Out of Reach: Sex Reassignment Surgery Not ‘Medically Necessary’?

Pamela Merritt

Sex reassignment surgery and other related medical interventions cost thousands of dollars and are not optional for many transgender people. But many insurance companies don't consider these procedures medically necessary.

Cuba has approved
free sex change operations for transgender citizens
. What a stark contrast to the reality here in the United States.

June is LGBT Pride Month and,
along with the festivals and parades, we have an opportunity to
learn about the diversity within our community and the issues that
impact the lives of LGBT people. For many transgender people, the process
of transitioning is a long and expensive journey delayed due to the lack
of health insurance coverage for medically necessary procedures.

First, a quick primer. "Transgender" describes the state
of a person’s gender identity, which may match their
assigned at birth. Other words transgender people may use are female
to male (FTM), male to female (MTF), and genderqueer. After coming out, transgender
people may undergo psychological counseling for diagnosis, hormone
replacement therapy (HRT) to adjust their body to their new gender, medical visits to support that therapy, and sex reassignment
surgery (SRS) to change their genitals to match their new gender role.
Through sex reassignment surgery, transgender women may undergo a penectomy
and vaginaplasty. Transgender men may undergo bilateral mastectomy
and hysterectomy and, in some cases, they may also elect phalloplasty
(construction of a penis).

These procedures cost thousands
of dollars and they are not optional for many transgender people.
Most states require medical procedures before personal documentation,
like drivers licenses and birth certificates, can be updated to reflect
a person’s new gender. But, despite those requirements, many
insurance policies do not cover sex reassignment surgery, which is often considered cosmetic or not medically necessary.
Thus transgender people must pay thousands of dollars out of pocket
even if they have health insurance coverage that would cover the surgical
procedure for a medically recognized condition.

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Transgender people may also
consider cosmetic surgery in order to adjust their appearance to their
new sex role. Cosmetic surgery procedures may include breast augmentation or
facial or torso surgery, and transgender women may require electrolysis
to remove hair. Many insurance companies do not cover these procedures
for any participant in their plan because they are considered elective
or not medically required.

Why would a health insurance
plan not cover a surgical procedure for a transgender person?
The American Psychological Association’s current classification of
gender identity disorder (the diagnosis given some transgender people
that may allow them to qualify for sex reassignment surgery) as a psychological
disorder does not clearly support medical treatment through sex reassignment
surgery. As a result of the
current lack of clarity, many insurance companies discriminate against
transgender people seeking coverage for the cost of surgery even if
the company through which they are insured approves coverage.

Transgender activists have been working to get an official
diagnosis and classification for Gender Identity Disorder from the American
Psychological Association to address the need for medical care and appropriate
mental health care for transgender people. In 2005, the American Psychological Association formed a task force
to study gender identity and they have been reviewing the scientific
research and American Psychological Association’s policies with the
goal of developing recommendations for education, training, practice
and additional research. The completed report is scheduled for
presentation to the American Psychological Association’s governing
Council of Representatives in August 2008.

Transgender activists
are divided
over
whether the classification of gender identity disorder from the American
Psychological Association as a mental disorder is positive or negative,
with some feeling that the classification stigmatizes transgender people
and others arguing that the classification is necessary to secure appropriate
health care and treatment. What is not in dispute is the need
to address lack of access to treatment options and the discrimination
many transgender people face within society and the medical community.

In 2007, the American Medical
Association amended their nondiscrimination policies to include transgender
people
. As
reported by the Windy City Times, the policy change "affects all aspects
of the functioning of the AMA, including relations with patients, employment
issues and insurance coverage." The report also noted that transgender
people face discrimination within the health care system and barriers
that prevent access to health care. In one section of the new policy
the American Medical Association clearly states its opposition to "the
denial of health insurance on the basis of sexual orientation or gender
identity."

As companies, health care insurers
and municipalities examine and revise their policies to ensure that
transgender people are not discriminated against or denied access to
medically necessary treatment, the cost of sex reassignment surgery
remains an obstacle for many transgender people seeking transition into
the sex role that better reflects their identity. As our community celebrates LGBT Pride Month
this June, we can celebrate the progress made within the medical and
psychological communities. But we must also note the progress
yet to be made and the impact of that lack of progress on the lives
of transgender people.

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

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