Arizona agrees to fund gender-affirming surgery for state employees

Arizona lawmakers said they were disappointed the state agreed to fund gender-affirming surgeries for state employees in a consent decree that ends years of class-action lawsuits filed by a professor at the University of Arizona.

The consent decree, approved last week by a federal district court judge in Tucson, comes months after Gov. Katie Hobbs issued an executive order reversing a previous state policy that had banned procedures under the state health insurance plan. Defenders said the court order would have the effect of making the Hobbs order permanent.

Russell Toomey, a professor of family studies and human development at the University of Arizona who filed the suit, said he felt immeasurable relief after the June 27 Hobbs executive order but was pleased to see the consent decree.

Finding out that the federal judge in my case ordered the permanent removal of the gender-affirming surgical care exclusion from our state employee health insurance brings even greater relief, Toomey said in a statement.

But the decision was criticized by legislative leaders who tried to intervene in the matter, which they said would violate the separation of powers between the judicial and legislative branches by encroaching on the authority of the legislature. U.S. District Judge Rosemary Marquez rejected the attempt by Senate President Warren Petersen and House Speaker Ben Toma.

They also argued that the consent decree could impact a state law that took effect this year, banning irreversible sex reassignment surgery for anyone under 18, a law sponsored by Petersen.

Sex reassignment surgeries should never be performed on children and certainly not as part of the state’s health plan, Petersen said in a statement Thursday. I am very disappointed that the court order did not clarify this point, and I am dismayed that the governor’s administration is pushing for this.

Toomey, a transgender man, filed a lawsuit in 2019 after the state refused to cover the cost of a total hysterectomy he was seeking to treat his gender dysphoria. The state health insurance plan at the time allowed some treatments for gender dysphoria, but specifically prohibited sex reassignment surgery, even when the surgery is considered medically necessary.

Toomey claimed the policy violated his civil rights under Title VII and his 14th Amendment equal protection rights. Marquez certified the civil rights portion of the case as a class action.

After two years of legal wrangling, both sides asked to put the case on hold while they negotiate a possible settlement.

Those negotiations were still underway when Hobbs issued his executive order on June 27, ordering the removal of the ban on sex reassignment surgeries in state health coverage. In her order, she highlighted a 2020 U.S. Supreme Court case, Bostock v. Clayton County, which holds that discrimination against a person because they are transgender necessarily constitutes discrimination against that person on the basis of sex.

Christine Wee, senior attorney for the American Civil Liberties Union of Arizona, which represented Toomey, called last week’s consent decree a victory for all state employees, defeating once and for all this blatant violation of the federal civil rights law.

This will benefit trans employees in the state of Arizona. But it will actually benefit all Arizonans, because the crux of this case is simply about equal access to health care, Wee said.

But critics said the executive order would end up forcing taxpayers to foot the bill for surgery that some say could have long-term negative impacts.

Taxpayers should not be forced to fund experimental surgeries and drugs, Cathi Herrod, president of the Center for Arizona Policy, said in a statement. She accused the Hobbs administration of doubling down on its ideological agenda.

We have characterized these arguments as simply incorrect and inaccurate,

In the almost five years this case has worked its way through the court system, we’ve learned that, in reality, it won’t cost taxpayers much money, if at all, she said. We learned from interviewing state employees who were part of the Arizona Department of Administration that in reality the cost was not very high.

Although he was disappointed by the executive order, Petersen pointed to at least one victory: Toomey’s legal team, which included attorneys from the New York law firm Willkie Farr & Gallagher, had initially sought $500,000 in attorney fees, but Marquez reduced the award to $375,000. .

Nonetheless, I am grateful that our arguments prevented $125,000 in taxpayer dollars from going to out-of-state radical left law firms, Petersen said in a statement.