(Photo by Will Stone - KJZZ)

Joe Robinson is suing his employer, Chandler Regional Medical Center, for discrimination after the employer refused to cover his sex reassignment surgery.

Joe Robinson is a transgender man and a nurse at Chandler Regional Medical Center run by Dignity Health— the country’s fifth largest healthcare system. It wasn’t until recently, at the age of 50, Robinson decided to pursue sex reassignment surgery. Or that was the plan.

“When I got that denial back because my policy has an exclusion, I was very shocked by that,” Robinson said.

Dignity Health told Robinson that its self-funded health insurance plan does not cover transition related treatment. Robinson appealed the decision, but to no avail.

“What if I, as a nurse, a patient came in and I was prejudiced against an individual and I said I’m not going to treat them?” Robinson said. “We just don’t do that.”

So Robinson sued with the help of the American Civil Liberties Union, alleging discrimination under both the Affordable Care Act and Title VII of the Civil Rights Act.

“An exclusion like that, on its face, discriminates on the basis of sex,” ACLU attorney Josh Block said.

Case challenges new rules on discrimination

This is the first case of its kind filed since the federal government issued new rules on what constitutes discrimination under the Affordable Care Act.

Under Section 1557 of that law, the U.S. Department of Health & Human Services clarified that individuals are protected from discrimination in health care on the basis of sex “including pregnancy, gender identity and sex stereotyping.” The nondiscrimination rule applies to healthcare entities receiving federal dollars.  

As a result, Block said Dignity cannot continue to take federal funds and, for example, cover a hysterectomy for a woman, but not a transgender male.

“The medical procedure is the same, but because it’s being provided to a transgender man for the purposes of transition related care, the hospital would be refusing to provide coverage for exactly the same procedure,” Block said.

Dignity Health would not agree to an interview, but in court documents argued the policy isn’t discriminatory and that Robinson is trying to expand the Civil Rights Act to cover “transgender status as a new protected classification.”

While Robinson’s complaint alleges denial of care is sex stereotyping (because sex reassignment surgery is inherently gender non-conforming), Dignity argues that goes against previous interpretations of Title VII and its policy applies equally to all employees, without any intent of discrimination.

Dignity not only questioned the legal precedent for Robinson’s suit, it also questioned the medical justification that gender reassignment surgery is necessary for treating transgender individuals.

“Robinson alleges a virtual consensus that transitioning surgery is medically necessary, but there is no such consensus and the medical efficacy for sex transformation surgery remains the subject of debate,” Dignity’s lawyer writes in its motion to dismiss the suit.

That’s how Dr. David Stevens, head of the national non-profit Christian Medical and Dental Associations, sees it.

"It’s no different than having a young girl who's anorexic and believes she’s fat come in and instead of trying to help her with her psycho-social mental illness, say, ‘well no let’s do liposuction,’” Stevens said.

“I am not advocating we reject these people, but we need to treat the issues not mask it and collaborate because it is harmful,” he said.

Stevens’ organization – along with the Catholic Church and other Christian groups – opposed the new federal non-discrimination rules, both for medical and religious reasons.

Dignity Health has its roots in the Catholic Church and continues to run Christian-affiliated hospitals. The healthcare provider said in emails to Robinson that it considered his situation through the lens of the Ethical and Religious Directives for Catholic Health Care Services, but it has not made that as a legal argument.

 “Should we force healthcare professionals to do something that they think is scientifically wrong, and, perhaps, morally or religiously something they shouldn’t participate in?” Stevens asked.

Dignity's reasoning contrasts major health associations

Dignity has said its policy doesn’t provide benefits for “personality disorders, including sexual and gender identity disorders.”

That medical rationale goes against the position of major health associations like the American Psychiatric Association (APA) and the World Professional Association for Transgender Health.

“Personality disorders are an entirely different classification of disorders,” Phoenix-based gender therapist Michael Peck said in reference to Dignity’s justification for denying Robinson coverage.

In 2012, the APA changed its diagnosis for transgender and non-gender nonconforming individuals to “gender dysphoria.” In its position statement, the APA said that “appropriately evaluated transgender and gender variant individuals can benefit greatly from medical and surgical gender transition treatments.”

“It used to be called gender identity disorder. That diagnosis was taken away. It seemed to be what we might call an oxymoron,” Peck said “because people do know who they are.”

Peck explained that gender dysphoria is the feeling that one’s gender identity is different from the one assigned at birth. This diagnosis is “descriptive,” not indicative of a mental illness, Peck said.

Nonetheless, Peck said denial of coverage happens quite a bit even when doctors prescribe treatment, including hormone therapy and surgery. For example, the majority of states still do not explicitly prohibit private health insurance plans from having exclusions for transition-related care.

Peck said the new federal rule was “a big and very significant move forward; however, for such guidelines to be adhered to, is a different question. It takes time for the system to adjust and to remove discriminatory policies.”

Because the lawsuit alleges sex discrimination under Title VII, Washington University School of Law professor Elizabeth Sepper said this case could have implications that reach far beyond healthcare to other industries.

“In recent years, large employers have started covering sex transition and gender dysphoria," Sepper said. "They’re recognizing that contrary to what they once thought, it doesn’t cost them a lot, and it is a way of making sure they have a diverse and competitive workplace.”

Sepper believes this case – at least as far as Section 1557 of the ACA – is “fairly straightforward,” but still could have an important impact for transgender employees and healthcare places that are subject to the new rules.

Religion could play a role in case

While Dignity has not cited religion as a defense, Sepper said it is possible the healthcare provider could use the Religious Freedom Restoration Act.

In Burwell v. Hobby Lobby, the U.S. Supreme Court ruled that some closely held corporations could refuse to cover certain contraceptives because of religious belief.

Sepper pointed out the court did that because “the government had this great accommodation process that enabled religious employers to step away from providing contraception while ensuring employees could still get access.”

In this situation, however, Sepper said there is no such alternative. “So it would be a harder mountain for Dignity to climb.”

After spending months on the waiting list for his final procedure, Joe Robinson had to cancel the operation and forfeit his $2,000 deposit.

He hopes the case is resolved soon so he and his fiancee can move on with their lives.

“To have to keep putting it off and prolonging completing this part of my transition, it’s very stressful,” Robinson said.