State insurance will cover transgender care, judge rules

Arizona state employee health insurance will pay for transgender care regardless of which administration is in office, a federal judge’s ruling has affirmed.

Arizona legislative leaders lost their court argument to deny a permanent consent decree in the case, but a judge spared the state some attorney costs.

“It’s such a relief that I don’t even know that I can put it to words,” said Russell Toomey, a transgender professor at the University of Arizona whose 2019 class-action lawsuit led to the Sept. 29 ruling. “The final order here gives transgender Arizonans permanent relief, and they don’t have to worry about this coming back into play with future administrations.”

Toomey had sued the state in federal court over a law that denied state medical coverage for gender-affirming surgeries, withstanding an appeal by the state to the U.S. 9th Circuit Court of Appeals. But in June, as the case was being resolved in his favor with the consent decree, Gov. Katie Hobbs issued an executive order allowing the coverage.

After Hobbs’ order, Arizona Senate President Warren Petersen and House Speaker Ben Toma filed a request to deny the consent decree, their attorney arguing in a July motion that making the policy permanent would “improperly interfere with future policy decisions of the Arizona Legislature, running afoul of bedrock principles of federalism.”

However, U.S. District Judge Rosemary Márquez moved forward in implementing the consent decree in part because it would be permanent. She noted that Hobbs or a future administration could reinstate the ban on coverage at any time: “Thus, the Consent Decree provides further relief to the class beyond the change effectuated by the Executive Order by making the Exclusion’s removal permanent.”

Márquez noted that Toomey didn’t request any monetary award in the case and that the consent decree “essentially achieves complete relief” for Toomey and anyone in the class by stopping the state permanently “from providing or administering a health plan for employees of (the Arizona Board of Regents) or the State of Arizona and their beneficiaries that categorically excludes coverage of medically necessary surgical care to treat gender dysphoria.”

The legislative leaders also objected to $500,000 in fees requested by Toomey’s American Civil Liberties Union lawyers, asking that it be eliminated because the executive order essentially did the lawyers’ job for them. Márquez agreed with them, to an extent.

The lawyers “worked diligently for over three years on this matter and achieved a successful result,” she noted. But because they weren’t responsible for a “significant portion of the relief,” she reduced the fee to $375,000.

Toma said he was “disappointed” the court denied he and Petersen’s request, “but of course, I agree it was appropriate to reduce the award of taxpayer-funded attorneys’ fees.”

Toomey said state-employee medical coverage for the transgender community has been among the “wedge issues” used by politicians to try to sway the public in Arizona and across the country.

“It’s so relieving to know this care won’t be a political maneuver for those folks in the future,” he said.

Republican state legislators in Arizona this year tried to pass a law that would have required schools to provide students with private bathroom facilities if they objected to a group bathroom. The state is currently appealing a law passed last year that banned transgender women and girls from playing in competitive school sports on women’s and girl’s teams.

“The final order here gives transgender Arizonans permanent relief, and they don’t have to worry about this coming back into play with future administrations.” Russell Toomey

Transgender professor at the University of Arizona