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Earlier this month, two transgender teenagers sued the agency that oversees Arizona’s Medicaid program for its blanket ban on gender confirmation surgeries.
The class-action lawsuit, filed in U.S. District Court for the District of Arizona, claims that the teenage males, 17-year-old D.H. and 15-year-old John Doe, as well as other transgender Medicaid recipients under the age of 21 in Arizona, are having their civil rights violated by Arizona’s prohibition on transition-related surgeries, including male chest reconstruction.
Arizona is one of 10 states that explicitly ban coverage for transition-related treatments to transgender Medicaid recipients, according to the Movement Advancement Project, an LGBTQ think tank. The complaint estimates there are at least 100 Arizonans who are Medicaid recipients and are similarly affected by the ban, and are thus unable to receive coverage for medically necessary chest reconstruction surgery to treat their gender dysphoria.
In the complaint, filed by the National Center for Lesbian Rights against the Arizona Health Care Cost Containment System, D.H. and Doe argue that chest reconstruction is medically necessary to treat their gender dysphoria. Because of the current ban on Medicaid dollars being used for transition-related care, the teens claim they have experienced both physical and psychological harm.
D.H. claims that because he has had to resort to wearing a binder to flatten his chest, he is subjected to intense pain and discomfort, which affects his ability to focus on school and homework, and prevents him from engaging in prolonged or intense physical activity, including dancing, an activity that previously brought him much enjoyment.
Doe also wears a binder, which is physically restrictive, but suffers psychologically because he feels uncomfortable being outside without layers of clothing and in social settings.
The lawsuit alleges that the categorical ban on transition-related coverage — which dates back to 1982 — violates two provisions of the Medicaid Act: that states must provide “Early and Periodic Screening, Diagnostic and Treatment” for individuals under 21 before medical conditions become more complex and treatments become more costly; and the act’s comparability requirements, which say that any medically necessary treatment that would be given to one individual cannot be arbitrarily denied to another.
The lawsuit also argues that Arizona’s ban violates Section 1557 of the Affordable Care Act, which prohibits sex-based discrimination in health care and insurance, and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
As a result of the harm alleged by the teens, the National Center for Lesbian Rights has filed a motion asking the court for a preliminary injunction that would prevent the ban from being enforced and order AHCCCS to cover surgical costs for D.H. and Doe while the case is being decided on its merits.
Asaf Orr, an attorney working on the case and the director of NCLR’s Transgender Youth Project, told NBC News in an email that there is no legitimate justification for Arizona’s ban, which only delays treatment and can lead to future health problems.
Orr also cited the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, Georgia — in which the court found that federal civil rights laws banning employment discrimination “on the basis of…sex” also ban employment discrimination on the basis of sexual orientation or gender identity — to argue that the Medicaid ban is itself a form of sex discrimination.
“By maintaining and enforcing a categorical exclusion for surgical treatment for gender dysphoria, AHCCCS is impermissibly discriminating against transgender Medicaid recipients on the basis of sex and, as a result, the Court should enjoin AHCCCS from denying coverage under that exclusion,” Orr told NBC News.
The teens’ lawsuit in Arizona joins a litany of other cases in which transgender individuals are trying to ensure they can receive coverage for transition-related care. Earlier this month, an Iowa appeals court dismissed a lawsuit challenging a state law barring Medicaid from covering transition-related surgeries.
Last month, a transgender man sued the University of Maryland Medical System, claiming his civil rights were violated when a previously scheduled surgery was canceled due to the purported religious objections of one of the Catholic hospitals within the system.
More recently, and perhaps more importantly, given D.H. and Doe’s contention that their rights under the Affordable Care Act have been violated, a federal judge has blocked the Trump administration from enacting and enforcing a recently proposed rule that strip away LGBTQ nondiscrimination protections contained in the law.
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