State Affordable Health Care Authority Sued Over Ban On Gender-Affirming Surgery

The Arizona Health Care Cost Containment System is being sued over a provision that bans covering gender-affirming surgery for trans people.
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The Arizona Health Care Cost Containment System is being sued over a provision that bans covering gender-affirming surgery for trans people.
D.H. loves to dance. The Tucson native started his first ballet class when he was 11 years old and soon enrolled in jazz and hip-hop dance classes as well. After school, he would be at class five days a week, sometimes until 9 p.m., seeking a distraction and an escape.

"As soon as I got in the dance studio, my mind was empty," said the teen, who's now 17.

Having that space was important as puberty kicked in and D.H., who's known he's trans since childhood but struggled with expressing that to his mom, had to grapple with his body developing in ways that didn't feel in line with what he knew his gender to be. He started wearing baggy clothes and flattening his chest with a binder he bought off Amazon. Wearing the binder brought some relief to the distress he felt and gave him the confidence to tell his mom that he was a boy.

In the years since, D.H. has lived as a boy, but has still struggled with being perceived as the wrong gender and living with a body that doesn't fit. The distress got so bad that in 2018 he sought care to address suicidal thoughts. He wears his binder daily, but it's an imperfect solution and leaves him short of breath, making it difficult to engage in physical activities and forcing him to quit dance. In spite of this, the alternative — being perceived as the wrong gender — is unthinkable.

"I can't dance without a binder, and I can't dance with a binder," he said.

D.H.'s health care providers have determined that gender-affirming chest surgery is medically necessary to help resolve his distress, and last year, they applied to his insurance company to approve the procedure.

If he had private insurance, it probably wouldn't have been an issue — 96 percent of providers cover the procedure — but because D.H. and his family receive their coverage through Medicaid, the federally funded, state-run program that provides medical care to low-income people, they're at the mercy of a 1982 Arizona regulation that bars Medicaid from covering "gender reassignment" surgeries. UnitedHealthcare, their insurance provider, denied both the surgeon's request and D.H.'s appeal, citing the rule.

"Outside of insurance paying for it, it's just not an option for us," said Janice Hennessy-Waller, D.H.'s mother.

Through his mother, D.H. is serving as a plaintiff in a lawsuit against the Arizona Health Care Cost Containment System, which administers the state's Medicaid program. Filed in federal court this morning, the suit alleges that Arizona's policy banning gender-affirming surgery violates federal law and the constitution by discriminating against him and others, and by denying them equal access to needed medical care. Arizona is only one of 10 states where Medicaid specifically excludes some types of care meant for transgender people, according to research by the Movement Advancement Nonprofit,a nonprofit research organization.

While his mother is named in court documents, D.H. is only referred to by initials as he is still a minor. (For this article, Phoenix New Times agreed to also name him by his initials.) He is joined in the suit by another anonymous plaintiff, a 15-year-old trans boy who has received care at Phoenix Children's Hospital and is part of the same Medicaid program for people under 21.

The suit is seeking class-action status on behalf of all trans men in the Medicaid program for people under 21. The plaintiffs are asking the judge to file an injunction allowing D.H. and the other teen, identified as John Doe in the lawsuit, to receive the surgery immediately, to strike down the state's rule, and to award attorneys' fees.

"I just want to be given what I need to help me survive," D.H. said.

Phoenix New Times left a voicemail with AHCCCS seeking a response; a spokesperson later called back to say the agency is looking into the lawsuit.

The two plaintiffs are being represented by the nonprofit National Center for Lesbian Rights and the nonprofit National Health Law Program, with the assistance of international law firms King & Spalding and Perkins Coie.

Asaf Orr, an attorney for the National Center for Lesbian Rights and director of its Transgender Youth Project who is handling the case, said that if their arguments prevail, the ruling would most likely apply to all trans people receiving Medicaid in Arizona, not just those under 21.

This would help many people Eion Cashman knows. For the last two years his day job has been helping people through their transition, (though he didn't want his organization named because he wasn't authorized to speak for it). He's done the same work informally over the last decade after having to navigate the associated bureaucracies himself as a college student.

"It's actually probably one of the greatest barriers my clients face," he said of the Medicaid ban. A 2011 report from the National Gay and Lesbian Task Force and the National Center for Transgender Equality found that trans people surveyed had double the national rate of unemployment and were four times as likely to have a household income of less than $10,000 a year. Cashman said many of the young people he works with have been disowned by their families or can't rely on them for financial support. They're trying to afford expensive medical care while also dealing with economic hardship.

If insurance won't cover the surgery, they have to look at other options: cutting back their food budgets, selling a vehicle, moving out of state. Not getting the care they need is not an option, Cashman said. Without access to the professionally recommended care, low-income trans people are left trying to do the best on their own. Like D.H., he also wore a binder that resulted in restricted breathing before he was able to get the necessary surgery.

"The fact that that discomfort is far less than the discomfort [of being misgendered] speaks volumes," he said.

Orr said a federal ruling would also preempt any attempts by state legislators to replace the rule by passing a law preventing trans people from using Medicaid for gender-affirming surgery — as a 2017 bill attempted to do.

The 2017 bill was proposed by state Representative Anthony Kern, a Glendale Republican who later faced criticism for telling a group of right-wing activists at a Phoenix Denny's that LGBTQ rights could "take over" under Democratic rule. At the time, he said that he supported personal freedoms, but not at taxpayer expense.

Orr said such arguments miss the point.

"The standards of care have been clear for a long time," he said. Both the plaintiffs have been diagnosed with gender dysphoria, a condition recognized by mental health professionals in which one's gender identity doesn't comport with the gender they have been assigned or their physical expression of gender.

While not all agree with the idea of medicalizing gender identity, it's important to note that the definition put forward by mental health professionals recognizes that the individual's understanding of their own gender is valid. As such, medically accepted "treatment" often involves working to ensure that person is perceived and treated in line with the gender they identify with.

The standards of care developed by the World Professional Association for Transgender Health and adopted by medical professionals reflect that. They have been affirmed both by numerous medical associations and by federal courts as reflecting the definitive medical guidance, and call for supporting people who wish to transition with measures including hormone therapy and surgery as necessary.

The lawsuit rests on those standards.

"As long as the care team for this young persons signs, [AHCCCS] should cover it," Orr, the attorney, said. Official guidelines note that denying that care can cause harm, including leading to suicide or other self harm.

D.H. hopes that the surgery will help alleviate the discomfort he feels with his body, and allow him to return to dance. He's particularly interested in returning to jazz dancing, its expressive nature appealing to the self-described "theater kid." There's a number from the musical "Chicago" he has his eyes on. He also wants to go shirtless sometimes.

"I live in Arizona, which is a very hot state," he said.

Cashman, who has helped many people secure gender-affirming surgery as part of their transition, said that when he sees people after their surgery he can tell the difference immediately.

"It's like this person has finally been brought to life," he said. "It's one of the most beautiful things I've ever seen."