Two developments of note from the Eleventh Circuit:
1. On August 15, the Eleventh Circuit granted rehearing en banc of (and vacated) the addled panel ruling from May in Lange v. Houston County that held that Title VII requires that an employer provide health insurance for “sex change surgery” if it provides health insurance for other “medically necessary” services. (Sorry to have missed this one just as I was heading out on vacation.)
2. Today, a divided panel of the Eleventh Circuit issued a stay pending appeal of the injunction that federal district judge Robert Hinkle imposed in Doe v. Lapado. Hinkle’s injunction would prevent Florida officials from enforcing legal provisions that prohibit prescribing and administering puberty blockers and cross-sex hormones to minors as treatment for gender dysphoria and that regulate such treatment for adults with gender dysphoria.
As the majority (Judge Britt Grant and Judge Robert Luck) explains, state officials are likely to succeed on the merits of their appeal for two reasons. 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.” Second, it “likely misapplied intermediate scrutiny to the provisions and rules,” when it should instead have applied more deferential rational-basis review.
The panel also expedited the schedule for briefing and oral argument in the case.