Judge recommends tossing professor's sex bias claim

By Dillon Rosenblatt
BridgeTower Media Newswires
PHOENIX — A magistrate judge recently recommended that a transgender professor’s claim he was discriminated on the basis of sex for his preapproved gender reassignment surgery be tossed out.

Russell B. Toomey, an associate professor of family studies and human development at the University of Arizona, has been living as a male since 2003. He receives health insurance from a self-funded health plan provided by the state, which generally provides all coverage that is deemed “medically necessary.” The plan does come with exclusions, though, including gender reassignment surgery.

Toomey’s physicians recommended he receive a total hysterectomy — an operation to remove the uterus — as a medically necessary treatment for his gender dysphoria, according to the lawsuit.

Gender dysphoria refers to the distress someone feels due to their gender identity not aligning with their assigned gender at birth.

In a blogpost he penned on the ACLU website in January, he talked about the cost of his double mastectomy in 2004 and the high costs of other gender reassignment surgeries without the help of insurance.

He spent $8,000 out of pocket, he said.

“I was just out of college, and my father-in-law had to co-sign a loan so that I could afford the procedure,” Toomey wrote.

Toomey lives with his wife and two children, on top of taking care of an aging parent, which he says is not financially feasible for them to pay out of pocket for the procedure his doctor recommends.

“I will be forced to live with aspects of my body that do not align with my identity and cause me significant anxiety,” Toomey said.

He sought medical preauthorization, but was denied. He argued it was sex discrimination, among other complaints, but U.S. Magistrate Judge Leslie A. Bowman late last month recommended dismissing the claim in part.

She suggested he has a strong case that there was discrimination based on his transgender status being subject to heightened scrutiny.

It would apply since by definition heightened scrutiny is applied when the person is a member of a “discrete and insular minority” or is characterized by an “immutable characteristic determined solely by the accident of birth.”

That is the only point the defendants, the state and Arizona Board of Regents, do not argue against.

They do disagree that his health care’s denial violates federal anti-discrimination law.

A point Bowman would concur.

“The plan exclusion would not apply if his sex were different, and Toomey has no evidence of that. Accordingly, he does not state a claim for sex discrimination under Title VII,” Bowman said in her recommendation.

Title VII of the Civil Rights Act of 1964 makes it unlawful “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Regarding Toomey’s constitutional rights via the 14th Amendment, Bowman says, “[he] has alleged facts that, if true, could justify a heightened level of scrutiny.”

Toomey’s case isn’t finished yet, though. His attorney, Molly Brizgys, with the American Civil Liberties Union said in a statement they will file objections because they disagree with the Title VII claim.

“We’re going to be filing objections because we disagree with the conclusion on the Title VII claim. We believe our reasoning will prevail when the district court judge considers the issue,” Brizgys said.

Toomey has a right to object to the recommendation. It will be up to U.S. District Court Judge Rosemary Marquez to either accept, reject, or modify the recommendation.