U.S. Makes Headway in Improving Transgender Health Care Access

222352_1005555586924_6468_nRachel Kurzweil, ’15L*

In the past year, the United States made serious strides towards increasing awareness of transgender issues and improving transgender rights, particularly with regard to health care access. The Patient Protection and Affordable Care Act increased health care access for all Americans, but had two specific effects on transgender health care: 1) the non-discrimination provisions provide for increased protections for transgender individuals who seek care; and 2) the Act’s ban on pre-existing condition coverage exclusions by insurance companies limited ways in which insurance companies can deny coverage to transgender individuals. The Department of Health and Human Services (HHS) Departmental Appeals Board (DAB) also made a landmark decision to end Medicare’s the thirty-three year ban on Medicare coverage for sex reassignment surgery. This article will discuss the lifting of the Medicare ban, what it means, and its limitations.

The ban was established in 1981 as a result of a belief that sexual reassignment surgery and other transition related surgeries were purely experimental.[1] The May 2014 DAB decision was the result of the case of Denee Mallon, a Medicare recipient who was denied coverage for a sex reassignment surgery recommended by her physician.[2] According to the case before the DAB, Mallon, a 74-year-old army veteran, applied for coverage two years ago.[3] Mallon had done so after doctors diagnosed her with gender dysphoria and suggested she undergo genital reconstruction as part of her treatment.[4] Gender dysphoria, a medical condition characterized by serious discomfort with one’s sex. The term is also used to describe a person whose gender at birth is contrary to the one they identify with. Gender dysphoria is a diagnosable medical condition that requires a difference between the individual’s expressed or experienced gender and the gender others would assign him or her and it must continue for at least six-months.[5] Treatment for gender dysphoria includes counseling, cross-sex hormones, gender reassignment surgery, and social and legal transition to the desired gender.[6]

In rendering its decision, the DAB determined that medical studies published over the past three decades showed that the grounds for the exclusion of coverage are no longer “reasonable”’ and lifted the ban.[7] The review board underscored that, even if it assumed that the National Coverage Determination’s coverage exclusions were reasonable at the time that they were rendered, lack of coverage was no longer reasonable.[8] The DAB further ruled that denying Medicare coverage for all transsexual surgery as a treatment of transsexualism is neither valid under a reasonableness standard nor under established standards of treatment accepted by medical experts.[9]

Though this ruling can be viewed as a victory in some respects, it is still limiting. The ruling does not truly change how private insurance companies issue coverage for transition related care nor does it alter the government’s ability to discriminate against transgender individuals. Further, the ruling does not mean Medicare will automatically start covering sex reassignment surgery and transition related care, rather, the program will no longer be prevented from covering such claims.[10] Transgender individuals will continue to have to justify their need for coverage of transition related care just as they must do for any other medical treatment.[11] The board added that transgender people should either get coverage or, at a minimum, receive an individualized review of the medical need for the specific procedure they seek—just like anyone seeking coverage for any other medical treatment.[12]

These limitations do not detract from the significance of the DAB decision. Not only is it symbolic move, but it is also a practical one. It is in line with the medical community’s view that providing transgender individuals with access to transition related care is necessary. Importantly, the lift may encourage more private insurance plans to provide more transition related coverage.

***

Rachel Kurzweil, ’15L, is a third year law student who has served as the Symposium Editor for the Journal of Civil Rights and Social Justice and has note published with the Journal, “Justice is What Love Looks Like in Public: How the Affordable Care Act Falls Short on Transgender Health Care Access.” She graduated Mount Holyoke College in 2010 with a B.A. in political science and history. She is interested in health care law and policy.

References:

[1] Ariana Eunjung Cha, Ban on Medicare coverage for sex change surgery, The Washington Post (May 30, 2014) http://www.washingtonpost.com/national/health-science/ban-lifted-on-medicare-coverage-for-sex-change-surgery/2014/05/30/28bcd122-e818-11e3-a86b-362fd5443d19_story.html.

[2] Lauren Gambino, Transgender people cannot be denied sex-reassignment Medicare Coverage, The Guardian, (May 30, 2014) http://www.theguardian.com/society/2014/may/30/transgender-people-sex-reassignment-medicare-coverage.

[3] Id.

[4] Id.

[5] American Psychiatric Assoc., Gender Dysphoria Fact Sheet (2013), available at http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf.

[6] Lambda Legal, Transgender Rights Toolkit: A Legal Guide for Trans People and Their Advocates, available at http://www.lambdalegal.org/sites/default/files/publications/downloads/trt_transition-related-health-care_3.pdf.

[7] Gambino supra note 2.

[8] Cha supra note 1.

[9] Cha supra note 1.

[10] Cha supra note 1.

[11] Cha supra note 1.

[12] Gambino supra note 2.

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