Transgender teen bids for Medicaid coverage of top surgery

by Reuters
Thursday, 18 November 2021 11:14 GMT

A person holds up a flag during rally to protest the Trump administration's reported transgender proposal to narrow the definition of gender to male or female at birth, at City Hall in New York City, U.S., October 24, 2018. REUTERS/Brendan McDermid

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Arizona currently excludes “gender-reassignment surgeries” from Medicaid coverage, but now Transgender teen John Doe wants “top surgery,” a double mastectomy, to be covered.

(Reuters) - Attorneys for a transgender teen will urge a federal appeals court on Friday to find that the U.S. Constitution and the Affordable Care Act require Medicaid to pay for his double mastectomy.

“John Doe” wants the 9th U.S. Circuit Court of Appeals to rule that a state regulation excluding Medicaid coverage for gender-affirming surgery amounts to sex discrimination. No other circuit has tackled that question.

Arizona’s Medicaid system, a joint federal and state program serving low-income people, has covered Doe’s hormone therapy and counseling since at least 2019. Now 16, he wants “top surgery,” a complex double mastectomy designed to create a more masculine-looking chest.

However, Arizona excludes “gender-reassignment surgeries” from Medicaid coverage. About half the states have similar rules, although most cover non-surgical treatments.

Doe sued last year in Tucson federal court to block enforcement of the regulation. Since the state covers medically-necessary mastectomies and reconstruction services for women, he says, it is sex discrimination not to cover medically necessary top surgery for transgender males.

Doe also sought a preliminary injunction, which would suspend the regulation during litigation and allow him to get the surgery as soon as possible.

U.S. District Judge Scott Rash denied that bid in March, saying Doe was not entitled to immediate relief because his theories of sex discrimination were weak, and, based on a wide split in expert testimony, he had not shown the irreversible surgery was “safe and effective for adolescents.”

Doe’s appeal to the 9th Circuit challenges Rash’s interpretation of both the Affordable Care Act's anti-discrimination provision and the constitution’s Equal Protection Clause, Doe's lawyer Asaf Orr of the National Center for Lesbian Rights said in an email.

The U.S. Supreme Court ruled last year that transgender discrimination is sex discrimination, Doe's brief says. Rash found that precedent “unpersuasive” because it involved an employment action, but the high court’s reasoning is equally applicable here, Orr wrote in the brief, which was also signed by lawyers from Perkins Coie, King & Spalding, and the National Health Law Program.

Arizona Medicaid's attorneys at BurnsBarton and the Johnston Law Office did not respond to requests for comment.

In their briefs to the 9th Circuit, they argued that the ban “is not discrimination against a class, but a referendum on the medical necessity, safety, and effectiveness of the procedure,” and that Rash properly found Doe had not proven it was medically necessary for him or safe or effective for adolescents generally.

The case is John Doe, by his guardian and next friend Susan Doe, v. Jami Snyder, Director of the Arizona Health Care Cost Containment System, 9th U.S. Circuit Court of Appeals No. 21-15668.

For Doe: Asaf Orr, National Center for Lesbian Rights; Daniel Barr and Janet Howe of Perkins Coie; Brent Ray of King & Spalding; and Abbi Coursolle, National Health Law Program

For Snyder: David Barton and Christine Burns of BurnsBarton; Logan Johnston of Johnston Law Offices