Employment Law Daily Transgender professor’s Title VII sex discrimination claim for denied coverage of hysterectomy fails
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Tuesday, July 2, 2019

Transgender professor’s Title VII sex discrimination claim for denied coverage of hysterectomy fails

By Joseph Arshawsky, J.D.

Finding that discrimination based on a person’s status as a transsexual without more was not discrimination based on gender, or sex, a magistrate judge recommended that a transgender university professor’s Title VII claim should be dismissed.

A magistrate judge for a federal district court in Arizona recommended that a transgender university professor’s Title VII sex discrimination claim based on his health insurance plan’s refusal to cover a total hysterectomy be dismissed because the discrimination in this case was not based on sex. On the other hand, the magistrate recommended that the professor’s Equal Protection claim survive dismissal because he found that the professor alleged facts that could justify a heightened level of scrutiny (Toomey v. State of Arizona, June 24, 2019, Bowman, L.).

The professor is a transgender male. “[H]e has a male gender identity, but the sex assigned to him at birth was female.” He had been living as a male since 2003 and his treating physicians have recommended he receive a hysterectomy as a medically necessary treatment for his gender dysphoria. The associate professor received health insurance from a self-funded health plan provided by the state. At issue was the insurance’s coverage exclusion for “gender reassignment surgery.”

The professor sought medical preauthorization for a total hysterectomy, but he was denied under the plan’s exclusion for “gender reassignment surgery.” His resulting lawsuit contended that the plan’s exclusion was sex discrimination under Title VII and a violation of his rights under the Equal Protection Clause of the Fourteenth Amendment. The employer moved to dismiss.

Exhaustion. The employer first argued that the professor failed to exhaust the plan’s internal appeals process before bringing suit. The court had to determine whether the parties intended that the internal appeals process would apply to a Title VII or an Equal Protection Clause challenge. If yes, then the employer’s motion to dismiss should be granted. The employer noted that at the third level of appeal, an adverse benefit decision is heard by an Independent Review Organization (IRO) that would consider, among other things, the “terms of the Plan to ensure that the IRO’s decision is not contrary to the terms of the Plan, unless the terms are inconsistent with applicable law.” It seemed clear that the IRO was intended to make a medical decision relating to the appropriateness or efficacy of a particular medical treatment as its primary area of expertise.

However, the magistrate noted that there were occasions when the IRO must consider whether the terms of the Plan “are consistent with applicable law.” The magistrate concluded as a matter of law that the Plan’s exhaustion provision is ambiguous; it was not clear if the parties intended that the internal appeals process would apply to a Title VII or an Equal Protection Clause challenge to a Plan exclusion. Finding the matter must be resolved by the trier of fact, the magistrate denied dismissal on exhaustion grounds.

Title VII claim. The employer next argued that the professor failed to properly state a Title VII discrimination claim. The professor claimed that his sex is female but his gender identity is male. He had been diagnosed with “gender dysphoria,” and his medical provider concluded that a hysterectomy is the appropriate treatment. The professor sought preapproval for the surgery, but it was denied based on the Plan exclusion for “gender reassignment surgery,” which he claimed was discrimination based on sex. The magistrate disagreed, reasoning that if it was sex discrimination, the Plan exclusion would not apply if his sex were different, and the professor had no evidence of that. Accordingly, he failed to state a claim for sex discrimination under Title VII.

Although the professor alleged that he was being discriminated against because his sex and his gender identity do not match, the magistrate observed that while that may be so, but discrimination based only on what the professor called his “transgender status” did not violate Title VII. Discrimination based on a person’s status as a transsexual, without more, is not discrimination based on gender, or sex for that matter. Consequently, the magistrate recommended that his Title VII claim be dismissed.

Equal Protection. As for the professor’s Equal Protection Clause claim, the employer argued that the Plan exclusion burdened neither a fundamental right nor a suspect class. Accordingly, it argued that the Plan exclusion did not violate the Equal Protection Clause so long as it bore a rational relation to some legitimate end. But the professor argued that any law that discriminates based on transgender status must survive a heightened level of scrutiny and the magistrate agreed that the professor had alleged facts that, if true, could justify a heightened level of scrutiny. This claim survived dismissal because heightened scrutiny may apply where the plaintiff is a member of a “discrete and insular minority,” or is characterized by an “immutable characteristic determined solely by the accident of birth.”

Sovereign immunity. Finally, the employer argued that sovereign immunity barred the professor’s claims against individual defendants who were sued in their official capacity as state officers. The professor’s “allegations are rooted in events that occurred in the past,” but the injunctive and declaratory relief that he seeks “would prevent future and ongoing illegality.” Accordingly, this action fell comfortably within the Ex Parte Young exception. Accordingly, the magistrate recommended that the motion be granted as to the professor’s Title VII claim but denied as to his Equal Protection claim.

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