The State of Transgender Health Care

Policy, Law, and Medical Frameworks

Daphna Stroumsa, MD, MPH

Disclosures

Am J Public Health. 2014;104(3):e31-e38. 

In This Article

US Regulatory and Policy Landscape

Among issues of access to care that must be addressed nationally, that of insurance coverage and affordability of care has primary importance.

Federal Agencies and Regulations

As the US population ages, an increasing proportion of the population, including the transgender population, will become dependent on Medicare for access to care. Although Medicare covers both routine care (through parts B and 1) and hormonal treatment (part D), SRS is not covered. The specific language used by the Center for Medicare and Medicaid Services in explaining this lack of coverage is telling:

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. Transsexuals are persons with an overwhelming desire to change anatomic sex because of their fixed conviction that they are members of the opposite sex. For the male-to-female, transsexual surgery entails castration, penectomy and vulva-vaginal construction. Surgery for the female-to-male transsexual consists of bilateral mammectomy, hysterectomy and salpingo-oophorectomy, which may be followed by phalloplasty and the insertion of testicular prostheses. Transsexual surgery for sex reassignment of transsexuals is controversial. Because of the lack of well controlled, long term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism, the treatment is considered experimental. Moreover, there is a high rate of serious complications for these surgical procedures. For these reasons, transsexual surgery is not covered by Medicare. [42(sect140.3)]

Several issues arise from this language. First, SRS is neither controversial nor experimental; rather, it is a well-recognized therapy advocated for by leading medical associations. This claim cannot serve as a basis for denying coverage for necessary treatment. The terminology and definitions in this statement are inaccurate, outdated, and inconsistent with current APA guidelines. The statement conflates intersexuality with being transgender and fails to acknowledge the wide range of possible gender expressions. Neither does it address the high rate of serious sequelae of failing to treat transgender people who have a need for gender-confirming surgery. Risk of complication is not sufficient grounds for rejecting treatment. As with any other procedure, one must evaluate the potential risk of complication in the context of the condition being treated and the risks of failure to treat.

In June 2011, in an effort to standardize care for transgender veterans, the Veterans Health Administration in the US Department of Veterans Affairs (VA) published directives regarding provision of care to transgender (and intersex) veterans (Patrick Paschall, JD, policy counsel, National Gay and Lesbian Task Force, oral communication, January 8, 2013). The directives state that

medically necessary care is provided to enrolled or otherwise eligible intersex and transgender Veterans including hormonal therapy, mental health care, preoperative evaluation, and medically necessary post-operative and long-term care following sex reassignment surgery. [43(p2)]

This policy clarifies the obligation of VA medical providers to extend comprehensive care to transgender veterans. The directives, however, deny coverage of SRS on the basis of a VA regulation excluding gender alterations from the medical benefits package,[44] despite the recognition of such alterations as part of care. Furthermore, these directives also contradict VA policy to provide "care and treatment to Veterans that is compatible with generally accepted standards of medical practice."[34,35,37,43(p2)] However, an increasing commitment to LGBT inclusion in the VA, particularly through the recently founded Office for Diversity and Inclusion, has led to significant progress in health care delivery for transgender people. In June 2011, the Veterans Health Administration added protections based on gender identity to Equal Employment Opportunity Commission protections for employees,[45] and it is currently providing training for health care providers in services for transgender veterans.[46]

High rates of unemployment in the transgender population are also a major barrier to maintaining health and appropriate health care.[2] Accordingly, employment of transgender people in the health care workforce is recommended because it offers an important avenue to address some of the challenges and barriers this population faces in the health care system. Although the burden of educating medical professionals should not rest on transgender people, increasing participation of transgender people in the health care workforce can facilitate and catalyze education and increase the understanding of issues faced by transgender people. This, in turn, has the potential to create safer and welcoming spaces for transgender people who seek medical care. Regarding employment more generally, in April 2012 the Equal Employment Opportunity Commission ruled that the Civil Rights Act's prohibition against sex employment discrimination (title VII) applies to transgender people. See Macy v Holder.[47]

In July 2012, in response to a letter from LGBT organizations, the US Department of Health and Human Services issued a statement clarifying that the ban on sex discrimination in section 1557 (nondiscrimination) of the ACA includes discrimination on the basis of gender identity.[48] This federal policy statement, the 1st of its kind, has wide implications, including for Medicare and Medicaid. This statement, along with the Equal Employment Opportunity Commission ruling, should not only increase access of transgender people to appropriate health care but also help alleviate concerns about discrimination and promote active participation in the health care system.

Some additional protections for transgender people are expected with implementation of the ACA. Standards for qualified health providers (QHPs) participating in the exchange programs ban discrimination in any of their activities, including on the basis of sexual orientation or gender identity:

Non-discrimination. A QHP issuer must not, with respect to its QHP, discriminate on the basis of race, color, national origin, disability, age, sex, gender identity or sexual orientation.49(p916)

Additionally, coverage denial based on being transgender as a preexisting condition will be banned under the ACA starting in 2014. To what extent and how promptly these protections will be implemented, and whether they will lead to higher rates of coverage for mental health services, cross-sex hormone therapy, or gender affirmation surgery, remains to be seen. These advances do not, however, provide an explicit and directed protection of transgender people within the health care system, nor do they address coverage of specific treatments that transgender people may need.

The Ending LGBT Health Disparities Act, a federal bill introduced in 2009, proposed the addition of a sexual orientation and gender identity nondiscrimination clause to all Medicaid, Medicare, and Children's Health Insurance programs, with gender identity meaning

the gender-related identity, appearance, or mannerisms, or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth. [50]

The bill included federal grants to improve access and health promotion to gender and sexual minorities, in part through dedicated LGBT health centers, research related to gender and sexual minorities' health disparities, and a requirement that sexual orientation and gender identity be included in federally funded health surveys. It also aimed to amend the Public Health Services Act by setting national standards for cultural competency of health care service to include sexual and gender minority cultural competency. Also important, the bill included a prohibition against discrimination on the basis of sexual orientation or gender identity under the health benefits program for federal employees and in the provision of health care and other benefits for members of the armed forces and veterans. This bill, though it did not directly relate to treatment coverage, would not only have increased access to care for all those directly affected by it, but may also have helped create a positive and inclusive climate for transgender people as full members of the population whose health is of concern. The bill was not passed, however, and so developments in enabling access to care for transgender people remain dependent on incremental advances within the current legal frameworks.

Court Decisions and Treatment Coverage

Given prisoners' restriction of liberties, it is perhaps not surprising that some of the most serious limitations on transgender people's access to health care have been in the US prison system. In most states, either incarcerated transgender people are housed according to their external genitals or no specific policy exists regarding their treatment and housing.[51,52] More surprising, perhaps, is that these abuses coexist alongside some of the most important advancements in protection of these rights. In several instances, federal courts have upheld the rights of transgender prisoners to receive both hormonal and surgical treatment. These decisions were based on the WPATH standards of care and on expert opinions that transition care (both hormonal and surgical) is medically necessary. The courts reasoned that the denial of transition care amounts to cruel and unusual punishment, a violation of the Eighth Amendment.

A landmark case is Fields v Smith.[53] In 2005, Wisconsin passed the Inmate Sex-Change Prevention Act, prohibiting funding of transition therapy (both hormonal and surgical) for transgender prisoners.[54] Several transgender women whose care was abruptly cut off filed against this law, claiming unconstitutionality on the basis of both the Eighth Amendment (cruel and unusual punishment) and the Equal Protection Clause. A federal district court found that the law constituted deliberate indifference to the plaintiffs' medical needs in violation of the Eighth Amendment and violated the plaintiffs' right to equal protection. The Seventh Circuit court affirmed the district court's order.

In Adams v Federal Bureau of Prisons[55] in 2010, a federal district court judge denied a motion to dismiss the complaint of Vanessa Adams, who was denied hormonal treatment. Though Adams was by that time receiving care, the Federal Bureau of Prisons had not changed its policy of refusing hormone therapy for transgender people. The case resulted in a reversal of policy that denied inmates initiation of treatment of GID. In Kosilek v Spencer[52] in 2012, the District of Massachusetts Court ruled in favor of Michelle Kosilek, requiring the Massachusetts Department of Corrections to provide SRS for Kosilek. The court based its ruling on doctors' expert opinions stating that in severe cases SRS is medically necessary; in this case, Justice Wolf, citing the WPATH Standards of Care, upheld previous rulings that GID is a severe medical condition requiring treatment. Justice Wolf also underscored that treatment cannot be denied on the basis of cost, because prisoners routinely receive care that is perceived as expensive. As Levi[56] pointed out, more than asserting the right or need for treatment of GID or limits to treatment within the prison system, the Kosilek ruling relates to what she called transgender exceptionalism, or the fear of controversy as a guiding principle for decisions made by government officials. In O'Donnabhain v Commissioner in 2010, the US Tax Court ruled in a manner similar to the rulings regarding prisoners' right to transition care.[57] The court found that SRS and hormonal therapy are tax deductible under the Internal Revenue Code because they constitute necessary medical treatment.

Given these affirmations by the judicial system of the medical necessity for transition care, I argue that the federal Medicaid program should require participating states to cover gender-confirming treatment.[58] Although according to the statute governing the Medicaid programs (Title XIX of the Social Security Act, 42 USC § 1396), states "may place appropriate limits on a service based on such criteria as medical necessity,"[59(p273)] they may also not arbitrarily deny benefits solely on the basis of "diagnosis, type of illness, or condition."[59(p273)] In fact, as early as 1980, the US Court of Appeals (Eighth Circuit) found that denial of coverage for SRS is an

arbitrary denial of benefits based solely on the diagnosis, type of illness, or condition where physician and hospital care are mandatory services and such surgery is "the only successful treatment known to medical science." [60]

A previously used measure for the reasonableness of the legislature's standards has been general acceptability by the professional medical community as an "effective and proven treatment."[61] Thus, although coverage of treatment must ultimately depend on particular need, as prescribed by the treating physician, it seems clear that as a category of treatment, gender-confirming care should be covered by individual states' Medicaid programs, as by other publicly funded programs.

Many states currently have laws that explicitly deny Medicaid coverage of gender-confirming therapies, either specifically (e.g., Iowa,[62] Massachusetts[63]) or because it is included in the category of cosmetic and experimental surgery (e.g., Missouri[64] and Illinois[65]).[58] Legal challenges to the legislation have been successful in those states that did not have a statute or regulation explicitly excluding transition treatment from being covered; existing treatment exclusions have consistently been upheld.[58] After such challenges, Iowa and Minnesota added provisions excluding SRS from Medicaid coverage; currently, only California covers SRS under Medi-Cal.[58] However, True[58] suggested that the O'Donnabhain ruling may affect Medicaid coverage of SRS because upheld exclusions were based on the premise of lack of medical necessity for SRS. As medical opinion confirms that SRS is necessary, effective, nonexperimental, and without a comparable substitute; this opinion becomes even more widely echoed in the medical literature and court decisions; and the WPATH standards of care gain recognition as the professionally accepted guidelines for treatment of gender dysphoria, the provisions and statutes excluding coverage of gender-confirming surgery are likely to become increasingly harder to defend. I would contend that the argument for such provisions to be found invalid by the courts under the Federal Medicaid Act will be increasingly strong because they appear to be based on invalid rationales, put unreasonable restrictions on medically necessary treatment, and discriminate on the basis of diagnosis, which is in violation of the Federal Medicaid Act. Successful challenges to the legality of Medicaid coverage denial may also affect denial under Medicare and in the VA.

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