Академический Документы
Профессиональный Документы
Культура Документы
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
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
2015
501
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
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.
available
at
2015
I.
503
Background
A. Gender-Confirming Healthcare for Transgender Individuals
1.
Definitions
14
17
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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Diagnoses
23
2015
505
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.
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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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
54
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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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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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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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 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
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85
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).
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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
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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
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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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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
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meaning that four-fifths are in danger of disclosure of transgender status every time they
apply for a job).
125
130
520
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134
140
Id. at 6.
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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
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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
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.
2015
1.
523
154
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
524
v. 49 | 499
159
166
Id. at 51.
Id.
168 Id. at 52.
167
2015
525
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
v. 49 | 499
175
177
183 See Coleman et al., supra note 12, at 168 (discussing how the sigma attached to gender
nonconformity contributes to health risks).
184
2015
527
185
Id.
See Baker & Cray, supra note 4, at 56.
191 See id.
190
528
v. 49 | 499
Adoption of Best Practices for Providing GenderConfirming Care Saves Health Care Dollars
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
2015
529
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
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
v. 49 | 499
206
208
2015
531
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
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
532
v. 49 | 499
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
2015
533
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
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
v. 49 | 499
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
2015
535
(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
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
536
v. 49 | 499
257
259
2015
537
265
538
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.
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
2015
539
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
290
291
42 U.S.C. 18022(b)(4)(G)(ii).
Id.
540
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
299
Id.
Id.
301 End Healthcare Discrimination for Transgender People, GLADD, http://www.glaad.org/
healthcare (last visited Apr. 21, 2015).
300
302
2015
541
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.