Idaho Attorney General Raúl Labrador has asked the U.S. Supreme Court to hear a lawsuit challenging the state’s law banning public funds from covering gender-affirming health care.

The new law took effect in July, banning Idaho Medicaid and public funds from covering gender-affirming medication and surgeries.

Transgender and nonbinary Idahoans on Medicaid who sued in 2022 — alleging Idaho Medicaid has an unwritten policy of denying or delaying gender-affirming care coverage — this year amended their lawsuit to seek to block the new law. 

Labrador asked the Supreme Court to review if refusing coverage for sex-reassignment surgeries violates the U.S. Constitution’s Equal Protection Clause. 

Labrador filed his request for U.S. Supreme Court review, formally called a petition for writ of certiorari, on Dec. 5. That was a day after the nation’s highest court heard oral arguments in a case challenging Tennessee’s ban on gender-affirming care for minors, called United States v. Skrmetti.

Petitions for writ of certiorari are a process to appeal lower court decisions directly to the U.S. Supreme Court. 

The court hardly approves such requests; each term, the court hears oral arguments in about 80 among the 7,000-8,000 petitions filed, SCOTUSblog reports. Approval requires votes by four of the nine justices.

What Labrador’s cert petition requests

Labrador’s request asked the court to hold his petition until the Tennessee case is decided since “this question will likely be answered by Skrmetti.”

The request then asks the court to remand Idaho’s case to the U.S. 9th Circuit Court of Appeals to reconsider its decision in September denying Idaho officials “qualified immunity.” 

The suit from Tennessee already before the Supreme Court deals with “substantively identical issues” to Idaho’s, Idaho Office of the Attorney General spokesperson Dan Estes told the Idaho Capital Sun in a statement. 

“Multiple circuit courts have ruled over the last two years that states can regulate sex reassignment treatments without violating the Constitution,” Estes said in a statement. “We hope the Supreme Court will agree and issue a ruling confirming the constitutionality of Idaho’s alleged policy of not covering sex reassignment surgeries under Medicaid.”

In July, federal judge Raymond E. Patricco, chief magistrate judge in the District of Idaho, issued a temporary restraining order that had blocked Idaho’s new law only for the seven suing patients in the lawsuit, but the order expired. 

On Nov. 22, Patricco heard oral arguments on whether to grant a preliminary injunction, a broader, longer-lasting legal block against the law. He has not yet issued his ruling.

What Idaho’s law does

The bill creating the new law — House Bill 668 — was approved by all but one Idaho Republican state legislator this spring before Gov. Brad Little signed it into law.

Bill sponsors argued the bill ensures that taxpayer dollars are not inappropriately used. Opponents said major medical groups say gender-affirming care is medically necessary and safe, and warned that the law could lead to a lawsuit.

According to the law, public funds cannot cover hormone therapy, puberty blockers or surgical procedures for the purpose “to affirm the individual’s perception” of their sex. But the law outlines other coverage of the procedures still legally allowed. 

In response to the new law, Health West, the go-to gender-affirming care clinic in eastern Idaho, stopped providing gender-affirming care. The move appeared to be driven by fears of losing funding, the Idaho Capital Sun reported.

How much does gender-affirming care cost Idaho taxpayers? Health agency hasn’t said.

It isn’t clear how many Idaho Medicaid patients receive gender-affirming care. The Idaho Department of Health and Welfare has declined to answer questions about gender care coverage and costs, citing the litigation — but has said the agency hasn’t covered “any surgeries for gender dysphoria for adults or youth.”

Around 350,000 Idahoans are on Medicaid, which largely covers low-income and disabled people. Gender nonconforming people are at higher risk for being in a lower socio-economic status, a study in February found.

Less than 1% of Idaho’s population is transgender — or about 7,000 Idaho adults and 1,000 Idahoans age 13 and up, according to estimates from the University of California-Los Angeles.

Cert petition Labrador MH v. Adams 12-5-24