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The Transgender Eligibility Gap:

How the ACA Fails to Cover Medically


Necessary Treatment for Transgender
Individuals and How HHS Can Fix It

SARAH E. GAGE

ABSTRACT
While the ACA purports to provide more access to medical benefits for
Americans, it fails to do so for transgender individuals because its antidiscrimination provisions do not sufficiently protect this community. This
Note argues that the purpose of the ACA was not only to improve access to
affordable health insurance coverage, but also to improve access to nondiscriminatory, affordable health care. As a result, the ACA should operate
to improve access to all medically necessary treatments. Rather than
looking backward to inform private insurance benefit design under the
ACA, the law should look forward and follow the trend of progress and
expansion of gender-confirming care coverage based on medical necessity.
Because the purpose of the ACA is similar to that of the Medicaid Act, the
ACA should be modeled after Medicaids coverage of medically necessary
treatment for transgender individuals.

Juris Doctor, magna cum laude, New England Law | Boston (2015); B.S., Human Biology,
University of California San Diego (2010). Thank you to my wonderful family, fiance, and
friends for their unwavering love and support and to the New England Law Review staff for all
their work preparing this Note for publication.

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INTRODUCTION

urrently, transgender1 individuals are among the most stigmatized


and medically underserved groups, facing barriers at every phase of
accessing care, from getting into the doctors office to paying for
care.2 This is the case whether or not care is related to gender-transition.3
Anti-transgender bias sparks discrimination within almost every setting,
but is particularly problematic in health care because transgender
individuals are uniquely dependent on medical treatments to realize their
identities and to live healthy, authentic lives. 4 Despite this heightened
reliance on care, this community has historically been excluded from
medical insurance.5 However, the Affordable Care Act (ACA) has altered
this landscape, allowing many individuals previously excluded from
health insurancedue to pre-existing conditions or prohibitively high
ratesto access affordable plans.6
For the first time, the ACA prohibits private insurance companies from
both denying coverage to those with pre-existing conditions7 and varying

Transgender is an umbrella term used to identify, in part, persons whose gender


identity or gender expression is incongruentto varying degreeswith their perceived
gender or anatomic sex assigned at birth. Sexual Orientation and Gender Identity: Terminology
and Definitions, HUM. RTS. CAMPAIGN, http://www.hrc.org/resources/entry/sexual-orientationand-gender-identity-terminology-and-definitions (last visited Apr. 21, 2015). People within
the transgender umbrella often use a wide variety of terms to describe themselves, including:
transgender, transsexual, gender non-conforming, and genderqueer. Transgender 101,
GLADD, http://www.glaad.org/transgender/trans101 (last visited Apr. 21, 2015). The term
transsexual is often used to identify a subgroup of transgender people who have a strong,
persistent preference for living as a person of the other sex and/or desire to have the body of
the other sex. KAPLAN & SADOCKS COMPREHENSIVE TEXTBOOK OF PSYCHIATRY 1979
(Benjamin J. Sadock & Virginia A. Sadock eds., 8th ed. 2004).
2 See Emilia Lombardi, Enhancing Transgender Health Care, 91 AM. J. PUB. HEALTH 869, 870
(2001).
3

See U.S. DEPT OF HEALTH AND HUMAN SERVS., AGENCY FOR HEALTHCARE RESEARCH &
QUALITY, NATIONAL HEALTHCARE DISPARITIES REPORT 233, 24243 (2011) (discussing
healthcare disparities and identifying transgender people as one of the most vulnerable
populations).
4 Kellan Baker & Andrew Cray, Why Gender-Identity Nondiscrimination in Insurance Makes
Sense, CTR. FOR AM. PROGRESS 6 (May 2, 2013), http://cdn.americanprogress.org/wpcontent/uploads/2013/05/BakerNondiscriminationInsurance-6.pdf.
5 Health, NATL CTR. FOR TRANSGENDER EQUALITY, http://transequality.org/Issues/
health.html (last visited Apr. 21, 2015).
6 See Amy Goldstein, Study: 129 Million Have Preexisting Conditions, WASH. POST, Jan. 18,
2011, at A1.
7

42 U.S.C. 300gg-3(a) (2012).

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rates according to an individuals health status. 8 Further, the ACAs


Medicaid Expansion creates a new class of individuals eligible for stateadministered public health insurancespecifically extending coverage to
low-income, childless adults.9 The expansion of state-administered
Medicaid paired with ACAs individual mandate means that many
transgender individuals will have medical insurance for the first time. 10
However, this gain is not a total victory; improved access to health
insurance for transgender individuals does not necessarily mean improved
access to medically necessary,11 gender-confirming12 health care.13

Id. 300gg(a).
Memorandum from the Ctr. for Medicaid and State Operations to State Health Officials
and State Medicaid Dir. 12 (Apr. 9, 2010), available at http://downloads.cms.gov/cmsgov/
archived-downloads/SMDL/downloads/SMD10005.PDF.
10 JAMIE M. GRANT ET AL., NATL CTR. FOR TRANSGENDER EQUAL., INJUSTICE AT EVERY TURN:
A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY 7677 (2011), available at
http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf (Nineteen
percent . . . of [transgender individuals surveyed] lacked any health insurance compared to
17% of the general population.). Lack of health insurance compounds the issue of access,
rendering care inaccessible to most transgender people. Id.; Liza Khan, Transgender Health at
the Crossroads: Legal Norms, Insurance Markets, and the Threat of Healthcare Reform, 11 YALE J.
HEALTH POLY L. & ETHICS 375, 380 (2011) ([F]inancial and health insurance constraints may
limit access to services . . . .).
9

11

Medical necessity includes:


Health care services that a Physician, exercising prudent clinical
judgment, would provide to a patient for the purpose of preventing,
evaluating, diagnosing or treating an illness, injury, disease or its
symptoms, and that are: (a) in accordance with generally accepted
standards of medical practice; (b) clinically appropriate, in terms of type,
frequency, extent, site and duration, and considered effective for the
patients illness, injury, or disease; and (c) not primarily for the
convenience of the patient, physician, or other health care provider, and
not more costly than an alternative service or sequence of services at least
as likely to produce equivalent therapeutic or diagnostic results as to the
diagnosis or treatment of that patients illness, injury or disease.

WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage
in the U.S.A., WPATH, 12 (June 17, 2008), http://www.wpath.org/uploaded_files/140/files/
Med%20Nec%20on%202008%20Letterhead.pdf (internal footnotes and citations omitted).
12 Gender-confirming health[] care refers to various procedures that bring ones gender
identity into conformity with their body. See generally Dean Spade et al., Medicaid Policy and
Gender-Confirming Healthcare for Trans People: An Interview with Advocates, 8 SEATTLE J. FOR SOC.
JUST. 497, 497 (2010). It can include primary care, gynecologic and urologic care, reproductive
options, voice and communication therapy, mental health services (e.g., assessment,
counseling, psychotherapy), and hormonal and surgical treatments. E. Coleman et al.,
Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People,

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This Note argues that the ACA should operate to improve access to all
medically necessary treatmentsregardless of the patients gender
identity. The ACA was designed to improve access to quality, affordable
health care vis--vis comprehensive, nondiscriminatory health insurance
coverage. However, this lofty promise falls short of addressing wellrecognized transgender health disparities by failing to guarantee coverage
for medically necessary, gender-confirming care. Rather than looking
backward to inform insurance benefit design under the ACA, the law must
look forward and follow the trending progress and expansion of medically
necessary gender-confirming care coverage.
Part I of this Note defines key terms for understanding transgender
individuals obstacles accessing health insurance and care. This part
discusses the diagnostic features of gender dysphoria and the medical
necessity of gender-confirming health care. Part I also provides a basic
understanding of the ACA and how it intersects with gender-confirming
health care. Part II discusses high risk factors within the transgender
community that give rise to the need for informed health care, along with
common barriers that transgender individuals face when accessing health
insurance and care. Part III argues how interpreting the ACA to cover
gender-confirming health care would be consistent with its purposes to
improve access to affordable, quality health care while lowering costs. Part
III also identifies the ACAs shortcomings with respect to addressing the
barriers discussed in Part II and suggests how the Department of Health
and Human Services (HHS) should require qualifying health plans to
cover gender-confirming health care. Finally, Part III discusses the trend
toward increasing gender-confirming care coverage, comparing the
evolution of the medical communitys understanding of transgender issues
to the evolution of health policy in the public and private insurance
markets. This trend should encourage more courts to recognize the medical
necessity of gender-confirming treatment so that, even in the absence of an
ACA amendment improving access to this treatment, courts can be guided
by other areas that are making strides in expanding coverage.

Version 7, 13 INTL J. TRANSGENDERISM 165, 16566 (2011),


http://www.wpath.org/uploaded_files/140/files/IJT%20SOC,%20V7.pdf.
13

See infra Part III.B.3.

available

at

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Background
A. Gender-Confirming Healthcare for Transgender Individuals
1.

Definitions

Gender and sexual identity terminology are constantly evolving and


vary between different cultures, communities, and contexts.14 Though
definitions may vary and ultimately come down to each individuals
preferred designation, a few terms are helpful to define.15 Gender is used to
indicate both the publicly and legally recognized determination of man or
woman with biological, psychological, and social factors contributing to
gender development.16 On the other hand, gender identity is an
individuals internal, personal sense of being a man or a woman.17
Similarly, while gender assignment refers to ones gender at birth, or birth
sex,18 gender reassignment denotes an official (and usually legal) change
of gender and usually involves some degree of medical intervention. 19
Within each gendermale or femalesociety has assigned certain
activities, expectations, and behaviors to each, otherwise known as gender
roles.20 These gender roles reflect a gender binary, which refers to the
conception of gender as being limited to male or female.21 Gender
nonconformity can then occur when a persons acts or behaviors differ
from societys gender roles.22 Finally, while gender expression [r]efers to
the ways in which people externally communicate their gender identity to
others through behavior, clothing, haircut, voice, and other forms of

14

See Coleman et al., supra note 12, at 221.


See Transgender 101, supra note 1.
16 AM. PSYCHIATRIC ASSN, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
451 (5th ed. 2013) [hereinafter DSM-V].
15

17

Transgender 101, supra note 1.


DSM-V, supra note 16.
19 DSM-V, supra note 16; see also Hastings Wyman, Transgender and Bisexual Issues in Public
Administration and Policy, in HANDBOOK OF GAY, LESBIAN, BISEXUAL, AND TRANSGENDER
ADMIN. AND POLICY 125, 126 (Wallace Swan eds., 2004), available at http://www.untagsmd.ac.id/files/Perpustakaan_Digital_2/PUBLIC%20POLICY%20(Public%20Administration%
20and%20public%20policy%20106)%20Handbook%20of%20Gay,%20Lesbian,%20Bisexual,%2
0a.pdf; Transgender 101, supra note 1.
18

20 Understanding
Gender, GENDERSPECTRUM, https://www.genderspectrum.org/quicklinks/understanding-gender (last visited Apr. 21, 2015).
21
22

Id.
Coleman et al., supra note 12, at 168.

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presentation,23 gender identity is an individuals internal, personal sense


of gender.24
2.

Diagnoses

For some transgender individuals, the incongruity between their


gender identity and their birth sex, or expected gender role associated with
their birth sex, causes significant distress, which may give rise to the
condition gender dysphoria.25 This diagnosis refers to the distress that
may be associated with gender nonconformity, which is not by itself a
disorder.26 Gender dysphoria is the diagnosis adopted by the American
Psychiatric Association (APA) upon release of the fifth edition of the
Diagnostic Statistical Manual of Mental Disorders (DSM-V) in May 2013,
which replaced the text-revised fourth editions (DSM-IV-TR) diagnosis
of gender identity disorder (GID).27
According to the DSM-V, in order for a person to be diagnosed with
gender dysphoria an individual must meet several diagnostic criteria. 28
First, an individual must identify as transgender or gender nonconforming for at least six months. 29 This element, which itself is not
pathological, may be manifested in a variety of ways, including strong
desires to be [perceived or] treated as the other gender or to be rid of ones
sex characteristics, or a strong conviction that one has feelings and
reactions typical of the other gender.30 Second, this identity must cause[]
clinically significant distress or impairment in social, occupational, or other
important areas of functioning.31 When these individuals experience
intense and persistent distressthe only pathological element rendering

23

Understanding Gender, supra note 20.


Transgender 101, supra note 1.
25 See Coleman et al., supra note 12, at 168.
26 AM. PSYCHIATRIC ASSN, GENDER DYSPHORIA 1 (2013) [hereinafter GENDER DYSPHORIA],
available at http://www.dsm5.org/Documents/Gender%20Dysphoria%20Fact%20Sheet.pdf.
24

27 AM. PSYCHIATRIC ASSN, HIGHLIGHTS OF CHANGES FROM DSM-IV-TR TO DSM-5, 14 (2013)


[hereinafter HIGHLIGHTS], available at http://www.dsm5.org/Documents/changes%20
from%20dsm-iv-tr%20to%20dsm-5.pdf. However, because this diagnostic change was so
recent, many cases addressing insurance coverage for gender-confirming healthcare use the
term GID rather than gender dysphoria and it is important to define it as understood by
courts and scholars interpreting earlier issues for transgender individuals struggle with
accessing healthcare. See, e.g., ODonnabhain v. Commr, 134 T.C. 34, 55 (2010).
28

See GENDER DYSPHORIA, supra note 26, at 1.


Id.
30 Id.
31 Id.
29

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gender dysphoria a conditionthey may be diagnosed with gender


dysphoria.32 Therefore, for people without access to appropriate genderconfirming health care and treatment options, the intense emotional pain
and suffering caused by gender dysphoria can lead to depression, serious
self-harm including genital self-mutilation, suicidality, and death.33
3.

Medical Necessity of Gender-Confirming Treatment: The


Medical Community

There is a worldwide consensus among medical professionals that


gender-confirming care is a medically necessary treatment for gender
dysphoria that should be covered by health insurance plans. 34 The World
Professional Association for Transgender Health (WPATH) is a leading
international, multidisciplinary, professional association with the mission
to promote evidence-based care, education, research, advocacy, public
policy, and respect in transgender health through cultural competency. 35 In
its Medical Necessity Statement, WPATH noted that the medical
procedures attendant to sex reassignment are not cosmetic or elective or
for the mere convenience of the patient. These reconstructive procedures
are not optional in any meaningful sense, but are understood to be
medically necessary for the treatment of the diagnosed condition.36 Nor
are they experimental: decades of both clinical research and medical
experience show that they are essential to achieving well-being for the

32

See id.
See, e.g., Complaint at 1, Cruz v. Commr of Dept of Health, No. 14 CV 4456 (S.D.N.Y.
June 19, 2014), 2014 WL 2872300; Memorandum from Gay & Lesbian Advocates & Defenders
to the Commr of Ins., Mass. Div. of Ins. 1 (Oct. 22, 2013) (on file with author).
33

34 AM. MED. ASSN HOUSE OF DELEGATES, RESOLUTION: 122 (A-08) at 12, available at
http://www.gires.org.uk/assets/Medpro-Assets/AMA122.pdf;
APA
Policy
Statement:
Transgender, Gender Identity, & Gender Expression Non-Discrimination, AM. PSYCHOLOGICAL
ASSN, http://www.apa.org/about/policy/transgender.aspx (last visited Apr. 21, 2015);
Transgender Health Resources, AM. MED. STUDENT ASSN, http://www.amsa.org/AMSA/
Homepage/About/Committees/GenderandSexuality/TransgenderHealthCare.aspx
(last
visited Apr. 21, 2015); Daphna Stroumsa, The State of Transgender Health Care: Policy, Law, and
Medical Frameworks, 104 AM. J. PUB. HEALTH e31, e33 (2014), available at 2014 WLNR 7716885, at
*4 (listing other professional societies, including the American College of Obstetricians and
Gynecologists, and the Endocrine Society as endorsing gender-confirming treatment as
medically necessary).
35 See WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance
Coverage in the U.S.A., WPATH (June 17, 2008), http://www.wpath.org/uploaded_files/
140/files/Med%20Nec%20on%202008%20Letterhead.pdf.
36

Id.

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trans[gender] patient.37
The American Medical Association (AMA), APA, the American
Psychological Association, the World Health Organization, and other
professional medical associations agree that robust medical research
demonstrates the effectiveness and medical necessity of gender-confirming
care for people diagnosed with gender dysphoria and GID.38 These health
professional institutions have adopted the WPATH Standards of Care,
which are the leading clinical guidance and industry standards for
assisting transgender individuals with safe and effective pathways to
achieving lasting personal comfort with their gendered selves.39 These
Standards of Care articulate a flexible approach to gender-confirming
health care, consisting generally of: [c]hanges in gender expression and
role (i.e., living in another gender role consistent with ones gender
identity); [h]ormone therapy to feminize or masculinize the body;
[s]urgery to change primary and/or secondary sex characteristics (e.g.,
breasts/chest, external and/or internal genitalia, facial features, body
contouring); and psychotherapy to explore gender identity and
expression as well as address negative mental health consequences of
GID/gender dysphoria and social stigma. 40 Treatment is individualized,
diverse, and does not inevitably include sexual reassignment surgery or a
gender identity within the male/female binary. 41
4.

Medical Necessity of Gender-Confirming Treatment: The


Legal Community

Courts faced with coverage questions for gender-confirming care


from inmates to Medicaid recipients to taxpayers seeking medical services
deductionshave generally adopted the medical communitys consensus
that gender-confirming care is medically necessary to address GID/gender
dysphoria.42
Federal courts have also recognized WPATH Standards of Care as the
generally accepted protocol for treating GID/gender dysphoria.43 Inmates
diagnosed with GID/gender dysphoria and who seek gender-confirming

37

Id.
See supra note 34 and accompanying text.
39 Coleman et al., supra note 12, at 166.
40 Id. at 171.
41 See id. at 168.
42 See infra Part I.A.4.
43 NCD 140.3, Transsexual Surgery, DAB No. 2576 (U.S. Dept of Health and Human Servs.
May 30, 2014), 2014 WL 2558402 at *17 (citing Delonta v. Johnson, 708 F.3d 520, 52223 (4th
Cir. 2013)); Glenn v. Brumby, 724 F. Supp. 2d 1284, 1289 n.4 (N.D. Ga. 2010).
38

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treatment have challenged denial of care under the Eighth Amendment of


the United States Constitution.44 Although courts have reached varied
conclusions regarding the propriety or sufficiency of providing inmates
with gender-confirming treatments, the nine U.S. Courts of Appeals that
have considered the question have concluded that severe GID or
transsexualism constitutes a serious medical need for purposes of the
Eighth Amendment.45 Several federal courts have upheld transgender
inmates right to receive gender-confirming treatment, including hormonal
and surgical treatments.46 These federal courts, like the U.S. Tax Court,
embrace WPATHs Standards of Care as articulating the best practices for
treating GID/gender dysphoria.47

44 See Marjorie A. Shields, Annotation, Provision of Hormone Therapy or Sexual Reassignment


Surgery to State Inmates with Gender Identity Disorder (GID), 89 A.L.R. 6th 701 (Originally
published in 2013) (compiling cases that have addressed the provision of gender-confirming
care to inmates diagnosed with GID/gender dysphoria); see also Estelle v. Gamble, 429 U.S. 97,
103 (1976) (establishing the governments obligation to provide medical care for those whom
it is punishing by incarceration and holding that deliberate indifference to a prisoners
medical needs constitutes the unnecessary and wanton infliction of pain proscribed by the
Eighth Amendment). The Supreme Court has extended the Eighth Amendment analysis in
Youngberg v. Romeo, 457 U.S. 307, 315, 324 (1982), holding that the substantive component of
the Fourteenth Amendments Due Process Clause requires the state to provide medical care to
non-convicted individuals held in state custody, including involuntarily committed mental
health patients.
45 Kosilek v. Spencer, 740 F.3d 733, 760 (1st Cir. 2014), rehg en banc granted, opinion
withdrawn (Feb. 12, 2014); Kothmann v. Rosario, 558 F. Appx 907, 910 (11th Cir. 2014);
ODonnabhain v. Cmmr, 134 T.C. 34, 62 (2010) (citing Delonta v. Angelone, 330 F.3d 630, 634
(4th Cir. 2003)); Allard v. Gomez, 9 Fed. Appx. 793, 794 (9th Cir. 2001); Cuoco v. Moritsugu,
222 F.3d 99, 106 (2d Cir. 2000); Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997); Brown v.
Zavaras, 63 F.3d 967, 970 (10th Cir. 1995); Phillips v. Mich. Dept. of Corr., 932 F.2d 969 (6th
Cir. 1991); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); see also Fields v. Smith, 653 F.3d
550, 555 (7th Cir. 2011); Qzetax v. Ortiz, 170 F. Appx 551, 553 (10th Cir. 2006); Meriwether v.
Faulkner, 821 F.2d 408, 41113 (7th Cir. 1987).
46

See Stroumsa, supra note 34, at e35.


See id. (citing Fields, 653 F.3d at 557) (holding Wisconsins Inmate Sex-Change Prevention
Act a violation of the Eighth Amendment and the Equal Protection Clause); Adams v. Fed.
Bureau of Prisons, 716 F. Supp. 2d 107, 110 (D. Mass. 2010) (reversing the Federal Bureau of
Prisons policy that denied initiation of treatment of gender dysphoria); Kosilek v. Spencer,
889 F. Supp. 2d 190, 248 (D. Mass. 2012) affd, 740 F.3d 733 (1st Cir. 2014), rehg en banc granted,
opinion withdrawn (Feb. 12, 2014) (requiring the Massachusetts Department of Corrections to
provide sexual reassignment surgery to the plaintiff); see also ODonnabhain, 134 T.C. at 3738.
The Department of Justice has also issued a press release indicating that the Eighth
Amendment mandates individualized care for gender dysphoria. See Press Release, Dept of
Justice Office of Pub. Affairs, Justice Department Files Brief to Address Health Care for
Prisoners Suffering from Gender Dysphoria (Apr. 3, 2015), available at http://www.justice.gov/
47

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In ODonnabhain v. Commissioner, the U.S. Tax Court ruled for the first
time that necessary treatment for GID qualifies as medical care under the
Internal Revenue Code (IRC), and therefore costs related to that care are
deductible from federal income taxes. 48 In that case, the plaintiff sought
medical expense deductions for the costs incurred for GID treatment,
which included sex reassignment surgery (SRS), hormone therapy, and
breast augmentation.49 The court found that the cross-gender hormone
therapy and SRS are widely-accepted treatments for severe GID and held
that GID is considered a disease within the meaning of IRC 213.50 It
further held that hormone therapy and SRS are recognized treatments for
this disease, and thus not cosmetic surgery excluded from the definition
of deductible medical care.51 By ruling that SRS and hormone therapy
qualify as deductible medical expenses under IRC 213,52 the court
revers[ed] the previous IRS position that had denied transgender people
the ability to list expenses for medical services related to sex reassignment
as tax deductions.53 Notably, the court embraced the WPATH Standards
of Care as the industry standard for treating GIDa widely recognized
and accepted diagnosis in the field of psychiatry.54
In mid-2014, the Health and Human Services (HHS) Departmental
Appeals Board issued a final decision finding the National Coverage
Determination (NCD)55 denying Medicare coverage of all transsexual
surgery56 as a treatment for transsexualism to be invalid under the

opa/pr/justice-department-files-brief-address-health-care-prisoners-suffering-genderdysphoria.
48

ODonnabhain 134 T.C. at 7071.


Id. at 35.
50 Id. at 59.
51 Id. at 70.
52 Id.
53 Id. at 7071; see also Transgender-Inclusive Benefits: Taxability of Related Medical Expenses,
HUM. RTS. CAMPAIGN, http://www.hrc.org/resources/entry/transgender-inclusive-benefitstaxability-of-related-medical-expenses (last visited Apr. 21, 2015).
49

54

See ODonnabhain, 134 T.C. at 5961.


A National Coverage Determination is a determination by the [HHS] Secretary with
respect to whether or not a particular item or service is covered nationally [under Medicare].
42 U.S.C. 1395y(l)(6)(A) (2011). The CMS issues these NCDs and they apply nationally and
are binding on all levels of administrative review of Medicare claims. 42 C.F.R. 405.1060
(2005).
55

56

Transsexual surgery, also known as sex reassignment surgery or intersex surgery, is the
culmination of a series of procedures designed to change the anatomy of transsexuals to
conform to their gender identity. . . . NCD 140.3, Transsexual Surgery, DAB No. 2576 (U.S.
Dept of Health and Human Servs. May 30, 2014), 2014 WL 2558402.

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reasonableness standard.57 The NCD struck down by this decision was


based on information compiled in 1981information that has been refuted
by over thirty years of evidence-based studies.58 Notably, the Centers for
Medicare and Medicaid Services (CMS), a department within HHS that
is responsible for issuing and revising NCDs, did not defend the
antiquated NCD or the record on which it was based, nor did it challenge
any of the new evidence submitted to the Board.59 The Board held the NCD
invalid for several reasons, including: the wide acceptance within the
medical community of the criteria for diagnosing transsexualism;
transsexual surgery is safe; surgery is an effective treatment option in
appropriate cases; and, the surgery is not experimental because the safety
and effectiveness of the surgery as a treatment has been proven. 60 In fact,
the court found that the increasing coverage of gender-confirming
surgeries by private and public medical plans and the inclusion of those
surgeries in prominent surgical text books demonstrate that genderconfirming surgeries are the standard of care.61
Transgender individuals seeking Medicaid coverage for genderconfirming care have varying success, depending on whether the state
explicitly excludes transition-related treatment either by statute or
regulation.62 Currently, only California and the District of Columbia
explicitly cover medically necessary gender-confirming care under their
Medicaid programs.63 Though the recent Medicare coverage decision
invalidating NCD 140.3 does not apply to Medicaid or private insurers
participating in the Exchangesboth of which are within the province of
state administrationadvocates expect this decision to guide state policy
concerning public and private insurance coverage. 64
Several cities and states have made efforts to better serve transgender

57

Id.
Id.
59 Id.
60 Id.
61 Id.
62 See Jay M. Zitter, Annotation, Gender Reassignment or Sex Change Surgery as Covered
Procedure Under State Medical Assistance Program, 60 A.L.R. 62744 (2010) (compiling cases
addressing SRS coverage under Medicaid); see also Complaint at 12, Cruz v. Commr of Dept
of Health, No. 14 CV 4456 (S.D.N.Y. June 19, 2014), 2014 WL 2872300 (challenging New Yorks
categorical exclusion from Medicaid coverage for transition-related care).
58

63

Stroumsa, supra note 34, at e35; NATL CTR. FOR TRANSGENDER EQUAL., FACT SHEET ON
MEDICARE COVERAGE OF TRANSITION-RELATED CARE (May 2014), available at
http://www.calcomui.org/images/MedicareFactSheet_On_Sex_Change_Procedures.pdf
64 Medicare Ban on Sex Reassignment Surgery Lifted, CBS NEWS (May 30, 2014, 3:18 PM),
http://www.cbsnews.com/news/medicare-ban-on-sex-reassignment-surgery-lifted/.

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health needs.65 Boston City Council voted unanimously to enact an


ordinance prohibiting the city from contracting with any health insurance
companies that deny coverage or discriminate[] in the amount of
premium, policy fees, or rates charged (i.e., a prohibition on cost-sharing)
based on gender identity or expression.66 Prior to this ordinance, Boston
did not require coverage for transgender employees and genderconfirming care was not covered by the citys health plan.67
B. The Affordable Care Act
The purpose of the ACA is to improve access to affordable, quality
health care by reducing the overall cost of care to providers and

65 See, e.g., San Francisco Transgender Benefit: Actual Cost & Utilization (20012006), HUM. RTS.
CAMPAIGN, http://www.hrc.org/resources/entry/san-francisco-transgender-benefit-actual-costutilization-2001-2006 (last visited Apr. 21, 2015) [hereinafter San Francisco Transgender Benefit].
In 2001, San Francisco became the first major U.S. employer to publicly remove
discriminatory transgender access exclusions in its health insurance plans for employees,
retirees and their dependents in order to explicitly cover medically necessary treatment for
transgender transition. Id. In 2012, San Francisco became the first city in the country to
cover the cost of gender reassignment surgeries for its uninsured transgender residents.
Heather Knight, San Francisco to Cover Sex Change Surgeries for All Uninsured Transgender
Residents, SFGATE (Nov. 17, 2012, 2:02 PM), http://blog.sfgate.com/cityinsider/2012/11/17/sanfrancisco-to-cover-sex-change-surgeries-for-all-uninsured-transgender-residents/. Rochester,
New York, joins a handful of U.S. cities offering employees transition-related coverage,
including Seattle, San Francisco, and the District of Columbia, and Boston. Rochester to Cover
Gender Reassignment for Transgender City Workers, LGBTQ NATION (May 18, 2014),
http://www.lgbtqnation.com/2014/05/rochester-n-y-to-cover-city-workers-genderreassignment/. In December 2012, the Oregon Department of Business and Consumer Services
released a bulletin announcing that insurance plans sold in Oregon can no longer deny care
to transgender policy holders which is provided to non-transgender (or cis-gender) policy
holders. Frequently Asked Questions on DCBS/Insurance Division Bulletin Regarding Transgender
Health Needs, BASIC RTS. OR. (Jan. 3, 2013), http://www.basicrights.org/resources/trans-justiceresources/frequently-asked-questions-on-the-clarification-of-oregons-non-discrimination-lawin-the-transaction-and-regulation-of- insurance/. [S]imilar bulletins have been issued in
California, Colorado, Vermont, and Washington, D.C. Updated Resource for Trans-inclusive
Health Care, BASIC RTS OR. (May 14, 2013), http://www.basicrights.org/featured/updatedresource-for-trans-inclusive-health-care/.
66 Andrew Ryan, Council Oks Insurance Coverage for Transgender Workers, BOS. GLOBE (June
11,
2014),
http://www.bostonglobe.com/metro/2014/06/11/boston-city-council-approvesinsurance-coverage-for-transgender-city-workers/0C8lUs3qQAUTExgMfP2gfO/story.html
(guaranteeing transgender municipal employees and their dependents access to genderconfirming health care, including gender reassignment surgery, hormone therapy, and mental
health services).
67

Id.

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consumers.68 Under the ACA, individuals are required to have qualifying


health coverage and those without such coverage pay a tax penalty,
though exemptions exist based on an individuals income.69 This
requirement is known as the individual mandate.70 The ACA defines
what a health plan must include in order to be considered a qualified
health plan.71 All health planswhether obtained through individual
market policies, job-based coverage, Medicare, Medicaid, CHIP, TRICARE,
or non-grandfathered policiesmust be qualified health plans to satisfy
the individual mandate. 72
1.

Qualified Health Plans

A qualified health plan is one that is certified as eligible to be offered


via an Exchange; [o]ffered by a duly licensed health issuer that has agreed
to offer plans that meet certain cost-sharing requirements; and provides [a]
specific package of health benefits at certain coverage levels, coupled with
prescribed cost-sharing amounts.73 This package of health benefits is
referred to as the Essential Health Benefits package.74 This package must
include coverage for specific categories of benefits at certain levels of
coverage.75 These categories of benefits, at a minimum, must cover items
and services that fall within ten categories of care.76
The scope of the benefits offered in an essential health benefits package
must be equivalent to the scope of benefits provided under the typical
employer-sponsored plan, as determined by the Secretary of HHS. 77 The
U.S. Department of Labor conducts a survey of employer-sponsored plans,
which they report to the Secretary of HHS, who in turn issues regulations
setting standards for benefits packages based on the surveys findings and

68 See Key Features of the Affordable Care Act By Year, U.S. DEPT OF HEALTH & HUM. SERVS.
(Nov. 3, 2014), http://www.hhs.gov/healthcare/facts/timeline/timeline-text.html.
69 See 42 U.S.C. 18091 (2012); see also ObamaCares Individual Mandate: What is the Tax
Penalty for Not Having Health Insurance?, OBAMACARE FACTS, http://obamacarefacts.com/
obamacare-individual-mandate/ (last visited Apr. 21, 2015), [hereinafter Individual Mandate].
70 18091; Individual Mandate, supra note 69.
71 18021.
72 Essential
Health Benefits, HEALTHCARE.GOV, https://www.healthcare.gov/glossary/
essential-health-benefits/ (last visited Apr. 21, 2015).
73 1 CHHS LAW, EXPLANATION AND ANALYSIS OF THE PATIENT PROTECTION AND
AFFORDABLE CARE ACT 128 (2010); see also 18021(a)(1).
74

18021(a)(1)(B), 18022.
1 CHHS LAW, supra note 73, at 129; see also 18022.
76 18022(b)(1).
77 Id.
75

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the elements of consideration set out in 42 U.S.C. 18022(b)(4). 78 The


considerations include: (1) ensuring that the essential benefits are balanced
so that benefits are not unduly weighted toward any category; (2)
avoiding discrimination in coverage, reimbursement rates, incentive
programs, or design decisions based on age, disability, or expected length
of life; (3) considering diverse health care needs of women, children,
persons with disabilities, and other groups; (4) ensuring that essential
benefits cannot be denied to individuals based on their age, life expectancy,
present or predicted disability, degree of medical dependency, or quality
of life; and, (5) ensuring the package provides for emergency services for
out-of-network plans and that cost-sharing for these services do not exceed
in-network services.79 From there, states have the option to either adopt the
federal standards established by the Secretary or set their own benchmark
benefit package through the adoption of state law or regulations that the
Secretary determines satisfactorily implements the federal standards.80
Section 18022(b)(4) also requires that the Secretary periodically review the
benefits package and report to Congress detailing the effectiveness of, and
changes necessary to, the benefits package. 81
2.

Essential Health Benefits and the Ten Categories of


Coverage

The ACA ensures that health plans offered in the individual and small
group marketsboth inside and outside of the Affordable Insurance
Exchanges (Exchanges)offer a comprehensive package of items and
services, known as essential health benefits (EHB).82 EHB packages
must include specific categories of benefits, meet articulated cost-sharing
standards, and provide certain levels of coverage. 83 EHB packages must
include items and services within at least the following ten categories: (1)
ambulatory patient services; (2) emergency services; (3) hospitalization; (4)
maternity and newborn care; (5) mental health and substance use disorder
services, including behavioral health treatment; (6) prescription drugs; (7)
rehabilitative and habilitative services and devices; (8) laboratory services;
(9) preventive and wellness services and chronic disease management; and
(10) pediatric services, including oral and vision care for children.84

78

Id. 18041(a), 18022(b)(1).


Id. 18022(b)(4)(A)(E).
80 Id. 18041(b)(1)(2).
81 Id. 18022(b)(4)(G).
82 Essential Health Benefits, supra note 72.
83 18022(a)(1)(3).
84 Id. 18022(b)(1)(A)(J); Essential Health Benefits, supra note 72.
79

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513

Insurance policies must cover these benefits in order to be certified and


offered in the Exchanges, and states expanding their Medicaid programs
must provide these benefits to people newly eligible for Medicaid. 85
3.

Administration of the Private Insurance Market Under the


ACA

Much like the federal governments role in Medicaid, the federal


government has set threshold requirements for the private insurance
market under the ACA by establishing the Exchanges and setting the
EHB.86 In doing so, the federal government has provided funding to
participating states so that they can help facilitate consumer acquisition of
qualifying health plans through state Exchanges. 87 For states that are not
participating, or for states that opted out of the Medicaid expansion, the
federal government is setting up an Exchange for these residents.88 This is
similar to the federal governments role in providing funding to state
Medicaid programs that fulfill the purpose of the Federal Medicaid Act: to
provide coverage for medically necessary treatments to the categorically
needy.89 Also, just like the funding and guidance for states to design
benefits that comply with the Federal Medicaid Act,90 the ACA provides
funding and guidance for states to design benchmark benefit packages that
comply with the requirements of a qualified health plan. 91 Each state
proposes a set of Medicaid benefits to CMS for approval. 92 Similarly, under
the ACA, each state proposes a set of benefitsthe benchmark planto
HHS for approval.93 In both cases, states maintain some flexibility in setting
the scope of benefit packages while the federal government verifies that
these packages fulfill the goal of the federal legislation. 94 Thus, the federal

85

Essential Health Benefits, supra note 72.


Compare 42 C.F.R. 440.210(a), 440.220 (2013), with 42 U.S.C. 1396u-7 (2012).
87 Cindy Mann, CMCS Informational Bulletin: State Flexibility, Resources to Implement
Affordable Insurance Exchanges, DEPT HEALTH AND HUMAN SERVS. (Nov. 29, 2011),
http://www.medicaid.gov/ Federal-Policy-Guidance/downloads/CIB-11-29-2011.pdf.
86

88

January Angeles, How Health Reforms Medicaid Expansion Will Impact State Budgets Federal
Government Will Pick up Nearly all Costs, Even as Expansion Provides Coverage to Millions of LowIncome Uninsured Americans, CTR. ON BUDGET AND POLY PRIORITIES (Jul. 25, 2012),
http://www.cbpp.org/cms/?fa=view&id=3801.
89

42 U.S.C. 1396-1.
See 42 C.F.R. 440.230(d).
91 42 U.S.C. 1396a.
92 Compare 42 C.F.R. 440.230(d), with 42 U.S.C. 1396a(a)(b).
93 42 U.S.C. 1396a.
94 Compare 42 C.F.R. 440.230(d), with 42 U.S.C. 1396a.
90

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government has the power and responsibility to issue guidance and assist
states in complying with federal legislation.95

95

See 42 U.S.C. 1396a; 42 C.F.R. 440.230(d); see also Regulations and Guidance, CENTERS
MEDICARE & MEDICAID SERVICES, http://www.cms.gov/CCIIO/Resources/Regulationsand-Guidance/# Affordable Care Act (last visited Apr. 21, 2015) (listing various regulations
and guidance documents on state compliance with the ACA).
FOR

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515

C. Intersection of the ACA and Access to Health Care and Insurance for
Transgender Individuals
Some provisions of the ACA could potentially impact how transgender
individuals access insurance coverage for gender-confirming care.96 Four of
these provisions are the Patients Bill of Rights; the individual and provider
nondiscrimination provisions; the individual mandate; and the EHBs
categories of care.97 The Patients Bill of Rights provisions that are
particularly important for transgender people include the prohibition on
exclusion from coverage for pre-existing conditions, the ban on rescission,
and the prohibition of coverage denials for certain services. 98 The ACAs
prohibition of exclusion discrimination based on pre-existing conditions or
other health statuses should mean that transgender individuals cannot be
excluded from insurance coverage on the basis of a gender dysphoria/GID
diagnosis.99 Although this provision improves access to insurance
generally, it does not necessarily follow that it improves access to genderconfirming health care.100 The ban on rescission means that once an
individual is enrolled in a health insurance plan, the plan may not cancel
coverage due to unintentional mistakes or omissions in applications
because of gender transition or other changes in health. 101 The ACA creates
new rights for appealing coverage denials for individuals with plans that
receive federal funding, which should mean that plans may not deny
coverage for services within a plan solely because a patient is transgender
or because the gender under which an individual is enrolled would not
traditionally include such a service.102 However, this appeals mechanism

96

NATL LGBT HEALTH EDUC. CTR., OPTIMIZING LGBT HEALTH UNDER THE AFFORDABLE
CARE ACT: STRATEGIES FOR HEALTH CENTERS 35 (2013), available at http://www.lgbthealth
education.org/wp-content/uploads/Brief-Optimizing-LGBT-Health-Under-ACA-FINAL-1206-2013.pdf [hereinafter OPTIMIZING LGBT HEALTH] (listing five ways the ACA will improve
LGBT Health, including data collection, non-discrimination protections, prevention and
wellness, insurance market reforms, and new coverage options); Kate Walsham, Note, DeGendering Health Insurance: A Case for A Federal Insurance Gender Nondiscrimination Act, 24
HASTINGS WOMENS L.J. 197, 209 (2013).
97

See Walsham, supra note 96; see also OPTIMIZING LGBT HEALTH, supra note 96, at 35.
NATL CTR. FOR TRANSGENDER EQUALITY, HEALTH CARE RIGHTS AND TRANSGENDER
PEOPLE 23 (2014), available at http://transequality.org/sites/default/files/docs/kyr/HealthCare
Right_UpdatedMar2014_FINAL.pdf [hereinafter HEALTH CARE RIGHTS].
99 See 42 U.S.C. 300gg-3(a) (2012).
100 See Khan, supra note 10, at 413 (discussing how increased access to insurance under the
ACA could mean that medical necessity for gender-confirming care will be more closely
scrutinized than before the ACA).
98

101
102

See HEALTH CARE RIGHTS, supra note 98, at 3.


Id. (including ban on denial of coverage for prostate screening for trans women or a

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does not prohibit initial coverage denials or ensure reversal of those


denials for gender-confirming treatment.103
Individual and provider nondiscrimination provisions have a similar
limitation: although it may improve access to health care generally for
transgender individuals, it does not mean that gender-confirming care will
be any more accessible.104 Further, incorporation of the various pieces of
federal anti-discrimination legislation,105 including the Americans with
Disabilities Act (ADA), does not make gender-confirming care more
accessible.106 This is because these laws do not explicitly protect access to
gender-confirming care, and the ADA expressly excludes this protection.107
Thus, even though several EHB categories could be interpreted broadly to
apply to gender-confirming health care,108 the limitations of the antidiscrimination provision, and HHSs decision not to require insurance
companies to cover this treatment, mean that EHB will not necessarily offer
coverage.109

pelvic exam for trans men if these services are otherwise covered).
103
104

See id.
See Kahn, supra note 10, at 413. But see OPTIMIZING LGBT HEALTH, supra note 96.
Insurers may not deny transgender people coverage for preventive
screenings on the basis of the gender under which the individual is
enrolled in the plan. In other words, transgender people will now be able
to access the preventive screenings that are appropriate for their anatomy,
such as a prostate screening for a transgender woman or a pelvic exam
for a transgender man, regardless of the gender that is listed in the
insurance plans records.

Id. These services, though necessary for LGBT health, are not gender-confirming treatments.
Id.
105 42 U.S.C. 18116(a) (2012). This provision incorporates the 1964 Civil Rights Act, Title
IX, the Americans with Disability Act (ADA), the 1975 Age Discrimination Act, and section
504 of the 1973 Rehabilitation Act into all federally funded or supported health programs,
including those offered via the Exchanges. Id.
106 See ACCOMMODATING DISABILITIESBUSINESS MANAGEMENT GUIDE 73,202D (CCH
Eds. 2012) [hereinafter ACCOMMODATING DISABILITIES], available at 2012 WL 3230977. HHS
acknowledges that anti-discrimination protection extends to discrimination based on gender
identity or expression in accessing care but does not require insurance companies to cover
gender-confirming care to qualify for sale on the Exchanges. Id.
107

42 U.S.C. 12211(b)(1).
Compare 42 U.S.C. 18022(b)(1)(A)(J), and Essential Health Benefits, supra note 72, with
Coleman et al., supra note 12, at 166 (listing types of treatment for gender dysphoria).
108

109

See ACCOMMODATING DISABILITIES, supra note 106.

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II. The Problem: The Pervasive Effect of Anti-Transgender Bias and the
Attendant Social and Economic Consequences
Transgender and gender non-conforming people account for about
0.3% of the population in the United Statesthat is nearly one million
people in this country alone.110 For these individuals, discrimination and
harassment occur in almost every context of daily living: from family and
schools, to the workplace, and health care settings. 111 Anti-transgender bias
within these settings impacts these individuals quality of life and their
ability to sustain themselves financially and emotionally.112 Bias leads to
lost jobs, eviction, physical and sexual assault, homelessness, denial of
medical services, and incarcerationall of which transgender individuals
experience at disproportionally higher rates than cis-gender113
individuals.114 These events and their attendant social and economic
burdens set into motion a cycle of health risks, contributing to high rates of
HIV/AIDS infection, drug and alcohol abuse, anxiety, depression, and
suicide.115 Most of these require costly medical intervention.116 This toll is

110 GARY J. GATES, HOW MANY PEOPLE ARE LESBIAN, GAY, BISEXUAL, AND TRANSGENDER? 1
(2011), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-HowMany-People-LGBT-Apr-2011.pdf. This is a conservative estimate, one source identifying
between 0.5% and 2% of the population as having strong feelings of being transgender and
between 0.1% and 0.5% as actually taking steps to transition from one gender to another. Id. It
is difficult to accurately estimate this figure partially because of how few population-based
data sources are available as well as inconsistencies in how these data sources construct
estimates of various dimensions of gender identitya fluid concept. See id. at 56.
111 GRANT ET AL., supra note 10, at 8. This survey reported staggering rates of
discrimination, with 63% of respondents experiencing events that have had a major impact on
their quality of life and ability to sustain themselves financially and emotionally, including:
losing a job, eviction, physical and sexual assault, both student and teacher bullying,
homelessness, broken relationships with partner or children, denial of medical services, and
incarceration. Id. Nearly a quarter of respondents experienced at least three of these lifedisrupting events due to bias. Id.
112 Id.
113 Cis-gender or gender normative [r]efers to people whose sex assignment at birth
corresponds to their gender identity and expression. Understanding Gender, GENDER
SPECTRUM, https://www.genderspectrum.org/quick-links/understanding-gender/ (last visited
Apr. 21, 2015).
114 GRANT ET AL., supra note 10.
115 Id. at 84; DSM-V, supra note 16, at 45859 (listing comorbidity features of gender
dysphoria).
116 See generally GRANT ET AL., supra note 10, at 8084 (listing health vulnerabilities of the
transgender community resulting from discrimination).

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felt both by transgender individuals as well as society at large in the form


of medical dollars, welfare assistance, and human capital. 117
In order to reduce exposure to these health risks, the cycle of
discrimination and its consequences must be stopped. 118 Because the
discrimination emanates from stigma, removing that stigma would be an
effective solution that would also reduce the need for costly medical
intervention.119 One solution is improving access to gender-confirming
health care by requiring that insurance companies cover these medically
necessary treatments.120 Access to this care would enable transgender
individuals to have their anatomy match their gender identity and
expressiona change that would improve emotional health by removing
the stigma attached to gender nonconformity, as well as reducing the
distress caused by gender dysphoria and stigma. 121 Improved emotional
health, in turn, is an investment in human capital and would allow
transgender individuals, who have historically been marginalized, to
contribute to a productive society.122 This change would also bring them
economic and social stability because they would have less interaction with
law enforcement123 and would be able to obtain identity documents
matching their gender expression, in turn providing access to employment
and social services that traditionally exclude them.124

117

Cf. id. at 67 (correlating unemployment and job loss to negative health outcomes).
See infra note 135.
119 See generally Eve Glicksman, Transgender Today, MONITOR ON PSYCHOL., Apr. 2013, at 36,
available at http://www.apa.org/monitor/2013/04/transgender.aspx (discussing impact of
transgender stigma).
118

120 See generally id. (detailing the issues surrounding access to health care for the
transgender community, noting that one researcher hopes insurers will step up to provide
adequate care for this community).
121 See Coleman et al., supra note 12, at 16668, 184.
122 Compare id. at 168 (explaining that persons with gender non-conformity are stigmatized
in many societies, which causes prejudice or discrimination), with GRANT ET AL., supra note 10,
at 50 (explaining that, due to discrimination, transgender and gender non-conforming persons
are more likely to face unemployment or poor working conditions than their genderconforming peers).
123

See CATHERINE HANSSENS ET AL., A ROADMAP FOR CHANGE: FEDERAL POLICY


RECOMMENDATIONS FOR ADDRESSING THE CRIMINALIZATION OF LGBT PEOPLE AND PEOPLE
LIVING WITH HIV 6061 (2014), available at https://web.law.columbia.edu/sites/default/files/
microsites/gender-sexuality/files/roadmap_for_change_full_report.pdf.
124 Compare Coleman et al., supra note 12, at 17172 (discussing how a persons name and
gender identity on their identification documents is one type of social support to alleviate
gender dysphoria), with GRANT ET AL., supra note 10, at 50 (linking unemployment to
depression and other serious health issues) and HANSSENS ET AL., supra note 123, at 60 (noting
that 21% of a studys population had identification that matches their current identity,

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519

A. Historical Barriers Affecting Transgender Individuals Access to


Health Care
Anti-transgender bias creates barriers to accessing timely, culturally
competent, medically appropriate, and respectful care.125 These barriers
in addition to anti-transgender bias in other realms of lifeare associated
with increased risk of violence, suicide, and sexually transmitted
infections.126 Further, because many transgender individuals have health
care needs relating to their gender transition, they may become dependent
on the medical system for basic identity expression.127 High medical
needs and systematic barriers to accessing gender-confirming care coalesce
to create a self-perpetuating cycle of risk exposure, stigmatization,
prejudice, and eventually poor health outcomes.128 By reducing stigma
and discrimination through improved access to quality, culturally
competent health care, many of these health risks can be mitigated. 129
The National Center for Transgender Equality and the National Gay
and Lesbian Task Force conducted a comprehensive survey of transgender
individuals to better understand the obstacles they face in every realm of
daily life, including accessing health care. 130 Transgender individuals have
reported experiencing these barriers to carewhether they are seeking
preventive care, routine and emergency care, or transgender-related
services.131 Instances of discrimination in the health care setting include
disrespect, harassment, denial of service, lack of provider knowledge, and
even physical and sexual abuse by health care providers.132 Transgender
individuals reported very high levels of postponing necessary medical care
due to high costs and fear that anti-transgender bias will lead to
discrimination by medical providers.133 These barriers to care are even

meaning that four-fifths are in danger of disclosure of transgender status every time they
apply for a job).
125

Stroumsa, supra note 34.


Id.
127 Id. (Transgender people have a unique set of mental and physical health needs[,] . . .
[which] are compounded by prejudices against transgender people within both the medical
system and society at large.).
128 Id.
129 See Travis Franklin Chance, Comment, Going to Pieces over LGBT Health Disparities:
How an Amended Affordable Care Act Could Cure the Discrimination That Ails the LGBT
Community, 16 J. HEALTH CARE L. & POLY 375, 39899, 402 (2013).
126

130

See GRANT ET AL., supra note 10, at 28.


Id. at 72.
132 Id.
133 Id. at 76.
131

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more significant for those without identification documents that match


their gender expression and for visual non-conformers.134 These
individuals have a heightened need for access to medical caremore so
than visual conformers and those with matching identification
documentationbecause they experience even higher rates of
discrimination and the attendant burdens and health risks. 135
Unfortunately, visually conforming with identification documents or
obtaining documents that match gender expression presuppose access to
gender-confirming health care.136 Most states require transgender
individuals seeking to change the gender marker on their identification
documents to demonstrate that they are accessing gender-confirming
health care or have already undergone SRS. 137 Lacking identification
documents erects additional barriers beyond the difficulty of accessing
health care and stigma of gender nonconformity; without identification
documents, transgender individuals are prevented from getting jobs,
accessing public benefits, and are more likely to have increased contact
with the criminal justice system, 138 which in turn compound health risks.139
Among this segment of the transgender community, these compounded
health risks lead to even higher incidences of HIV/AIDS infection,
substance abuse, and suicide140all of which have very expensive

134

Id. at 27 (defining visual non-conformers as individuals who are perceived by strangers


or in casual circumstances to be transgender or gender non-conforming).
135 See, e.g., id. at 7476 (finding that individuals lacking identification documents matching
the gender expression or who do not visually conform with that gender expression are
significantly more likely to face discrimination and violence in accessing health care). Visual
non-conformers reportedly face higher rates of HIV infection, drug and alcohol abuse, and
suicide attempts. Id. at 8083. They also face higher rates of employment discrimination,
discrimination in housing, poverty, homelessness, educational attainment, and other social
and economic burdens. Id. at 8, 139.
136 See Housing & Shelter, TRANSGENDER LEGAL DEF. & EDUC. FUND, http://www.trans
genderlegal.org/work_show.php?id=5 (last visited Apr. 21, 2015). Strict requirements for
changing gender markers on identification documents place significant burdens on
transgender individuals, but those issues are beyond the scope of this Note. Id.
137 See id.; Know Your Rights Transgender People and the Law, ACLU (Apr. 24, 2013),
https://www.aclu.org/lgbt-rights/know-your-rights-transgender-people-and-law [hereinafter
Know Your Rights].
138

HANSSENS ET AL., supra note 123, at 6061.


GRANT ET AL., supra note 10, at 155 (Gender-incongruent identification presents barriers
to travel, employment, health care, housing, education and other essential arenas areas of
life, . . . condem[ning] a major portion of transgender and gender non-conforming people to
social and economic marginalization and harassment and violence.).
139

140

Id. at 6.

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521

associated health care and societal costs.141


Although the ACA has non-discrimination provisions and prohibitions
on exclusion from insurance based on pre-existing conditions, the ACA
does not necessarily improve access to gender-confirming healthcare.142
Lack of insurance and individual and provider discrimination are not the
only barriers to access; rather, insurance companies failure to cover
gender-confirming treatment makes this medically necessary care
prohibitively expensive and thus out of reach.143 Therefore, the ACAs
promise to expand access to affordable health care falls short of reaching
transgender individuals.144

ANALYSIS
III. The ACA Should Be Implemented to Cover Gender-Confirming
Health Care Under Public and Private Insurance Policies
A. The ACAs Purposes of Improving Access to and Reducing Costs of
Health Care Would Be Achieved By Covering Gender-Confirming
Treatments
Providing coverage for gender-confirming care consistent with
WPATHs Standards of Care will help achieve the ACAs goals of
expanding access to care and lowering health care costs by reducing the
need for costly medical intervention, streamlining a fractured system, and
reducing waste through the use of best practices. 145 By improving access to

141 U.S. DEPT OF HEALTH AND HUMAN SERVS., AGENCY FOR HEALTHCARE RESEARCH AND
QUALITY, NO. 369, RESEARCH ACTIVITIES 13 (2011), available at http://archive.ahrq.gov/
news/newsletters/research-activities/may11/0511RA.pdf; SUBSTANCE ABUSE AND MENTAL
HEALTH SERV. ADMIN., NATIONAL EXPENDITURES FOR MENTAL HEALTH SERVICES & SUBSTANCE
ABUSE TREATMENT 1986-2009, at 44 (2013) [hereinafter NATIONAL EXPENDITURES], available at
http://store.samhsa.gov/shin/content//SMA13-4740/SMA13-4740.pdf.
142 See infra Part III.B.
143 See SEAN SNOWDON, HUMAN RIGHTS CAMPAIGN, HEALTHCARE EQUALITY INDEX 34
(2013), available at http://s3.amazonaws.com/hrc-assets//files/assets/resources/HEI_2013_
final.pdf.
144

See infra Part III.B.1.


See infra Part III.A. See generally Stroumsa, supra note 34, at e35 (discussing cases
endorsing application of WPATH Standards of Care as setting forth guiding principles with
regard to medical necessity and treatment for gender dysphoria); U.S. DEPT. OF HEALTH AND
HUMAN SERVS., AGENCY FOR HEALTHCARE RESEARCH, 2011 NATIONAL HEALTHCARE
DISPARITIES REPORT 244 (2011), available at http://www.ahrq.gov/research/findings/
nhqrdr/nhdr11/nhdr11.pdf (finding that half of transgender people postponed care when sick
or injured, postponed preventive care due to cost, and 30% postponed this care due to
145

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preventive care, the ACA reduces the need for costly care to treat advanced
stages of disease.146 Because gender-confirming care constitutes preventive
care, covering this treatment would serve the ACAs goal of reducing
costs.147 Through efforts to streamline medical treatment, the ACA helps
avoid the waste of duplicative care and increases access to medically
necessary care.148 Gender-confirming care coverage would counter the antitransgender bias that contributes to fractured care and break down barriers
to necessary care.149 Lastly, the ACAs push to employ best practices makes
health care more effective and economical.150 By adopting WPATHs
Standards of Care as the best practices for treating transgender health
needs, the ACAs goal of reducing cost waste would be achieved. 151

discrimination and disrespect by providers). However, when transgender individuals are able
to access gender-confirming care, they have much better health outcomes. CAL. DEPT OF INS.,
ECONOMIC IMPACT ASSESSMENT: GENDER NONDISCRIMINATION IN HEALTH INSURANCE 9 (2012),
available at http://transgenderlawcenter.org/wp-content/uploads/2013/04/Economic-ImpactAssessment-Gender-Nondiscrimination-In-Health-Insurance.pdf (finding that access to
gender-confirming health care reduced suicide risk, lowered rates of substance abuse,
improved mental-health outcomes, and increased adherence to HIV-treatment regimens for
many transgender patients).
146

Compare GRANT ET AL., supra note 10, at 8083 (discussing health risks that flow from
anti-transgender bias), with AM. COLL. OF OBSTETRICIANS AND GYNECOLOGISTS, HEALTH CARE
FOR TRANSGENDER INDIVIDUALS 1 (2011), available at http://www.acog.org/-/media/CommitteeOpinions/Committee-on-Health-Care-for-Underserved-Women/co512.pdf
(finding
that
medical and psychiatric care that affirms transgender identity enables transgender individuals
to live healthy and productive lives).
147 See infra notes 153156 and accompanying text. See generally Nikki Burrill & Valita
Fredland, The Forgotten Patient: A Health Providers Guide to Providing Comprehensive Care for
Transgender Patients, 9 IND. HEALTH L. REV. 69, 78 (2012); Anne C. DeCleene, The Reality of
Gender Ambiguity: A Road Toward Transgender Health Care Inclusion, 16 LAW & SEXUALITY 123,
136 (2007).
148

See infra Part III.A.2.


LAMDA LEGAL, WHEN HEALTHCARE ISNT CARING 5 (2010), available at
http://www.lambdalegal.org/sites/default/files/publications/downloads/whcic-report_whenhealth-care-isnt-caring.pdf (reporting that anti-transgender bias leads to substandard care and
poorer health outcomes).
149

150

Chance, supra note 129, at 390 (discussing how cultural competency with regard to
treating the LGBT community can reduce significant health disparities by improving overall
quality of care through increased utilization of health services and adherence to treatment
plans). Despite the ACAs purpose of improving access to preventive care, the LGBT
community is unlikely to take advantage of preventive services unless the underlying cause of
stigmaperpetuated by lack of cultural competencycan be addressed through cultural
competency training. See id. at 396.
151

at

See PAULA R. DECOLA, HANDBOOK OF CLINICAL GENDER MEDICINE 1012 (2012), available
http://www.karger.com/ProdukteDB/Katalogteile/isbn3_8055/_99/_29/hcgm_02.pdf.

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523

Gender-Confirming Care Constitutes Preventive Care

Transgender individuals are at high risk for conditions requiring


expensive medical treatments that could be prevented by access to genderconfirming care.152 Preventive care reduces the likelihood and prevents
inception of disease, reducing the need to treat advanced conditions.153 One
example of preventive care is mitigating situations that place high
demands on physical and mental health. 154 Debilitating distress, a hallmark
of gender dysphoria, is believed to result, in part, from anti-transgender
bias.155 This bias leads to stigma and discrimination, placing
disproportionate social and economic burdens on the transgender
community.156 These burdens contribute to increased health risks,
including HIV/AIDS, drug and alcohol abuse, physical violence, sexual
assault, and suicide attempts.157 By removing the stigma that drives
discrimination, we can mitigate these health riskspreventing disease and
distress.158

Because transgender individuals, through their personal experiences, perceive healthcare


professionals as lacking knowledge to support their unique medical needs, they are much less
likely to utilize the healthcare system. See id. However, WPATHs Standards of Care would
promote competence in treating transgender patients, in turn making them more likely to
utilize health care and improve health outcomes. See id.
152

See CAL. DEPT OF INS., supra note 145, at 11.


DAVID L. KATZ & ATHER ALI, PREVENTIVE MEDICINE, INTEGRATIVE MEDICINE & THE
HEALTH OF THE PUBLIC 34 (2009), available at http://www.iom.edu/~/media/Files/
Activity%20Files/Quality/IntegrativeMed/Preventive%20Medicine%20Integrative%20Medicin
e%20and%20the%20Health%20of%20the%20Public.pdf. However, the concept of preventive
medicine is not to be confused with preventive health services specifically identified under
the ACA as services required under the EHB and for which insurers are prohibited from
imposing cost-sharing requirements on patients. See 42 U.S.C. 300gg-13 (2012); 26 C.F.R.
54.98152713 (2013), invalidated in part by Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751
(2014) (holding that the contraceptive mandate, as applied to closely held corporations,
violates RFRA).
153

154

KATZ & ALI, supra note 153, at 34.


See Coleman et al., supra note 12, at 168 (discussing the socially-induced distress
experienced by transgender individuals as a result of stigma); see also DSM-V, supra note 16.
155

156 See Jeff Krehely, How to Close the LGBT Health Disparities Gap, CENTER FOR AM. PROGRESS
(Dec. 21, 2009), http://www.americanprogress.org/issues/lgbt/report/2009/12/21/7048/how-toclose-the-lgbt-health-disparities-gap/ (discussing the collective impact of discrimination which
is exposure to increased risks for health vulnerabilities).
157

GRANT ET AL., supra note 10, at 84.


See Krehely, supra note 156 (stating social stigma around being transgender makes these
individuals more likely to experience frequent harassment and discrimination from young
ages, leading to negative mental health outcomes and high rates of risk-taking that increase
the likelihood of physical harm).
158

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Gender-confirming care brings into harmony ones gender expression


with how their gender is externally perceived (i.e., visual conformity).159 In
doing so, this care reduces the distress associated with internal gender
incongruence as well as socially-induced distress associated with the
stigma of visual non-conformity.160 Because this distress contributes to
health risks, gender-confirming care that mitigates internal and external
distress actually prevents exposure to health risks. 161 This proposition has
been proven.162 A California Department of Insurance assessment found
that eliminating gender-identity discrimination in health insurance plans
by covering gender-confirming health care reduced suicide risk, lowered
rates of substance abuse, improved mental-health outcomes, and increased
adherence to HIV-treatment regimens for many transgender patients.163
Thus, access to gender-confirming treatment constitutes preventive care
and saves medical costs.164
Some may argue that gender non-conforming individuals escaping
discrimination by conforming their gender-identity with the gender binary
(made possible by gender-confirming care) is an erasure of the transgender
identity.165 These critics say that exclusive focus on the medical and
psychiatric production of transsexuality [ignores] how transsexuality is
managed in a wide variety of social institutions.166 Indeed, one limitation
of the medical framework is that it shifts focus away from an individuals
transgender identity and instead focuses on producing transsexuality
through medical intervention, thereby ignoring the institutional exclusion
of the transgender population.167 Further, focus on gender-confirming care
can itself be a form of identity erasure because it nullifies transsexuality by
forcing identification within the gender binary.168 However, this argument
fails to consider the wide range of identities within the transgender
umbrella and that providing access to gender-confirming health care does

159

See Coleman et al., supra note 12, at 168.


See id.
161 See id.
162 See id.
163 CAL. DEPT OF INS., supra note 145, at 1011.
164 See KATZ & ALI, supra note 153, at 34.
165 See VIVIANE K. NAMASTE, INVISIBLE LIVES: THE ERASURE OF TRANSSEXUAL AND
TRANSGENDERED PEOPLE 5153 (2000) (discussing erasure of transsexual and transgender
people in discourse and institutions generally).
160

166

Id. at 51.
Id.
168 Id. at 52.
167

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The Transgender Eligibility Gap

525

not make a transgender identity inaccessible.169 In fact, making a range of


care options available means that individuals can tailor their treatment
plan to confirm to their individual gender identity.170 Thus, rather than
confining treatment to a single set of procedures, improving access to the
full gamut of treatment actually enables individuals to select treatment
matching their identity.171
Further, increasing gender-confirming care availability makes the
transgender population more visible within medical institutions, increasing
the likelihood that other institutions will follow suit. 172 In fact, the ACA
requires HHS to collect a range of demographic dataincluding sexual
orientation and gender identityin order to better understand basic census
information and its correlation with health disparities. 173 This demographic
data will provide a more comprehensive picture of the LGBT population
a population often reluctant to answer non-medically related survey
questions about stigmatized identities and behaviors.174 The
interconnectedness of institutions suggests that a change in one institution,
for instance the medical institution, can trigger changes in and access to

169

See DSM-V, supra note 16, at 453 (explaining diagnostic features and how transgender
identity manifests itself differently among individuals and how some individuals distress is
not limited to a desire to simply be of the other gender, but may include a desire to be of an
alternative gender). Because [e]xperienced gender may include alternative gender identities
beyond binary stereotypes[,] treatment aimed at assuaging this distress does not necessarily
cause erasure of transgender identity. Id. Rather, medical treatment may actually make a
transgender identity more meaningful by eliminating sexual characteristics. See id.; Coleman
et al., supra note 12, at 17071.
170 See Coleman et al., supra note 12, at 17071 (indicating the individualized nature of
gender-confirming care).
171 Id. at 167 (explaining that the purpose of the standard of care is to enable physicians to
match the treatment approach to the specific needs of patients, particularly their goals for
gender expression and need for relief from gender dysphoria).
172 Cf. NAMASTE, supra note 165, at 52 (arguing how institutional procedures that exclude
transgender individuals create a cycle; because transgender individuals are excluded from
social service networks, they do not seek them out and therefore the networks cannot
recognize the inadequacy of their services).
173 OPTIMIZING LGBT HEALTH, supra note 96, at 34. Prior to this effort of data collection,
major federal surveys have not routinely asked respondents about sexual orientation and
gender identity, making this basic census information unavailable. Id.
174 See KEVIN L. ARD & HARVEY J. MAKADON, THE NATL LGBT HEALTH EDUC. CTR.,
IMPROVING THE HEATH CARE OF LESBIAN, GAY, BISEXUAL AND TRANSGENDER PEOPLE:
UNDERSTANDING AND ELIMINATING HEALTH DISPARITIES 23 (2012), available at
http://www.lgbthealtheducation.org/wp-content/uploads/12-054_LGBTHealtharticle_v3_0709-12.pdf.

526

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others.175 For example, access to gender-confirming care enables access to


identification documents that comport with gender expression, 176 which in
turn opens doors to institutions that require identification documents, such
as social services and employment.177 Shelters for youth, the homeless, and
women do not serve the needs of homeless transgender individuals, which
forces them outside the established social service network and makes their
plight invisible.178 However, if these individuals possess identification
documents comporting with their gender expression, shelters would be
more accessible.179 Such documentation also makes it easier to find
employment and access other social services, obviating some of the need to
access shelters.180 In this way, gender-confirming health care enables access
to employment and housing and reduces interaction with law
enforcementfactors that mitigate some of the high health risks faced by
the transgender population.181
Harmony between gender expression and perception removes stigma,
thus reducing emotional distress and the associated health risks that flow
from it.182 Therefore, by enabling this harmony through access to genderconfirming care, the forces exacerbating these health risks can be
mitigated.183 This risk mitigation prevents disease, injury, substances abuse,
and emotional distress.184 For these reasons, gender-confirming health care

175

See infra notes 17677 and accompanying text.


Know Your Rights, supra note 137. In most states, one must prove that he or she has
undergone surgical treatment to change ones sex in order to change the gender marker on
ones birth certificate. Id. What the law means by surgical treatment is often unclear[, while
a] growing number of states . . . allow an individual to change the gender marker on his or her
birth certificate by showing proof of appropriate clinical treatment (not necessarily surgery).
Id.
176

177

See, e.g., Why Do I Need an ID?, NYC.GOV, http://www.nyc.gov/html/id/html/


why/why.shtml (last visited Apr. 21, 2015).
178

NAMASTE, supra note 165, at 52.


Housing & Shelter, supra note 136.
180 See id. Because transgender people are disproportionately unemployed and poor as a
result of employment discrimination, many become homeless. Id.
181 See supra Part III.A.
182 See generally Kristi E. Garamel et al., Gender Minority Stress, Mental Health, and
Relationship Quality: A Dyadic Investigation of Transgender Women and Their Cisgender Male
Partners, 28 J. FAM. PSYCH. 437 (2014), available at http://www.apa.org/pubs/journals/features/
fam-a0037171.pdf (discussing the correlation between minority stressors and poor health
outcomes for marginalized groups).
179

183 See Coleman et al., supra note 12, at 168 (discussing how the sigma attached to gender
nonconformity contributes to health risks).
184

See infra notes 23640 and accompanying text.

2015

The Transgender Eligibility Gap

527

constitutes preventive care.185


2.

Streamlining a Fractured System Through Providing


Gender-Confirming Care Saves Health Care Dollars

Transgender individuals face high levels of fragmented care because


they are often forced to seek services from multiple providers to avoid
being outed as transgender.186 Many transgender individuals are not out
to their health care providers, or are only out to some, complicating care
coordination and access to gender-specific care appropriate for their
anatomy.187 Generally, fragmentation of care leads to cost waste and results
in a failure to provide necessary care.188 This in turn leads to complications,
particularly for the chronically ill for whom care coordination is most
essential for health.189 Transgender individuals are often highly reliant on
the medical industry to realize their gender identity, placing them in a
position similar to that of the chronically ill.190 Thus, care coordination is
particularly important when treating the transgender community.191

185

See supra notes 18285.


HARCOURT, CURRENT ISSUES IN LESBIAN, GAY, BISEXUAL AND TRANSGENDER HEALTH
186 (2013). Concerns due to safety and discrimination at the hands of health care provides,
unprofessional behavior, and general lack of transgender competence and sensitivity are
driving forces behind fractured care for transgender individuals. Id.
187 See generally Spade et al., supra note 12, at 49799.
186 JAY

For example, testosterones and estrogens are frequently prescribed to


non-transgender people for a variety of conditions . . . . Similarly, the
chest surgery that transgender men often seek, removing breast tissue to
create a flat chest, may be provided and insured for non-trans men who
develop the common condition gynecomastia, where breast tissue grows
in abnormal amounts. Non-transgender women who are diagnosed with
hirsutismwhere facial or body hair grows in abnormal amountsare
frequently treated for this condition with Medicaid coverage. In addition,
reconstruction of breasts, testicles, penises, or other tissues lost to illness
or accident is routinely performed and covered. Further, treatments
designed to help create genitals that meet social norms of appearance are
frequently provided and covered for children born with intersex
conditions.
Id. at 501.
188 See COUNCIL OF ECON. ADVISORS, ECONOMIC REPORT OF THE PRESIDENT 167 (2013),
available at http://www.whitehouse.gov/sites/default/files/docs/erp2013/full_2013_economic_
report_of_the_president.pdf.
189

Id.
See Baker & Cray, supra note 4, at 56.
191 See id.
190

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Despite this heightened need for coordinated care, provider discrimination


and lack of provider understanding of transgender health issues forces
transgender individuals into fractured care options.192 Improved care
coordination requires a two-fold solution: first, care providers must
encourage patient disclosure by demonstrating cultural competency in
treating transgender patients; second, insurance must cover genderconfirming care so that patients can seek care within their provider
networks and ensure all providers have access to patient information. 193
3.

Adoption of Best Practices for Providing GenderConfirming Care Saves Health Care Dollars

Adopting widely recognized medical best practices, such as WPATHs


Standards of Care, avoids costs associated with treating transgender
individuals in a fractured, culturally incompetent care network.194
Adopting medical best practices would not only promote cultural
competency within the medical community, 195 but would save health care
dollars by preventing a significant source of waste. 196 Further, it would
promote access to less expensive, preventive care by discouraging
transgender individuals from postponing medical care out of fear that
providers will discriminate or not know how to treat a transgender
patient.197 Educating health care professionals about cultural competency is
one of the most important tools in eliminating heath care disparities and
improving patient-physician relationships, which leads to improved health
outcomes overall.198
B. Shortcomings of the ACA
The ACA falls short of fulfilling its lofty promise of improving health

192

GRANT ET AL., supra note 10, at 7576 (reporting that 50% of survey respondents had to
teach their medical providers about transgender care and very few being out as transgender
to all of their health care providers).
193 See HARCOURT, supra note 186, at 186 (discussing how lack of cultural competency
among health care providers discourages disclosure of transgender status, leading to
fractured care).
194

See COUNCIL OF ECON. ADVISORS, supra note 188, at 167.


Id. at 169.
196 The failure to adopt best practices is a significant source of waste in the medical
industry. Id.
197 See id.; GRANT ET AL., supra note 10, at 7577.
198 Leon McDougle et al., Evaluation of a New Cultural Competency Training Program: CARE
Columbus, 102 J. NATL MED. ASSOC. 756, 756 (2010), available at http://www.maccinc.net/
documents/CARE_Columbus_J_Nat_Med_Assoc.pdf.
195

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The Transgender Eligibility Gap

529

care access for all Americans because it leaves transgender individuals


facing the same barriers the legislation was designed to address. 199 The
ACA was written to address the systematic barriers preventing health care
access, which for most Americans was achieved by making health
insurance more accessible and affordable. 200 However, the mechanisms
effectuating improved access to insurance actually further entrench
discrimination and other barriers to care for the transgender community. 201
The individual mandate and the prohibition of exclusions based on preexisting conditions expand the risk pool of insured individuals to lower the
overall cost of health insurance vis--vis amortized heath care costs.202
Thus, the system benefits from the transgender communitys participation
while failing to safeguard their access to medically necessary, genderconfirming treatmentstreatments that are provided to cis-gender patients
for other purposes.203 Unfortunately, the ACAs anti-discrimination
provisions fail to prevent this systematic discrimination because they do
not contemplate protections for the marginalized transgender community
and do not prevent exclusions for gender-confirming care at the level of
benefit design.204
1.

The Individual Mandate or a Tax on Being Transgender?

The benefits of the ACA are bestowed upon the cis-gender community,
while the transgender community is left to pay the price.205 The individual
mandate serves to expand the pool of consumers so that higher costs for
high-risk individuals are offset by lower costs for low-risk individuals,

199

See infra Part III.B.2.


Affordable Care Act: The New Health Care Law at Two Years, WHITEHOUSE,
http://www.whitehouse.gov/sites/default/files/uploads/careact.pdf (last visited Apr. 21, 2015).
200

201 See KATIE KEITH ET AL., NONDISCRIMINATION UNDER THE AFFORDABLE CARE ACT 7 (Ctr.
on Health Ins. Reforms ed., 2013), available at http://chir.georgetown.edu/pdfs/
NondiscriminationUndertheACA_GeorgetownCHIR.pdf.
202 COUNCIL OF ECON. ADVISORS, supra note 188, at 173.
203 See Health Guide: Growth Hormone Deficiency, N.Y. TIMES, Sept. 13, 2009,
http://health.nytimes.com/health/guides/disease/growth-hormone-deficiency/overview.html;
Hormone Therapy: Is it Right for You?, MAYO CLINIC (Oct. 25, 2012), http://www.mayo
clinic.com/health/hormone-therapy/WO00046 (recognizing hormone replacement therapy as a
treatment for menopause); Prostate Cancer Treatment, NATL CANCER INST., http://
www.cancer.gov/cancertopics/pdq/treatment/prostate/Patient/page4 (last visited Apr. 21,
2015).
204 See infra Part III.B.1.
205 See Tara Murtha, The Problem With Obamacare for Some Transgender Policyholders, REALITY
CHECK (Mar. 12, 2014), http://rhrealitycheck.org/article/2014/03/12/problem-obamacaretransgender-policyholders/.

530

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aligning insurance premiums with actual costs.206 With the individual


mandate and expanded access to private insurance, transgender
individuals will inevitably be in the same pool as non-transgender people
who access treatments associated with transition (i.e., the same feminizing
hormones used for male-to-female transition are used by post-menopausal
women requiring these hormones).207 The transgender community thereby
helps effectuate the risk-sharing mechanisms through the individual
mandates forced participation, expanding the eligibility pool and
subsidizing the cost for these treatments. 208
The ACAs ability to lower health care costs depends on the individual
mandate.209 Thus, transgender individuals forced participation subsidizes
the cost for others medically necessary care while being denied insurance
coverage for their own medically necessary, gender-confirming care.210 The
only way to avoid this injustice would be for the EHB to cover genderconfirming treatment.211 However, the EHB does not extend coverage for
this treatment and instead tends to entrench the discrimination that existed
in the health care market prior to the ACA.212
2.

The Benchmark Selection Scheme Perpetuates


Discrimination

The benchmark selection scheme perpetuates discrimination because


the scope of EHB coverage is set with reference to employer-sponsored
plans that are themselves discriminatory.213 Because so few employersponsored plans cover transition-related care, this scheme entrenches
exclusion of these medically necessary treatments.214 Further, despite ACA

206

Public Health and Welfare Act, 42 U.S.C. 18091(2)(C)(F) (2012).


See generally 42 U.S.C. 18091 (West 2014) (explaining congressional findings regarding
health care spending).
207

208

See Murtha, supra note 205.


See Walsham, supra note 96, at 213.
210 See generally Murtha, supra note 205.
211 See id.
212 See infra Part III.B.2.
213 See KEITH ET AL., supra note 201, at 1415.
214 See Baker & Cray, supra note 4, at 12. Most private insurance plans incorporate plain
language that specifically targets transgender individuals through exclusions such as: All
services related to sexual reassignment[; s]ex transformations[; a]ny treatment or procedure
designed to alter an individuals physical characteristics to those of the opposite sex; [c]are,
services or treatment for gender dysphoria or sexual reassignment or change including
medications, implants, hormone therapy, surgery, medical or psychiatric treatment[.] Id. See
generally KEITH ET AL., supra note 201, at 1415.
209

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531

guidance on nondiscriminatory benefit design, there is little evidence that


states actually investigated whether the employer-sponsored plans that
served as the blueprint for benchmark benefits had discriminatory features;
so long as the plan included the ten EHB, states relied on HHS to draw
conclusions as to discriminatory provisions.215 However, HHS relied on
states to ensure nondiscrimination, leaving no accountability at the state or
federal level for ensuring compliance with the ACAs promise of
nondiscrimination in benefit design.216 Further, federal officials monitoring
statesthe body primarily charged with enforcing anti-discrimination
protectionswill only be monitoring compliance where states are not
substantially enforcing nondiscrimination provisions for plans sold in the
Exchange.217 Although this approach provides states with flexibility,
findings from the Georgetown Center on Health Insurance Reform
suggest that . . . [it] may have perpetuated the inclusion of discriminatory
benefit designs in at least some states.218 This is because the blue prints for
these benchmark plans were employer-sponsored plans that were not
designed to be in compliance with the ACAs most significant reforms.219
3.

The ACAs Anti-Discrimination Provisions Introduce No


New Protections for Transgender Americans

The federal anti-discrimination laws incorporated into the ACA have


promoted access to coverage but have been criticized for offering
relatively limited protections.220 In fact, federal nondiscrimination
standards existing prior to the ACA, and aimed at addressing
discrimination at the point of enrollment, benefit design, and insurers
administration of benefits and services failed to protect transgender patient
interests.221 Even federal legislation that aims to limit discrimination in

215 See KEITH ET AL., supra note 201, at 14; but see Non-Discrimination Laws: National Equality
Map, TRANSGENDER L. CTR., http://transgenderlawcenter.org/equalitymap (last visited Apr. 21,
2015) (listing the states with a prohibition on transgender exclusions in health insurance,
including California, Connecticut, Colorado, District of Columbia, Massachusetts, Oregon,
Vermont, and Washington).
216

42 U.S.C. 18022(b)(2)(4) (2012).


Patient Protection and Affordable Care Act; Standards Related to Essential Health
Benefits, Actuarial Value, and Accreditation, 78 Fed. Reg. 12834, 12841 (Feb. 25, 2013) (to be
codified at 45 C.F.R. pt. 147, 15556).
218 KEITH ET AL., supra note 201, at 5.
219 Cf. id. (noting HHS should consider, in 2016, whether the benchmark plans approach
adequately protects against discrimination).
217

220

Id. at 6.
Cf. Wendy K. Mariner, Social Solidarity and Personal Responsibility in Health Reform, 14
CONN. INS. L.J. 119, 20607 (2008) (noting the protections under federal laws were generally
221

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benefit design by requiring insurers to cover certain benefits fails to reach


transgender patient needs.222 Individual states, as primary regulators of
private insurance, have not been able to prevent insurers from
discriminating based on gender identityeven though explicitly
prohibited.223 Despite the ACAs promise to eliminate discrimination in the
administration of health care, it introduces no additional protections for
transgender individuals seeking insurance coverage for gender-confirming
treatment.224
In fact, the Secretary of HHS has addressed how the ACAs
nondiscrimination rules apply to gender identity and sex stereotyping, but
has not followed through on the promise to enforce the provision of
gender-confirming benefits.225 HHS clarified that 42 U.S.C. 18116s
prohibition on discrimination on the basis of sex indeed extends
protection against discrimination based on gender identity and sex
stereotyping.226 Despite this clarity, 18116 does not require qualifying
health plans, including health programs that receive federal financial
assistance, to cover gender transition surgery. 227 Although HHS announced
its intention to propose regulations regarding gender transition treatment
coverage back in 2012, the Department has merely restated its
commitment to improving the health and well-being of the LGBT
communitythe Coordinating Committee Reports from 2012 and 2013 fail

extended to disability, race, color, religion, sex, or national origin).


222 Cf. KEITH ET AL., supra note 201, at 6 (noting coverage may be declined for certain types
of proceedures, including those that are not a medical necessity).
223

See id.
See ACCOMMODATING DISABILITIES, supra note 106.
225 Compare id. (promising in early 2012 to propose changes to benefit coverage for genderconfirming treatment for patients receiving federally-funded insurance), with NCD 140.3,
Transsexual Surgery, DAB No. 2576 (U.S. Dept of Health and Human Servs. May 30, 2014),
2014 WL 2558402, at *3 (indicating that sex reassignment surgery coverage is expressly
excluded from Medicare coverage). See also DEPT OF HEALTH & HUMAN SERVS., LGBT ISSUES
COORDINATING COMMITTEE REPORT 8 (2012), available at http://www.hhs.gov/secretary/
about/2012_lgbt_an_rpt.pdf [hereinafter LGBT ISSUES COORDINATING COMMITTEE REPORT
2012] (discussing a 2012 rule that prohibits qualified health plans from discriminating on the
basis of gender identity).
224

226 Letter from Leon Rodriguez, Dir. of HHSs Office for Civil Rights, to Natl Ctr. for
Lesbian Rights (July 12, 2012) (on file with Natl Ctr. for Lesbian Rights) (We agree that
Section 1557s sex discrimination prohibition extends claims of discrimination based on
gender identity or failure to conform to stereotypical notions of masculinity or
femininity . . . .); see also ACCOMMODATING DISABILITIES, supra note 106.
227

ACCOMMODATING DISABILITIES, supra note 106.

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533

to mention any improvements made to transgender health care. 228 This


failure is contrary to the clear trend toward expanding protections for
transgender individuals in other areas of health care and the law. 229
C. Costly Consequences of Anti-Transgender Biasand the Taxpayers
Are Footing the Bill
The traumatic impact of anti-transgender discrimination has costly
health care implications for all of society, not just the transgender
community.230 There are many health care costs associated with treating the
result of anti-transgender discrimination.231 This discrimination produces
short-term costs, treating the immediate trauma of sexual and physical
violence and suicide attempts, and long-term costs, treating ongoing
physical and psychological issues caused by physical and sexual violence,
HIV/AIDS, and drug and alcohol abuse. 232 Due to high poverty rates,
insurance exclusion, and unemployment resulting from frequent
discrimination and harassment,233 these costs often fall on taxpayers234 to
treat the immediate trauma as well as ongoing physical and psychological
issues created by the trauma.235
These costs are further compounded by discrimination itself.236
WPATH recognizes the source of distress associated with gender
dysphoria as socially induced, emanating from the social stigma attached
to gender non-conformity, and not inherent to being transgender. 237

228 See LGBT ISSUES COORDINATING COMMITTEE REPORT 2012, supra note 225; DEPT OF
HEALTH & HUMAN SERVS., LGBT ISSUES COORDINATING COMMITTEE REPORT (2013), available at
http://www.hhs.gov/lgbt/resources/reports/issues_coord_com_2013_report.pdf.
229 See supra Part III.A.
230 Compare GRANT ET AL., supra note 10, at 79, 84 (discussing the impact of anti-transgender
discrimination on health care costs within the transgender community), with What if I Dont
Have
Health
Coverage?
(Healthcare.gov),
NORTH
COAST
HEALTH
HOME,
http://www.myhealthhome.org/news/what-if-i-dont-have-health-coverage-healthcaregov (last
visited Apr. 21, 2015) (indicating that health costs for the uninsured fall on taxpayers).
231

GRANT ET AL., supra note 10, at 84.


Id.
233 See id. at 8; Housing & Shelter, supra note 136.
234 What if I Dont Have Health Coverage? (Healthcare.gov), supra note 230 (When someone
without health coverage gets urgentoften expensivemedical care but doesnt pay the bill,
everyone else ends up paying the price.).
235 GRANT ET AL., supra note 10, at 84.
236 See CAL. DEPT OF INS., supra note 145, at 910 (discussing the high cost of denying
gender-confirming care).
232

237 Coleman et al., supra note 12, at 168 (discussing the socially-induced distress
experienced by transgender individuals as a result of stigma); see also DSM-V, supra note 16.

534

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v. 49 | 499

Because treatment for gender dysphoria is aimed at reducing this distress,


the more distress experienced the more treatmentand thus more
moneyis necessary.238 Gender-confirming care that harmonizes gender
expression and perception reduces the external pressure causing socially
induced distress, serving as a preventive form of treatment. 239 Genderconfirming treatment, operating to mitigate the socially induced distress
that gives rise to costly health risks, can reduce the overall cost of treating
the transgender community.240
Discrimination when accessing medical care has also imposed high
costs on taxpayers.241 This is because many transgender individuals put off
the care they needcare that would be far less expensive if sought
immediatelydue to discrimination and even violence they experience
when accessing care.242 Delayed medical care costs much more than early
prevention.243 Because transgender individuals have historically been
excluded from health insurance, 244 the taxpayers paid these costs before the
ACA came into full effect.245 Unless gender-confirming care is available and
covered by insurance plans, taxpayers will continue to bear the burden of
high-cost, emergency medical intervention,246 vitiating the ACAs ability to
lower overall medical costs.247
D. HHS Should Implement the ACA to Comport with the Clear Trend
Toward Insurance Coverage for Medically Necessary GenderConfirming Health Care
Legal discourse has historically relied heavily on the medical
communitys understanding of transgender identities, borrowing from
medicines understanding in order to shape the law. 248 Gender

238

See DSM-V, supra note 16; Coleman et al., supra note 12, at 168.
See Coleman et al., supra note 12, at 168.
240 See generally GRANT ET AL., supra note 10, at 84.
241 See CAL. DEPT OF INS., supra note 145, at 9.
242 See generally GRANT ET AL., supra note 10, at 79.
243 Compare id. at 84, with COUNCIL OF ECON. ADVISORS, supra note 188, at 175.
244 See Transgender Issues: A Fact Sheet, TRANSGENDERLAW.ORG, http://www.transgender
law.org/resources/transfactsheet.pdf (last visited Apr. 21, 2015).
239

245

See NATIONAL EXPENDITURES, supra note 141, at 36; see also Emily Badger, How States
Rejecting the Medicaid Expansion Sabotaged Their Biggest Cities, CITYLAB (Nov. 11, 2013),
http://www.citylab.com/politics/2013/11/biggest-obamacare-losers-cities-states-wont-expandmedicaid/7537/.
246

See Badger, supra note 245.


See COUNSEL OF ECON. ADVISORS, supra note 188, at 161.
248 ANDREW N. SHARPE, TRANSGENDER JURISPRUDENCE: DYSPHORIC BODIES OF LAW 137
247

2015

The Transgender Eligibility Gap

535

dysphoria/GID is consistently recognized as a severe, and often


incapacitating disease.249 The only area that still lags behind is the federal
governments reluctance to promulgate regulations consistent with
changes occurring across the country. 250 Because of the laws historical
reliance on the medical communitys understanding of transgender health
issues, it is time that HHS promulgates regulations in line with this
evolution.251
The medical community has called for universal coverage of genderconfirming health care.252 In 2008, the AMA joined the movement to end
discrimination in health insurance for transgender people, passing a
resolution in their annual meeting stating [o]ur AMA supports public and
private health insurance coverage for treatment of gender identity disorder
as recommended by the patients physician.253 The American
Psychological Association has also called upon public and private
insurers to cover these medically necessary [gender transition]
treatments.254 Similarly, the APA recognizes that appropriately evaluated
transgender and gender-variant individuals can benefit greatly from
medical and surgical gender transition treatments, advocating for
removal of barriers to care and support[ing] both public and private
health insurance coverage for gender transition treatment.255
This medical consensus drove the APA to replace GID with gender
dysphoria, reflecting the change in conceptualization of the defining
diagnostic features by emphasizing gender incongruence rather than
cross-gender identification (which was the DSM-IV-TRs diagnostic
emphasis for GID).256 This change also recognizes the barriers that flow
from a GID diagnosis , including difficulty accessing healthcare and stigma

(2002).
249 Removing Barriers to Care for Transgender Patients: AMA Resolution Supporting Health
Insurance Coverage for Treatment of GID, GLAD 1, http://www.glad.org/uploads/docs/
publications/ama-resolution-fact-sheet.pdf (last visited Apr. 21, 2015).
250 See NCD 140.3, Transsexual Surgery, DAB No. 2576 (U.S. Dept of Health and Human
Servs. May 30, 2014), 2014 WL 2558402, at *5.
251

See supra Part III.B.


See, e.g., AMA POLICIES ON LGBT ISSUES, AM. MED. ASSN, available at http://www.amaassn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory-committee/
ama-policy-regarding-sexual-orientation.shtml (last visited Apr. 21, 2015).
252

253

Id.
Complaint at 14, Cruz v. Commr of Dept of Health, No. 14 CV 4456, 2014 WL 2872300
(S.D.N.Y. June 19, 2014) (quoting the American Psychological Association).
254

255
256

Id. (quoting the APA).


GENDER DYSPHORIA, supra note 26; HIGHLIGHTS, supra note 27, at 14.

536

New England Law Review

v. 49 | 499

arising in social, occupational, and legal contexts.257 However, because


treatment options for the conditionincluding counseling, cross-sex
hormones, gender SRS, and social and legal transition to the desired
genderare predicated on a diagnosis of a psychological disorder, the
medical communitys desire to improve access to health care has been
constrained by health policy requiring pathology as a predicate for
treatment.258 Thus, the APA made a conscious decision to maintain a
diagnosis so as not to jeopardize access to gender-confirming healthcare
while attempting to circumvent exclusions for the pre-existing condition of
GID.259
The ACAs attempt to prohibit discrimination and exclusion from care
based on pre-existing conditions mimics the medical communitys attempts
to improve access for transgender individuals.260 For example, one of the
reasons the APA abandoned the GID diagnosis was because it was
considered a pre-existing condition and served to label those so diagnosed
as requiring expensive treatments, thereby causing people to be excluded
from insurance or face prohibitively high premiums. 261 Now that the ACA
has caught up with the medical community, to the extent it acknowledges
the constraints widespread discrimination and health policy place on
access to care for millions of Americans, it is time that the ACA is
implemented in a manner consistent with its legislative intent by fully
embracing its promise to combat discrimination.262 Unfortunately, the
theme of progress is not explicitly reflected in the ACAs antidiscrimination framework.263
ODonnabhain v. Cmmr has the potential to impact litigation regarding
coverage determinations because it clarified important points of contention
that have implications beyond tax liabilities.264 For instance, in clarifying

257

GENDER DYSPHORIA, supra note 26.


See GENDER DYSPHORIA, supra note 26, at 12 (discussing how the change from gender
identity disorder to gender dysphoria will help protect access to care); HIGHLIGHTS, supra
note 27, at 14 (stating that a diagnosis for gender dysphoria must be made by a mental health
care provider).
258

259

GENDER DYSPHORIA, supra note 26, at 12.


Compare id., with 42 U.S.C. 18022(b)(4)(A)-(E) (2012).
261 See GENDER DYSPHORIA, supra note 26, at 12; HIGHLIGHTS, supra note 27, at 14.
262 Cf. 18116 (providing no individual shall be excluded from participation in benefits of,
or subject to discrimination under, any health program or activity).
263 See ACCOMMODATING DISABILITIES, supra note 106, at 73,202D.
264 See ODonnabhain v. Cmmr, 134 T.C. 34, 57 (2010); Susan L. Megaard, Scope of the
Medical Expense Deduction Clarified and Broadened by New Tax Court Decision, 112 J. TAXN 353,
354 (2010).
260

2015

The Transgender Eligibility Gap

537

whether treatment must be necessary to qualify as a deductible medical


expensean interpretation for which the court found no support in the
language of the statutethe court held that gender-confirming care is
medically necessary and that both courts and the medical community alike
support this conclusion.265 Further, in clarifying that gender-confirming
care is not cosmetic surgery under the tax code, the court pointed to robust
authority concluding, for various non-tax purposes, that genderconfirming health care is neither cosmetic nor elective.266 Lastly, in
clarifying the efficacy of gender-confirming treatment, the court embraced
WPATHs Standards of Care, touting it as the ultimate authority for
treating gender dysphoria/GID.267
Though some may argue that ODonnabhain limits the type of genderconfirming treatment considered non-cosmetic, this is not the case.268
Indeed, the court did find that the taxpayers breast augmentation surgery
was cosmetic, and therefore not a deductible medical expense. 269 However,
this conclusion was fact-specific, rather than principled, and consistent
with the courts overall deference to medical experts and the WPATH
Standards of Care.270 The court acknowledged that breast development for
male-to-female transgender women is necessary for comfort in her social
gender role and that it meaningfully promote[s] the proper function of the
body.271 In this case, however, the taxpayer had significant breast
development secondary to hormone therapy, bringing them within the
normal range of appearance prior to the surgery.272 Plus, because the
taxpayer did not experience breast-engendered anxiety prior to surgery,
the court concluded that breast augmentation for this individual failed to
constitute treatment for GID under the WPATH Standards of Care.273
Thus, while determining that breast augmentation surgery was cosmetic in
this case, the courts deference to the WPATH Standards of Care as the
guiding protocol means that this surgery is neither cosmetic nor
unnecessary for transgender individuals experiencing breast-engendered
anxiety.274

265

ODonnabhain, 134 T.C. at 74.


Id. at 71 (listing cases addressing this issue).
267 Id. at 6970.
268 See id. at 73.
269 Id.
270 Compare id., with Coleman et al., supra note 12, at 201.
271 Compare ODonnabhain, 134 T.C. at 73, with Coleman et al., supra note 12, at 201.
272 ODonnabhain, 134 T.C. at 7273.
273 Coleman et al., supra note 12, at 201.
274 ODonnabhain, 134 T.C. at 73; see Coleman et al., supra note 12, at 201.
266

538

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v. 49 | 499

Some may argue that the trend in litigation has created enough
precedent for transgender individuals seeking insurance coverage for
gender-confirming care to litigate their claims successfully.275 In fact, a class
action was recently filed in New York seeking to enjoin enforcement of the
New York State Medicaid provision excluding coverage for genderconfirming care.276 Though this claim may succeed, litigation is still a slow,
piecemeal process that will require health administration agencies to
promulgate regulations that comport with case law invalidating statutory
exclusions.277 For this reason, the best approach would be for HHS and
CMS to issue guidance to state administrators of private insurance and
Medicaid, and propose regulations that include a coverage mandate
applicable to all insurance providers.278 Based on the medical and legal
consensus that gender-confirming care is both necessary and effective, such
a proposal would be consistent with decisions issued by several federal
courts of appeal, the Federal Tax Court, and the Appeals Department of
HHS, as well as further the purpose of the ACA: to expand access to
necessary health care while reducing costs to consumers and providers. 279
1.

HHS Should Revise the EHB to Include GenderConfirming Care

Though HHS failed to protect transgender individuals before the


implementation of the ACA, HHS can remedy this failure by revising the
EHB to address gaps in coverage. The Secretary should begin with closing
the transgender eligibility gap.280 Despite HHSs statement that this
provision prohibits discrimination based on gender identity and gender
stereotyping, failure to promulgate regulations codifying this is a
dereliction of duty.281 Under the ACA, the Secretary of HHS is required to

275 Stroumsa, supra note 34, at e31 (discussing recent case law concerning coverage for
transition-related care).
276

Class Action Complaint at 2, Cruz v. Zucker, No. 14 CV 4456 (S.D.N.Y. June 19, 2014),
2014 WL 2872300.
277 See Spade et al., supra note 12, at 507 (discussing strategy to improve access to genderconfirming care).
278 See Jennifer L. Casazza, Sex Reassignment Surgery: Required for Transgendered Prisoners but
Forbidden for Medicaid, Medicare, and Champus Beneficiaries, 20 WM. & MARY J. WOMEN & L. 625,
626 (2014) (discussing the necessity for legislation to correct discrepancies in case law).
279

See Chad Ayers, The Need for Change: Evaluating the Medical Necessity of Gender
Reassignment Through International Standards, 18 WASH. & LEE J. CIVIL RTS. & SOC. JUST. 351, 386
(2012); NCD 140.3, Transsexual Surgery, DAB No. 2576 (U.S. Dept of Health and Human
Servs. May 30, 2014), 2014 WL 2558402, at *5, 8, 15.
280
281

See 42 U.S.C. 18116(c) (2012).


See 42 U.S.C. 18022(b)(4)(G)(i)(ii).

2015

The Transgender Eligibility Gap

539

periodically review the essential health benefits and provide a report to


Congress and the public assessing their efficacy.282 However, there is no
evidence that HHS has made any efforts to improve the self-acknowledged
transgender health disparities.283 Perhaps most telling is that HHS has not
updated its webpage listing the Recommended Actions to Improve the
Health and Well-Being of Lesbian, Gay, Bisexual, and Transgender
Communities, since January 2012.284 Since then, The Departments
Committee Reports indicate neither progress nor efforts toward closing
transgender health disparities.285
Authority already exists allowingand even encouragingthe
Secretary to revise the EHB to include gender-confirming care.286 The
Appeals Department of HHS established that medical evidence has
evolved to recognize the medical necessity of gender-confirming care,287
and this conclusion should guide the Secretary in updating the essential
health benefits to address gaps in access to coverage.288 HHS further
found that the evidence upon which the SRS Medicare exclusion was based
is not reasonable in light of the current state of scientific and clinical
evidence and current medical standards of care and has been contradicted
by over three decades of medical evidence.289 HHS should adopt this
determination when considering how to modify the EHB to account for
changes in medical evidence or scientific advancement.290
Though attempts to explicitly include LGBT protections in the ACA
and other legislation failed to pass Congress, a change to EHB proposed by
the Secretary of HHS and supported by precedent is likely to have more
influence than these initial proposals for prophylactic protections. 291 The
Secretarys proposal to Congress regarding the inclusion of gender-

282

See id.
LGBT Health and Well-Being: U.S. Dept. of Health and Human Services Recommend Actions to
Improve the Health and Well-Being of Lesbian, Gay, Bisexual, and Transgender Communities, U.S.
DEPT. OF HEALTH AND HUM. SERVICES, http://www.hhs.gov/lgbt/resources/reports/healthobjectives-2011.html (last updated Jan. 2012).
284 See id.
285 See id.
286 See generally 42 U.S.C. 18116.
287 NCD 140.3, Transsexual Surgery, DAB No. 2576 (U.S. Dept of Health and Human
Servs. May 30, 2014), 2014 WL 2558402, at *1415.
283

288

See 42 U.S.C. 18022(b)(4)(G)(H).


NCD 140.3, Transsexual Surgery, DAB No. 2576 (U.S. Dept of Health and Human
Servs. May 30, 2014), 2014 WL 2558402, at *5.
289

290
291

42 U.S.C. 18022(b)(4)(G)(ii).
Id.

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v. 49 | 499

confirming care within the EHB would include an assessment showing that
the potential of additional or expanded benefits292 would be a net costsavings, making it difficult for Congress to deny this expansion. 293 The costeffectiveness of covering gender-confirming care has been demonstrated to
be relatively inexpensive compared to other health needs. 294 In fact,
removing exclusions that target transgender people has an immaterial
impact on premium costs and the benefits of eliminating discrimination
far exceed the insignificant costs.295 There are also financial benefits to
universal coverage.296 When transgender individuals get the genderconfirming care they need, overall mental health improves, 297 suicide rates
drop drastically,298 and Medicaid money is saved. 299 Medicaid savings
result because transgender individuals who receive gender-confirming
treatment have fewer mental health and substance abuse costs, as well as
higher rates of employment.300 Efforts to transition without the supervision
of experienced medical professionals also have dangerous and costly
consequences; unsupervised hormone use can lead to serious liver
problems, blood clots, stroke, and increased HIV/AIDS and hepatitis risk. 301
The AMA has estimated providing health care to transgender people to be
nearly cost saving, indicating an incremental cost-effectiveness estimate of
approximately $500 per year, per patient.302 Therefore, universal insurance
coverage of gender-confirming care would not be burdensome for

292

See id. 18022(b)(4)(G)(iv).


See CAL. DEPT OF INS., supra note 145, at 8.
294 See, e.g., id.
295 San Francisco Transgender Benefit, supra note 65; CAL. DEPT OF INS., supra note 145, at 9;
Baker & Cray, supra note 4, at 6; see also HUMAN RIGHTS CAMPAIGN FOUND., CORPORATE
EQUALITY INDEX 2014 9 (2014), available at http://hrc-assets.s3-website-us-east-1.amazon
aws.com//files/assets/resources/CEI_2014_final_draft_7.pdf (indicating that approximately
28% of Fortune 500 companies offered coverage with no transgender-specific exclusions in
2013, compared to 19% in 2012).
296 See CAL. DEPT INS., supra note 145, at 9.
297 Everyone Needs Access to Safe, Reliable Healthcare, SYLVIA RIVERA PROJECT, http://
http://srlp.org/healthcare/transhealthcare_v6/ (last visited Apr. 21, 2015) (78% of transgender
people experience improved psychological functioning after receiving gender-confirming
treatment).
298 Id. (suicide rates drop from a range of 29% to 19% before gender-confirming treatment,
to a range of 6% to 0.8% after treatment).
293

299

Id.
Id.
301 End Healthcare Discrimination for Transgender People, GLADD, http://www.glaad.org/
healthcare (last visited Apr. 21, 2015).
300

302

See Stroumsa, supra note 34, at e31.

2015

The Transgender Eligibility Gap

541

insurers303 and would actually save money for public insurance


programs.304
Cases granting access to gender-confirming careand even those
denying ithave recognized that: GID/gender dysphoria is a serious
medical condition; WPATHs Standards of Care articulate the appropriate
treatment, which includes counseling, SRS, and hormone therapy; this
treatment plan is safe, effective, medically necessary, and not cosmetic;
further, there is no medical evidence that alternative treatments are
effective.305

CONCLUSION
Gender-confirming care for transgender individuals with gender
dysphoria is a medical necessity and access should be a priority.
Transgender individuals are at very high risk for many health
complications and these are compounded by anti-transgender bias. They
face extreme barriers to health care and are left without medical
treatmentregardless of whether it is related to gender transition.
Although the ACA purports to end discrimination in health care, it fails to
do so for the transgender community. Further, the EHB selection scheme of
the ACA actually entrenches discrimination in benefit design because the
scope of these benefits is set with reference to the typical health insurance
plan that existed in 2012, and thus prior to the ACA. Because the typical
insurance plan in 2012 excluded transition-related care, the ACA fails to
address the barriers to gender-confirming care.

303 See Transgender-Inclusive Benefits: Medical Treatment Cost and Utilization, HUM. RTS.
CAMPAIGN, http://www.hrc.org/resources/entry/transgender-inclusive-benefits-medical-treat
ment-cost-and-utilization (last visited Apr. 21, 2015).
304 See Everyone Needs Access to Safe, Reliable Healthcare, supra note 297.
305 See, e.g., Kothmann v. Rosario, No. 13-13166, 2014 WL 889638, at *911 (11th Cir. Mar. 7,
2014); Kosilek v. Spencer, 740 F.3d 733, 763 (1st Cir. 2014); Delonta v. Johnson, 708 F.3d 520,
525 (4th Cir. 2013); Fields v. Smith, 653 F.3d 550, 55556 (7th Cir. 2011); see also supra Part I.A.4.

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