Seyfarth Synopsis: In Toomey v. U of Arizona, No. 19-35 (D. Ar. June 24, 2019), the Magistrate Judge determined on a motion to dismiss that Title VII does not prohibit discrimination based on a person’s transgender status. However, she decided that the plaintiff had adequately alleged that the health plan exclusion for gender reassignment surgery disadvantaged a “suspect class”, justifying a heightened level of scrutiny, and that defendants had failed to argue that the exclusion would survive this level of scrutiny.
Plaintiff Russell Toomey, a transgendered male, filed suit in early 2019 against his employer, the State of Arizona, after the self-funded health plan provided by the State of Arizona denied Toomey’s request for medical preauthorization for a total hysterectomy. The Plan generally provides coverage for “medically necessary care”, and Toomey’s doctors contended that the hysterectomy was medically necessary, but the Plan denied authorization under an exclusion for “gender reassignment surgery.”
Toomey’s complaint contends that the Plan’s denial of authorization for a hysterectomy was sex discrimination under Title VII and a violation of the Equal Protection Clause. In March 2019, the State of Arizona and two individually named defendants employed by the State of Arizona filed a motion to dismiss Toomey’s complaint.
Magistrate Judge Bowman issued her Report and Recommendation on the motion to dismiss on June 24, 2019. Judge Bowman recommended granting the motion to dismiss on Toomey’s Title VII claim on the grounds that Toomey could not show that the decision to deny his request for surgery under the Plan exclusion for gender reassignment surgery would have been different if his sex were different. In reaching this conclusion, Judge Bowman noted that “[d]iscrimination based on a person’s status as a transsexual without more is not discrimination based on gender” under Title VII.
Judge Bowman recommended denying the motion to dismiss on Toomey’s Equal Protection claim. She concluded that Toomey had adequately alleged that the Plan exclusion disadvantaged a “suspect class”, justifying a heightened level of scrutiny, and that defendants had failed to argue that the exclusion for gender reassignment surgery would survive this level of scrutiny.
After the parties filed Objections to the Report and Recommendation, District Judge Rosemary Marquez scheduled oral argument on the Motion to Dismiss and Report and Recommendation for September 16, 2019.
The question of whether the protections of Title VII apply to transgender individuals is also before the Supreme Court for oral argument on October 8, 2019. Given the timing of the argument, it is an open question how and whether the Supreme Court’s decision will impact Toomey’s claims.
We will continue to watch this case, and will keep you posted of any developments.