinkle not only defied the legislature, but he also made clear his contempt for his own higher court. The Court of Appeals for the 11th Circuit covers Florida, Alabama, and Georgia. In August, the 11th Circuit vacated a preliminary injunction against an Alabama law that protected minors from gender transition procedures in language Hinkle admitted was “not meaningfully distinguishable from Florida’s.”
In that case (Eknes-Tucker), the 11th Circuit ruled that the district court had applied the wrong level of scrutiny, and that the challengers were not likely to succeed in their arguments that the law violated the Equal Protection Clause of the 14th Amendment by discriminating on the basis of sex or gender identity.
The Eknes-Tucker ruling instantly became binding precedent for all courts within the 11th Circuit’s jurisdiction. Federal Judge Sarah Geraghty, an Obama appointee in the Northern District of Georgia, recognized as much when, after the decision, she stayed her own preliminary injunction of a similar law in Georgia.
Hinkle technically acknowledged the binding nature of Eknes-Tucker, but he made clear that, if he was sitting on the outside, he was standing on the inside. One reason why his opinion was so long was that Hinkle spent dozens of pages griping about why he believed the Eknes-Tucker panel made the wrong decision. At one point, the judge concluded three consecutive sections of his opinion, “or so this order would hold absent Eknes-Tucker.” This is not normal behavior for a lower court opinion; a more prudent judge would have left such open derision of his own superior court on the cutting room floor.
Hinkle even openly rooted for the reversal of the Eknes-Tucker decision he was duty-bound to follow. “One need not question the binding effect of Eknes-Tucker to recognize it might not be the circuit’s last word on this subject,” he suggested. “And if it is the circuit’s last word, it still might not be the federal judiciary’s last word,” referencing an appeal from the 6th Circuit pending before the Supreme Court. Consequently, Hinkle wrote, “the order includes the analysis that would apply both based on, and without regard to, Eknes-Tucker.”
If that’s not insubordination, it’s getting as close to the line as possible.
It should come as no surprise, then, that Hinkle found a way to dodge the Eknes-Tucker ruling and enjoin the Florida law anyways. After disputing several points that Eknes-Tucker did address, Hinkle added, “Eknes-Tucker explicitly did not address animus.” Therefore, Hinkle found “substantial evidence of animus in the adoption of the statute and rules at issue here.” This provided for him a sufficient basis to find that the law violated the Equal Protection Clause. (As to the related parental rights claim, Hinkle did sensibly note that it “neither adds to nor detracts from the equal-protection challenge” but would succeed or fail on the same factual findings.)
Yet the evidence of animus was — how did he put it? — of “poor” or “very poor” quality. Besides a bizarre rant from a single legislator (for a bill that passed overwhelmingly), this supposedly overwhelming evidence of animus largely consisted of the following: “House members, the Governor, and the Surgeon General have said there is no such thing as transgender identity — that transgender identity is just ideological or made up or wokeism.”
That’s called an ideological difference, not discrimination.
Blinded by his own ideological animus towards the law, Hinkle even committed a fairly obvious blunder of jurisprudence. To avoid unnecessary violence to laws passed by the people’s duly elected representatives, judges are supposed to interpret laws in ways that would make them constitutional, if possible. Yet Hinkle speculated about interpretations of what “the statute may mean” that would make it “worse.”
In taking this partisan stand against the Florida legislature, the Florida Medical Boards, and his own federal appellate court, Judge Hinkle believed that he was standing on the right side of history:
“The opposition to transgender individuals … is not different in kind or intensity from the animus that has attended racism and misogyny,” he argued. “In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice.”
To this, Justice Incarnate would reply, “Have you not read that he who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh’?” (Matthew 19:4-5).
Encouraging someone to defy their biology and ruin their fertility — as gender transition procedures always do — is not loving, affirming, or medically sensible. Far better it is to help people accept who God has made them to be, because he controls “the arc of the moral universe.”
This article appeared originally here.
Notice: This column is printed with permission. Opinion pieces published by AFN.net are the sole responsibility of the article's author(s), or of the person(s) or organization(s) quoted therein, and do not necessarily represent those of the staff or management of, or advertisers who support the American Family News Network, AFN.net, our parent organization or its other affiliates.
