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 bas