coalition of organizations, including the American Civil Liberties
Union, The National Association of Social Workers, Transgender Michigan
and others, are condemning a move by Blue Cross Blue Shield of Michigan
to eliminate coverage for gender reassignment surgery. The new entity
calls itself The Michigan Coalition for Gender Equality.
“We are concerned that BCBSM underestimates the profound impact of
these medically necessary procedures,” said André Wilson of MCGE.
“Gender reassignment surgeries can be a critical part of the transition
process and these new exclusions will place many transgender
individuals and their families at real risk.”
The change was approved in Feb. says Jason Moon, a spokesman for the
Office of Financial and Insurance Regulation. He called the change
“unfortunate,” but noted the law did not define gender reassignment
surgery as a necessary medical care area. Moon said such areas were
things like breast cancer and diabetes.
Gender reassignment surgery is often used to treat gender dysphoria,
the medical diagnosis given to transgender persons. The surgery is
considered medically necessary by advocates and the American Medical Association.
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Julie Nemecek, co-director of Michigan Equality, said the state’s
comment about the change being “unfortunate,” gave her hope the policy
might change again.
“It gives me a lot of encouragement they recognize how bad a decision it was on their part,” said Nemecek.
Gender reassignment surgery can cost $20,000 over a two year time period.
Stojic, spokesperson for Blue Cross Blue Shield of Michigan, says the
decision by the insurer to eliminate coverage of gender reassignment
was simply a matter of aligning their product with what is currently
offered in the market.
“We took a look at our product line and what other insurers were
covering in other markets,” she said in a phone interview late Tuesday
night. “Most don’t cover this type of surgery. So we are aligned our
Stojic said the insurer, which is mandated by state law to offer
coverage to those other insurers will not cover, reduced the cap for
maternity coverage in the new alignment as well. The changes impact
only single payer plans.
Stojic said the company posted a $133 million loss in the single
payer plans last year, but could not give an estimate of how much of
that was a result of gender reassignment surgery.
The decision, approved in Feb. has been decried by a coalition of
groups working for gender equality, and state regulators called the
decision “unfortunate.” Stojic was not particularly warm to the
concerns expressed, however.
“We certainly understand that people who are particularly interested
in [transgender health] may not be happy with [coverage elimination],”
she said. “We have to compete in the market.”
“I was shocked when Dignity, which is supposed to be in the business of healing and holds itself out to the public as a bastion of ‘human kindness,’ told me they would not authorize insurance coverage for my doctor-prescribed treatment,” Joe Robinson said in a statement released by his attorneys at the American Civil Liberties Union (ACLU).
Joe Robinson, a transgender man and operating room nurse at a Dignity Health medical center in Arizona, has alleged in a lawsuit filed Monday that his employer’s insurance policy of depriving coverage for gender dysphoria is discrimination on the basis of sex, in violation of Title VII of the 1964 Civil Rights Act.
Because Dignity Health, which operates the fifth-largest health-care system in the country, excludes insurance coverage for gender dysphoria—or “sex transformation surgery,” as the insurance policy states—Robinson has borne the cost of his transition treatment. This included hormonal therapy and a double mastectomy. According to Robinson’s complaint, he requested coverage for phalloplasty, but his claim was denied; he says he cannot afford to pay for that surgery out of pocket.
“I was shocked when Dignity, which is supposed to be in the business of healing and holds itself out to the public as a bastion of ‘human kindness,’ told me they would not authorize insurance coverage for my doctor-prescribed treatment,” Robinson said in a statement released by his attorneys at the American Civil Liberties Union (ACLU).
“All I want is the same health benefits other, non-transgender Dignity employees receive, which is coverage for medically necessary treatments,” he continued.
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On May 16, the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing workplace anti-discrimination laws, determined that Robinson could proceed with a lawsuit against Dignity Health. That lawsuit, which was filed in federal court in California, alleges that Dignity Health’s policy singles out transgender employees employees for unequal treatment.
In response to Robinson’s original EEOC complaint, Dignity Health claimed that its policy was not discriminatory because “health benefits under the Dignity plan are not provided for any personality disorders, including sexual/gender identity disorders and behavior and impulse control disorders.”
Robinson counters that the medical community does not consider gender dysphoria to be a “personality disorder.” His complaint notes that insurance companies have previously excluded coverage for transition-related care based on the erroneous assumption that such treatments were cosmetic and experimental—assumptions, he says, that have no basis in medical science today.
The World Professional Association for Transgender Health has published standards of care for gender dysphoria that have been recognized as authoritative by leading medical organizations, the U.S. Department of Health and Human Services, and federal courts, according to the complaint. Under those standards, it reads, medically necessary treatment for gender dysphoria “may include hormone therapy, surgery (sometimes called ‘sex reassignment surgery’) and other medical services that align individuals’ bodies with their gender identities.”
In September of last year, Robinson’s fiancée, who also works at Dignity Health, emailed Dignity Health’s CEO, Lloyd Dean, to ask him to remove the “sex transformation” exclusion from the company’s health plan so that Robinson could receive coverage for his medically necessary care, according to the complaint.
Nearly two months later, the complaint continues, Dignity Health’s chief human resources officer informed Robinson’s fiancée that Dignity Health had found no evidence of discriminatory practice in the administration of its health plan.
Robinson’s lawsuit comes at a crucial time in the legal battle for transgender rights. The primary focus of that battle has been on bathrooms, with states and school boards across the country rushing to propose discriminatory legislation that prohibits transgender people from using the bathroom that aligns with their gender identity.
Eleven states and state officials in late May filed a joint lawsuit challenging the Obama administration’s “Dear Colleague” letter sent to public schools nationwide, arguing that the letter, which says Title VII and related statutes protect transgender people from discrimination under the federal definition of “sex,” is beyond the scope of the administration’s authority.
North Carolina, meanwhile, is embroiled in a pair of lawsuits with the Department of Justice over HB 2, the recently enacted legislation that forces transgender North Carolinians to use the bathroom that does not align with their gender identity in public buildings and schools. Gov. Pat McCrory (R) sued the Obama administration for its “radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered [sic] state employees.”
Also in North Carolina, Joaquín Carcano has sued the state, alleging that HB 2 discriminates against him and all transgender people on the basis of sex in violation of Title VII and Title IX of the U.S. Education Amendments of 1972.
Robinson’s attorneys see his lawsuit as complementing the ongoing lawsuits regarding bathroom discrimination.
“Transgender people continue to face discrimination in a wide array of contexts, including employment, housing, education, healthcare and more,” ACLU staff attorney Joshua Block wrote to Rewire in an email. “In each of these contexts, as courts are recognizing that discrimination against transgender people is discrimination on the basis of ‘sex,’ transgender people are finally able to fight this discrimination as a violation of our civil rights laws.”
Pennsylvania’s ban on Medicaid coverage for transition-related care is discriminatory and unreasonable, says a transgender man who filed a federal court lawsuit against the state’s Department of Human Services Secretary Theodore Dallas in February.
The plaintiff, John Doe of Delaware County, says Medicaid denied him coverage in 2015 for an abdominal hysterectomy his doctor deemed medically necessary to treat his gender dysphoria diagnosis, according to the complaint. Doe’s complaint notes that “Medicaid coverage in Pennsylvania includes payments for medically necessary hysterectomies,” but that it bans those for individuals diagnosed with gender dysphoria. He claims state regulations banning transition-related care, which led to the coverage denial, violate federal and constitutional law. The courts granted Doe’s request for anonymity shortly after he filed his complaint.
Pennsylvania is one of 16 states that prohibit Medicaid coverage of transition-related care, including hysterectomies, gender confirmation surgeries, and hormone therapy. These exclusionary regulations deny many low-income transgender people access to medically necessary health care, advocates say, and cause physical, mental, and economic harm.
“Medicaid is supposed to be a safety net for people who can’t otherwise access health care,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality, in an interview with Rewire. “That puts people who need care and can’t afford it and can’t get covered under Medicaid in a very bad situation.”
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According to the complaint, Keystone First Health Plan, which administers Medicaid in southeastern Pennsylvania, denied Doe’s doctor’s insurance request for Medicaid coverage in July 2015. Doe appealed, but an administrative law judge upheld the decision in October 2015, stating that Keystone is bound to “clear and express regulations,” which do not “permit the approval of the requested hysterectomy.”
Doe is seeking an injunction to order DHS to immediately cover Doe for all transition-related care, as well as eliminate Pennsylvania’s exclusionary regulation. He also asked for a declaratory judgment ruling that Pennsylvania’s Medicaid exclusion regulations are discriminatory and a violation of the 14th Amendment’s Equal Protection Clause.
“We hope that that declaration will enable thousands of the neediest among us to be provided with Medicaid for their gender dysphoria,” said Doe’s attorney Julie Chovanes, who runs the Trans Resource Foundation.
The state responded to the complaint on March 31, denying allegations that its policy is discriminatory and unconstitutional. The state also believes that Doe is not entitled to any relief. At press time, no hearing or trial date had been set in Doe’s case.
“This Is Really Life or Death”
Exclusionary policies like Pennsylvania’s, advocates say, have a twofold effect: They deny necessary health care to transgender Americans and, in turn, threaten their economic stability and safety. Transgender people are disproportionately more likely to be poor and more likely to rely on needs-based state-run programs such as Medicaid, and research shows that they benefit from the very transition-related care for which Medicaid is denying them coverage.
A 2015 joint report by the Center for American Progress and the Movement Advancement Project found that transgender Americans are four times more likely to live on less than $10,000 a year per household than the cisgender population. Rates are even higher for transgender people of color—Asian and Pacific Islander (API) and Latino transgender Americans, for example, are nearly six times more likely to live in extreme poverty than cisgender API or Latino Americans, respectively.
“If you think about Medicaid as a policy that’s not just to protect people’s health but to potentially make it possible for people to climb out of poverty,” said Tobin, “then having broad exclusions on important health needs is something that helps keep them stuck in poverty.”
Research has shown the benefits of transition-related care. A 2015 Journal of Urban Health report found that when trans women have access to and utilize transition-related care, they are at significantly lower risk of suicidal thoughts and substance abuse. But remove that access, and transgender Medicaid enrollees are left in a precarious position, says Joanne Carroll, president of TransCentralPA, an advocacy group based in Harrisburg, Pennsylvania. They may forgo care, leading to emotional, mental, and physical distress; they may find risky ways to pay for care or plunge deeper into poverty; or they may use illegal methods to get the care they need.
To that last point, Carroll said transgender people will sometimes buy hormones offshore without medical supervision or go to illegal silicone pumping parties because they can’t afford augmentation.
And it’s costing lives, she said. Last January, a 40-year-old transgender woman died after being injected with silicone at a party in Santa Ana, California. Another trans woman died on New Year’s Day 2014 after two months in a coma from illegal silicone injections. Trans Road Map has a list of further incidents from 2003 through 2011 on silicone-related deaths.
“Denying people health care is causing them to seek stuff off the radar,” Carroll told Rewire, “which is ultimately killing off a lot of people.”
Advocates note that Medicaid coverage alone won’t stop these off-the-radar methods, as intolerant doctors, inadequate medical services, and other systemic barriers cause trans people to seek out that care. But, they say, eliminating transgender health-care exclusions in Medicaid is a necessary step toward addressing these safety concerns, though not a complete solution.
Leading health organizations have affirmed the medical necessity of providing coverage for transition-related care throughout the years. In 2008, the American Medical Association and American Psychological Association both passed resolutions supporting transgender health-care inclusion in public and private health insurance. Similar declarations have been made by the American Congress of Obstetricians and Gynecologists in 2011, the American Academy of Family Physicians in 2012, and the American College of Physicians in 2015, to name a few.
“The evidence is there around the effectiveness and medical necessity of this type of care,” said M. Dru Levasseur, director of the Transgender Rights Project at Lambda Legal, in an interview with Rewire. “This is really a life-or-death issue for transgender people.”
“Actionable Under the Law”
In September, the U.S. Department of Health and Human Services (HHS) released proposed regulationsclarifying that civil rights protections afforded in Section 1557 of the Affordable Care Act also apply to Medicaid. The proposed HHS rule states that, under Section 1557’s sex discrimination ban, many health insurance plans—which include state-run Medicaid programs—cannot discriminate on the basis of gender identity. HHS already made this explicit for Medicare, which serves older Americans and people with disabilities, two years ago.
The proposed federal rule, then, upholds that Medicaid exclusions nationwide are discriminatory on their face, advocates say. “That basically sets out that this is actionable under the law,” said Levasseur.
HHS is expected to release its final rule this summer.
There’s case law to support HHS’s clarification. In March 2015, a federal court ruled in Rumble v. Fairview Health Services that anti-trans discrimination is prohibited under the ACA for providers and hospitals accepting federal Medicaid or Medicare funds. The federal lawsuit was brought on behalf of a young trans man in Minnesota who alleged health-care providers at a nonprofit hospital were intolerant and provided substandard care because of his gender identity.
But while federal law prohibits health-care discrimination by providers on the basis of gender identity, how it applies to Medicaid coverage varies state-to-state. Such spotty interpretation has led to a patchwork of policies protecting against transgender health-care discrimination.
Only 11 states plus the District of Columbia have Medicaid policies inclusive of transition-related care coverage, according to data from the Movement Advancement Project. Pennsylvania and 15 other states have explicit regulations denying such coverage of care. Twenty-three states have no clear rule on the matter. Nearly two-thirds of the LGBTQ population live in states that either have exclusionary policies or have no explicit policy at all.
Furthermore, 12 states plus the District of Columbia—nine of which have laws prohibiting health insurance discrimination based on sexual orientation and gender identity—have also banned transgender health-care exclusions from private insurance. (Although Minnesota mandates protections for transgender health care in private insurance, its state Medicaid program specifically excludes transition-related care, according to MAP.)
Advocates say that efforts to abolish state-sponsored exclusionary policies are already happening at the local, grassroots level. New York state announced in late 2014 that its Medicaid program would cover transgender health care after 12 years of campaigning by the Sylvia Rivera Law Project, a collective providing legal services to New York City’s transgender population. Advocates hope more states will roll back their prohibitory regulations as they wait for HHS to release its final rule.
“It’s a matter of time and multiple strategies for states to fall in line with where they should,” said Levasseur, “which is the medical consensus that you cannot have exclusions for certain people’s health care.”
The cost to states for inclusive transition-related Medicaid coverage would be negligible, advocates say. According to Tobin, states would only have to cover the health-care needs of “a relatively small part of the population” on Medicaid. In fact, when Oregon added transition-related care to its Medicaid program in 2014, the state’s Health Evidence Review Commission estimated it would cost the state less than $150,000 of its total annual Medicaid budget and impact about 175 enrollees per year, reported the Advocate.
“In that sense, it’s a drop in the bucket,” said Tobin. “But you’re also talking about spending a little bit of money now to prevent treating complications later.”
And, she continued, providing transition-related care would also cost states far less than covering later symptoms from untreated gender dysphoria, such as depression and substance abuse.
Pennsylvania Gov. Tom Wolf (D) has spoken out against the state’s Medicaid exclusion in response to the John Doe case. He said through his spokesperson that precluding coverage for transition-related care is “wrong” and that the state shouldn’t discriminate “based on sexual orientation and gender identity and expression,” according to Philadelphia Magazine.
“The governor hopes to have a robust conversation with the legislature, community and all other parties regarding this issue to move the commonwealth forward,” the spokesperson said last month.
“It’s great that Gov. Wolf agrees that the exclusions are wrong and should be eliminated,” said Thomas W. Ude Jr., legal and policy director at the Mazzoni Center in Philadelphia. The Mazzoni Center provides health and wellness care, in addition to legal assistance, to Philadelphia’s LGBTQpopulation.
“The only question is what his approach would be to actually make that happen,” he said in an interview with Rewire.
Eliminating exclusionary policies would, in no small measure, open the door to fundamental health care for transgender people and save the states money. But that’s only one piece of the puzzle regarding “health-care delivery all-in-all,” said Carroll. The other: ensuring physicians actually treat transgender patients.
Carroll says she’s fortunate to not have faced many barriers to care. But she acknowledges she’s the exception and not the rule; more often, transgender people are denied treatment for something as common as walking pneumonia on the basis of their gender identity alone. And in many states, including Pennsylvania, there is no law broadly protecting the transgender population from discrimination in health care, employment, or public life. (Despite bipartisan support, the so-called PA Fairness Act has languished in a Republican-controlled general assembly that’s had trouble even passing its budget bill, said Carroll.)
“Right now we’re almost captive to these individual physicians whether or not they’ll even agree to treat somebody,” she said.
In a way, John Doe’s case is bigger than itself. While the complaint addresses a specific systemic barrier, it also underscores the discrimination transgender people face in health care across the board. Whether it’s hormone therapy or a yearly physical, advocates say, transgender people should have uninhibited access to care, period.