Children’s Hospital of Colorado (screengrab via KUSA).
A college-bound transgender student sued a Colorado children’s hospital Wednesday for discriminating against him by suddenly and without warning canceling his gender-affirming surgery, leaving him no choice but to pay out of pocket for the procedure in order to complete it by the time he begins college. The case is the latest legal battle involving Colorado’s anti-discrimination law, the same statute at issue in the Masterpiece Cake Shop cases and in the case of a website designer who didn’t want to make websites for gay people getting married.
The student, who is proceeding in the lawsuit under the pseudonym Caden Kent, is an 18-year-old transgender man who lives in Denver, Colorado. In the lawsuit, Kent is represented by the ACLU of Colorado. Kent began receiving care for gender dysphoria in 2021 at age 16. In 2023, Kent’s doctors determined that chest masculinization surgery was medically necessary for his treatment and that he was a good candidate for the procedure. He sought care from Children’s Hospital of Colorado (CHCO).
Kent began discussing chest masculinization surgery with CHCO in Dec. 2022. At the time, Kent was under age 18. Over the next six months, Kent and his family continued planning for the surgery; they met with various members of the medical team, started the process of submitting documentation for insurance coverage. On July 13, 2023, Kent’s family received an insurance authorization letter in the mail, and the next day, Kent’s father informed the hospital that they were ready to schedule the surgery.
However, July 13, 2023 was also the day that CHCO decided it would no longer perform surgeries to treat gender dysphoria.
CHCO typically provides medical care to children under age 18, but also provides care to adults when the hospital’s pediatric expertise is medically important to the needs of the adult patient or when the patient has a history of treatment with the facility as a minor. In most cases, the hospital encourages patients to move to adult care by age 22, but occasionally recommends continuing care at CHCO when the patient, their family, and their health care team deem it the most appropriate option to create an uninterrupted continuum of care.
The hospital has never performed gender-affirming surgeries for pediatric patients, but sometimes performed the surgeries for transgender adult patients. According to the complaint, “CHCO would provide these procedures to transgender patients over the age of 18 if they began their course of treatment and surgery planning with CHCO before turning 18.”
CHCO had been one of only three institutions in Colorado that provided these surgeries and accepted insurance.
According to the lawsuit, the hospital, without explanation or notice, canceled all surgeries scheduled to treat gender dysphoria, including those that were scheduled as soon as the next day. This “abrupt policy reversal” conflicted with the hospital’s own standard of care, said the plaintiffs.
According to the lawsuit, CHCO’s sudden decision to stop providing gender affirming surgical care to transgender patients was especially troublesome given that the hospital continued to provide the same or similar surgeries to patients who were not transgender.
Per the complaint:
CHCO has a plastic surgery program, which provides chest reconstruction to correct pain, discomfort, limitations in daily activities, and differences in appearance, caused by multiple conditions, including gynecomastia. CHCO also has a surgical oncology program, which offers hysterectomies to treat tumors. Under its new policy, CHCO categorically does not provide medically necessary surgeries to transgender patients to treat gender dysphoria. But it still offers the same procedures to patients, including non-pediatric patients, to treat conditions other than gender dysphoria.
Kent alleged that his untreated gender dysphoria caused him significant distress, anxiety, withdrawal, and feelings of hopelessness.
“He felt like he and his family had worked for a year for nothing,” said the complaint.
Kent said he had planned to have the surgery before beginning college, and, “dreamt that he would be able to start school with greater comfort in his body,” and planned to “present himself to his classmates as his authentic self,” and “make new friends without worrying about his gender being misperceived.”
Kent said his mental health suffered as he was “weighed down with worry, fear, and loss at the thought of his dysphoria defining the beginning of the next chapter of his life.” Although his family tried to establish care with another qualified provider, the delays that resulted from restarting the entire consultation process made it impossible to stick to the original timeline. As a result, the family now plans to pay for the surgery privately without the benefit of insurance coverage.
“CHCO’s abrupt cancellation of all gender-affirming surgeries for its trans patients was devastating to Caden, other impacted patients, and Colorado’s transgender community,” said Tim Macdonald, ACLU of Colorado Legal Director. “Refusal to provide medically necessary care based on the identity of the person seeking it, and the condition for which they are seeking it, is discriminatory and illegal under the Colorado Anti-Discrimination Act.”
“Caden came forward to protect other transgender people from the discrimination he experienced,” said Emma Mclean-Riggs, ACLU of Colorado Staff Attorney. “Transgender people have the right to access necessary medical care, without fear that they may be denied that care because of who they are. Medical providers should ensure their policies and practices are nondiscriminatory or prepare to be held accountable in court.”
Discrimination in a Place of Public Accommodation Based on Sex, Gender Identity, and Gender Expression in Violation of the Colorado Anti-Discrimination Act, Colo. Rev. Stat. § 24-34-601 et seq.
On June 30, 2023, just days before CHCO canceled Kent’s surgery, the Supreme Court of the United States ruled 6-3 in favor of a Christian website designer who said despite Colorado’s public accommodation law, she would refuse to create a wedding website for a gay couple. In her dissent from the Court’s opinion, Justice Sonia Sotomayor said the decision marked “a sad day in American constitutional law and in the lives of LGBT people,” and warned that Colorado’s public accommodation law was a safeguard against any group being “marked for second-class status.”
The case, like that of the Colorado baker who refused to create a custom cake for same-sex couples, turned primarily on the business owners’ right to free speech. However, a hospital providing medical care is unlikely to be considered speech or expression under the law.
Sotomayor said in the web design case that public accommodation laws exist to ensure that in a “free and democratic society, there can be no social castes.”
“For the ‘promise of freedom’ is an empty one if the Government is ‘powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother],”” Sotomayor said.
CHCO told Law&Crime that it had not yet received the complaint.
You can read the full complaint here.
