'Trans' teen's demand for Medicaid to cover breast removal denied by Arizona court

In a recent court ruling and opinion filed by the United States Court Of Appeals For The Ninth Circuit, the court has ruled against a minor biological female who identifies as a boy who requested preliminary injunctive relief in a putative class action suit in the form of "Immediate male chest reconstruction surgeries."

The lawsuit was brought forth on behalf of an unnamed John Doe, who was under the age of 18 at the time it was submitted in November of 2021, and "all others similarly situated."

The motion for preliminary injunction was brought forth against Jami Snyder, Director of the Arizona Health Care Cost Containment System, and alleged that a provision of Arizona law precluding coverage for gender reassignment surgeries violates federal law.

In an opinion, Judge Consuelo Callahan said that Doe asserts that the exclusion of gender reassignment surgeries under Arizona's Medicaid program constitutes as sex discrimination.

"The district court denied the request for a mandatory preliminary injunction based on a finding that Plaintiffs had not shown that male chest reconstruction surgeries were medically necessary for them or safe and effective for correcting or ameliorating their gender dysphoria," Callahan wrote.

"On this preliminary record, given facts specific to Doe and the irreversible nature of the surgery, Doe has not shown that the district court's findings are 'illogical, implausible, or without support in inferences that may be drawn from the facts in the record,'" he continued.

The complaint stated that Doe, as well as one other Plaintiff that has since been dropped from the case following an appeal, filed a complaint for declaratory and injunctive relief in the United States District Court for the District of Arizona in August of 2020.

They claimed that they receive healthcare through Arizona Health Care Cost Containment System (AHCCCS), and that they had been recommended male chest reconstruction surgery by their healthcare providers to further alleviate their gender dysphoria.

Their motion stated that the surgery is not cosmetic, but functional, asserting that the surgery would represent their internal identity externally, and that it would eliminate the need for chest binding, which is known to cause issues like skin conditions and difficulty breathing with extended use.

The court filing notes that in a case such as this, "a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

In deciding whether the Plaintiffs had shown that a double mastectomy was medically necessary, they had submitted a number of declarations, including one from a psychiatrist specializing in treating children with gender dysphoria, and one from a plastic surgeon specializing in gender reassignment surgeries.

The filing noted that both specialists are part of World Professional Association for Transgender Health (WPATH).

They argued that surgeries such as this are "safe, effective, and medically necessary treatment for each of them, assuming the absence of any pathology."

The defense responded with declarations from two experts, an endocrinologist and a psychiatrist specializing in sexuality.

The endocrinologist said that "'professional consensus' embodied in the WPATH's Standard of Care exists only within its confines and that there is no high-quality study showing male chest reconstruction surgery is safe, effective, or optimal for treating minors with gender dysphoria."

He pointed to a decision made by the Centers for Medicare & Medicaid Services in 2016 that declined to issue a national coverage determination on gender reassignment surgery for Medicare beneficiaries because the clinical evidence was inconclusive for the Medicare population.

The psychiatrist was an early member of WPATH, but has since stepped away from the organization, saying that "WPATH represents a selfselected subset of the mental health professions . . . [and] does not capture the clinical experiences of others."

The psychiatrist asserted that WPATH "does not welcome skepticism, and therefore, deviates from the philosophical core of medical science."

He said that there is no reliable scientific data to support such surgeries on those with gender dysphoria, that these surgeries would not eliminate the lack of consistency with female genitalia, and that they could not predict whether these adolescents would continue to experience gender dysphoria into their adulthood.

"The district court did not find Plaintiffs' arguments compelling," the court filing reads.

The filing added that "the district court agreed with Defendant that because the AHCCCS covers hormone treatment and mental health counseling for the treatment of gender dysphoria, Plaintiffs had failed to meet their high burden, especially because they 'have not clearly shown the surgery they seek is safe and effective for treating gender dysphoria in adolescents.'"

"The district court further stated that because the AHCCCS covers certain treatments for gender dysphoria, Plaintiffs had not shown that the denial of coverage was based on sex rather than some other permissible rationale," it added.

The court also noted that the Plaintiffs had not met the requisite of showing that they would suffer irreparable harm because "according to the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition ('DSM-5'), gender dysphoria does not persist into adulthood for most children and, specifically, '[i]n natal females persistence has ranged from 12 percent to 50 percent.'"

They also noted that the Plaintiffs had not demonstrated that they are capable of providing informed consent, given the fact that they suffer from significant psychological disorders that pre-date their gender dysphoria.

"Doe's 'long-standing and pre-existing 'chronic post-traumatic stress disorder from early life attachment trauma' . . . should be addressed before irreversible surgical procedures are employed,'" the court wrote.

"In sum, the district court denied the request for a preliminary injunction finding that Plaintiffs had 'not clearly shown that the surgery they seek is medically necessary for them, that it is a safe and effective treatment for gender dysphoria in adolescents, or that the Challenged Exclusion violates the Medicaid Act, Section 1557, or the Equal Protection Clause.'"