REFUSING TRANS PEOPLE HEALTHCARE SERVICES IS SEX DISCRIMINATION, SAY IMPACT FUND AND ALLES IN AMICUS BRIEF TO IOWA SUPREME COURT
David Nahmias, Law Fellow - The Impact Fund
Medicaid, the government program that affords health insurance to low-income Americans, often serves as a lifeline for the poorest in our communities. But for EerieAnna Good and Carol Beal, two transgender women living in Iowa, Medicaid’s promise to provide a level of basic security and dignity in healthcare has remains unfulfilled. Transgender Americans like EerieAnna and Carol face higher poverty rates than the general population and are more likely to be eligible for Medicaid. Ten states, including Iowa, however, explicitly forbid transgender people from accessing trans-specific health services, such as gender affirmation surgeries. This is in spite of unequivocal evidence and conclusions by mainstream professional associations like the AMA and APA that gender affirmation surgery is medically necessary for transgender people.
EerieAnna (27) and Carol (42) have identified as female since they were young children, and they have both undergone hormone therapy, psychological care, and the legal processes to change their names and genders. When they tried to undertake sex reassignment surgery, however, their health insurance carriers, managed by Iowa’s state Medicaid program, denied them coverage. The state cited a 1995 regulation prohibiting Medicaid from covering gender identity-related procedures and “surgeries for purpose of sex reassignment.” After EeerieAnna and Carol unsuccessfully appealed their decision, they sought review in Iowa state court in Good v. Iowa Department of Human Services, represented by the ACLU of Iowa and attorneys from Nixon Peabody.
And they won! …almost. On June 6, 2018, Iowa District Court Judge Arthur Gamble ruled that the Medicaid regulation violated the equal protection guarantees of the Iowa Constitution and the gender identity protections under the Iowa Civil Rights Act (ICRA). However, the judge could not conclude that the rule violated the ICRA’s prohibition against sex discrimination. His hands were tied by the Iowa Supreme Court’s 1983 ruling in Sommers v. Iowa Civil Rights Commission, a dusty case holding that ICRA’s sex discrimination proscription did not cover discrimination against “transsexuals.” The state appealed the ruling directly to the Iowa Supreme Court.
That’s when we stepped in. Today, the Impact Fund and the National Women’s Law Center, joined by 25 amici from across the country (listed below), filed an amicus brief on behalf of the plaintiffs in the Iowa Supreme Court, arguing that gender identity discrimination is sex discrimination. Our amici represent a powerful coalition of LGBTQ advocates, women’s rights groups, and social justice and civil rights nonprofit organizations, who jointly agree that Iowa should follow the nationwide consensus that sex discrimination laws should be interpreted broadly and inclusively to protect transgender people.
Carol Ann Beal Tree, one of the plaintiffs, has identified as female since a young child.
Our brief calls on the Iowa Supreme Court to directly overrule its thirty-five year-old Sommers decision in the face of clear precedent showing that it wrongly understood discrimination “because of sex.” A few years later, the U.S. Supreme Court ruled in Price Waterhouse v. Hopkins that discriminating against a person who did not conform to sex stereotypes and norms violates Title VII’s prohibition on sex discrimination. Price Waterhouse changed the game and helped our federal laws reflect what we all know—that judging someone based on cultural expectations about how a person should act in accordance with their given gender at birth is discriminatory. Deeply intertwined with gender norms is the question of gender identity. Now, almost all federal circuits, the lion’s share of district courts, and numerous state courts have recognized that discriminating against a transgender person is tantamount to discriminating on the basis of sex.
With the lessons of thirty years of case law behind us, we believe it is time for the Iowa Supreme Court to overturn Sommers once and for all. “We’ve come a long way since 1983,” said Lindsay Nako, the Impact Fund’s Director of Litigation and Training. “The court has the opportunity to recognize the developments in the law since Sommers was decided and deliver to transgender people the protection of the Iowa Civil Rights Act.”
The Impact Fund has filed several briefs arguing that sex discrimination laws protect transgender people, including in Gloucester County School Board v. G.G. (U.S. Supreme Court), Fulcher v. Secretary of Veterans’ Affairs (Federal Circuit), and Carcaño v. McCrory (Fourth Circuit). Our brief in Good v. Iowa DHS is our latest effort to advance equal rights for LGBTQ people. It also comes as we prepare to launch a project to grow and strengthen the community of advocates for low-wage LGBTQ workers.
When President Obama signed the Affordable Care Act and expanded Medicaid to millions of people, he declared that “everybody should have some basic security when it comes to their health care.” We believe that this means ensuring the full guarantee of equal rights and civil rights protections for all, including transgender Iowans like EerieAnna Good and Carol Beale.
Impact Fund is grateful to have been joined by the following amici: National Women’s Law Center, A Better Balance: The Work and Family Legal Center, AIDS Legal Referral Panel, American Association of University Women, Atlanta Women for Equality, Bay Area Lawyers for Individual Freedom, Bet Tzedek, California Women’s Law Center, Centro Legal de la Raza, Equality California, Equality Florida Institute, Equality New Mexico, Equality North Carolina, Equal Rights Advocates, GLBTQ Legal Advocates & Defenders, Legal Aid at Work, Legal Aid Society, Legal Voice, LGBT Bar Association of Los Angeles, National Center for Lesbian Rights, National LGBTQ Task Force, National Council of Jewish Women, National Organization for Women Foundation, National Queer Asian Pacific Islander Alliance, SAGE, and Women’s Law Project.
UPDATE 03.08.19
The Iowa Supreme Court issues a unanimous ruling striking down the state Department of Human Services regulation excluding transgender people from Medicaid coverage for transition-related care. The court held that the regulation violated the Iowa Civil Rights Act’s prohibition on discrimination on the basis of gender identity. Although the court did not reach the state constitutional claim or decide to squarely overrule its Sommers decision, as we had urged in our amicus brief, its decision is a clear success for the transgender and wider LGBTQ community in Iowa. Congratulations to plaintiffs EerieAnna Good and Carol Beal, and their legal team from the ACLU and Nixon Peabody LLP!
