Daily Labor Report®

Arizona Transgender Professor’s Insurance Bias Case Proceeds

Dec. 24, 2019, 1:49 PM

A University of Arizona transgender professor whose employer-provided health plan excludes coverage for “gender reassignment surgery” can proceed against his employer on sex bias claims, a federal district court in Arizona said.

Russell Toomey stated a cause of action under Title VII, the U.S. District Court for the District of Arizona held. “Discrimination based on transgender status or identity is discrimination based on sex because, but for the individual’s sex, the employer’s treatment of the individual would be different,” the court said Dec. 23.

The court rejected a magistrate judge’s report that recommended dismissing Toomey’s Title VII claim, saying a person’s sex is inseparable from his or her transgender identity. If Toomey had been born a male, rather than a female, he wouldn’t have suffered from gender dysphoria and need surgery, the court said.

Toomey’s injury occurred because his sex doesn’t match his gender identity, the court said. Arizona’s health plan pays for medically necessary hysterectomies for cisgendered women, but not for transgender men, it said.

Similarly, if Toomey had required a hysterectomy for any medically necessary reason other than gender conformity, the plan would have paid for it, the court said. This “narrow exclusion of coverage” thus was directly connected to the mismatch between Toomey’s gender identity and the sex he was assigned at birth, it said.

The court recognized that the U.S. Supreme Court currently is considering whether Title VII prohibits discrimination against transgender people based on their transgender status or sex stereotyping.

Toomey’s equal protection claim also will proceed, the court said. It agreed with the magistrate judge that Toomey alleged facts sufficient to apply a heightened degree of scrutiny to the blanket exclusion and that the state hadn’t shown the exclusion could survive that close look.

The court denied the state’s motion to dismiss.

Judge Rosemary Marquez wrote the opinion.

Aiken Schenk Hawkins & Ricciardi PC and the American Civil Liberties Union represent Toomey. Burns Barton LLP represents the state defendants. Perkins Coie LLP represents the university defendents.

The case is Toomey v. Arizona, D. Ariz., No. 19-35, 12/23/19.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editor responsible for this story: Carmen Castro-Pagan at ccastro-pagan@bloomberglaw.com and Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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