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Transgender teens file class-action suit over Arizona surgery ban

The teens say their rights — and those of other transgender Arizonans — are being violated by the state's Medicaid ban on “gender reassignment surgery.”

Two transgender teens sued Arizona's Medicaid agency Thursday, alleging their civil rights are being violated by the state health insurance program's ban on gender-affirming surgeries.

The suit, filed Thursday in an Arizona federal courthouse, seeks to establish a class action on behalf of the teens — known only as John Doe, 15, and D.H., 17, and other transgender Arizonan Medicaid recipients under age 21 who seek chest reconstruction as treatment for a diagnosis of gender dysphoria. The complaint estimates there are at least 100 Arizonans who would be affected by the suit.

The suit defines the class as “individuals who have been unable and will be unable" to obtain coverage through the Arizona Health Care Cost Containment System "for medically necessary male chest reconstruction surgery because of the [ban], and as a result, have faced or will face delayed or denied access to these medically necessary treatments.”

The claims say the state’s 1982 ban on “gender reassignment surgeries” violates the Affordable Care Act’s anti-discrimination provisions, the Medicaid Actand the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

According to the suit, the two came out as transgender years ago and since then have faced significant challenges as puberty began to change their bodies. It also states the reliance on chest binders to create a more masculine appearance forced D.H. to abandon his beloved hobby of dance and resulted in John Doe wearing a heavy hoodie through Arizona’s sweltering summers.

Both teens’ physicians recommended chest reconstruction surgery, and the state’s 1982 ban on Medicaid funding for “gender reassignment surgeries” means that as Medicaid recipients, they are ineligible for the medically necessary surgery even if a doctor recommends it, according to the suit.

Arizona is among 10 states across the U.S. that explicitly ban transgender health care coverage for Medicaid recipients, according to Movement Advancement Project, an LGBTQ think tank. Twenty-two states and Washington, D.C., explicitly cover this type of care, while 18 states have no explicit policy regarding trans health coverage.

Asaf Orr, an attorney working on the case and the director of the National Center for Lesbian Rights' Transgender Youth Project, said there is "no legitimate justification for Arizona’s refusal to provide this critical care to transgender Medicaid recipients."

"Instead, excluding that care creates unnecessary barriers that prevent transgender young people from thriving in every aspect of their lives and can cause lifelong harms," he said in a statement.

In June's landmark Supreme Court decision Bostock v. Clayton County, Georgia, the high court found that the Civil Rights Act's ban on employment discrimination "on the basis of ... sex" also bans employment discrimination on the basis of sexuality and gender identity.

"In Bostock, the United States Supreme Court unequivocally held that the definition of 'sex' under federal law includes discrimination against transgender people," Orr wrote in an email to NBC News. "By maintaining and enforcing a categorical exclusion for surgical treatment for gender dysphoria, AHCCCS is impermissibly discriminating against transgender Medicaid recipients on the basis of sex and, as a result, the Court should enjoin AHCCCS from denying coverage under that exclusion."

The suit notes that Medicaid requires that recipients under age 21 receive "Early and Periodic Screening, Diagnostic and Treatment" so that major "medical, vision, dental, and hearing" problems are diagnosed and treated early in life. It then states that "[s]urgery to treat gender dysphoria, including male chest reconstruction surgery" is such a service.

Heidi Capriotti, a spokesperson for the Arizona Health Care Cost Containment System, declined to comment.

A number of lawsuits involving transgender health care and insurance coverage have recently made headlines. Earlier this week, an Iowa appeals court dismissed a 2019 lawsuit challenging a state law that does not require Medicaid to pay for transgender Iowans' gender reassignment surgeries. And last month, a transgender man sued the University of Maryland Medical System in federal court, claiming his rights were violated when his gender-affirming surgery was canceled by one of the hospital system's subsidiaries. In perhaps the most high-profile case, 23 Democratic state attorneys general sued the Trump administration last month seeking to block its implementation of a rule overturning discrimination protections for transgender people in health care.

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