Florida Voters Sue Claiming Invalid Signatures on Abortion Rights Amendment Petitions

Suit was filed last week in a Florida state trial court against election supervisors in 12 Florida counties, as well as against the Secretary of State, other state officials and the sponsors of Amendment 4, a proposed abortion rights amendment that appears on the November Florida ballot. The complaint, brought by four Florida voters, alleges illegal and fraudulent petition signature-gathering efforts. Plaintiffs rely in large part on the Office of Election Crimes and Security's October 2024 Interim Report to Legislature on Initiative Petition Fraud Related to the Abortion Initiative.  The complaint (full text) in Hoffman v. Barton, (FL Cir. Ct., filed 10/16/2024), includes 348 pages of exhibits and alleges in part:

186, Because FPF submitted signatures collected on a pay-per-signature basis, the petition process was substantially infected by fraud and corruption. The substantial fraud and corruption that permeated the election process constitutes a basis for the Court to decertify and strike Amendment 4 from the 2024 General Election Ballot or—if this case is not resolved before the election—to enjoin the State Defendants from counting the votes or, if passed, to enjoin the State Defendants from giving effect to votes cast in favor of Amendment 4.   

187. Although the Secretary of State has issued a certificate of ballot placement, the certificate does not cure the fraud and corruption that infected the petition process. Moreover, if the 2024 General Election occurs prior to the resolution of this action, passage will similarly not cure the fraud and corruption that resulted in Amendment 4’s passage. 

In October, the ACLU responded to the Interim Report, saying in part:

The Secretary of State’s unprecedented and suspiciously-timed report makes nonsensical claims about a few hundred petitions, which would have had no effect on the campaign meeting the statutory requirements. Importantly, the state had an opportunity to file objections to petitions before April, but did not object to the inconsequential petitions for which it is now attempting to sanction and publicly chastise the campaign.

Liberty Counsel issued a press release last week announcing the filing of last week's lawsuit.

Florida Enjoined from Threatening Legal Action Against Broadcasters Airing Pro-Abortion Rights Ads

 In Floridians Protecting Freedom, Inc. v. Ladapo, (ND FL, Oct. 17, 2024), a Florida federal district court issued a temporary restraining order barring the head of the Florida Department of Health from continuing to threaten legal proceedings against television stations broadcasting plaintiff's ads which favor Florida's abortion rights amendment that appears on the November ballot. The Department of Health's general counsel sent letters to Florida television stations contending that the ads constituted a sanitary nuisance under Florida Statutes Sec. 386.01. The statute defines a statutory nuisance as anything "by which the health or life of an individual ... may be threatened or impaired." The court said in part:

Plaintiff’s political advertisement is political speech—speech at the core of the First Amendment. And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is “false.” “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.” ...

By threatening criminal proceedings for broadcasting a “political advertisement claiming that current Florida law does not allow physicians to perform abortions necessary to preserve the lives and health of pregnant women,” ... Defendant has engaged in viewpoint discrimination....

Whether it’s a woman’s right to choose, or the right to talk about it, Plaintiff’s position is the same—“don’t tread on me.” Under the facts of this case, the First Amendment prohibits the State of Florida from trampling on Plaintiff’s free speech.

11th Circuit Reinstates, Pending Appeal, Florida Ban on Gender-Affirming Care for Minors

In Doe v. Surgeon General, State of Florida, (11th Cir., Aug. 26, 2024), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, allowed Florida's ban on prescribing puberty blockers and cross-sex hormones to minors suffering from gender dysphoria to go back into effect, pending appeal of a district court injunction against enforcement of the ban. The district court had concluded that the ban was motivated by anti-transgender animus. (See prior posting.) 

First, the district court likely misapplied the presumption that the legislature acted in good faith when it concluded that the prohibition and regulation provisions, and the implementing rules, were based on invidious discrimination against transgender minors and adults....

... [E]ven if the district court were correct in its animus decision, heightened scrutiny under the Equal Protection Clause does not apply to invidious discrimination based on a non-suspect class, and “[n]either the Supreme Court nor this court has recognized transgender status as a quasi-suspect class.”

The majority ordered an expedited calendar for hearing of the appeal. 

Judge Wilson dissented, saying in part:

First, the district court appropriately recognized the presumption of legislative good faith, but identified sufficient record evidence to support concluding that the act’s passage was based on invidious discrimination against transgender adults and minors....

The district court found that the statute is subject to intermediate scrutiny because it is (1) based on sex and (2) based on gender nonconformity.

Tallahassee Democrat reports on the decision.

11th Circuit Enjoins New Title IX Rules in 4 States, Pending Appeal

 In State of Alabama v. U.S. Secretary of Education, (11th Cir., Aug. 22, 2024), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, issued an injunction pending appeal barring enforcement in Alabama, Florida, Georgia, and South Carolina of the Department of Education's new rules under Title IX.  The new rules define discrimination on the basis of sex as including discrimination on the basis of gender identity. They also reduce the threshold for concluding that conduct amounts to sex discrimination. The majority pointed out:

Before this action, every court to consider the issue across the nation—seven district courts and two courts of appeals— preliminarily enjoined enforcement of the rule.  The district court here, by contrast, refused to enjoin the rule a day before it was supposed to go into effect.

Judge Wilson dissented contending that plaintiffs have not shown the irreparable injury required for obtaining an injunction. ADF issued a press release announcing the decision.

Two Additional Courts Enjoin Enforcement of New Title IX Rules

In addition to the nationwide preliminary injunction against enforcement of the Department of Education's new Title IX rules on transgender discrimination (see prior posting), two other federal district court last week issued more geographically limited preliminary injunctions against enforcement of the same rules. In State of Florida v. Department of Health and Human Services, (MD FL, July 3, 2024),  a Florida federal district court enjoined enforcement within Florida, saying in part:

HHS and the Final Rule interpret Title IX, and hence section 1557, to prohibit discrimination based on “gender identity.” 89 Fed. Reg. at 37,699 (45 C.F.R. § 92.101(a)(2)). The Final Rule is stillborn and a nullity if Title IX does not prohibit discrimination on the basis of “gender identity.” The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity. Adams v. Sch. Bd. of St. John’s Cnty., 57 F. 4th 791, 812–15 (11th Cir. 2022) (en banc). Frankly, this ends the issue—the new Rule appears to be a dead letter in the Eleventh Circuit.

In State of Kansas v. U.S. Department of Education, (D KS, July 2, 2024), a Kansas federal district court issued a preliminary injunction against enforcement of the new rules in Kansas, Alaska, Utah and Wyoming, saying in part:

... [T]he purpose of Title IX was to protect “biological women from discrimination in education[;] [s]uch purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”... The DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education....

... [T]he court finds that the Final Rule involves issues of both vast economic and political significance and therefore involves a major question.... As such, Congress must have given the agency “clear statutory authorization” to promulgate such a Final Rule.....The court finds that Congress did not give such clear statutory authorization to the DoE....

... [T]he Final Rule violates the Spending Clause because it introduces conditions for spending that were not unambiguously clear in Title IX....

The court finds that Plaintiffs have shown that the Final Rule violates he First Amendment by chilling speech through vague and overbroad language.....

 [T]he court finds that the Final Rule is arbitrary and capricious because it offers an implausible explanation for agency action, is a sharp departure from prior action without a reasonable explanation, and failed to consider important interests as discussed herein.

City-Sponsored Prayer Vigil Violated Establishment Clause

In Rojas v. City of Ocala, (MD FL, June 26, 2024), a Florida federal district court held that a prayer vigil in the town square organized by the police department violated the Establishment Clause. The 2014 vigil was planned in order to encourage witnesses to a shooting spree to come forward. The court in a previous decision found that the vigil violated the Establishment Clause, but the 9th Circuit remanded the case after the U.S. Supreme Court in 2022 repudiated the Lemon test and adopted a new test for determining when there has been an Establishment Clause violation. (See prior posting.) Reflecting on the time that had passed since the vigil, the court said:

In the meantime, the Chief of Police, Greg Graham, passed away; the Mayor of Ocala at the time left office; and the Prayer Vigil (which occurred in 2014) has not been repeated. Thus, the Court inquired whether it would make sense to call it a day on this timeworn litigation. But the parties, both represented by lawyers who specialize in First Amendment religion cases, insist on going forward. And, as the Court previously awarded nominal damages, the case is not moot....  So on we go.

Reaching the conclusion that under the Supreme Court's new Establishment Clause test set out in Kennedy v. Bremerton School District there was still an Establishment Clause violation, the court said in part:

Based on the undisputed facts, the City’s involvement in conceiving, organizing, and implementing the Prayer Vigil is government sponsorship of a religious event...

... [T]he City’s support of the Prayer Vigil favored a religious viewpoint. While the Prayer Vigil was geared towards Christianity, there is some evidence that it was not limited to any one faith.... But that thin layer of neutrality is not enough to avoid an Establishment Clause violation....

Similarly, Chief Graham’s offer to connect an objector, Paul Tjaden, with organizers... is not comparable to neutrality....  Trying to achieve neutrality towards religion by inviting an atheist to speak at an event whose only purpose is prayer fails to treat the secular viewpoint with the same level of respect being provided to religious prayer.

As Kennedy commands, the Court bases its decision on a “historically sensitive understanding of the Establishment Clause”....

Florida Restrictions on Gender-Affirming Care Are Unconstitutional

In Doe v. Ladapo, (ND FL, June 11, 2024), a Florida federal district court in a 105-page opinion held unconstitutional many of the provisions in Florida law that ban gender-affirming care for minors and regulate it for adults. The court, analyzing equal protection and substantive due process challenges, said in part:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear….

For some, the denial that transgender identity is real—the opposition to transgender individuals and to their freedom to live their lives—is not different in kind or intensity from the animus that has attended racism and misogyny, less as time has passed but still today. And some transgender opponents invoke religion to support their position, just as some once invoked religion to support their racism or misogyny. Transgender opponents are of course free to hold their beliefs. But they are not free to discriminate against transgender individuals just for being transgender. 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…..

This record includes overwhelming evidence that the House sponsors and a significant number of other House members were motivated by anti-transgender animus. This is clear from their own animus-based statements and from the failure of other members to call them out…..

Banning gender-affirming care for minors across the board in all circumstances, rather than appropriately regulating such care, is not sufficiently related to the legitimate state interest in safeguarding health.  

The ban on care for minors does not survive intermediate scrutiny….

[T]here are some, including the Governor and quite a few members of the Florida Legislature, who believe transgenderism—and thus gender-affirming care—is morally wrong. Enforcing this moral view is not, however, a legitimate state interest that can sustain this statute, even under rational-basis scrutiny….

[W]hether based on morals, religion, unmoored hatred, or anything else, prohibiting or impeding a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest…..

In addition to invalidating the ban on care for minors, the court also struck down various unnecessary limits placed on gender affirming care for adults.

The Hill reports on the decision and says that the state will appeal it.

Florida Authorizes Volunteer Chaplains in Schools

On April 18, Florida Governor Ron DeSantis signed HB 931. The bill (full text) allows school districts to authorize volunteer school chaplains to provide support, services, and programs to students. Schools must require parental consent for students to avail themselves of chaplain's support, services or programs. Liberty Counsel issued a press release announcing the signing of the bill.

Florida Appellate Court Disqualifies Trial Judge from Hearing Custody Case Involving Transgender Child

 In H.S., v. Department of Children and Families, (FL App., April 3, 2024), a Florida appellate court in a 2-1 decision ordered a trial judge to recuse herself from hearing a case in which a father is challenging the Florida Department of Children and Families' removal of a child from the father's custody. DCF contends that the father, who is a Christian minister and youth pastor, is abusive toward the child because he does not support the child's gender transition. The appeals court concluded that:

Here, the father's fear that he cannot receive a fair and impartial hearing before the trial judge is well-grounded and objectively reasonable....

To an objectively reasonable person, the trial judge's pre-hearing remarks were antagonistic to the father and his right to direct the child's upbringing and moral or religious training. Those remarks when taken together—referring to the child by female pseudonyms, telling the child that "you are one smart, strong[,] [t]ogether, young lady," and to "[c]hin up, sister"—implied a foregone conclusion, before hearing the father's motion, that the trial judge was supportive of the child's gender transition before adulthood and opposed to the father's reliance upon his moral or religious beliefs to otherwise direct the child's upbringing.

Furthermore, the trial judge's in-camera interaction with the child went beyond mere attempts to establish a rapport with the child.,,, [T]he trial judge verbally expressed an inclination—again, before hearing the father's motion—to order the father to submit to "professional help," "counseling," or "guidance" from DCF in an effort to change his moral or religious beliefs.

Judge May dissented, saying in part:

Here, the trial judge's attempt to speak with a child in a manner that put the child at ease does not demonstrate the judge's predisposition of the pending issue. In fact, trial judges often take special care to speak with children to ensure they are comfortable in court proceedings; the decision to do so is within a trial judge's discretion.

Volokh Conspiracy has more on the case.

Florida Supreme Court Clears Abortion Rights Proposal for November Ballot

 In Advisory Opinion to the Attorney General re: Limiting Government Interference with Abortion, (FL Sup. Ct., April 1, 2024), the Florida Supreme Court, in a 4-3 decision, rejected challenges to placing a proposed abortion rights constitutional amendment on the November ballot. The proposed amendment provides:

Limiting government interference with abortion.—Except as provided in Article X, Section 22, no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.

The court said in part:

We decline to adopt a standard that would effectively vest us with the power to bar an amendment from the ballot because of a supposed ambiguity in the text of the amendment.  We decline to encroach on the prerogative to amend their constitution that the people have reserved to themselves.

Chief Justice Muniz filed a concurring opinion, joined by Justices Canaday and Couriel concur, saying in part:

... [Q]uestions of justice are appropriately at the heart of the voters’ assessment of a proposed amendment like the one under review.  With its reference to the existence of “inalienable rights” in all persons, our constitution’s Declaration of Rights assumes a pre-constitutional, objective moral reality that demands our respect—indeed, a moral order that government exists to protect.  The proposed amendment would constitutionalize restrictions on the people’s authority to use law to protect an entire class of human beings from private harm.  It would cast into doubt the people’s authority even to enact protections that are prudent, compassionate, and mindful of the complexities involved.  Under our system of government, it is up to the voters—not this Court—to decide whether such a rule is consistent with the deepest commitments of our political community.

Justice Grosshans filed a dissenting opinion in which Justic Sasso concurs. Justice Francis filed a dissenting opinion. Justice Sasso filed a dissenting opinion in which Justices Grosshans and Francis concur, saying in part:

I agree with the majority that, at a very high level, the voters will understand that this amendment creates a broad right to abortion in Florida.  However, our precedent has consistently required that the summary explain more than the amendment’s general aim.  Indeed, we have said that ballot summaries must explain the “material legal effect,” so that the electorate is advised of the “true meaning, and ramifications, of an amendment” and is thereby “adequately informed.” 

The summary here does none of this.

In a separate decision yesterday, the Florida Supreme Court held that the state Constitution's Privacy Clause does not protect abortion rights. (See prior posting.) Orlando Sentinel reports on the two decisions.

Florida Supreme Court Overrules Cases Holding State Constitution Protects Abortion

In Planned Parenthood of Southwest and Central Florida v. State of Florida, (FL Sup. Ct., April 1, 2024), the Florida Supreme Court in a 6-1 decision receded from (i.e. overruled) its prior decisions that held the Privacy Clause of the Florida Constitution protects the right to abortion. Focusing on the original public meaning of the Privacy Clause that was adopted by Florida voters in 1980, the Court said in part:

The Privacy Clause of the Florida Constitution does not mention abortion or include a word or phrase that clearly incorporates it.  Era-appropriate dictionary definitions and contextual clues suggest that abortion does not naturally fit within the rights at issue.  Reliable historical sources, like the technical meaning of the terms contained in the provision, the origin of the amendment, and the framing of the public debate, similarly do not support a conclusion that abortion should be read into the provision’s text.  Roe is also relevant to our analysis of the public meaning of the Privacy Clause.  But speculation as to Roe’s effect on voter understanding does not overcome the combined force of the substantial evidence we have examined above.  Thus, we cannot conclude that in 1980 a voter would have assumed the text encompassed a polarizing definition of privacy that included broad protections for abortion.

The Court thus rejected Planned Parenthood's suit seeking a temporary injunction against enforcement of Florida's 15-week abortion ban. As the dissent points out, however, the decision also has the effect of triggering in 30 days the effectiveness of the state's 6-week Heartbeat Protection Act. That Act, by its terms, was to take effect if the state Supreme Court held that the state Constitution's right to privacy does not protect abortion, if it allowed the 15-week ban to remain in effect or if the Court receded from any of its prior cases protecting abortion.

Justice Sasso filed a concurring opinion focusing on the issue of standing. Justice Labarga filed a dissenting opinion, saying in part:

The majority concludes that the public understanding of the right of privacy did not encompass the right to an abortion. However, the dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy.

In a second case decided yesterday, the Florida Supreme Court cleared a proposed constitutional amendment protecting pre-viability abortion rights for placement on the November ballot. (See posting on decision.)  Orlando Sentinel reports on the two decisions.

Settlement Narrows Interpretation of Florida's "Don't Say Gay" Law

On Monday, a Settlement Agreement (full text) was filed with the U.S. Court of Appeals for the 11th Circuit in Equality Florida v. Florida State Board of Education. In the case, plaintiffs challenged the constitutionality of Florida's Parental Rights in Education Act (sometimes known as the "Don't Say Gay" law). The Settlement Agreement defines narrowly the conduct that is prohibited by the law. According to the Agreement, the law only bans instruction on sexual orientation or gender identity that takes place in the classroom in grades 1-3. It does not ban references by teachers or students that do not amount to "instruction." Library books and extracurricular activities are not impacted by the ban.

In a press release, Florida Governor Ron Desantis' referred to the settlement as 

a major win against the activists who sought to stop Florida’s efforts to keep radical gender and sexual ideology out of the classrooms of public-school children in kindergarten through third grade (5- to 9-year-olds).

Plaintiffs in the case however describe it as a win for them, saying in part:

The agreement effectively nullifies the most dangerous and discriminatory impacts of Florida’s controversial “Don’t Say Gay Law,” and makes clear that the law must be applied neutrally and is no license to discriminate against or erase LGBTQ+ families.

The settlement restores the ability of students, teachers, and others in Florida schools to speak and write freely about sexual orientation and gender identity in class participation and schoolwork. It also restores safeguards against bullying on the basis of sexual orientation and gender identity, and reinstates Gay-Straight Alliances (GSAs). Critically, the settlement also requires the State Board of Education to send today’s agreement to every school district, and to make clear that the settlement reflects the considered position of the State of Florida on the scope and meaning of this law.

Recorded Statements Made to Church Leaders and Pastor Not Privileged

In State of Florida v. Gonzalez, (FL App., Jan. 31, 2024), a Florida state appellate court held that a video recording of a meeting between defendant and some 14 to 20 church leaders (including the pastor) did not meet the statutory requirements for the communication to be privileged. The court reversed the trial court's grant of defendant's motion to suppress the video at defendant's trial for sexually molesting the church pastor's 12-year-old granddaughter. The pastor called the meeting and instructed defendant "that he would need to explain to the church leaders the details of what he had done and that he would need to ask for forgiveness." The court said in part:

We reject the State's attempt to frame the communication here as being made only to S.S. [the victim's mother] and to the other church leaders.  Having viewed the video and reading the transcript therefrom, we conclude that M.S., Gonzalez's pastor, was among the recipients of Gonzalez's communication and, therefore, that part of section 90.505(2) was met. However, the privilege requires more than just a statement being made to a member of the clergy.  The dispute in this case centers on the other requirement: that the communication was confidential.  And that part of the test requires that the communication be "made privately for the purpose of seeking spiritual counsel or advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication."  § 90.505(1)(b)....

Nurse Sues Clinic for Refusing to Accommodate Her Objection to Prescribing Contraceptives

A religious discrimination lawsuit was filed last week in a Florida federal district court by a nurse-practitioner who was fired from her position at a Florida CVS MinuteClinic. The complaint (full text) in  Kristofersdottir v. CVS Health Corp., (SD FL, filed 1/18/2024), alleges that CVS revoked all religious accommodations that allowed employees to refuse to prescribe contraceptives, including the accommodation it had given to plaintiff for more than 7 years.  Plaintiff, a Roman Catholic, objected to prescribing hormonal contraceptives for patients. According to the complaint:

CVS corporate culture changed around 2021. Instead of protecting religious freedom, CVS began to treat religious practice as a source of "privilege."...

CVS never discussed possible accommodation options with Ms. Kristofersdottir even though CVS had numerous ways to provide a reasonable accommodation without undue hardship on the business.

When Florida subsequently passed a law protecting conscience-based objections by employees, CVS offered plaintiff her job back, but she declined the offer. The complaint alleges violations of Title VII and the Florida Civil Rights Act.

First Liberty issued a press release announcing the filing of the lawsuit.

11th Circuit: Transit Agency's Policy Barring Religious Ads Violates Free Speech Protections

In Young Israel of Tampa, Inc. v. Hillsborough Area Regional Transit Authority, (11th Cir., Jan. 10, 2024), the U.S. 11th Circuit Court of Appeals held unconstitutional a public transit agency's policy on the sale of advertising space on its vehicles and property.  While selling advertising space, the agency prohibited ads that "primarily promote a religious faith or religious organization." Applying this policy, the transit agency rejected an ad from plaintiff promoting a "Chanukah on Ice" event. The court concluded that the policy violates plaintiff's free speech rights, saying in part:

Though the analysis would not change one way or another, we’ll assume, without deciding, that the HART vehicles and property at issue here are nonpublic forums as opposed to limited public forums. Even so, when the government restricts speech in nonpublic forums, it “must avoid the haphazard and arbitrary enforcement of speech restrictions in order for them to be upheld as reasonable.”...

Given the inherent ambiguity of the word “religious,” the uncertainty and potential breadth of the term “primarily promote,” and the lack of any definitions, we agree with the district court that the policy fails to provide any objective or workable standards. The policy therefore fails under [the U.S. Supreme Court's decision in Minnesota Voters Alliance v.] Mansky....

Judge Newsom filed a concurring opinion, saying in part:

I'm not sure that any religious-speech restriction could survive a reasonableness inquiry under Mansky—because I’m not sure that any policymaker could define or identify “religious” speech using “objective, workable standards.”

Judge Grimberg filed a concurring opinion, saying in part:

By constructing a policy that is so clearly and completely incapable of reasonable application, HART has successfully evaded a ruling on the viewpoint-versus-subject-matter dispute that is at the heart of this case. And that evaded ruling, in my view, has long been settled by the Supreme Court’s “trilogy” of cases....

Where the same advertisement, with the same content is welcomed when references to religion are removed and replaced with secular ones, I see no way around concluding ... that the public transportation system engaged in unconstitutional viewpoint discrimination.

See prior related posting.

Florida Transgender Teachers Challenge Law That Bars Them from Using Their Preferred Pronouns

Suit was filed this week in a Florida federal district court by three current and former Florida public-school teachers who identify as transgender or non-binary. They challenge a provision of Florida law that bars K-12 teachers from providing students with the teacher's preferred title or pronouns if they do not reflect the teacher's biological sex. The 61-page complaint (full text) in Wood v. Florida Department of Education, (ND FL, filed 12/13/2023) alleges in part:

[The statute] unlawfully discriminates against Plaintiffs on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and Title IX of the Education Amendments of 1972 because whether Plaintiffs may provide to students a particular title or pronoun depends entirely on Plaintiffs’ sex, and Florida has only an invidious basis—not an exceedingly persuasive or even a rational one—for discriminating in this harmful way. It also unconstitutionally restrains Plaintiffs’ speech in violation of the Free Speech Clause of the First Amendment to the U.S. Constitution because it prohibits Plaintiffs from using the titles and pronouns that express who they are, the same way that their colleagues do.

The Hill reports on the lawsuit.

Florida Supreme Court Hears Arguments On 15-Week Abortion Ban

On Friday the Florida Supreme Court heard oral arguments (video of full oral arguments) in Planned Parenthood of Southwest and Central Florida v. State of Florida, (FL Sup. Ct., 9/8/2-23). At issue in the case is a state constitutional challenge to Florida's 15-week abortion ban.  The Florida Supreme Court has links to all the pleadings and briefs in the case.

Consent Decree Affirms Public Accommodation Law Exemption for Catholic Bookstore

 A Florida federal district court entered a Consent Order (full text) yesterday in The Catholic Store, Inc. v. City of Jacksonville, (MD FL, Sept. 7, 2023).  The Order concludes that plaintiff, a privately-owned, for-profit Catholic bookstore qualifies for the religious-organization exemption in Jacksonville, Florida's public accommodation law. This exempts the bookstore from the non-discrimination provisions relating to sexual orientation and gender identity. In its original complaint, the store contended that the public accommodation law would have required that employees address customers using their preferred pronouns and titles, regardless of their biological sex. The store also said it wants to post its Catholic beliefs about sexuality on its website and on social media. (See prior posting.) ADF issued a press release announcing the settlement in the case.

11th Circuit: PLRA Exhaustion Requirement Does Not Include Filing of Rule Change Petition

In Sims v. Secretary, Florida Department of Corrections,(11th Cir., July 31, 2023), the U.S. 11th Circuit Court of Appeals held that the Prison Litigation Reform Act's requirement that prisoners exhaust available administrative remedies before filing suit only requires exhaustion of the prison system's grievance process.  A prisoner does not also have to file a petition with the Department of Corrections seeking a change in its rules.  At issue was the Florida prison system's denial of a request by a Muslim inmate for an exemption from grooming rules that require beards be no longer than one-half inch.

Florida's Ban On Medicaid Payments For Puberty Blockers and Cross-Sex Hormones Is Invalid

In Dekker v. Weida, (ND FL, June 31, 2023), a Florida federal district court held that Florida Statutes §286.31(2) and Florida Administrative Code Rule 59G-1.050(7) which bar the expenditure of state funds, including Medicaid funds, for puberty blockers and cross-sex hormones violate the Equal Protection Clause and the Affordable Care Act's ban on sex discrimination, as well as provisions of the Medicaid Act. The statute and rule also ban Medicaid coverage for gender-affirming surgery, but none of the plaintiffs had standing to challenge these provisions. The court said in part:

The record establishes that for some minors, including Susan Doe and K.F., a treatment regimen of mental-health therapy followed by GnRH agonists and eventually by cross-sex hormones is the best available treatment. They and their parents, in consultation with their doctors and multidisciplinary teams, have rationally chosen this treatment. The State of Florida’s decision to ban payment for GnRH agonists and cross-sex hormones for transgender individuals is not rationally related to a legitimate state interest. 

Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest. The defendants apparently acknowledge this. But the State’s disapproval of transgender status—of a person’s gender identity when it does not match the person’s natal sex—was a substantial motivating factor in enactment of the challenged rule and statute....

The rule and statute at issue were motivated in substantial part by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities. This was purposeful discrimination against transgenders....

Florida Politics reports on the decision.