“Gender identity is real.” As expected, a judge has blocked Florida’s anti-trans law (at least as applied to the plaintiffs), in a ruling that isn’t even close.
As I wrote here, one part of Plaintiffs' claims are based on parental rights. And indeed, the judge ruled that Plaintiffs are extremely likely to succeed on this claim, among others.
@emilygorcenski on the one hand, I strongly agree. On the other hand, this is going to need to survive appeal to a more conservative appeals court, and I wonder if a less polemic approach would fare better?
@afhomer nah i think it's appropriate. one of the experts for both the florida ahca and florida board of medicine admitted under oath that the ADF recruited him as an expert witness with no prior experience in the area. the scorn needs to be on the record so five years from now it can't be spun as milder.
@NireBryce@afhomer exactly. The record needs to show that this case is a multifaceted group of experts and tested case law against the facebook comments section
It occurs to me that some trans people are lawyers are better suited than me to provide legal analysis over nihilism, but as that doesn’t seem to be happening, I’ll do my best
This ruling grants a preliminary injunction and is pretty narrow in its impact, but it can really be read as a preview as to how forthcoming motions for dismissal/summary judgment could play out.
The matter of law goes around what level of scrutiny should be applied when evaluating an equal protection claim. On the one extreme, strict scrutiny kind of means that the law is assumed unconstitutional by default and the goal is to prove it is very narrowly applied and serves a specific, legitimate interest for the state. On the other hand, rational basis is much more permissive.
Basically, this becomes something of a strategy question: if you are suing the state, you want the court to apply the strictest lens possible, strict scrutiny, as it makes it harder for the state.
At the same time, you also want the ruling to be in your favor under the loosest reading possible, meaning more generous readings for the state still fall in your favor.
Basically, this judge said that it falls somewhere in between rational basis and strict scrutiny. He sets up his reasoning why and explores other cases for and against.
But then he basically says that also that doesn’t matter, because the law wouldn’t even pass the rational basis test
This all goes to the Equal Protection claim. There are other factors to explore. Is trans care medical treatment (yes). Does the state override parental interests in medical care for their children (only if a treatment is unsafe). Is trans care safe (yes, as expert testimony and amici curiae from health orgs show). Are the health orgs biased (of course there is some bias, but the consensus is widespread, and whatever bias they might have is more than overshadowed by the bias shown by lawmakers).
Do defendats’ claims that trans care is banned in europe hold water (no, absolutely not). Do plaintiffs claims over the quality of published research matter (no, this is not a basis for justifying discriminatory treatment). Is the law discriminatory around sex characteristics (yes). Is the law discriminatory around gender identity (yes))
The judge is absolutely not amused by defendants’ appeal that WPATH and others are biased. He cites on the record commentary from Florida lawmakers that shows obvious bias.
@emilygorcenski I don’t think history has ever known a smart fascist. Those who can, do. Those who can’t, lie cheat & steal their way into (temporary) power.
The kicker of this, however, is the judge pointing out how defendants own witnesses undermined them.
Basically he says, “y’all yourself have argued that trans people exist and you aren’t trying to dispute that. Also, one of your expert witnesses is out here filing briefs in other cases undermining your claims.”
There are few things quite so joyous to witness as a thoroughly incandescent judge, and this qualifies. When one not only says "this has no standing" but also provides all the receipts, the Opinion is always a work of art, and this fully applies.
@emilygorcenski Keeping the scope of relief sought narrow is wise at this stage as well. Yes, there are hundreds of thousands, even millions, of trans folks impacted by these laws….but imagine the delay that appointing a special master and holding nationwide hearings to evaluate claims about who specifically is included in the relief orders. No — keep the courts focused on the specific impact of these horrific laws on a small set of specific real plaintiffs.
@mjf_pro i mean he’ll probably enjoin the law statewide soon, it’s just that doing that in a PI opens the PI to a more critical appeal that could then hurt the case later
@emilygorcenski Parental rights are a terrible idea compared to children's rights, but it's probably going to be another couple generations for the courts and legislatures to come around to that thinking, and for now it is nice to see the right wing hoisted on their own petard.
@LinuxAndYarn yep. it is a work of art seeing this argumentation. it will be very hard to uphold this law while keeping parental rights to decisions over their childrens' medical care intact
@emilygorcenski This is definitely good news, but it's worth noting that the ban on telehealth HRT prescriptions and the requirement for said prescriptions to be issued by an MD (rather than an NP or PA-C) remain in place. The fight's not over yet.
@emilygorcenski I'm hoping those go smoothly. What with a judicial apparatus that's a coinflip away from taking mifepristone off the market for completely arbitrary reasons, I'm not going to breathe easy until the dust settles. (To be clear, I'm aware that there's little I can do about the FL situation; however, I'm nervous about the homegrown GOP following suit, especially if control of our governorship changes hands in the next election.)
@dragora it’s different, tho the fears are understandable. Abortion always sat on a shaky legal foundation. This doesn’t. There’s ample case law in the SC and 11th Circuit and nationwide. It doesn’t mean it’s impossible, but it does make it likely that any attempt to keep this law will significantly affect some other right republicans hold dear
@thebitschmaria America is not Denmark, and reading the plaintiffs' claims, and the defendants' defenses, in light of American case law, the likelihood of this bill remaining in place is exceptionally small.
@thebitschmaria I wrote before about it, but one of the plaintiffs' arguments is that the law interferes in parental rights. Parental rights are extremely important to the evangelical movement, so it's likely even a corrupt court wouldn't undertake such an overreach
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