28 F.4th 103
9th Cir.2022Background
- Plaintiffs John Doe and D.H., minors assigned female at birth and identifying as transgender males, received AHCCCS (Arizona Medicaid) coverage for counseling and hormones and sought coverage for male chest reconstruction (“top surgery”).
- Arizona Administrative Code R9-22-205(B)(4) excludes “gender reassignment surgeries” from AHCCCS coverage (the Challenged Exclusion).
- Plaintiffs filed a putative class action seeking declaratory and injunctive relief and moved for a mandatory preliminary injunction to force AHCCCS to pay immediately for top surgery; D.H. later dismissed and Doe proceeded individually on appeal.
- The district court denied the mandatory preliminary injunction, finding on the preliminary record that Plaintiffs had not shown the surgery was medically necessary, safe, or effective for adolescents and thus had not demonstrated likely irreparable harm.
- On appeal the Ninth Circuit reviewed the denial for abuse of discretion / clear error and affirmed, concluding the district court’s factual findings were not illogical or unsupported; the court also held that Bostock’s reasoning extends to Section 1557/Title IX contexts but did not decide the merits of Doe’s discrimination claims.
Issues
| Issue | Plaintiff's Argument (Doe) | Defendant's Argument (Arizona/AHCCCS) | Held |
|---|---|---|---|
| Whether a mandatory preliminary injunction should compel AHCCCS to cover top surgery pending litigation | Doe: surgery is medically necessary; denial causes irreparable physical and psychological harm requiring emergency relief | AHCCCS: Plaintiffs failed to show medical necessity or that surgery is safe/effective for minors; harms are compensable or speculative | Denied and affirmed — district court’s factual finding that Doe did not show likely irreparable harm or medical necessity was not clearly erroneous; mandatory injunction standard not met |
| Whether the Challenged Exclusion violates Section 1557 as sex discrimination (Bostock reasoning) | Doe: Bostock shows discrimination against transgender persons is discrimination because of sex and applies to Section 1557 | AHCCCS: Bostock is limited to Title VII employment context; Medicaid exclusion is facially neutral because it excludes a procedure not based on sex | Ninth Circuit: district court’s narrow reading of Bostock was erroneous — Bostock’s logic extends to statutes prohibiting discrimination because of sex (like Title IX/Section 1557) — but merits not decided here |
| Whether the exclusion violates the Equal Protection Clause | Doe: denial singles out transgender persons seeking surgery and is discriminatory | AHCCCS: exclusion regulates a medical procedure while providing other treatments; not discriminatory on basis of sex | Not decided on merits; court noted Karnoski governs level of scrutiny for transgender discrimination but remand/continued litigation required |
| Standard of review and applicable level of scrutiny for transgender discrimination claims | Doe: underlying claim should be evaluated consistent with Bostock/Section 1557 | AHCCCS: disputes scope and application of Bostock and level of scrutiny | Ninth Circuit: confirmed Karnoski’s approach (more than rational basis, less than strict scrutiny) applies, but did not apply it to resolve merits in this interim posture |
Key Cases Cited
- Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009) (high standard for mandatory preliminary injunctions)
- Anderson v. United States, 612 F.2d 1112 (9th Cir. 1980) (mandatory injunctions reserved for extreme or very serious damage)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (four-factor preliminary injunction test)
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (Title VII holding that discrimination against gay or transgender persons is discrimination because of sex)
- Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019) (level of scrutiny for transgender-discrimination claims: more than rational basis but less than strict scrutiny)
- Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019) (review of medical-necessity findings and clear-error standard in gender-confirmation surgery context)
- Monarch Content Mgmt. LLC v. Ariz. Dep’t of Gaming, 971 F.3d 1021 (9th Cir. 2019) (citing Winter and preliminary injunction standards)