By Steve Kilar, March 2019 Issue.

A professor at the University of Arizona recently filed a lawsuit against the state of Arizona because the health insurance plan the state provides its employees and their dependents discriminates against people in need of gender-confirming care.

Arizona’s health plan categorically excludes transition-related surgery from its coverage. That means transgender and nonbinary people who need surgery related to their gender identity have to pay for it out of pocket, even when the surgery is prescribed by a doctor and the same procedure would be covered for someone who identifies with the sex they were assigned at birth.

That’s clear sex discrimination and is a violation of federal civil rights statutes and the U.S. Constitution, which demands all people are treated equally under the law.

Dr. Russell Toomey, a human development and family studies scholar who researches discrimination against LGBTQ adolescents, filed the class action case in federal court in January against the State of Arizona and the Arizona Board of Regents, which oversees the state universities. Dr. Toomey is represented in the case by the ACLU and the Phoenix law firm Aiken Schenk Hawkins & Ricciardi P.C.

“In the past, some public and private insurance companies excluded coverage for treatment of gender dysphoria … including surgical treatments, based on the erroneous assumption that such treatments were cosmetic or experimental,” the lawsuit states. “Today, however, every major medical organization to address the issue has recognized that such exclusions have no basis in medical science and that transition-related care is effective, safe and medically necessary for treatment of gender dysphoria.”

Dr. Russell Toomey and spouse Danielle Flink. Courtesy of Russell Toomey.

Gender dysphoria is a diagnosis some transgender people receive if they endure “clinically significant emotional distress … as a result of the incongruence of [their] gender with their assigned sex and the physiological developments associated with that sex,” the lawsuit explains.

Since 1979, the World Professional Association for Transgender Health, often called WPATH, has published health care standards for transgender people. These standards, now in their seventh version, are evidence-based and widely accepted.

To alleviate gender dysphoria, according to WPATH, a doctor may recommend surgery or other medical treatments to align an individual’s body with their gender identity. In some cases, transition-related surgery can be life-saving.

“Under each patient’s treatment plan, the goal is to enable the individual to live all aspects of one’s life consistent with one’s gender identity, thereby eliminating the distress associated with the incongruence,” Dr. Toomey’s lawsuit states.

No one should be denied medically necessary care because of who they are. Because of the state’s discriminatory health plan, Dr. Toomey has been unable to have a gender-confirming procedure recommended by his physician in accordance with the widely accepted standards of care for treating gender dysphoria.

When I recently spoke to Dr. Toomey about his lawsuit, he told me that he decided to pursue the case not only for himself, but for all the other people who have insurance coverage through Arizona’s health plan and are not getting the transition-related care they need. Within the University of Arizona community alone, Dr. Toomey said, he knows many families that are negatively affected by the state’s anti-trans health plan.

Dr. Toomey was in his early 20s when he started his gender transition. In 2003, he began taking testosterone and the next year he had chest reconstruction, which he paid for out of pocket by taking out an $8,000 loan that his father-in-law co-signed. These treatments were medically necessary because of his gender dysphoria.

His doctors recently recommended he also have a hysterectomy, but his insurance would not cover the procedure because of Arizona’s blanket exclusion for gender-confirming surgery. Dr. Toomey said he, like so many other Arizonans, is not able to pay for the procedure out of pocket. He and his wife, Danielle, have other priorities for their finances, including raising their two children and caring for a parent.

Until Arizona’s health plan changes, he said, he will have to keep living with features of his body that do not fit with his gender identity and are the source of substantial mental distress.

A court in Wisconsin recently ruled that it is a violation of the Constitution and federal law to deny state employees coverage for gender-affirming health care. Dr. Toomey and the ACLU hope for a similar outcome in Arizona.

“I do not want any other transgender employee or dependent, current or future, to suffer with anxiety in the way that I have because of this policy,” Dr. Toomey said in an ACLU press release about the lawsuit. “I love my job at the University of Arizona and I really want to live in a state that treats all employees and their dependents equally.”

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