On June 6, Judge Robert Hinkle ruled that Florida’s new law prohibiting doctors from prescribing puberty blockers and cross-sex hormones to minors is unconstitutional, at least as applied to the plaintiffs in the lawsuit.
While the result is astounding, even more shocking (and dangerous) is the reasoning behind Judge Hinkle’s opinion. At the outset of the opinion, he writes, “The elephant in the room should be noted.” The proverbial “elephant” Judge Hinkle references is the so-called “reality” of gender identity. “Gender identity is real,” he continues, and thus “pushing individuals away from their transgender identity is not a legitimate state interest.”
Just pause for a moment. A federal judge is declaring that a highly controversial and politically charged ideology is true — and he is using that same ideology as the cornerstone of a legal opinion that ultimately strikes down the will of the people of Florida. This is shocking for several reasons, two of which will be discussed here. (READ MORE: ‘Conversion Therapy’ in Supreme Court’s Dock in Tingley v. Ferguson)
Legitimate State Interest
Judge Hinkle asserts that Florida has no “legitimate state interest” in preventing minors from receiving puberty blockers and cross-sex hormones. But what does he mean when he says that? “Legitimate state interest” is a legal term of art that essentially addresses whether a state has any rational basis when deciding to enact the law at issue. In other words, can Florida point to any reasonable justification for prohibiting minors from receiving this type of “medical care”? Mind you, from a legal standpoint, the reason need not be absolutely correct; the legislature simply needs a “reasonable” basis. If it has one, Judge Hinkle’s hands are legally tied, no matter how much he might personally disagree with the outcome.
But according to Judge Hinkle, Florida cannot point to any “rational basis … to categorically ban these treatments.” In other words, not only must Floridians and their elected representatives accept gender identity as reality, but they must also believe that the proper course of action for those who struggle with gender dysphoria is to offer “gender affirming medical care.” This is legal analysis that crosses well beyond applying law and into the realm of making policy — and absurd policymaking, at that.
Judge Hinkle summarily dismisses the serious medical risks associated with these drugs — risks highlighted even by the FDA. While he acknowledged the medical risks associated with puberty blockers and cross-sex hormones, he concluded that they still “are an effective treatment whose benefits can outweigh the risks.” But from a legal standpoint, that is exactly the type of decision Judge Hinkle doesn’t get to make. That’s because he is a judge, and judges are bound by the law as written. Weighing risks is what legislatures do — not judges. Taking these drugs comes with serious medical risks, and Florida’s elected representatives have every right to say that those medical risks are too great — especially for minors.
Indeed, the law only applies to minors. Could any rational person think that giving children largely untested drugs that could have permanent, life-altering effects to treat something that until only recently was considered a medical “disorder” might not be a great idea? Apparently 56 percent of Americans believe exactly that — and such is the case in Florida. Not to mention the fact that our entire legal system is premised on the idea that minors are too immature to consent to a variety of activities, let alone ones that might permanently affect their development. But according to Judge Hinkle, that same logic applied in this context is per se irrational — and, when it comes to gender ideology, even “bigoted.”
“Gender Identity Is Real”
Even more disturbing than Judge Hinkle’s quick dismissal of the protection of minors against novel medical treatments is his assertion that “gender identity is real.” This statement serves as the cornerstone of the entire opinion. What makes this so disturbing — from a legal and constitutional perspective — is that he isn’t stating anything that is even legally relevant. Rather, he is attempting to impose a particular worldview that overturns the will of the duly elected representatives of Florida.
Gender ideology is rooted in a worldview called expressive individualism, which Carl Trueman brilliantly expounds in his recent work, The Rise and Triumph of the Modern Self. (As an aside, this book is a must-read for anyone who wants to meaningfully engage our culture today.) According to Trueman, expressive individualism holds that human identity, which is primarily sexual, is rooted in a person’s own psychological and subjective view of oneself. Once this identity is discovered, the person must live out this identity to the world, i.e., express that identity outwardly through dress, speech, pronoun usage, associations, etc. To do otherwise is to live a lie; to live under the yoke of oppression. Therefore, anything external to the individual that threatens or fails to affirm that identity — whether objective truth claims, biology, societal norms, laws, even the Creator Himself — is deemed oppressive and must be opposed and canceled. This is the worldview of expressive individualism, and it answers the deepest questions of life, including about human nature, the problem with the world, the solution to that problem, how we know something as truth, and where ultimate authority lies.
Whether expressive individualism and its outworking of gender ideology is “real” is beside the point. That is a political question left to the people and elected representatives of Florida. Judge Hinkle, as a judge bound by the law as written, has no authority to impose this worldview through judicial fiat. As the U.S. Supreme Court stated in 1943 (in a different context that is no less applicable here): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Yet that is exactly what has Judge Hinkle attempted to do: prescribe for all Floridians that “gender identity is real” and must be accepted as fact. Judicial statements like this are astounding — and they can hardly be called law.
Judge Hinkle’s opinion is dripping with hubris and disdain. While he might disagree with the state of Florida — and 56 percent of Americans — about the wisdom of allowing minors to receive puberty blockers and cross-sex hormones, to dismiss their position as outright irrational and bigoted reeks with a judicial pride that has no place in our constitutional republic. Those who don black robes do not hold a monopoly on what can be deemed rational in our world today. Worse still, they do not have the authority to impose a worldview — a religion even — on the entire state of Florida. When they attempt to do so — as Judge Hinkle did here — they make a mockery of the judiciary, our republic, and even law itself.
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