UPDATE, Sept. 29, 2023

On Sept. 29, 2023, following the Governor’s June 27, 2023, Executive Order, the case settled when the District Court issued an ORDER GRANTING PLAINTIFF’S MOTION FOR APPROVAL OF CONSENT DECREE.

The Consent Decree provided four bases of relief:

1. Defendants are “permanently enjoined from providing or administering a health plan for employees of the Arizona Board of Regents (“ABOR”) or the State of Arizona and their beneficiaries that categorically excludes coverage of medically necessary surgical care to treat gender dysphoria.”

2. Defendants’ health plans will “evaluate health care claims for surgical care to treat gender dysphoria pursuant to the health plan’s generally applicable standards and procedures.” ABOR agreed to advise all currently enrolled ABOR employees of the plan change, and the State of Arizona agreed to notify all other eligible State employees.

3. State Defendants are “permanently enjoined from enforcing or applying ARS § 38-656(E) to the extent that it is inconsistent with [the]Consent Decree.”

4. State Defendants agree to pay Plaintiff’s counsel $500,000.00** in attorneys’ fees pursuant to 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988. The Consent Decree does not call for an incentive award to the named plaintiff, nor does it require class members to release any claims for damages.

** In the Order, the Court reduced the amount of attorney’s fees from $500,000 to $375,000, reasoning that a significant portion of the relief obtained by the class—removing the coverage exclusion from the state healthcare plan—was achieved by Executive Order, independently of class counsel’s efforts in this case.

UPDATE, June 27, 2023

On June 27, 2023, Arizona Governor Katie Hobbs issued an EXECUTIVE ORDER removing the ban on gender-affirming surgery for transgender state employees.

ORIGINAL HOLDING, issued Feb. 26, 2021:

Plaintiff Toomey’s request for injunctive relief requiring the state to provide insurance coverage for his gender-affirming care was denied. Toomey could meet the standard for a mandatory injunction, and the injunctive relief requested is identical to the ultimate relief sought.

• Background: Plaintiff, a transgender professor at the University of Arizona seeking a total hysterectomy, filed a class action suit alleging sex discrimination under Title VII and the Equal Protection Clause for the exclusion of “gender reassignment surgery” from the University of Arizona’s employee healthcare plan. Plaintiff, relying on Bostock, moved to preliminarily enjoin the defendants from enforcing the exclusion.

  • A Report and Recommendation (R&R) recommended denying the requested injunctive relief. The R&R, relying in part on General Electric Co. v. Gilbert,* found that the plaintiff was unlikely to succeed on the merits of the Title VII claim because he cannot show that the exclusion discriminates against all people in the relevant class, i.e. natal females. Toomey, at *3.

  • Plaintiff objected to the R&R’s finding that he can only prove his Title VII claim by demonstrating that the defendants were subjectively motivated by discriminatory animus, and avers that the applicable standard is whether the exclusion is facially discriminatory. Id. at *4.

• The court found that the remedy sought by the plaintiffs was actually a mandatory—not preliminary—injunction, and that the plaintiffs failed to meet the high standard required for such an injunction. Id. at *5.

• The court also found that the plaintiff failed to show that “extreme or very serious damage will result” if the injunctive relief sought is not issued, or that the “the injury complained of is [not] capable of compensation in damages,” i.e. plaintiff could pay for his operation out-of-pocket and be later reimbursed by defendants if he prevails on the merits. Id. at *6.

• The court skirts the question of whether or not the challenged exclusion constitutes sex discrimination; it summarizes the R&R’s findings (including the argument that the exclusion did not discriminate on the basis of sex) and the plaintiff’s opposition to them without endorsing any arguments. The decision hinges ultimately on the court’s determination that the requested relief was a mandatory injunction, and that the standard for the injunction had not been met.

* Plaintiff contend that the R&R’s reliance on Gilbert and Geduldig v. Aiello, 417 U.S. 484 (1974), was in error. First, Gilbert was overturned by the Pregnancy Discrimination Act, and second, a challenged policy need not discriminate against all men or all women to be considered discriminatory because of sex. Toomey at *3.