A University of Arizona professor who is transgender has filed a class-action lawsuit against the state over access to health care that his doctors have deemed medically necessary to treat his gender dysphoria.

Russell Toomey, who is being represented by the American Civil Liberties Union, is an associate professor of family studies and human development at UA and receives health-insurance coverage from the state.

Toomey wants the courts to remove an exclusion in the state's health-care plan that denies coverage for gender-reassignment surgery for him and all other transgender employees who use the state insurance program.

In the past, the universities have sought removal from the state's health-insurance program due to high costs. Some faculty have said leaving the state plan would also allow the universities to cover transgender care.

In the lawsuit, ACLU attorney Kathleen Brody said the state-funded health-insurance plan generally covers medically necessary care, but has a specific exclusion for "gender reassignment surgery" regardless of whether it's considered medically necessary.

Because of the plan's "discriminatory exclusion," Toomey said he has not been able to get a medically necessary hysterectomy his doctor prescribed to treat gender dysphoria.

What is gender dysphoria?

Gender dysphoria refers to the emotional distress experienced by people whose gender identity doesn't align with their assigned sex.

Taking medical steps to affirm gender identity, like surgery or hormone therapy, are part of acceptable treatment for gender dysphoria, according to the World Professional Association for Transgender Health, the lawsuit states.

If the exclusion were not included in the state's plan, Toomey would have the chance to prove his surgery is medically necessary and appeal any adverse decision about it to an independent reviewer.

The law excluding gender-reassignment surgery coverage violates Toomey's civil rights by discriminating against transgender employees on the basis of sex, the lawsuit claims. It also violates the 14th Amendment that provides for equal protection under the law, the lawsuit claims.

While all four insurance companies that provide plans for state employees have internal policies to determine whether treatment for gender dysphoria is medically necessary, the state plan's exclusion still means transition-related coverage is automatically denied, the lawsuit says.

The University of Arizona and the Arizona Board of Regents did not immediately respond to requests for comment.

Out-of-pocket surgery is too expensive

Toomey told The Republic he decided to pursue the lawsuit after he was personally denied coverage, but he wants to help other families affected by the exclusion as well.

“I’m really asking for the exclusion to be removed so that no other state employee has to struggle with the discrimination that this exclusion brings,” Toomey said.

He said he has worked with medical professionals and insurance companies to try to get the surgery covered since June 2018.

If insurance won't cover the surgery, Toomey would need to pay for it out of pocket. He and his wife have two young children and are caring for an aging parent, so self-funding isn’t feasible, he said.

He’s unsure what the surgery would cost without insurance. But in 2004, he had a double mastectomy that cost him $8,000, which he paid for with a loan co-signed by his father-in-law, he said in a blog post on the ACLU website.

Toomey wrote that he knows at least 20 other families at the University of Arizona who are affected by the exclusion.

Toomey, whose academic work focuses on how discrimination affects LGBT youth, said he waited until he had tenure at UA before challenging the state exclusion.

“Tenure provides a little bit more protection,” he said.

Exclusion's origin is unclear

Joshua Block, senior staff attorney with the ACLU’s LGBT & HIV Project, said employee health-care plans are a valuable part of compensation, and the exclusion means transgender employees are receiving inferior care.

“This exact same surgery would be covered if he needed it for another medical condition,” Block said.

There could be several hundred other state employees who have been denied care because of the exclusion, Block said, estimating the number based on the percentage of the overall population that is transgender and the number of employees who use the state plan.

It’s not clear when the exclusion was added to the state health-care plan or by whom, Block said. But that the exclusion exists now is not a secret to Arizona officials, he said.

“Arizona officials certainly know of this issue. A decision was made for whatever reason not to update their policy, regardless of what the motives were for putting the exclusion in place,” Block said.

In 2014, the ACLU forced Medicare to remove an exclusion from its guidelines. Once Medicare’s exclusion was removed, Block said private insurers and other government programs started to look at their plans and update them.

Policies in other states over exclusions for transgender health care have been challenged in recent years.

In Wisconsin, the ACLU recently won a lawsuit over coverage of transition-related health care that the state’s health-insurance policy wouldn’t cover, meaning state employees there are now eligible for such coverage.

In South Dakota, a transgender man challenged the state’s exclusion. But the lawsuit was dismissed Jan. 15 after the plaintiff died.