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Trans Professor Suing Arizona Over Surgery Gets Lawyers’ Docs

June 29, 2021, 3:08 PM

A transgender professor can compel Arizona to turn over attorney documents advising that its insurance plans aren’t legally obligated to pay for gender confirming surgery, because the state raised the advice as a defense, a federal trial court said in a class suit.

Arizona implicitly waived the attorney-client privilege by arguing that its employee health plans’ blanket exclusion on coverage for transgender surgery is the product of legal advice, not discriminatory intent, the U.S. District Court for the District of Arizona said.

Russell Toomey is an associate professor at the University of Arizona. He sued the state after his employee health plan denied coverage for a hysterectomy his doctors determined was medically necessary to treat his gender dysphoria.

The plan’s blanket exclusion on gender confirming surgery is sex discrimination in violation of Title VII and the 14th Amendment equal protection clause, Toomey says in the proposed class action.

During discovery, Toomey asked the state to produce information intended to show why Arizona adopted the exclusion. Arizona’s response included a privilege log referring to 85 documents it said were protected by the attorney-client privilege.

The privilege generally shields confidential communications between attorneys and their clients from discovery. But it can be waived by implication when the client puts the attorney’s advice into issue in litigation, the court said.

Arizona argued the plan exclusion isn’t intentionally discriminatory because it concluded that nothing in the law required it to provide coverage for transgender surgery, according to the court. This conclusion wasn’t necessarily based on the attorneys’ advice, the state said.

But if this conclusion had been based on a newspaper article, for example, the state wouldn’t have said the legal advice it received “regarding this issue is covered by the attorney-client privilege,” the court said. Moreover, the state identified two particular memos it relied on to retain the exclusion, it said.

The court rejected the state’s privilege argument. “The State Defendants implied that they received legal advice on the propriety of the Exclusion from counsel and relied on that legal advice when they decided to establish or maintain the Exclusion even if they did not say so explicitly,” it said Monday.

The professor, in “fairness,” ought to have access to the documents, the court said.

Magistrate Judge Leslie A. Bowman issued the order.

Willkie Farr & Gallagher LLP and the American Civil Liberties Union represent Toomey. Fennemore Craig PC represents the state.

The case is Toomey v. Arizona, D. Ariz., No. 19-cv-35, order compelling discovery 6/28/21.

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

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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