Affected Iowans, Kim Reynolds discuss policy targeting transgender people

Two transgender Iowans and an LGBTQ advocacy group are challenging the new statute intended to deprive transgender people of Medicaid coverage for gender-affirming surgery. The ACLU of Iowa filed suit in Polk County District Court on May 31 on behalf of Aiden Vasquez, Mika Covington, and One Iowa.

Listening to the plaintiffs explain why they took this step, I was struck by the contrast between their heartfelt, compelling words and Governor Kim Reynolds’ heartless, clueless excuses for signing discrimination into law.

THE LEGAL CASE

The Republican ambush on trans Iowans stemmed from an Iowa Supreme Court decision in March, which struck down the state policy excluding gender-affirming surgery for Medicaid recipients. The justices unanimously held that the Medicaid program is a “public accommodation” under the Iowa Civil Rights Act, which since 2007 has prohibited discrimination on the basis of gender identity.

Instead of accepting that transgender people are entitled to appropriate medical care, just like anyone else on Medicaid, GOP lawmakers approved and Reynolds signed a new subsection to the relevant portion of the civil rights law.

This section shall not require any state or local government unit or tax-supported district to provide for sex reassignment surgery or any other cosmetic, reconstructive, or plastic surgery procedure related to transsexualism, hermaphroditism, gender identity disorder, or body dysmorphic disorder.

The statute contains obsolete and offensive terminology referring to transgender or intersex people because Republicans lifted some language from the decades-old administrative rule the high court ruled illegal.

Bleeding Heartland already discussed in detail why this attempt to roll back civil rights protections won’t withstand a legal challenge. To summarize briefly:

  • The Iowa Supreme Court determined in Good and Beal v. Iowa Department of Human Services that gender-affirming surgeries are medically necessary. The state did not even try to argue otherwise.
  • The court will subject the new policy to heightened scrutiny, because it imposes gender-based discrimination against a historically disfavored group.
  • When Iowa lawmakers considered the amended bill, proponents of the new wording were unable to articulate any legitimate government interest, let alone an important or compelling government interest, for denying medically necessary care to Iowans solely because of their gender identity. (Some video clips from the Senate debate are here.)
  • I’ll be shocked and disappointed if the Iowa Supreme Court doesn’t strike down this statute on equal protection grounds. The court filings (enclosed in full below) show that the law “facially discriminates on the basis of being transgender” and “was motivated by animus toward transgender people.” Every Iowan on Medicaid will have access to the surgery recommended by their health care providers, except for transgender or intersex people. I would not want to be the attorney assigned to argue that the policy is consistent with Article I, Section 6 of the Iowa Constitution.

    The plaintiffs are making two additional claims under the state constitution.

  • Article III, Section 29 requires legislation to “embrace but one subject […] which subject shall be expressed in the title.” But the title of House File 766 references neither the Iowa Civil Rights Act nor transgender people. Instead, the title reads, “AN ACT RELATING TO APPROPRIATIONS FOR HEALTH AND HUMAN SERVICES AND VETERANS AND INCLUDING OTHER RELATED PROVISIONS AND APPROPRIATIONS, PROVIDING PENALTIES, AND INCLUDING EFFECTIVE DATE AND RETROACTIVE AND OTHER APPLICABILITY DATE PROVISIONS.” The Iowa Supreme Court struck down a state law in 1986 on the grounds that a bill’s title must “give fair notice of the act’s subject” and “must not deceive its reader.”
  • The statute violates Article I, Section 1 guarantees of “inalienable rights”: liberty, safety, and happiness.
  • “I SPENT MY WHOLE LIFE LIVING IN A BODY THAT WASN’T MINE”

    Republican lawmakers compounded the cruelty of their discriminatory act by making that section of House File 766 take effect as soon as the governor signed the bill, rather than on July 1, like most of the health and human services budget.

    Both of the individual plaintiffs spoke about the impact on their lives at the May 31 news conference announcing the ACLU’s lawsuit.

    Aiden Vasquez began speaking around the 8:30 mark of this video. My transcript of his remarks in their entirety:

    So, I am participating in this lawsuit to get the medical care I desperately need, and to pave the way for other transgender Iowans who need it too.

    [fights back tears] I spent my whole life living in a body that wasn’t mine, feeling fake and hopeless. Now it’s time to join the front lines, to stand up for my equality, my wholeness, as well as the rights of other transgender Iowans.

    Tragically, society shames transgender people just for being who they are. But I’m not hiding anymore. I’m determined to help myself, and in that way, help others.

    The petition enclosed below explains that Vasquez is 51 years old and “has known that he was male since the age of two.” He has lived full-time as a man for years, beginning hormone therapy soon after being diagnosed with gender dysphoria in early 2016. He had a double mastectomy that year, and his health care providers have “uniformly concluded” that surgery on his genitals is necessary to treat his gender dysphoria, which “exacerbates his depression and anxiety.”

    Vasquez began seeking approval for bottom surgery after the Iowa Supreme Court’s Good decision in March. He was supposed to have a pre-operative consultation on May 30. But his doctor’s practice canceled the appointment because of the new Iowa law, saying they could not confirm Medicaid would cover the office visit and “also could not assure preapproval for his surgery,” tentatively scheduled for September.

    “IT AFFECTS EVERY ASPECT OF MY LIFE”

    Mika Covington began speaking shortly after the 10:00 mark of the above video. My transcript:

    It has been a decade since I have come out as a transgender woman, though I have known I was a female long before that. Those who are not transgender often do not understand what it’s like to live in a body that does not match your gender in your heart and mind. It affects every aspect of my life.

    Gender-affirming surgery is not cosmetic surgery. Getting the gender-affirming surgery that my doctors have determined is medically necessary for me will do nothing less than give me my life back. It will help me build a life in which my body is in harmony with my gender, so I can overcome the depression, lack of confidence, isolation, and other problems that come from my gender dysphoria.

    It was very painful to me when the Iowa lawmakers passed this new bill, this new law. All Iowans, regardless of their income, have the right to have medically necessary health care without discrimination because of who they are. It’s wrong to deny Iowans on Medicaid like myself their medically necessary care just because we are transgender.

    Gender-affirming surgery is literally saving lives.

    The treatment is life-saving because it can reduce depression and suicidal ideation in transgender people, who have far higher suicide rates than the general population.

    The court filing notes that Covington’s gender dysphoria has caused “severe depression and anxiety.” Multiple medical providers have concluded surgery is necessary. Like Vasquez, she had intended to schedule the procedure for this September. Page 5 of the brief supporting the motion for a temporary injunction references letters and affidavits confirming the disruption to recommended treatment for both plaintiffs.

    All legislators who voted for House File 766 should feel deeply ashamed for interfering with Vasquez’s and Covington’s medical care. But they didn’t listen to anyone in their circumstances. Had Republicans run this proposal through the normal legislative process, instead of tacking it onto a budget bill the day before adjournment, witnesses could have testified in subcommittee about how the discriminatory language would harm marginalized Iowans.

    Worth noting: Iowa Department of Human Services staff have not clarified whether Medicaid will deny all requests for gender-affirming surgery. But the discriminatory policy remains in the Iowa Administrative Code, and Republican officials have said the intent of the new statute was to revert to that policy.

    Which brings us to the governor’s public comments.

    “THIS HAS BEEN THE STATE’S POSITION FOR YEARS”

    For the last month, Reynolds has stuck with a consistent message about this issue. As she told reporters on May 7, “This takes it back to the way it’s always been. […] This has been the state’s position for decades.”

    The governor’s staff do not allow me to attend her media availabilities, so I don’t know whether journalists have tried to follow up with questions such as, “Why do you insist that Medicaid deny care that doctors have determined to be medically necessary?” Or, “Why would you want to revert to the state’s previous position after the Iowa Supreme Court declared that policy to be illegal discrimination?”

    Reynolds doesn’t understand the Supreme Court ruling in Good, judging by her latest appearance on WHO-TV’s The Insiders. This show aired on May 5 but was taped three days earlier, before the governor signed House File 766. I transcribed the relevant part, beginning around the 5:00 mark.

    Dave Price: One of the decisions you have to make is this bill that would ban Medicaid money toward, when it goes to gender reassignment surgery. And these are obviously very rare. In your mind, these surgeries–is that cosmetic or medically necessary?

    Kim Reynolds: Well what the provision says, that’s in the legislation, says that the Civil Rights Act doesn’t require governments to fund gender reassignment and other similar surgical events. And this has been the state’s position for years. In fact, it was defended all the way up to the Supreme Court. They ruled that the statute doesn’t make it clear, and so the legislature came back and addressed that.

    But this has in fact been the state’s position for years, and this just takes it back to where it was.

    The court did not say “the statute doesn’t make it clear.” The opposite is true: the court found the administrative rule violated the Iowa Civil Rights Act. That wasn’t a close call–it was a unanimous ruling among justices who often disagree with one another. Reynolds’ own conservative appointee, Justice Susan Christensen, authored the opinion.

    Anyway, why should the state keep trampling on transgender Iowans’ rights just because it did so for years?

    And why is the governor suddenly beholden to tradition? Her administration hasn’t hesitated to blow up other longstanding state policies, like the 1974 collective bargaining law or the judicial selection system in place since 1962.

    WHO-TV’s Price tried one more time before moving on.

    Price: But, so then, is it your contention, then, that this would be cosmetic and optional, so it would be the family’s requirement, then, to pay for it?

    Reynolds: You know, the provision says that it doesn’t require governments to fund gender reassignment, or sex reassignment and other similar surgeries. There are some provisions that would allow for medical–if it was medically necessary. So there is some options in there too.

    We’re going to continue to take a look at this. But that’s my understanding of the provision. And it is–it’s, and it is, it’s been the state’s position for years. The attorney general defended that all the way up to the Supreme Court. The Supreme Court said based on the statute they didn’t think that it was constitutional. The legislature came back in and took it back to the way that it previously was by rule. So they just put it back to the way that it was. And now I’m sure the Supreme Court will weigh in and decide whether it is or not if–if we move forward with that.

    Wrong again, Governor.

    Nothing in the new law or the old administrative rule calls for Medicaid to cover gender-affirming surgery deemed to be medically necessary. There are no “options in there” for transgender Iowans.

    Contrary to what the governor asserted, the Iowa Supreme Court did not rule on whether the discriminatory policy was constitutional. The justices found that it was not necessary to resolve the constitutional claim, because the rule violated the Iowa Civil Rights Act.

    Suppose Reynolds were right that the Supreme Court “said based on the statute they didn’t think that it was constitutional.” Why on earth would the legislature double down on that unconstitutional policy, and why would the governor sign it into law?

    Reynolds has been coached to emphasize that the attorney general defended the policy “all the way up to the Supreme Court,” as if that proves the discrimination was and is justified. The Attorney General’s office typically defends the state in litigation. So what? They lost the Good case decisively, and rightly so.

    The governor and her allies have long sought to portray Reynolds as a diligent researcher. “She goes overboard, in terms of doing the additional study on her own and making sure that she fully grasps the nuances of policy and the positions that the administration will take,” a former chief of staff to Governor Terry Branstad told the Des Moines Register in 2016. “Kim’s a studier and a worrier,” the Associated Press quoted Republican power-broker Doug Gross as saying in a 2017 profile, which noted Reynolds often “demanded extensive briefing material” to prepare for public events.

    Yet again we see the reality: Reynolds robotically repeats talking points but makes no apparent effort to grasp the matter at hand.

    She has no clue about the medically accepted standard of care for transgender people or the Iowa Supreme Court ruling she tried to circumvent.

    She never has and never will experience the pain of Vasquez, Covington, or others who can’t obtain recommended treatment for their diagnosed medical condition. Nor does she care to hear their perspective. Democratic State Senator Claire Celsi tried without success to set up a meeting between Reynolds and transgender Iowans before the governor signed House File 766.

    It’s a disgrace for Reynolds to force advocates to fight this legal battle again. She won’t be vindicated in court. She will only prolong some of her constituents’ suffering.

    UPDATE: Dr. Nicole Nisly, co-director of the LGBTQ clinic at the University of Iowa, told Iowa Public Radio that the new law disrupted surgeries for approximately 150 patients.

    Appendix 1: First court filings in case challenging the latest amendment to the Iowa Civil Rights Act

    Petition for declaratory and injunctive relief:

    Motion for temporary injunction blocking the relevant statute from being enforced:

    Brief in support of motion for temporary injunction, which lays out the legal arguments in more detail:

    Appendix 2: The Iowa Supreme Court’s unanimous decision in Good and Beal v. Iowa Department of Human Services.

    Top image: Plaintiff Mika Covington speaks at the May 31 news conference announcing the ACLU’s latest lawsuit against the state. Others pictured, from left: plaintiff Aiden Vasquez, Aidan Zingler of Transgender Action Group for Iowa, One Iowa executive director Daniel Hoffman-Zinnel, ACLU of Iowa legal director Rita Bettis Austen, and Diane Dean, there to support Covington.

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