John Doe v. Jami Snyder ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE, by his guardian and next No. 21-15668
friend, Susan Doe, on behalf of
themselves and all others similarly D.C. No.
situated, 4:20-cv-00335-
Plaintiff-Appellant, SHR
v.
OPINION
JAMI SNYDER, Director of the Arizona
Health Care Cost Containment
System, in her official capacity,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Scott H. Rash, District Judge, Presiding
Argued and Submitted November 19, 2021
Phoenix, Arizona
Filed March 10, 2022
Before: Richard R. Clifton, Consuelo M. Callahan, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Callahan
2 DOE V. SNYDER
SUMMARY *
Civil Rights
The panel affirmed the district court’s order denying
plaintiffs’ motion for preliminary injunctive relief in a
putative class action brought by two teenage transgender
individuals alleging that a provision of Arizona law that
precludes coverage for gender reassignment surgeries
violates federal law and is unconstitutional.
Plaintiffs John Doe and D.H. sought a preliminary
injunction compelling the Arizona Health Care Cost
Containment System, Arizona’s Medicaid program, to pay
for their immediate male chest reconstruction surgeries and
asserted that the exclusion of gender reassignment surgeries
in Arizona Administrative Code R9-22-205(B)(4)
constitutes sex discrimination. The district court determined
that plaintiffs’ request was for a mandatory injunction and
denied the request based on a finding that plaintiffs had not
shown that male chest reconstruction surgeries were
medically necessary for them or safe and effective for
correcting or ameliorating their gender dysphoria.
Following the filing of the appeal, plaintiffs withdrew their
motion for class certification and voluntarily dismissed
plaintiff D.H. from the case and appeal.
The panel agreed with the district court that plaintiffs
sought a mandatory injunction and noted that the standard
for issuing a mandatory injunction is high. On this
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DOE V. SNYDER 3
preliminary record, given facts specific to remaining
plaintiff Doe and the irreversible nature of the surgery, Doe
had not shown that the district court’s findings were
illogical, implausible, or without support in inferences that
could be drawn from the facts in the record. The panel noted
that (1) defendants had proffered competing expert
testimony challenging plaintiffs’ assertion that top surgery
was for them medically necessary, safe and effective;
(2) Doe sought preliminary injunctive relief when he was a
minor, which raised concerns as to whether he sufficiently
appreciated the consequences of irreversible surgery; and
(3) Doe had serious psychiatric issues distinct from, or
related to, his gender dysphoria and his expert psychiatrist
had not opined as to whether Doe himself was a suitable
candidate for surgery and had not met or examined Doe.
Although the panel did not reach the merits of Doe’s
constitutional and statutory challenges, because there was
ongoing litigation in the district court on Doe’s claims and
to ensure appropriate proceedings below, the panel noted
two additional points. First, for Doe’s claim under the
Constitution’s Equal Protection Clause, the panel noted that
this court had already held in Karnoski v. Trump, 926 F.3d
1180 (9th Cir. 2019), that the level of scrutiny applicable to
discrimination based on transgender status was “more than
rational basis but less than strict scrutiny.” Second, the
district court’s conclusion that the exclusion was not
discriminatory as a threshold matter was based on an
erroneous reading that Bostock v. Clayton County, 140 S. Ct.
1731 (2020), was limited to Title VII discrimination claims
involving employment. The panel noted that Section 1557
of the Affordable Care Act provides that “an individual shall
not, on the ground prohibited under . . . title IX of the
Education Amendments of 1972 . . . be excluded from
participation in, be denied the benefits of, or be subjected to
4 DOE V. SNYDER
discrimination under, any health program of activity, any
part of which is receiving Federal financial assistance.”
42 U.S.C. § 18116(a). Given the similarity in language
prohibiting sex discrimination in Titles VII and IX of the
Education Amendment of 1972, the panel did not think
Bostock could be limited in the manner the district court
suggested.
COUNSEL
Asaf Orr (argued), Shannon Minter, and Christopher Stoll,
National Center for Lesbian Rights, San Francisco,
California; Brent P. Ray, King & Spalding LLP, Chicago,
Illinois; Daniel C. Barr, Perkins Coie LLP, Phoenix,
Arizona; Abigail K. Coursolle, National Health Law
Program, Los Angeles, California; for Plaintiff-Appellant.
David T. Barton (argued) and Kathryn Hackett King,
BurnsBarton PLC, Phoenix, Arizona; Logan T. Johnston,
Johnston Law Offices, P.L.C., Phoenix, Arizona; for
Defendant-Appellee.
Boyd Johnson, Jeannette Boot, Claire M. Guehenno, Cindy
Pan and Wilmer Cutler Pickering, Hale and Dorr LLP, New
York, New York, for Amici Curiae Pediatric Endocrine
Society, World Professional Association for Transgender
Health, and United States Professional Association for
Transgender Health.
John C. Dwyer, Maureen P. Alger, Alexander J. Kasner, and
Joshua S. Walden, Cooley LLP, Palo Alto, California; Peter
C. Renn and Nora Huppert, Los Angeles, California; for
Amici Curiae Transgender Youth Support Organizations.
DOE V. SNYDER 5
Mary E. McAlister, Vernadette R. Broyles, and Joel H.
Thornton, Child & Parental Rights Campaign, Inc., Johns
Creek, Georgia, for Amici Curiae Keira Bell, Laura Becker,
Sinead Watson, Kathy Grace Duncan, Laura Reynolds,
Carol Freitas, and Detransvoices.org.
Cindy C. Albracht-Crogan, Cohen Dowd Quigley P.C.,
Phoenix, Arizona, for Amicus Curiae Society for Evidence
Based Medicine.
Michael G. Moore, Esq., Law Office of Michael Garth
Moore, Tucson, Arizona, for Amici Curiae
Psychotherapeutic Experts in the Field of Treatment of
Trans-Identified Children.
OPINION
CALLAHAN, Circuit Judge:
Plaintiffs John Doe and D.H, two teenage transgender
individuals who were born female, filed this putative class
action on behalf of themselves and others similarly situated,
alleging that a provision of Arizona law that precludes
coverage for gender reassignment surgeries violates federal
law and is unconstitutional. They sought a preliminary
injunction compelling the Arizona Health Care Cost
Containment System (AHCCCS), Arizona’s Medicaid
program, to pay for their immediate male chest
reconstruction surgeries. The district court denied their
request for a mandatory preliminary injunction and Plaintiffs
appealed.
6 DOE V. SNYDER
Doe, the remaining Plaintiff, 1 asserts that the exclusion
of gender reassignment surgeries in Arizona Administrative
Code R9-22-205(B)(4) constitutes sex discrimination. In
addition, Doe seeks a mandatory preliminary injunction,
which may not be “granted unless extreme or very serious
damage will result.” Marlyn Nutraceuticals, Inc. v. Mucos
Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)
(quoting Anderson v. United States, 612 F.2d 1112, 1114
(9th Cir. 1980)) (cleaned up). We review the denial of a
preliminary injunction for abuse of discretion and the district
court’s factual findings for clear error. See Puente Arizona
v. Arpaio, 821 F.3d 1098, 1103 (9th Cir. 2016). “Clear error
exists if the finding is ‘illogical, implausible, or without
support in inferences that may be drawn from the facts in the
record.’” Edmo v. Corizon, Inc., 935 F.3d 757, 784-85 (9th
Cir. 2019) (quoting La Quinta Worldwide LLC v. Q.R.T.M.,
S.A. de C.V., 762 F.3d 867, 879 (9th Cir. 2014)).
The district court denied the request for a mandatory
preliminary injunction based on a finding that Plaintiffs had
not shown that male chest reconstruction surgeries were
medically necessary for them or safe and effective for
correcting or ameliorating their gender dysphoria. On this
preliminary record, given facts specific to Doe and the
irreversible nature of the surgery, Doe has not shown that the
district court’s findings are “illogical, implausible, or
without support in inferences that may be drawn from the
facts in the record.” Accordingly, we affirm the district
court’s denial of his request for a mandatory preliminary
injunction.
1
Following the filing of the appeal, Plaintiffs withdrew their motion
for class certification and voluntarily dismissed D.H. from the case and
appeal. Doe is now proceeding individually.
DOE V. SNYDER 7
I
In August 2020, D.H., a seventeen-year-old transgender
individual, and John Doe, a fifteen-year-old transgender
individual, filed their complaint for declaratory and
injunctive relief in the United States District Court for the
District of Arizona. Plaintiffs were considered female at
birth and have been undergoing medical treatment for gender
dysphoria, including counseling and hormone therapy. They
receive health coverage through the AHCCCS which covers
their counseling and hormone therapy. Their health care
providers recommend male chest reconstruction surgery to
further alleviate their gender dysphoria. Their complaint
alleged that a provision of Arizona law prohibits Medicaid
coverage for “gender reassignment surgeries” (the
“Challenged Exclusion”). Specifically, Arizona
Administrative Code R9-22-205(B)(4) excludes the
following from coverage:
a. Infertility services, reversal of surgically
induced infertility (sterilization), and gender
reassignment surgeries;
b. Pregnancy termination counseling
services;
c. Pregnancy terminations, unless required
by state or federal law;
d. Services or items furnished solely for
cosmetic purposes; and
e. Hysterectomies unless determined
medically necessary.
8 DOE V. SNYDER
(Emphasis added). Plaintiffs asserted that the Challenged
Exclusion violates their civil rights under Section 1557 of
the Patient Protection and Affordable Care Act (ACA), 42
U.S.C. § 18116; the Early and Periodic Screening,
Diagnostic and Treatment requirements of the federal
Medicaid Act, 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43),
1396d(a)(4)(B), 1396d(r); the comparability requirement of
the Medicaid Act, 42 U.S.C. § 1396a(a)(10)(B); and the
Equal Protection Clause of the Fourteenth Amendment to the
Constitution.
Plaintiffs sought to represent a class of transgender
individuals under the age of 21 who seek male chest
reconstruction surgery (sometimes referred to as “top
surgery”). 2 Along with their complaint, Plaintiffs filed a
motion for preliminary injunction asserting that both
Plaintiffs “urgently need male chest reconstruction surgery
to alleviate their gender dysphoria” and that there is “broad
consensus within the medical community that the surgery is
a safe, effective, and medically necessary treatment for many
2
The complaint sought the certification of the class, the appointment
of Plaintiffs as representatives of the class, and the appointment of
counsel for the class. It also sought preliminary and permanent
injunctions on behalf of Plaintiffs, and all similarly situated individuals,
and declaratory judgment that the denial of coverage for male chest
reconstruction surgery violated the Medicaid Act, the ACA, and the
Equal Protection Clause of the Fourteenth Amendment.
Plaintiffs defined the proposed class as “[a]ll transgender
individuals under age 21 who are or will be enrolled in AHCCCS, have
or will have a diagnosis of gender dysphoria, and are seeking or will seek
coverage for male chest reconstruction surgery following a
determination by their respective health care providers that the procedure
is necessary to treat their gender dysphoria.”
DOE V. SNYDER 9
individuals with gender dysphoria, including adolescents.” 3
The motion stated that the surgery is not cosmetic, but
functional. It explained that “[a]s a result of the surgery, a
transgender male’s body matches the person’s internal
identity, thereby providing enormous psychological relief,
and enables them to interact with others and to function in a
male identity much more effectively and confidently.” The
motion further asserted that the surgery would eliminate the
need for a chest binder, the extended use of which can cause
difficulty breathing, exacerbate preexisting pulmonary
conditions like asthma, and cause serious skin conditions.
The motion recited Plaintiffs’ histories of gender
dysphoria and their continued experiences of significant
emotional distress and significant physical discomfort and
pain. Both Plaintiffs had been taking testosterone for more
than a year and had regularly worn their binders for far
longer than the maximum daily time recommended by their
health care providers. Both Plaintiffs also had various
psychiatric issues. Doe had a referral letter for surgery from
his mental health provider but was unable to schedule a
surgical consult because he cannot afford the surgery and the
AHCCCS will not cover it.
3
Plaintiffs asserted that the “process of undergoing these treatments
is called ‘gender transition’ and is guided by well-established,
internationally recognized standards of care developed by the World
Professional Association for Transgender Health (WPATH).” They
further stated that the WPATH standards have been adopted by major
professional associations of healthcare providers including the American
Medical Association, American Psychological Association, the
American Academy of Pediatrics, and the Endocrine Society.
10 DOE V. SNYDER
II
The district court denied Plaintiffs’ motion for a
preliminary injunction. It noted the Ninth Circuit in
Monarch Content Management LLC v. Arizona Department
of Gaming, 971 F.3d 1021, 1027 (9th Cir. 2019), had quoted
the Supreme Court’s holding in Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 20 (2008), which stated
that: “[a] plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” The district court
determined that Plaintiffs’ request was for a mandatory
injunction because they sought “an injunction that not only
enjoins Defendant from enforcing the law, but orders
Defendant to take an affirmative action by providing
coverage for a medical procedure that would be otherwise
excluded, thus going well beyond the status quo.” The court
held that a request for a mandatory injunction was subject to
heightened scrutiny and would be granted only when
extreme or very serious damage would result that was not
compensable in damages, and the merits of the case were not
doubtful. See Hernandez v. Sessions, 872 F.3d 976, 999 (9th
Cir. 2017); Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1403
(9th Cir. 1993).
The district court first considered whether Plaintiffs had
shown that top surgery was for them medically necessary,
safe, and effective. Plaintiffs had submitted a number of
declarations, including one from a psychiatrist who
specializes in treating children and adolescents with gender
dysphoria, and another from a plastic surgeon who
specializes in gender reassignment surgery and would
perform the surgeries for Plaintiffs. Both are members of
DOE V. SNYDER 11
WPATH. According to the district court, the purpose of
WPATH’s “Standards of Care . . . is to assist health
providers in delivering medical care to transgender people to
provide them with safe and effective treatment for gender
dysphoria, in order to maximize their overall health,
psychological well-being and self-fulfillment.” The district
court noted that the psychiatrist had treated over 300
children and adolescents with gender dysphoria and
considers male chest reconstruction surgery safe and
effective for adolescents. The court observed that the
psychiatrist opined that surgical treatment is necessary for
some transgender youth, but that he had not met, examined,
or consulted with Doe to determine whether surgery is
medically necessary for him. The plastic surgeon had
conducted virtual consultations with Plaintiffs and opined
that they appear to be good candidates for male chest
reconstruction surgery, that he is confident they are fully
aware of the risks and benefits of the procedure, and that the
surgery “is a safe, effective, and medically necessary
treatment for each of them, assuming the absence of any
pathology.”
Defendant responded with declarations from two
experts, an endocrinologist and a psychiatrist specializing in
sexuality. The endocrinologist asserted that the purported
“professional consensus” embodied in the WPATH’s
Standard of Care exists only within its confines and that
there is no high-quality study showing male chest
reconstruction surgery is safe, effective, or optimal for
treating minors with gender dysphoria. He pointed to a 2016
decision by the Centers for Medicare & Medicaid Services
that declined to issue a national coverage determination on
gender reassignment surgery for Medicare beneficiaries with
gender dysphoria because the clinical evidence was
inconclusive for the Medicare population. The
12 DOE V. SNYDER
endocrinologist opined that irreversible top surgery should
not be performed on Plaintiffs because there is no way to
predict whether they will outgrow their gender dysphoria
and minors are “still undergoing brain development and as
such they are immature with respect to intellect, emotion,
judgment, and self-control.”
Defendant’s second expert had been an early member of
WPATH but now alleged that “WPATH represents a self-
selected subset of the mental health professions . . . [and]
does not capture the clinical experiences of others.” The
psychiatrist asserted that WPATH “does not welcome
skepticism, and therefore, deviates from the philosophical
core of medical science.” He opined that there is no reliable
scientific data to support surgical intervention in adolescents
with gender dysphoria, that the surgery will not eliminate the
incongruence of female genitalia, and there is no reliable
way to predict which patients’ gender dysphoria will
continue into adulthood.
Defendant also submitted a recent opinion from the
United Kingdom’s High Court of Justice, which reviewed a
National Health Service clinic’s practice of prescribing
puberty-suppressing medication to individuals under age 18
with gender dysphoria. Although it heard evidence that such
treatment was “required in accordance with the international
frameworks of WPATH and the Endocrine Society,” the
United Kingdom court nonetheless concluded that treatment
was “experimental or innovative in the sense that there are
currently limited studies/evidence of the efficacy or long-
term effects of the treatment.” The district court noted that
although the case did not involve surgery and was not
controlling authority, it suggested that the “irreversible
surgery Plaintiffs seek here is also experimental and perhaps
risky.” The district court determined that “Plaintiffs have
DOE V. SNYDER 13
not clearly shown the surgery is medically necessary for
them or that it is safe and effective for correcting or
ameliorating their gender dysphoria.”
The district court then turned to the controlling law. It
noted that to prevail on their discrimination claim under the
Equal Protection Clause and Section 1557 of the ACA,
Plaintiffs had to show that (1) the AHCCCS is federally
funded, (2) they were denied benefits on the basis of
membership in a protected class (sex), and (3) the denial of
benefits is a but-for cause of their injuries. The parties did
not dispute that the AHCCCS received federal funds, but
sharply disputed the other two elements.
Plaintiffs asserted that they were denied benefits and
discriminated against by the AHCCCS, because they are
transgender, citing Bostock v. Clayton County, 140 S. Ct.
1731 (2020), and several cases from district courts in other
states.
The district court did not find Plaintiffs’ arguments
compelling. First, it found their reliance on Bostock
“unpersuasive” because the Supreme Court expressly
limited its holding to Title VII claims involving employment
and the case did not involve “a state Medicaid plan exclusion
for surgical treatment for gender dysphoria in minors.” The
district court distinguished the cases from other district
courts cited by Plaintiffs, noting that in those cases some
coverages did not involve Medicaid, the plaintiffs were not
minors, and the exclusions challenged were significantly
different. The district court noted that in Flack v. Wisconsin
Department of Health Services, 328 F. Supp. 3d 931 (W.D.
Wis. 2018), the exclusion from Medicaid coverage included
drugs and hormone therapy, whereas the Challenged
Exclusion excluded only gender reassignment surgery, and
did not exclude coverage for other treatments of gender
14 DOE V. SNYDER
dysphoria such as hormone therapy. The district court
agreed with Defendant that because the AHCCCS covers
hormone treatment and mental health counseling for the
treatment of gender dysphoria, Plaintiffs had failed to meet
their high burden, especially because they “have not clearly
shown the surgery they seek is safe and effective for treating
gender dysphoria in adolescents.” The district court further
stated that because the AHCCCS covers certain treatments
for gender dysphoria, Plaintiffs had not shown that the denial
of coverage was based on sex rather than some other
permissible rationale.
Finally, the district court addressed the balance of harm.
Plaintiffs asserted that they would be irreparably harmed in
the absence of an injunction both because such harm is
presumed for violations of constitutional rights and because
denying them surgery would cause them irreparable physical
and emotional harm. The court noted that Defendant
countered that Plaintiffs had not made the requisite showing
of irreparable harm because: (1) “according to the
Diagnostic and Statistical Manual of Mental Disorders Fifth
Edition (‘DSM-5’), gender dysphoria does not persist into
adulthood for most children and, specifically, ‘[i]n natal
females persistence has ranged from 12% to 50%’”; (2)
Plaintiffs had not demonstrated that they are capable of
providing informed consent, given their significant
psychological disorders that pre-date their gender dysphoria;
(3) one of the Plaintiffs had “worn a binder for five years
without developing any skin conditions or exacerbating his
asthma, so irreparable harm is unlikely”; and (4) Doe’s
“long-standing and pre-existing ‘chronic post-traumatic
stress disorder from early life attachment trauma’ . . . should
be addressed before irreversible surgical procedures are
employed.” The district court further noted that Plaintiffs
DOE V. SNYDER 15
had not provided a declaration from any medical doctor who
is treating Doe.
The court found that Plaintiffs had not met their
heightened burden, noting it is not clear that the injury was
not capable of compensation as Plaintiffs could pay for the
surgeries out-of-pocket and seek reimbursement; and that
the preliminary injunctive relief sought was identical to the
ultimate relief sought. The district court noted that “the
relief sought would completely change, rather than preserve,
the status quo.” The court concluded that it would be
“premature to grant such relief prior to discovery and
summary judgment briefing.”
In sum, the district court denied the request for a
preliminary injunction finding that Plaintiffs had “not clearly
shown that the surgery they seek is medically necessary for
them, that it is a safe and effective treatment for gender
dysphoria in adolescents, or that the Challenged Exclusion
violates the Medicaid Act, Section 1557, or the Equal
Protection Clause.” Plaintiffs filed a timely notice of appeal.
On appeal, they limit their challenge to Section 1557 and the
Equal Protection Clause, and do not challenge the district
court’s ruling under the Medicaid Act.
III
We have jurisdiction under 28 U.S.C. § 1292(a)(1) to
review the denial of a preliminary injunction, and we review
such a denial for abuse of discretion. Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). As
noted, for a preliminary injunction to issue, a plaintiff must
establish a likelihood of success on the merits, irreparable
harm in the absence of preliminary relief, a balance of
equities in the movant’s favor, and that the injunction is in
the public interest. Cal. Trucking Ass’n v. Bonta, 996 F.3d
16 DOE V. SNYDER
644, 652 (9th Cir. 2021) (citing Winter, 555 U.S. at 20). In
addition, we have applied a “sliding scale” to this standard,
allowing a stronger showing of one element to offset a
weaker showing of another. Alliance for the Wild Rockies,
632 F.3d at 1131.
Although the district court held that Plaintiffs sought a
mandatory preliminary injunction, their briefs argue that
they seek “a quintessential prohibitory injunction” because
they “seek to enjoin enforcement of the exclusion against
them as individuals so that their coverage may be evaluated
in the same way as any other request for coverage, without
application of the exclusion.” Doe argues that he has shown
that he has been denied his right to equal protection under
the law because his request has been denied solely based on
the Challenged Exclusion and not on any individualized
assessment.
In Marlyn Nutraceuticals, 571 F.3d at 879, we defined a
mandatory injunction as one that goes beyond simply
maintaining the status quo and orders the responsible party
to take action pending the determination of the case on its
merits. Here, rather than maintain the status quo pendente
lite, Plaintiffs sought to compel Defendant to act prior to the
entry of a final judgment. Thus, we agree with the district
court that Plaintiffs sought a mandatory injunction.
The standard for issuing a mandatory preliminary
injunction is high. “In general, mandatory injunctions ‘are
not granted unless extreme or very serious damage will
result and are not issued in doubtful cases or where the injury
complained of is capable of compensation in damages.’” Id.DOE V. SNYDER 17
(quoting Anderson, 612 F.2d at 1115). 4 Moreover, as the
district court’s evaluation of Plaintiffs’ alleged harm is a
factual determination, we review it for clear error, which
exists “if the finding is ‘illogical implausible, or without
support in inferences that may be drawn from the facts in the
record.’” Edmo, 935 F.3d at 784–85 (quoting La Quinta
Worldwide, 762 F.3d at 879).
Here, Doe has not made a compelling showing of
irreparable harm. Although his underlying claims alleged
discrimination based on sex, the proffered reason for seeking
preliminary injunctive relief was the alleged irreparable
harm to him if his surgery was delayed. But to compel the
issuance of a mandatory preliminary injunction, even where
there has been a showing of likelihood of success on the
underlying claim, a plaintiff need still show a likelihood of
irreparable harm. Marlyn Nutraceuticals, 571 F.3d at 877.
On appeal from the district court’s finding of insufficient
harm, Doe has the burden of showing that the district court’s
finding that there is not a likelihood of irreparable harm is
illogical, implausible, or unsupported by the record. Edmo,
935 F.3d at 784–85.
Doe has not met his burden. First, although two experts
testified that top surgery is safe and effective, even for
adolescents, and has been approved by WPATH and most
medical professional organizations, Defendant proffered
competing expert testimony that WPATH’s Standards of
Care are not universally endorsed and questioning whether
4
Based on this standard, we do not think that our “sliding scale”
standard applies to this appeal. We read Marlyn Nutraceuticals, 571
F.3d at 879, as directing that on review of the denial of a mandatory
preliminary injunction based on a factual evaluation of harm, weakness
in a plaintiff’s showing of harm cannot be offset by a stronger showing
on the merits of the underlying legal claim.
18 DOE V. SNYDER
there have been any high-quality studies showing that male
chest reconstruction surgery is safe, effective, or optimal for
treating gender dysphoria. For example, Defendant’s expert
noted that, as of 2016, the Centers for Medicare & Medicaid
Services declined to issue a National Coverage
Determination for gender reassignment surgery for
Medicare patients with gender dysphoria “because the
clinical evidence is inconclusive for the Medicare
population.” In its order, the district court explicitly noted
that testimony in describing the evidence from Defendant’s
expert.
Second, when Doe sought preliminary injunctive relief,
he was a minor. This gave rise to twin concerns: was his
gender dysphoria permanent, and did he sufficiently
appreciate the consequences of irreversible surgery? There
are indications in the record and in the amici briefs filed in
this appeal that some individuals who present as transgender
during adolescence revert to their natal gender later on,
regardless of whether they have had top surgery. Defendant
argued, for instance, that gender dysphoria often resolves
itself by adulthood and, specifically citing the Diagnostic
and Statistical Manual of Mental Disorders Fifth Edition,
that “[i]n natal females, persistence has ranged from 12% to
50%.” The district court explicitly noted that testimony as
well in describing the evidence from Defendant’s expert.
Also, given the evidence presented that the human brain
continues to mature well into a person’s twenties, it was
reasonable for a district court to question whether Doe
appreciated the impact of irreversible surgery and to require
further counseling before “authorizing” surgery.
Third, these concerns are reinforced by the apparent fact
that Doe had serious psychiatric issues distinct from, or
related to, his gender dysphoria. There were representations
DOE V. SNYDER 19
before the district court that gender dysphoria might mask
other psychiatric issues and that top surgery might not
address those other issues. Relatedly, and significantly, Doe
failed to provide a declaration from any psychiatrist or
medical doctor who is treating him that attested to the
necessity and suitability of the surgery in his particular case.
And as the district court noted, Doe’s expert psychiatrist had
not opined as to whether Doe himself is a suitable candidate
for surgery and had not met or examined Doe.
Our analysis highlights how Edmo is factually and
procedurally distinguishable. There, the district court in a
“carefully considered, 45-page opinion,” supported by
“detailed factual findings [that] were amply supported by its
careful review of extensive evidence and testimony,”
determined that gender confirmation surgery was “medically
necessary to treat Edmo’s gender dysphoria.” Id. at 780.
Here, by contrast, the district court’s 20-page order denying
the motion for a preliminary injunction finds, based on a
preliminary record, that “Plaintiffs have not clearly shown
the surgery is medically necessary for them or that it is safe
and effective for correcting or ameliorating their gender
dysphoria.” 5 This determination is not illogical,
5
The cases cited by Plaintiffs from district courts in other states are
similarly factually distinct. In Flack, both of the plaintiffs who sought
injunctive relief were adults who had received treatment for gender
dysphoria for a number of years. Indeed, one had already “had his uterus,
fallopian tubes, ovaries and cervix removed through a hysterectomy with
bilateral salpingo-oophorectomy.” Flack, 328 F. Supp. 3d at 938; See
also Flack v. Wis. Dep’t of Health Serv., 395 F. Supp. 3d 1001 (W.D.
Wis. 2019) (granting summary judgment and enjoining the provision of
Wisconsin law prescribing gender-conforming surgery and hormone
therapy, but as to adults only). In Boyden v. Conlin, 341 F. Supp. 3d 979(W.D. Wis. 2018), the plaintiffs were adults and the court ruled on cross
motions for summary judgment, not on a request for preliminary
injunction. In Kadel v. Folwell, 446 F. Supp. 3d 1 (M.D.N.C. 2020), the
20 DOE V. SNYDER
implausible, or unsupported by the record that was before
the court at that time.
We hold only that even accepting the merits of Doe’s
underlying claim of discrimination, he has not shown that
the district court’s denial of a mandatory preliminary
injunction was unreasonable or unsupported by the record. 6
Although we do not reach the merits of Doe’s constitutional
and statutory challenges, because there is ongoing litigation
in the district court on Doe’s claims and to ensure
appropriate proceedings below, we note two additional
points.
First, for Doe’s claim under the Constitution’s Equal
Protection Clause, we have already held in Karnoski v.
Trump, 926 F.3d 1180 (9th Cir. 2019), that the level of
scrutiny applicable to discrimination based on transgender
status is “more than rational basis but less than strict
scrutiny.” Id. at 1201. Karnoski considered a policy that
“discriminate[d] on the basis of transgender status on its
face.” 926 F.3d at 1201 n.18. The district court here did not
address Karnoski in its order denying Plaintiffs’ motion for
a preliminary injunction because it concluded that the
exclusion was not discriminatory as a threshold matter.
Second, this conclusion was based on an erroneous
reading of Bostock. In considering whether the Supreme
court denied the defendants’ motion to dismiss and did not consider
injunctive relief. In Fletcher v. Alaska, 443 F. Supp. 3d 1024 (D. Alaska
2020), the plaintiff was a transgender adult and the court granted
summary judgment.
6
The other criteria for injunctive relief, the balance of hardships and
public interest, do not weigh strongly in favor of either party and do not
raise concerns that are not addressed in our discussion above.
DOE V. SNYDER 21
Court’s decision in Bostock applied to Plaintiffs’ claim under
Section 1557 of the ACA, the district court found Plaintiffs’
reliance on Bostock “unpersuasive” because, it reasoned,
“[t]he Supreme Court expressly limited its holding to Title
VII claims involving employers who discriminated against
employees because of their gay or transgender status.” A
faithful application of Bostock causes us to conclude that the
district court’s understanding of Bostock was too narrow.
Interpreting language in Title VII that made it unlawful
for an employer to take an adverse employment action or
otherwise to discriminate “because of . . . sex,” Bostock held
that “it is impossible to discriminate against a person for
being homosexual or transgender without discriminating
against that individual based on sex.” Bostock, 140 S. Ct. at
1741. Thus, firing a person based on his sexual orientation
or transgender status is discrimination “because of sex.”
Section 1557 of the ACA provides that “an individual
shall not, on the ground prohibited under . . . title IX of the
Education Amendments of 1972 . . . be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under, any health program of activity, any
part of which is receiving Federal financial assistance.” 42
U.S.C. § 18116(a). Under Title IX, “[n]o person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity
receiving Federal financial assistance.” 20 U.S.C. § 1681.
We construe Title IX’s protections consistently with those of
Title VII. See, e.g., Emeldi v. Univ. of Or., 673 F.3d 1218,
1224 (9th Cir. 2012), as amended, 698 F.3d 715 (9th Cir.
2012) (“[T]he Supreme Court has often looked to its Title
VII interpretations of discrimination in illuminating Title
IX.’” (quotations omitted); see also Franklin v.Gwinnett
22 DOE V. SNYDER
Cty. Pub. Schs., 503 U.S. 60, 75 (1992). Given the similarity
in language prohibiting sex discrimination in Titles VII and
IX, we do not think Bostock can be limited in the manner the
district court suggested. See also Bostock, 140 S. Ct. at
1778–82 (Alito, J., dissenting) (anticipating that Bostock “is
virtually certain to have far-reaching consequences” because
“[o]ver 100 federal statutes prohibit discrimination because
of sex,” and listing in particular Title IX and the ACA).
While the language in Title VII is “because of sex” and the
language in Title IX is “on the basis of sex,” Bostock used
those phrases interchangeably throughout the decision. See,
e.g., Bostock, 140 S. Ct. at 1737–38, 1743–45, 1753.
To be sure, Defendant argues that the Challenge
Exclusion does not discriminate based on sex because, in its
view, Arizona only prohibits a medical procedure while
allowing transgendered persons to receive other types of
treatment. Doe responds that disallowing gender
reassignment surgery should be treated as discriminating
against transgender persons because they are the only ones
seeking this surgery. The district court did not address this
issue because it narrowly read Bostock. The district court
may have opportunity to address this issue as the case
proceeds.
IV
We review only the district court’s denial of Doe’s
request for a mandatory preliminary injunction. A
mandatory preliminary injunction will not issue unless
extreme or very serious damage will otherwise result.
Marlyn Nutraceuticals, 571 F.3d at 879. Here, the district
court determined, based on the evidence before it, that Doe
had not shown that the surgery was medically necessary and
safe and effective for correcting or ameliorating his gender
dysphoria. This factual determination is reviewed for clear
DOE V. SNYDER 23
error, which exists “if the finding is ‘illogical, implausible,
or without support in inferences that may be drawn from the
facts in the record.’” Edmo, 935 F.3d at 784–85 (quoting La
Quinta Worldwide, 762 F.3d at 879). Because Doe has not
met his burden of showing that the district court’s denial of
a mandatory preliminary injunction was clear error, the
district court’s order is AFFIRMED.
Each side shall bear its own costs.