Disclosure: The ACLU of Iowa is representing Laura Belin and other plaintiffs in an open records lawsuit now pending in Polk County District Court. That case is unrelated to the litigation discussed here.
“We are celebrating today,” said the ACLU of Iowa’s legal director Rita Bettis Austen during a May 12 news conference to discuss the Iowa Supreme Court’s latest decision in a transgender rights case.
In Vasquez and Covington v. Iowa Department of Human Services, the court dismissed as moot the state’s appeal of a lower court ruling, which had found a 2019 law and related administrative rule to be unconstitutional. The result means the state cannot enforce a regulation barring Medicaid coverage for Iowans who need gender-affirming surgery.
Bettis Austen told reporters, “The importance of this truly cannot be overstated,” adding that “Transgender Iowans on Medicaid can continue to receive the coverage for life-saving gender-affirming care, that they desperately need.” Plaintiffs Aiden Vasquez and Mika Covington fought for nearly four years to obtain this outcome and can feel proud of making history for trans Iowans.
However, other aspects of the court’s unanimous decision, authored by Justice Thomas Waterman, raise questions about how Iowa’s high court may approach future challenges to state laws or policies designed to discriminate against transgender people.
BACKGROUND
This case grew out of Republican reaction to a landmark Iowa Supreme Court ruling from 2019. In that decision, known as Good v. Iowa Department of Human Resources, the justices unanimously held that the DHS regulation blocking Medicaid coverage for gender-affirming surgeries violated the Iowa Civil Rights Act, which has prohibited discrimination on the basis of gender identity since 2007.
Weeks later, Republican lawmakers amended 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. When Governor Kim Reynolds signed the provision into law, she expressly stated that her goal was to restore the earlier policy: “This takes it back to the way it’s always been. […] This has been the state’s position for decades.”
Vasquez and Covington filed suit. Their physician had already determined that “bottom” surgery was medically necessary to treat their gender dysphoria, which was causing anxiety and depression. The plaintiffs challenged the constitutionality of both the amendment to the civil rights act and the DHS regulation, which “specifically excluded” Medicaid coverage for gender-affirming surgeries.
In November 2021, Polk County District Court Judge William Kelly ruled in favor of the plaintiffs. He ordered DHS to change its regulation and provide Medicaid coverage for medically necessary surgeries for transgender people.
Kelly also found the state law that carved out an exception to the Iowa Civil Rights Act violated the state constitution’s equal protection guarantee. Crucially, the court determined the law could not survive even a “rational basis” analysis—the lowest bar for the government to clear when a statute or policy is challenged.
The state did not appeal the part of the ruling that struck down the DHS administrative rule, and the agency stopped enforcing that rule. But the state appealed the part of the decision that struck down the 2019 amendment to the civil rights act.
Among other things, the state argued the law “doesn’t prohibit gender-affirming surgery.” Rather, the statute clarified that the civil rights act “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 legislative record shows Republicans were seeking to stop Medicaid from paying for such surgeries.)
The DHS asked the court to reverse the lower court’s determination and make clear that the statute amending the civil rights act was constitutional.
Representing the plaintiffs, the ACLU of Iowa argued that the Supreme Court should affirm the District Court’s ruling and declare the discriminatory statute and policy unconstitutional.
“THAT IS NOT OUR ROLE”
The justices declined to rule on whether the 2019 law is constitutional. Here’s the full text of the Iowa Supreme Court’s ruling in Vasquez.
Writing for the unanimous court, Justice Waterman said “Choices have consequences, and in this case, the appellant’s choices prompt us to dismiss its direct appeal as moot.” After losing in District Court, the DHS agreed to pay for Vasquez’s and Covington’s surgeries and chose not to appeal the ruling on the Medicaid regulation.
The parties to this appeal essentially ask for an advisory opinion on what is now an academic question of constitutional law. That is not our role. DHS has committed to paying for bottom surgeries for Vasquez and Covington regardless of how we decide the constitutional issue. There is no longer a live controversy between these litigants over Medicaid reimbursement for their surgeries.
The Supreme Court did rule on the part of this litigation that wasn’t moot. Plaintiffs had appealed the District Court’s determination that they were not entitled to have their legal fees covered. The Iowa Supreme Court agreed with the lower court that “this judicial review proceeding is governed by Iowa Code chapter 17A,” not the Iowa Civil Rights Act. Therefore, Vasquez and Covington were not entitled to recover fees to compensate their attorneys from the ACLU of Iowa and the Chicago-based law firm Nixon Peabody LLP.
THE POSITIVE IMPACT OF “HISTORY-MAKING LITIGATION”
In a news release enclosed in full below, Vasquez, Covington, and their attorneys emphasized the victory at the heart of this case. Transgender Iowans can receive Medicaid coverage for surgery approved by their physicians. The ACLU described the outcome as “the latest chapter in a long history of litigation where courts have repeatedly affirmed the rights of transgender Iowans to medically necessary gender-affirming care and then the state has taken unconstitutional and discriminatory action to block access to that care.”
Seth Horvath, the cooperating attorney who argued this case before the Iowa Supreme Court in January, commented, “Today’s decision leaves in place a well-reasoned district-court injunction finding that denying Medicaid coverage for gender-affirming surgery is illegal and unconstitutional in Iowa.”
Vasquez said, “This has been a long, incredibly difficult fight for the last four years of my life. But I am proud to be a part of this history-making litigation and proud to be standing up for the justice of all transgender Iowans and hope to set a precedent for other states to do the same.”
Covington recalled how “devastating” it was when the legislature “changed our civil rights act to take away that equal treatment for transgender people on Medicaid.”
I am so glad that the decision from the district court saying the ban on gender-affirming care in Medicaid is unconstitutional is still in place.
This litigation has been a long and difficult journey. I am glad that Iowa Medicaid can no longer enforce the rule that specifically prohibits transgender people from getting certain types of surgery, including surgery they would cover for people who are not transgender. That’s the way it should be when it comes to medically necessary care. A person needs surgery, recommended by their doctor, and insurance pays for it.
Not meaning to discount the importance of this result for trans Iowans, I was troubled by other portions of the Supreme Court decision.
“WE SAVE THE CONSTITUTIONAL ISSUES FOR ANOTHER DAY”
The Supreme Court’s action left the District Court’s ruling in place. But it did not address the lower court’s conclusions about the 2019 law, which was an obvious attack on health care for transgender Iowans.
Justice Waterman wrote, “We save the constitutional issues for another day, presumably with a better-developed record.” The decision later observed, “The issues concerning Medicaid coverage for adult sex reassignment surgery are of public importance and likely to recur [….] Why not wait for a proper challenge by new litigants to provide a ripe, concrete dispute?”
I hope Iowa Medicaid will not give rise to a similar case by denying coverage for someone else’s gender-affirming surgery. But if that case arises, it is far from clear how the justices will approach it.
The Iowa Supreme Court’s 2019 ruling in Good acknowledged that surgery can be part of “accepted standards of medical care to alleviate gender dysphoria,” and noted the state “presented no evidence to the contrary.” The decision stated that the plaintiffs’ physicians “have concluded that gender-affirming surgery is necessary to treat their gender dysphoria.” The District Court opinion in Vasquez also accepted that this kind of procedure is medically necessary.
In contrast, the Iowa Supreme Court’s Vasquez decision seems less committed to the idea that some patients have a genuine medical need for this kind of surgery. This passage comes from a longer paragraph, which argues that the record is insufficient to resolve the constitutional claims.
The record lacks any adversary-tested evidence concerning the efficacy of sex reassignment surgeries in improving the mental health of the recipients. No record was made of peer-reviewed scientific studies evaluating the medical necessity or efficacy of sex reassignment surgeries.
In addition, the decision left open the possibility that the high court may not use heightened scrutiny when considering whether laws targeting transgender people violate the equal protection provision.
Third, the law nationally is in flux, with conflicting rulings on transgender constitutional rights. The United States Supreme Court has not yet decided whether transgender litigants are a quasi-suspect class triggering heightened scrutiny of legislative enactments affecting them. Neither have we.
While courts have not laid out any precise definition of a quasi-suspect class, transgender people would appear to check all the boxes. They are a discrete minority group. They have historically suffered from discrimination. They are “politically powerless,” in the sense that they have been unable “to rely on the legislative process” to protect their rights. (On the contrary: numerous state legislatures have sought to restrict transgender people’s rights). The characteristic that makes them different from the cisgender majority is “immutable”—that is, they cannot change their gender identity.
The U.S. Supreme Court has repeatedly held that gender is a quasi-suspect class, so has used “intermediate scrutiny” when considering laws that discriminate on the basis of gender. To survive an intermediate scrutiny analysis, the government must show the law or policy being challenged “is substantially related” to achieving “an important governmental objective.”
If a court uses the less demanding “rational basis” standard, the law will be upheld as long as it has “a valid, realistically conceivable purpose” that serves a “legitimate government interest.”
As mentioned above, the Polk County District Court rejected the law at issue in Vasquez, even under a rational basis analysis. Judge Kelly wrote,
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.
So even if the Iowa Supreme Court did not use heightened scrutiny in some future case, there’s no guarantee justices would uphold an anti-trans law. Nevertheless, decades of federal and state case law suggest that “the outcome of an equal protection case is largely determined by whether the group is designated as a suspect, quasi-suspect, or non-suspect class […].”
Incidentally, the Iowa Supreme Court applied intermediate scrutiny in the 2009 Varnum decision, which struck down the state ban on same-sex marriage. None of the current justices served on the court at that time.
SIGNS OF INDECISION?
The high court’s deliberations are shielded from public view. But it’s worth noting that the relatively short, unanimous decision in Vasquez (17 pages) was published more than sixteen weeks after the justices heard oral arguments.
The Iowa Supreme Court has turned around several other recent unanimous decisions more rapidly. The decision in the open records case Belin v Reynolds was published about seven weeks after oral arguments. A case involving environmental groups and the Iowa Utilities Board came out roughly five weeks after oral arguments. The 39-page opinion in LS Power Midcontinent LLC v State, involving constitutional claims, came out four and a half weeks after oral arguments. The court ruled on Story County Wind LLC v Story County Board of Review less than four weeks after oral arguments.
For that matter, the Good decision from 2019, stemming from a policy like the one at the center of Vasquez, was published only about six weeks after the oral arguments.
Other factors could explain the timeline. But it’s possible members of the court considered other ways to resolve this case before landing on one approach all seven justices could agree on.
Appendix: Full text of May 12 news release from the ACLU of Iowa, “Iowa Supreme Court leaves intact vital Medicaid coverage for gender-affirming care”
Des Moines, Iowa — The Iowa Supreme Court today left intact a district court’s ruling upholding coverage for gender-affirming care in Iowa’s Medicaid program.
The district court’s previous ruling, which was left in effect by today’s decision, found an amendment to the Iowa Civil Rights Act to take away nondiscrimination protections for transgender Iowans on Medicaid who need gender-affirming care unconstitutional. It also ruled that an Iowa Medicaid regulation barring coverage of gender-affirming care was unconstitutional, determining both violated the state constitution’s guarantee of equal protection of the law.
The Iowa Supreme Court dismissed the state’s appeal of the district court’s decision regarding the amendment to the ICRA, because it determined the appeal is moot.
It is the latest chapter in a long history of litigation where courts have repeatedly affirmed the rights of transgender Iowans to medically necessary gender-affirming care and then the state has taken unconstitutional and discriminatory action to block access to that care.
The decision today preserves the district court win for our clients back in November 2021. The court affirmed that Iowa Medicaid must not rely on the discriminatory regulation or statute to withhold coverage of medically necessary gender-affirming care to transgender Iowans on Medicaid. This was crucially important, since gender-affirming care for them and many other transgender people is life-saving care.
The district court in its decision specified that Iowa Medicaid must not deny coverage of medically necessary gender-affirming care, because doing so violates 1) the Iowa Constitution, which requires equal protection of the laws for all Iowans and 2) the Iowa Civil Rights Act, which includes specific protections against discrimination based on gender identity.
It is the second part of that decision—the part regarding the Iowa Civil Rights Act—that the state appealed to the Iowa Supreme Court. (In 2019, the Iowa Legislature changed the Iowa Civil Rights Act to specifically take away the nondiscrimination protections and statutory remedies covering transgender Iowans on Medicaid.)
Today, the Iowa Supreme Court dismissed the state’s appeal.
Statement from Aiden Vasquez (pronounced Vas-KEZ)
“This has been a long, incredibly difficult fight for the last four years of my life. But I am proud to be a part of this history-making litigation and proud to be standing up for the justice of all transgender Iowans and hope to set a precedent for other states to do the same.
“For me and many others, being transgender is not easy and something that many other people may not yet understand. My gender dysphoria means I have a body that doesn’t match who I know I am—a man. This is made worse by a society that labels me as wrong or sinful, mentally ill, or odd, which is not the case.
“Because of this, transgender people are continuing to be discriminated against and their civil rights threatened. This is something that doesn’t just affect me. I have spoken to thousands of transgender people, moms, dads, family members. The stories of hate, suicidal ideation and attempts, the loss of a child and parents, misunderstandings and unequal treatment of transgender people, breaks my heart—along with the denial of healthcare I’ve received.
“I am glad the decision from the district court is still the law because this ban has prevented many transgender people form getting necessary care. Our society is slowly realizing that everyone deserves to be treated with respect, dignity and allowed healthcare and equal opportunities.”
Statement from Mika (pronounced MIKE-uh) Covington
“It was so devastating when the Iowa Legislature changed our civil rights act to take away that equal treatment for transgender people on Medicaid. The district court returned things to the fair way it used to be since the ban on Medicaid covering this care was first invalidated in the Good case.
“I am so glad that the decision from the district court saying the ban on gender-affirming care in Medicaid is unconstitutional is still in place.
“This litigation has been a long and difficult journey. I am glad that Iowa Medicaid can no longer enforce the rule that specifically prohibits transgender people from getting certain types of surgery, including surgery they would cover for people who are not transgender. That’s the way it should be when it comes to medically necessary care. A person needs surgery, recommended by their doctor, and insurance pays for it.”
Statement from Seth Horvath, cooperating attorney with Nixon Peabody in Chicago
“Today’s decision leaves in place a well-reasoned district-court injunction finding that denying Medicaid coverage for gender-affirming surgery is illegal and unconstitutional in Iowa. The lower courts have now spoken twice on these issues. Both times they’ve found that limiting access to medically necessary surgical care violates the rights of transgender Iowans.
“Our clients are grateful that they can proceed with the care they need. They’ve won a long, hard fight for their rights that started nearly four years ago. All Iowans can be appreciative that their court system protected those rights.”
Statement from ACLU of Iowa Legal Director Rita Bettis Austen
“We know that this care is literally lifesaving for people who need it. Today’s dismissal of the state’s appeal leaves intact the Iowa district court decision that ordered the state to allow our clients to finally get the gender-affirming surgical care that all their doctors agree is medically necessary for them.
“We are honored to represent Aiden and Mika and the transgender clients who have come before them in this fight, in their long journey for themselves and for all other transgender Iowans to be treated equally and fairly under the law.
“Today, the Iowa Supreme Court, in dismissing the state’s appeal, left in effect the critically important district court decision from November 2021 that held that the Iowa Medicaid regulation, which singles out only transgender people from receiving medically necessary surgery, is discriminatory and violates the Iowa Constitution’s guarantee of equal protection. In addition, the district court recognized the Good case applies. That is a prior Iowa Supreme Court decision which had already found that the regulation violates the legal protections against gender identity discrimination in the Iowa Civil Rights Act.
“The district court also found unconstitutional the 2019 Iowa statute attempting to amend the Iowa Civil Rights Act to specifically take away the right to nondiscrimination in Medicaid which had been in place since 2007, restoring the Iowa Civil Rights Act. The Iowa Legislature had passed that law to take away the right to nondiscrimination in Medicaid for transgender Iowans after the Iowa Supreme Court struck down the regulation under the Iowa Civil Rights Act the first time in 2019.
We are celebrating the decision today, which leaves that lifesaving decision by the district court in effect.”
Top photos of Aiden Vasquez (left) and Mika Covington with dog Teddy provided by the ACLU of Iowa and published with permission.