A federal appeals court won’t immediately force Arizona’s Medicaid program to pay for gender reassignment surgery for a transgender male.
In an extensive ruling Thursday, the 9th U.S. Circuit Court of Appeals said the male, identified only as John Doe, had failed to show that chest reduction surgery was “medically necessary’’ to deal with his gender dysphoria.
Judge Consuelo Callahan, writing for the three-judge panel, also pointed out that Doe is only 17. And she said there is evidence that some teen transgender males go back to acting as females on their own, regardless of whether they have surgery to alter the appearance of the top half of their bodies.
But Thursday’s ruling does not mean the Arizona Health Care Cost Containment System is off the legal hook and that its policy against funding gender reassignment surgery is legal. All it means is that the court will not order the surgery performed now while the case is pending in federal court in Tucson.
Potentially more significant, Callahan said there is case law that says federal laws prohibiting sex discrimination also cover issues of discrimination against transgender individuals. And she told U.S. District Judge Scott Rash to consider that when he ultimately decides whether Doe is entitled to state-funded surgery.
Thursday’s ruling came a day after the state Senate Judiciary Committee voted to make it illegal for doctors to perform “irreversible gender reassignment surgery’’ on minors.
Attorney Asaf Orr with the National Center for Lesbian Rights, who is representing Doe, said if that measure becomes law it would be subject to the same kind of legal challenge of illegal sex discrimination that is at issue in this case. He said that’s because proposed Arizona law does not preclude doctors from performing other kinds of surgery on minors, meaning the only reason for that new law would be to discriminate against transgender individuals.
Orr said if Doe wins a court order for AHCCCS to fund the surgery and the state law becomes an obstacle, the state then would be required to pay for the procedure to be performed in another state.
The case surrounds the rules for the AHCCCS system, which provides health care to people who meet certain income requirements.
Among the exclusions are abortions, cosmetic surgeries and hysterectomies unless determined to be medically necessary. Also not covered are gender reassignment surgeries.
AHCCCS does cover counseling and hormone therapy. But Orr said that does not excuse the agency from providing other medically necessary procedures.
In this case, Orr said, Doe’s doctor and mental health provider recommended chest reconstruction to help further alleviate his gender dysphoria, a situation where an individual does not identify with the sex assigned at birth.
“Regarding the appearance of his chest, it affects his ability to sleep, it affects his ability to function on a day-to-day basis,’’ Orr told Capitol Media Services. He said it has resulted “in some really unfortunate coping mechanisms, including self-harm.’’
That is why his law firm initially sought to get an immediate order for AHCCCS to pay for the surgery, Orr said.
Callahan, however, said there are several problems with that.
She said courts can grant injunctions in cases where the person filing suit wants to stop something from happening. That preserves the status quo while a case is being litigated.
In this case, however, the judge said what Doe wants is to compel AHCCCS to act even before there has been a final ruling.
Callahan acknowledged there is a separate procedure for what the courts call “mandatory injunctions’’ where a judge will order someone to do something before the case has gone to trial. But she said the standard to issue them is high.
“In general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages,’’ the judge wrote. She said Doe has shown no irreparable harm if he is forced to wait for the case, first filed in 2020, to make its way through the courts.
Two experts for Doe testified the top surgery is safe and effective, even for adolescents, and has been approved by various organizations including the World Professional Association for Transgender Health. But Callahan noted that AHCCCS had its own competing expert witnesses who questioned the safety and effectiveness of the procedure for treating gender dysphoria.
Then, Callahan said, there were questions about whether the dysphoria is permanent.
“There are indications in the record and in the amici briefs filed in this appeal that some individuals who present as transgender during adolescence revert to their natal gender later on, regardless of whether they have had top surgery,’’ she said.
She said there is also the question of age.
“Given the evidence presented that the human brain continues to mature well into a person’s twenties, it was reasonable for a district court to question whether Doe appreciated the impact of irreversible surgery and to require further counseling before ‘authorizing’ surgery,’’ Callahan wrote.
Anyway, the judge said, Doe could pay for the surgery out of pocket and, if the case goes his way, seek reimbursement from the state.
“That’s not a viable option,’’ Orr said.
“Our client is a 17-year-old high school student who is receiving Medicaid,’’ he said, meaning he lacks the resources to finance medical care.
