Court finds law targeting trans Iowans unconstitutional

For Aiden Vasquez and Mika Covington, the news was life-changing. Polk County District Court Judge William Kelly ruled on November 19 that Iowa’s law designed to deny Medicaid coverage for gender-affirming surgery “violates the equal protection clause of the Iowa Constitution.”

He ordered the Iowa Department of Human Services to change a longstanding regulation “excluding coverage for sex reassignment surgery” and said the agency must apply the revised rule to allow “transgender individuals coverage under Iowa Medicaid for medically necessary gender affirming surgery for the treatment of Gender Dysphoria and other relevant diagnoses.”

Vasquez and Covington are transgender Iowans who qualify for Medicaid and have been unable to obtain the health care they need for years. They have been seeking legal redress since soon after Governor Kim Reynolds signed the discriminatory statute in May 2019.

Naturally, not everyone was happy with what the ACLU of Iowa’s legal director Rita Bettis Austen described as a “historic win for civil rights in Iowa.” Soon after the court ruling was published on November 22, Reynolds’ spokesperson Alex Murphy told reporters, “The governor’s office is disappointed in today’s decision and disagrees with the district court’s ruling on Medicaid coverage for transgender reassignment surgeries.”

Reynolds echoed the sentiment when speaking to reporters on November 23: “Of course we were disappointed with the ruling and disagree […] My legal team is looking at it. There will be more to come later on. We’re still looking through it and trying to determine what our options are.”

She should stop fighting this battle.

“NO PLAUSIBLE POLICY REASON” FOR DENYING “MEDICALLY NECESSARY SURGERY”

The Iowa Supreme Court unanimously held in March 2019 that gender-affirming surgeries are medically necessary for some transgender patients, and that the the DHS regulation blocking those procedures violated the Iowa Civil Rights Act, which has prohibited discrimination on the basis of gender identity since 2007.

The law being challenged in the current case was a direct response to that Supreme Court ruling, known as Good v. Iowa Department of Human Resources. Republican lawmakers altered the Iowa Civil Rights Act’s section on “accommodations and services” to say that government-supported health plans are not required to pay for sex reassignment surgery. Passage of the 2019 law disrupted planned surgeries for an estimated 150 patients.

The Iowa Supreme Court didn’t consider whether the DHS rule violated Article I, Section 6 of the state constitution (the equal protection clause), because of a “doctrine of constitutional avoidance.” That is, once the justices agreed the rule was inconsistent with a state law, they didn’t need to consider the constitutional arguments. Now that the civil rights code has been amended for the sole purpose of denying health care to transgender Iowans, courts cannot avoid that issue.

Here’s the full 60-page ruling from Judge Kelly (a Terry Branstad appointee, in case anyone was wondering).

The court agreed “that transgender and non-transgender Iowans who are eligible for Medicaid are similarly situated for equal protection purposes.” And even more important, Judge Kelly found this law is unconstitutional under the less demanding “rational basis” standard as well as the heightened scrutiny it would likely receive on appeal to the Iowa Supreme Court.

Beginning on page 33, Judge Kelly used the “intermediate scrutiny” standard the Iowa Supreme Court applied in its Varnum decision on marriage equality. That requires the state to “demonstrate the challenged classification is substantially related to the achievement of an important governmental objective.”

The state had claimed two “important governmental objectives”: reducing Medicaid costs and protecting public health. The judge wasn’t buying it.

Petitioners provide information, unrebutted by any opposing documents, demonstrating that “providing insurance coverage for transgender patients has been shown to be ‘affordable and cost-effective, and has a low budget impact.’” […]

Furthermore, as noted in a previous section, it is estimated that only approximately 0.31 percent of Iowans identify as transgender. […] This number decreases even further when one identifies the amount of individuals from this group who are medically approved candidates for gender-affirming surgery, such as Vasquez and Covington. […]

Additionally, Petitioners supply unrebutted literature revealing that there are greater medical costs associated with denying transgender people access to medically necessary transition-related care and procedures.

Beginning on page 38, the judge analyzed the statute using the rational basis standard, under which a law is upheld if it has “a valid, realistically conceivable purpose that served a legitimate government interest.” The burden here isn’t on the state; it’s on those challenging the law to show that it serves no reasonable purpose and is clearly unconstitutional.

The District Court ruling is blunt.

As detailed above and unrebutted in this record, surgical treatment for gender dysphoria is a serious medical condition. Surgery is being suggested by these medical professionals for Petitioners as necessary and effective. Medicaid coverage is fundamental to ensure the availability of that treatment for economically disadvantaged Iowans. There has not been found a reasonable distinction between transgender and nontransgender people relative to their need for Medicaid coverage for medically necessary surgical care. Once the medical community determined that surgery is medically necessary to treat this health issue, the government lost its rational basis to refuse to pay for the surgery. The law appears to draw an arbitrary distinction. So, there is no plausible policy reason advanced by, or rationally related to, excluding transgender people from Medicaid reimbursement for medically necessary procedures.

A few pages later, the judge noted,

[T]he Court has an agency record bursting with evidence from Petitioners explaining transgenderism and the current opinions of the medical community, as well as testimony from physicians declaring that gender-affirming surgery is medically necessary for these two Petitioners who are Iowa Medicaid recipients. The Court has little information as to why the State should not pay for this type of medically necessary surgery.

Based on the prior analysis above and the Iowa Supreme Court’s guidance in Good, the Court finds no rational basis for Iowa’s prohibition against medically necessary gender-affirming surgical procedures in the current statute. This Court holds that Iowa Code section 216.7(3) does not withstand constitutional attack under article I, section 6. This law violates the Equal Protection Clause of the Iowa Constitution on its face and as applied.

Using the same analysis, the court found that the DHS regulation (which the 2019 law restored) discriminates against transgender people and is therefore unconstitutional under either intermediate scrutiny or a rational basis review.

The District Court didn’t agree with all aspects of the plaintiffs’ case. For instance, Judge Kelly didn’t see “evidence that passage of the laws at issue were motivated by animus toward transgender people.” And he dismissed two other claims brought by Vasquez and Covington, saying they hadn’t exhausted other remedies.

But overall, the opinion is a huge victory for the plaintiffs. As the ACLU’s Bettis Austen said in a written statement, the ruling “recognizes what we’ve long known, that transgender Iowans must not be discriminated against, and that they are protected by the Iowa Constitution’s guarantee of equal protection, as well as by the Iowa Civil Rights Act.”

Every key finding was supported with facts pertinent to the case and relevant case law.

The governor’s spokesperson didn’t respond to my follow-up questions about Reynolds’ specific objections to the District Court’s reasoning. The governor didn’t seem to understand the Iowa Supreme Court’s Good opinion, so I doubt she had any particular legal arguments in mind when she said of the new decision, “Of course we were disappointed with the ruling and disagree.”

Her knee-jerk reaction reflects a staggering lack of empathy for the Iowans whose medical care she has obstructed.

“THIS CARE WILL BE LIFE-SAVING”

Two and a half years ago, Vasquez and Covington explained why they were challenging the discriminatory law and why gender-affirming surgery was so necessary for them. Their first lawsuit was dismissed on procedural grounds, when a District Court judge determined (and an Iowa Court of Appeals panel later agreed) that plaintiffs had not exhausted their administrative remedies for trying to obtain Medicaid coverage for surgery.

Vasquez and Covington then had to spend more than a year on a futile quest to get their Medicaid insurance provider and DHS to approve their surgery. After being denied coverage, which was inevitable under the 2019 law, they filed the current lawsuit in April of this year.

The ACLU released new statements from the plaintiffs on November 23. Vasquez said,

I am so glad to be able to take the next step forward. I desperately need this surgery. For me, it’s nothing short of life-saving. The fact that I have had to jump through hoops and just to try to get coverage for a surgery that could save my life has been mentally, emotionally, and physically draining. It is very hard for me to know that the state has gone out of its way to discriminate against me just because I’m transgender.

I would like everyone to understand that this is not cosmetic surgery. It is not a whim. This has affected my whole life in a negative way and has affected my well-being. Not all transgender people need surgery, but I do. I am a man, but I was born into a body that I experience as not being who I am without this surgery.

That’s why this surgery will be life-changing. I have seen too many other transgender people suffer because they can’t get the care they need. I’m doing this for them, too.

Covington said,

This is an emotional day for me. I have been suffering in this body and with gender dysphoria for so long. As with so many other transgender people, because of the lack of medical care, this has been so heavy on me mentally and physically.

This care will be life-saving for me because I’m constantly bombarded every day with giving up, with suicidal thoughts, and thoughts of self-harm. The way transgender people are treated in our society and the way they are denied care is deeply painful. I am so glad we have gotten this recognition of the fundamental right of transgender people for medically necessary care. It’s a huge step forward.

This is so important because it affects the lives of so many transgender people in Iowa. Days like today make me proud to be an Iowan.

I wonder how Reynolds would feel if anyone she cared about had to wait years for surgery they needed.

The governor thinks it’s intolerable for school children to be required to wear masks for part of the day (even though there is no evidence masks harm kids). She has joined three separate lawsuits to protect Iowans from being required to get COVID-19 vaccinations.

If only she could muster a fraction of that concern for constituents who have suffered for years and contemplated suicide because of a medical condition that is treatable.

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