BREAKING, IT'S FINAL: Arizona Must Cover Employees' Gender Reassignment Surgeries; ALSO: Judge Rejects Petersen/Toma While Reducing AZ's Payment To ACLU

After years of litigation and months of both settlement efforts and disputes about the settlement, a judge today approved a Consent Decree between Arizona and the ACLU. The Decree finds that Arizona's 2017 decision that it would not permit health insurance companies to cover state employees' gender reassignment surgeries is unconstitutional.

U.S. District Court Judge Rosemary Marquez also had to resolve several issues that arose out of efforts to resolve the legal challenge brought by the American Civil Liberties Union. For example, she decided to reject Arizona House Speaker Ben Toma and Senate President Warren Petersen's effort to file an amicus brief in the case.

However, Toma and Petersen raised a couple of issues which did impact the rest of Marquez's decision. They argued that an Executive Order from Governor Katie Hobbs earlier this year (that erased Doug Ducey's mandated exclusion) had mooted the later-filed Consent Decree, and that the state should not be responsible for $500,000 of the ACLU's legal fees in bringing the successful challenge.

Judge Marquez decided that Hobbs' Executive Order did NOT moot the Consent Decree, but that it DID lessen the impact of the Consent Decree to binding the state in the future. On that basis, Marquez reduced the $500,000 bill to only $375,000. (She found that the $6.6M in fees incurred by the ACLU's counsel was too high, especially the out-of-state co-counsel's hourly rates. But, that that did not impact her decision to reduce the lower, negotiated amount.)

Arizona's Law published the Consent Decree here. With its approval today, the case is now closed. (Petersen and Toma are not in a good position to appeal.)

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Later reaction: 

In response to this article, the Arizona ACLU sent us these reactions from the Plaintiff/state employee Russell Toomey and their senior staff attorney: "The relief from Gov. Hobbs' Executive Order in June of this year was immeasurable. Finding out today that the Federal Judge in my case, the Honorable Márquez, ordered that the removal of the exclusion of gender affirming surgical care from our state employee health insurance is permanent, provides even greater relief,” said Dr. Russell Toomey, the lead plaintiff in the case. “Today, my soul is full of joy knowing that I and other current and future Arizonans will be able receive the medical care coverage necessary to live our lives fully and authentically."

“After nearly five years of litigation, we have finally achieved equal access to healthcare coverage for trans state employees,” said Christine Wee, ACLU of Arizona senior staff attorney. “This is a victory for all state employees defeating this clear violation of federal civil rights law once and for all.”

Also in response to this article, Kari Lake's campaign X-Twitter account responded: "A judge just ruled that our taxpayer money will be used to fund sex changes for state employees. Arizonans are struggling thanks to Biden’s economy. Now we are forced to foot the bill for radical sexual reassignment. We didn’t vote for this. Activists made the decision for us."

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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