Arizona lawmakers seek to block gender-affirming surgery deal

PHOENIX — Top Republican lawmakers are trying to torpedo a deal that would result in a court order that would obligate the state to pay for gender-affirming surgery for its employees and dependents.

And, if nothing else, they don’t want the state on the hook for $500,000 in legal fees claimed by the attorneys that sued.

In arguments filed in federal court, Senate President Warren Petersen and House Speaker Ben Toma say they are not trying to block the state’s insurance program from covering the hysterectomy sought by Russell Toomey, who filed suit four years ago. That, they say, already is going to happen. They point out that Gov. Katie Hobbs signed Executive Order 2023-12 in June directing the Department of Administration, the state’s personnel arm, to remove language exempting “gender reassignment surgery” from the health care policies now available to state and university employees and retirees.

With Toomey’s complaint solved and the policy changed, attorney Drew Ensign who is representing the GOP leaders, said Toomey’s lawsuit, filed in his behalf by the American Civil Liberties Union, is moot.

What they are objecting to is U.S. District Court Judge Rosemary Marquez signing a deal that would cement into a consent decree — enforceable in federal court — an order that the state must pay not only for Toomey’s surgery but keep paying for such procedures for anyone else in a similar situation. All that, Ensign said, would “improperly interfere with future policy decisions of the Arizona Legislature, running afoul of bedrock principles of federalism.”

In the court filing, Ensign also said there is a more immediate problem: a 2022 law signed by then-Gov. Doug Ducey, which bans “irreversible gender reassignment surgery” on anyone younger than 18.

“Gov. Hobbs has no authority to unilaterally rewrite statutes through executive orders,” he said. And with that statute about minors never mentioned in the proposed consent decree, that creates issues.

On one side, Ensign said, a court order that includes coverage of gender-reassignment surgeries may mean little if the procedure remains unlawful to perform in Arizona.

“Or perhaps the parties believe that once the consent decree is approved by this court, they will be able to argue that it silently preempts” the ban on surgery on minors, he told the judge.

Christine Kee, attorney for the ACLU Foundation of Arizona, is urging Marquez to ignore the bid by the GOP leaders to upset the deal.

In essence, she said, it’s too late.

“This widely publicized litigation has been known to Sen. Petersen, Speaker Toma and the rest of the Arizona Legislature for years, yet none saw fit to appear in this action,” she wrote in her own legal filing. “Only now, at the eleventh hour, do the legislators seek to appear in order to lob a meritless attack against a consent decree that provide customary relief to resolve a case challenging an obvious violation of federal civil rights law.”

And Kee said she sees something in the move beyond mere legal issues.

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“Let there be no mistake: The motion is a mere Trojan Horse by which the legislators articulate a deep animus toward gender-affirming care for political gain,” she said.

Ensign, however, said there was no delay.

He pointed out that attorneys for the state had actually been defending the lawsuit — right up until the time that Hobbs changed the legal landscape with her executive order, dropping the state’s opposition. At that point, Ensign said the GOP lawmakers immediately sought to intercede following the governor’s action.

Even if Marquez disagrees with the GOP lawmakers and signs the consent decree, Petersen and Toma have one other issue: They do not believe the state should end up having to pay the $500,000 the ACLU is requesting in legal fees. And this goes back to the fact that Hobbs signed that executive order in June.

“Because the proposed consent decree essentially adds nothing beyond what the executive order already gave them, there is no incremental value to the class (of people who would be eligible for state-paid surgery) that could justify the proposed half-a-million dollar award,” Ensign told the judge.

Put simply, he said, the Hobbs’ executive order repealed the exclusion against gender-affirming surgery that the lawsuit challenged, providing Toomey — and others similarly situated — with the exact same relief they are now seeking to have Marquez approve.

“The proposed consent decree simply orders defendants to do what the executive order already commands them to do,” Ensign said.

“It is effectively a redundant command to take actions that were certain to be taken anyway even if no injunction ever issued,” he told the judge. “Plaintiffs are not entitled to any fee award — let alone half a million dollars of taxpayer money for what amounts to little more than mere memorialization of relief that Executive Order 2023-12 already gave them.”

Kee, for her part, said the requested fees “reflect a small fraction of the costs and time spent litigating this case over the past four years.” And she said the $500,000 is “well within the range of reasonableness.”

That, however, is yet to be determined.

“Plaintiff did not provide billing records to enable the court to assess whether the agreed-upon fees are fair and reasonable,” Marquez said in an order just this past week.

The judge ordered the lawyers to show their account of legal fees and costs by Thursday.