529 F.Supp.3d 1031
D. Ariz.2021Background
- Plaintiffs are two AHCCCS-enrolled minors (ages 17 and 15) diagnosed with gender dysphoria who have been on testosterone and seek male chest reconstruction ("top surgery").
- Arizona’s Medicaid (AHCCCS) regulation R9-22-205(B)(4)(a) expressly excludes gender reassignment surgeries from coverage; Plaintiffs sued the AHCCCS Director seeking declaratory relief and a preliminary injunction ordering coverage for their surgeries.
- Plaintiffs asked the court to enjoin enforcement of the exclusion and to compel AHCCCS to cover their surgeries; the requested relief would require AHCCCS to provide a benefit it has never provided (a mandatory injunction).
- The record contains competing expert declarations: Plaintiffs’ experts (WPATH-affiliated) contend top surgery can be medically necessary and effective for some adolescents; Defendant’s experts dispute safety/efficacy and characterize the procedures as experimental or unproven for minors.
- The court found Plaintiffs had not clearly shown the surgeries are medically necessary or safe for these minors, and that their EPSDT, comparability, Section 1557, and Equal Protection claims were doubtful on the merits.
- The court applied the heightened standard for mandatory injunctions, found Plaintiffs did not meet the heightened Winter/Hernandez standards (including irreparable harm and likelihood of success), and denied the preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court should enjoin enforcement of AHCCCS exclusion and order coverage (prelim. injunction) | Enjoin the exclusion and order AHCCCS to cover top surgery for the minors as medically necessary | Relief is mandatory (not preservative), so heightened standard applies; AHCCCS need not be ordered to provide a benefit it never provided | Relief is a mandatory injunction; Plaintiffs failed to satisfy heightened standard; injunction denied |
| EPSDT — does Medicaid require covering top surgery for under-21 as corrective/ameliorative care? | EPSDT is broad; top surgery can correct/ameliorate gender dysphoria and is medically necessary for Plaintiffs | Safety/efficacy for minors is disputed; states need not pay for experimental/unproven procedures; Plaintiffs lack individualized medical evaluations | Plaintiffs did not clearly show medical necessity or safety; EPSDT claim is doubtful |
| Comparability — does exclusion make benefits less in amount/duration/scope for similarly situated patients? | AHCCCS covers similar procedures for other diagnoses (e.g., mastectomy for cancer); excluding gender-dysphoria-related surgery discriminates by diagnosis | Needs for gender-dysphoria-related chest reconstruction differ from other reconstructive needs; comparability not established | Plaintiffs failed to show comparable need or that exclusion violates comparability requirement |
| Equal Protection / Section 1557 (sex-based / transgender discrimination) | Exclusion denies benefits to transgender people; Bostock supports that transgender discrimination is sex discrimination; other courts have found similar exclusions unlawful | Bostock addressed Title VII employment, not Medicaid/ACA/Section 1557; AHCCCS covers other gender-dysphoria treatments; denial may be based on medical/safety rationale, not sex | Plaintiffs did not clearly show denial was because of sex or that Bostock controls; Equal Protection and §1557 claims are doubtful |
Key Cases Cited
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (preliminary injunction standard: likelihood of success, irreparable harm, balance of equities, public interest)
- Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) (heightened scrutiny for mandatory injunctions; extreme or very serious damage required)
- Dahl v. HEM Pharm. Corp., 7 F.3d 1399 (9th Cir. 1993) (mandatory preliminary relief requires facts and law to clearly favor movant)
- Katie A. v. Los Angeles County, 481 F.3d 1150 (9th Cir. 2007) (EPSDT is a mandatory service category and state must provide medically necessary services for children)
- M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012) (enjoining Medicaid regulation that reduced benefits held to preserve status quo in distinct factual context)
- Ellis v. Patterson, 859 F.2d 52 (8th Cir. 1988) (Medicaid need not fund risky or unproven procedures)
- Flack v. Wisconsin Dep’t of Health Servs., 395 F. Supp. 3d 1001 (W.D. Wis. 2019) (district court found state Medicaid exclusion for transgender care violated Equal Protection and §1557 in a case involving adults)
- Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020) (Title VII holds that firing an employee for being transgender is sex discrimination; Supreme Court limited to Title VII context)