U.S. court denies double mastectomy request

The U.S. Ninth Circuit Court of Appeals has ruled that the state of Arizona is not required to pay for a teenager's double mastectomy.

(Reuters) - A transgender teen will have to muster more evidence that he needs gender-conforming surgery before he can force Arizona’s Medicaid system to pay for it, a federal appeals court held Thursday.

The 9th U.S. Circuit Court of Appeals affirmed a ruling by a federal judge in Tucson, who declined to order the system to approve “John Doe” for a double mastectomy and chest reconstruction surgery while his sex-discrimination lawsuit is pending.

The panel assumed that Doe will be able to prove that Arizona’s ban on Medicaid funding for all gender-reassignment surgery amounts to sex discrimination under the U.S. Constitution or the Affordable Care Act, as his lawsuit alleges.

In particular, it said, U.S. District Judge Scott Rash “erroneously” concluded that a recent Supreme Court ruling, which found that gender-identity discrimination is a form of sex discrimination, applied only to employment-law cases. Rash’s ruling was “too narrow” because the Affordable Care Act’s antidiscrimination provisions are nearly identical to those of Title VII of the Civil Rights Act, the statute at issue in the Supreme Court case, the panel said.

But even so, the panel upheld Rash’s conclusion that Doe had not yet shown that immediate surgery was a medical necessity and that it would be a safe and effective treatment for his gender dysphoria, given his youth and other psychological issues.

Asaf Orr of the National Center for Lesbian Rights, who argued the appeal for Doe, said they “are extremely encouraged by the panel’s recognition that the Supreme Court’s analysis of sex discrimination in Bostock (v. Clayton) applies equally to the prohibition of sex discrimination in Section 1557 of the Affordable Care Act.” They are “still assessing the remainder of the decision.”

Arizona Medicaid's attorneys at BurnsBarton and the Johnston Law Office did not immediately respond to requests for comment.

Doe was 15 when he and another plaintiff filed suit against the Arizona Health Care Cost Containment System in 2020.

The system has covered Doe’s hormone therapy and counseling since at least 2019, but refused to approve him for “top surgery” to create a more masculine-looking chest.

Arizona excludes “gender-reassignment surgeries” from Medicaid coverage. About half the states have similar rules, although most cover nonsurgical treatments.

Doe argues the rule discriminates against transgender people because no one else would request such surgery.

In their appellate briefs, the system argued that the ban “is not discrimination against a class, but a referendum on the medical necessity, safety, and effectiveness of the procedure.”

The case is John Doe, by his guardian and next friend Susan Doe, v. Jami Snyder, Director of the Arizona Health Care Cost Containment System, 9th U.S. Circuit Court of Appeals, No. 21-15668.

For Doe: Asaf Orr, National Center for Lesbian Rights, Daniel Barr and Janet Howe of Perkins Coie, Brent Ray of King & Spalding; and Abbi Coursolle, National Health Law Program

For Snyder: David Barton and Christine Burns of BurnsBarton, Logan Johnston of Johnston Law Offices