Arizona GOP Leaders Aim to Block Deal on Transgender Health Care – The Daily Independent at

PHOENIX — Top Republican lawmakers are trying to torpedo a deal that would result in a court order that would forever oblige the state to pay for gender-affirming surgery for its employees and dependents.

And, at the very least, they don’t want the state stuck for $500,000 in legal fees claimed by the lawyers they sued.

In arguments filed in federal court, Senate President Warren Petersen and House Speaker Ben Toma say they are not seeking to prevent the state’s insurance program from covering the hysterectomy requested by Russell Toomey, who filed a action four years ago. That, they said, is already happening, noting that Gov. Katie Hobbs signed Executive Order 2023-12 in June directing the Department of Administration, the state’s personnel arm, to remove language that exempts “reassignment surgery from gender” of health. care policies now available for state and college employees and retirees.

With Toomey’s complaint resolved and the policy changed, attorney Drew Ensign, who represents GOP leaders, said Toomey’s lawsuit, filed on his behalf by the American Civil Liberties Union, is moot.

What they oppose is US District Court Judge Rosemary Marquez signing an agreement that would consolidate into a consent decree — enforceable in federal court — an order that the state must pay not only for Toomey’s surgery, but forever pay for such procedures to anyone else in a similar situation. All of this, Ensign said, “would unduly interfere with the future policy decisions of the Arizona Legislature and would conflict with fundamental principles of federalism.”

In the court filing, Ensign also said there’s a more immediate problem: a 2022 law signed into law by then-Governor Doug Ducey that prohibits “irreversible sex reassignment surgery” on anyone under the age of 18.

“Government Hobbs does not have the authority to unilaterally rewrite bylaws through executive orders,” he said. And with this minor statute never mentioned in the proposed consent decree, that creates problems.

On the one hand, Ensign said, a court order that includes coverage for gender reassignment surgery could mean little if performing the procedure remains illegal in Arizona.

“Or perhaps the parties believe that once the consent decree passes by this court, they can argue that it silently anticipates” the ban on minor surgery, he told the judge.

Christine Kee, a lawyer for the ACLU Foundation of Arizona, is urging Marquez to ignore the attempt by GOP leaders to disrupt the deal. In essence, she said, it’s too late.

“This highly publicized litigation has been known to Senator Petersen, Speaker Toma and the rest of the Arizona Legislature for years, but no one has seen fit to appear in this action,” she wrote in her own legal filing. “Only now, at the last minute, are lawmakers looking to appear to launch a meritless attack against a consent decree providing customary relief to resolve a case contesting an obvious violation of federal civil rights law.”

And Kee said he sees more than mere legal issues.

“Let there be no mistake: the motion is a mere Trojan Horse through which legislators articulate a deep animosity towards the concern of gender affirmation for political gain,” she said.

Ensign, however, said there was no delay.

He pointed out that the state’s attorneys were actually defending the lawsuit — until Hobbs changed the legal landscape with his executive order, dropping the state’s opposition. At that point, Ensign said, GOP lawmakers immediately sought to intercede after the governor’s action.

Even if Márquez disagrees with Republican lawmakers and signs the consent decree, Petersen and Toma have another issue: They don’t believe the state should end up having to pay the $500,000 the ACLU is seeking in attorney fees. And this goes back to the fact that Hobbs signed that executive order in June.

“As the proposed consent decree essentially adds nothing beyond what the executive order has already given them, there is no incremental value to the class (of people who would be eligible for state-paid surgery) that could justify the proposed value of half a million dollars. dollars. award,” Ensign told the judge.

Simply put, he said, Hobbs’ executive order overturned the exclusion from gender-affirming surgery that the lawsuit was contesting, providing Toomey — and others in a similar situation — exactly the same relief they now seek Marquez to approve.

“The proposed consent decree simply orders the defendants to do what the executive order already orders them to do,” Ensign said.

“It is effectively a redundant order to take action that would certainly have been taken anyway even if no injunction were issued,” he told the judge. “The plaintiffs are not entitled to any compensation of fees – let alone half a million dollars of taxpayer money for what amounts to little more than a mere commemoration of the relief that Executive Order 2023-12 has already granted them.”

Kee, for his part, said the requested fees “reflect a small fraction of the costs and time spent litigating this case over the past four years.” And she said the $500,000 is “well within the reasonable range.”

This, however, is yet to be determined.

“The plaintiff has not provided billing records to allow the court to assess whether the agreed fees are fair and reasonable,” Márquez said in a ruling last week. And she ordered lawyers to file court fees and costs by Thursday.

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