By Sarah Mansur
Chicago Lawyer correspondent
Three Nixon Peabody attorneys in Chicago were recently honored for their work representing transgender clients who challenged Iowa’s ban on Medicaid reimbursement for gender affirming surgical procedures.
The American Civil Liberties Union of Iowa selected Seth A. Horvath, F. Thomas Hecht and Tina B. Solis as recipients of the Dan Johnston Cooperating Attorney Award.
Solis said Hecht came to her with the pro bono case and asked, “How would like to get into a difficult fight in your home state?”
“And I said, I would like nothing more,” Solis said.
Horvath, Hecht and Solis helped the ACLU of Iowa team in their representation of two transgender women, Carol Ann Beal and EerieAnna Good. The Nixon Peabody attorneys donated more than 600 hours to work on the case.
Iowa District Judge Arthur Gamble in June 2018 ruled in favor of Beal and Good. Gamble found the rule in the Iowa Administrative Code that banned Medicaid coverage for gender-affirming surgery violated the Iowa Civil Rights Act and the equal protection clause of the Iowa Constitution.
The state appealed and the Iowa Supreme Court affirmed the violation of the Iowa Civil Rights Act but did not decide on the equal protection claim.
“We had hoped that the [Iowa Supreme] court would reach the equal protection argument and, like the district court, ground its constitutional analysis on that theory,” Hecht said. “That would have been stronger protection against subsequent legislative action.”
Only two months after the Iowa Supreme Court’s decision, the Iowa legislature passed an annual budget bill that included an amendment to the Iowa Civil Rights Act.
Solis said this statute was logrolled into an annual appropriations bill, which the plaintiffs argue violates the “single subject” provision of the Iowa Constitution. Under the legislation, no Iowa state agency is required by the Iowa Civil Rights Act to provide Medicaid reimbursement for gender-affirming surgery, Horvath said.
After the new law was passed, the Nixon Peabody attorneys and the ACLU filed a lawsuit on behalf of Iowans Mika Covington, Aiden Vasquez and One Iowa, the LGBTQ advocacy organization.
The new Iowa law prompted a response from California Attorney General Xavier Becerra. In September, Becerra announced a prohibition on state-funded and state-sponsored travel to Iowa, effective Oct. 4. The lawyers for the plaintiffs filed an emergency motion for a temporary injunction to the Iowa Supreme Court, which is currently in the briefing stage.
Horvath said they intend to argue the law violates the equal protection clause of the state constitution in two different ways.
First, he said, they argue that the new law is discriminatory on its face. They also claim the new law is an example of intentionally discriminatory conduct by the Iowa state legislature as evidenced by the legislative history and public comments by the Iowa Gov. Kim Reynolds, Horvath said.
Hecht said the federal judiciary has been viewed for many years as the key protector of various civil rights.
“As that era draws to a close, sometimes more rapidly than other times, we have been interested in exploring nonfederal avenues to protect those rights and relying on state constitutions and state statutes and keeping our distance from federal law,” he said. “That is an interesting strategic move, which we embraced here, and I think yielded good strong results because of that.”
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