By Howard Fischer
Capitol Media Services
PHOENIX -- Gov. Katie Hobbs is again wading into culture wars, issuing executive orders Tuesday to halt the use of public funds for "conversion therapy'' while mandating them for "gender affirming health care,'' at least for state and university employees and retirees.
In her first order, the governor took aim at practices designed to convince individuals -- particularly minors -- that they are not gay. It specifically prohibits the use of state or federal dollars to "promote, support, or enable'' conversion therapy on minors.
That would include the health insurance that the state makes available for its own or university employees. That coverage does include mental health services.
What also would be affected are any mental health services available to individuals and families enrolled in the Arizona Health Care Cost Containment System, the state's Medicaid program.
The governor, in her executive order, said such therapy is based on "the false premise that homosexuality and gender-diverse identities are pathological.''
Separately, Hobbs directed the Department of Administration, the state's personnel arm, to remove language exempting "gender reassignment surgery'' from the health care policies now available to state and university employees and retirees.
That will most immediately affect Russell Toomey, a transgender professor at the University of Arizona who filed suit four years ago after he was denied coverage for a long-sought hysterectomy.
Toomey charged that the state refused to pay for what he said is a "medically necessary'' procedure for his gender dysphoria even though the insurance policy covers other medically necessary surgeries. And that, his attorneys said, amounts to illegal discrimination based on sex as the insurance is supposed to cover all "medically necessary'' surgical procedures.
The executive order now will end the lawsuit.
But the broader victory is that the governor's action order will clear the way for other transgender workers to get similar coverage.
At the heart of both orders, the governor said, is how the state treats some of its residents.
"Our LGBTQ+ community should never have to face hate and discrimination,'' Hobbs said in a prepared statement.
"The state is leading by example on this issue,'' she continued. "And we will continue working until Arizona is a place where every individual can participate equally in our economy and workforce without fear of discrimination or exclusion.''
Both new orders are an extension of actions the governor took on her first day in office expanding existing rules against discrimination against current or prospective state employees.
At the time that covered things like race, sex, religion, pregnancy and veteran status. She extended that to include other traits that cannot be considered in hiring, firing or pay, ranging from gender identity and marital status to culture, creed, social origin and even political affiliation.
Hobbs' expanded list also included sexual orientation, though that appears to already have been covered in a 2003 executive order issued by then-Gov. Janet Napolitano.
A threat by Sen. Jake Hoffman, R-Queen Creek, to challenge the order never materialized.
Now, the governor is taking aim at other practices she considers discriminatory.
Both actions drew immediate fire from Cathi Herrod, president of the Center for Arizona Policy who called it a "power grab'' that is "unwise and dangerous.''
"What she calls 'conversion therapy' amounts to basic counseling for those struggling with their gender,'' she said, despite what has become widespread condemnation of tactics used to by therapists to convince minors to abandon their sexual preferences.''
Herrod, whose organization lobbies on what it considers to be "foundational values of life, marriage and family, and religious freedom'' also said it is likely unconstitutional to tell therapists what they can say and tell citizens what therapy they can seek.
Nothing in Hobbs' order crosses that line but simply says what the state will fund.
Herrod said the governor's other action also appears to encourage "irreversible and experimental sex-change surgeries and drug therapies.''
Hobbs, however, said that she, as governor, is entitled to decide what the state will and will not fund to end what she sees as discrimination as long as it does not conflict with state law.
It starts, Hobbs said in her executive order, with the findings of various organizations who oppose the practice of conversion therapy on minors because of what they say are dangerous effects.
She said that includes the American Psychological Association which said that being subject to conversion therapy in childhood contributes to increased risk of suicide, depression and substance use throughout an individual's life. And the governor said the federal Substance Abuse and Mental Health Service Administration has concluded that conversion therapy is "coercive, can be harmful and should not be part of behavioral health treatment.''
Hobbs has no unilateral power to outlaw the practice throughout Arizona.
That is a question for state lawmakers. And while more than 20 states have banned the practice, that is not the case here.
There is an exception.
It is illegal in Pima County where supervisors enacted a similar restriction in 2017. And a bid by then state Sen. Vince Leach, R-Tucson, to have lawmakers overturn that ordinance failed.
What Hobbs said she can do, in her duty to taxpayers, is "ensure that decisions are fiscally sound, transparent, and evidence-based, and that public healthcare funds are not spent on discredited, ineffective, and unsafe practices.''
But there is an exception to her order for gender-affirming care. And that is by design as it goes to her second executive order -- and the multi-year fight by Toomey to get the state to pay for his hysterectomy.
Hobbs pointed out that the state's insurance plans already require payments for "medically necessary'' care.
What's different, she said, is that only the policy written for the state excludes gender reassignment surgery -- an exclusion she said is "not consistent'' with policies the state's insurance carriers offer to other customers.
But what's also true, the governor said, is there have been successful challenges in other states to that exclusion. So she ordered it removed "as soon as practicable,'' with notice provided to state and university employees enrolled in the system.
And that includes Toomey, a professor of family studies and human development at the University of Arizona who conducts research on how sexual and gender minority youth thrive despite barriers and challenges they encounter.
In an interview with Capitol Media Services, Toomey said he knew he was "different'' at a very early age.
"I thought I was a boy at that point but was being told by everything and everyone in my environment 'No, suck it up, you're a girl,' '' he said.
But it took until he was at least 19, read and book and worked with a counselor that he learned there was a phrase to describe what he was experiencing: gender dysphoria, a sense of mismatch between biological sex and gender identity.
It was shortly after that he began taking hormones and, about a year later, he had chest reduction surgery, all paid for out of his own pocket.
"The need to have a hysterectomy has always been there for as long as I can remember,'' he said. But Toomey said waited until he got the security of tenure at the University of Arizona to seek coverage for the hysterectomy, first by trying to change the policy and, when that didn't work, by filing suit.
Nor does he believe the fact that his uterus and ovaries are not outwardly visible make the surgery any less necessary.
"It's really hard to explain to somebody that's not transgender,'' Toomey said. But he said it comes down to "knowing that there's a part of your body, whether visible or not, that doesn't belong because it doesn't align with how you understand your experience to be.''
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