Beyond Categorical Exclusions: Access to Transgender Healthcare in State Medicaid Programs

By Rosh, Samuel | Columbia Journal of Law and Social Problems, Fall 2017 | Go to article overview

Beyond Categorical Exclusions: Access to Transgender Healthcare in State Medicaid Programs


Rosh, Samuel, Columbia Journal of Law and Social Problems


I. INTRODUCTION

"Cosmetic" and "experimental" are words of choice for health insurers seeking to deny claims for transgender individuals hoping to undergo medical transition.1 There is a long history of deeming medical care for transgender people seeking to transition as unneeded or unproven treatment, medically unnecessary and not worth payment by private insurance premiums or the public treasury. This tactic has taken two forms: as a means to justify a categorical ban on any transition coverage, or more recently a way of cordoning off a set of specific procedures as cosmetic or unproven.

Wholesale categorical exclusions are increasingly viewed as invalid, whether under Affordable Care Act regulations or as a matter of Medicare coverage determinations or federal Medicaid law.2 Even among jurisdictions that have repealed categorical exclusions in their Medicaid programs, however, many still place restrictions on procedures deemed cosmetic. These states assert that those procedures, among them electrolysis, facial reconstruction, voice therapy, and sexual reassignment surgery, are not properly considered medically necessary treatment for gender dysphoria.3 The medical and scientific consensus, however, stands in contrast to that view. In particular, medical studies now demonstrate that these transition-related procedures can be medically necessary for transgender individuals as a way to mitigate their gender dysphoria. Moreover, access to such treatment can substantially advance their acceptance by society as a whole, and thus reduce the pervasive discrimination - a known health risk - still faced by transgender people.

As a result, this Note argues that statutes, regulations or policies that bar payment for procedures considered "cosmetic" should therefore be understood to violate the Affordable Care Act, as well as federal Medicaid law, by discriminating on the basis of diagnosis and by failing to provide medically necessary treatment. New York's experience could serve as a bellwether for other states, with an iterative development of regulatory policy in response to litigation in the case of Cruz v. Zucker, ultimately leading to a medical necessity standard for transgender healthcare.4

This Note proceeds in four parts. Part II sets forth the scientific literature on gender dysphoria and the medical treatment often prescribed to alleviate it, and explores the link between the discrimination that transgender individuals face and access to transition-related medical care. Part III discusses the existence of "categorical exclusions" banning all insurance coverage for gender transition in state Medicaid programs, along with other specific restrictions on such care. It then discusses arguments for and against their invalidity on the basis of Section 1557 of the Affordable Care Act (which prohibits categorical exclusions and forbids discrimination in treating gender dysphoria), as well as more general federal Medicaid law. Part IV examines these issues in the context of litigation against New York's categorical exclusion and the gradual transition to a medical necessity standard. Finally, Part V considers policy arguments against covering transition-related healthcare.

II.BEING TRANSGENDER: HEALTHCARE AND DISCRIMINATION

For many though not all transgender people - individuals whose gender identity differs from their sex assigned at birth - the transition from their natal sex to living in accord with their gender identity is inextricably tied to medical services.5 According to one survey, 62% of transgender people take cross-sex hormones, and an additional 23% wish to receive such treatment.6 Transgender people also often wish to pursue surgical interventions but are more rarely able to do so, due to barriers to care and the expense of such procedures. For example, according to a survey by the National Transgender Task Force, 18% of transgender women7 have had breast augmentation surgery, while an addi tional 54% wish to have that surgery someday. …

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