Medicare ban on gender reassignment surgeries challenged

Backers of the change hope to build on an Oregon settlement in which the state altered its insurance policy in favor of transgender employees.

By — Posted April 29, 2013

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Transgender rights advocates are challenging a Medicare ban on gender reassignment surgeries that they say is outdated and discriminatory.

The National Center for Lesbian Rights and others on March 29 filed an administrative challenge against the Centers for Medicare & Medicaid Services coverage prohibition. The groups say the exclusion lacks scientific basis and discriminates against patients with severe gender dysphoria. The administrative challenge comes just months after Oregon, following a patient’s lawsuit, agreed to cover gender reassignment surgeries for state employees.

Medical research has long supported that physician-recommended sex reassignment surgeries are an effective treatment for patients with gender identity disorder, said Dru Levasseur, a transgender rights attorney with Lambda Legal who was involved in the Oregon case.

“The medical community has had a deeper understanding of transgender health issues for many years,” he said. But “we have had this gap in understanding with the rest of the population and in insurance companies. We have data that show transgender people are facing an incredible amount of discrimination and distress. [This is] the outcome for denying this type of health care.”

At this article’s deadline, CMS had not returned messages seeking comment. In the CMS coverage manual, regulations state that sex reassignment surgeries are considered experimental because of a lack of well-controlled, long-term studies of their safety and effectiveness.

“Moreover, there is a high rate of serious complications for these surgical procedures,” the manual said. “For these reasons, transsexual surgery is not covered.” Medicare instituted the ban more than 30 years ago.

Critics of the ban, which include the American Civil Liberties Union, filed their challenge on behalf of Denee Mallon, a transgender woman whose doctors have recommended the surgery, said Jennifer Levi, an attorney with Gay & Lesbian Advocates & Defenders, a challenger in the case. The patient is a senior citizen who has been diagnosed with gender identity disorder, a condition characterized by intense and persistent discomfort with one’s birth sex.

“What matters to us is that there will be a fair and scientifically based review of the ban,” she said. “We don’t think the medical data supports it and are hopeful that CMS will agree.”

Levi hopes that overturning the ban will push private insurers to cover the procedures. Such surgeries are not widely included in health plans.

“There is a perception that there is not a medical need for the surgery,” Levi said. “It is our hope that with a contemporary review of the scientific literature, that will have a positive influence on other insurance companies, including private” insurers, she said.

Medical associations support of coverage

GLMA: Health Professionals Advancing LGBT Equality, formerly known as the Gay and Lesbian Medical Assn., is watching the case closely. The association supports the Medicare provision being changed to cover such treatments, said Hector Vargas, GLMA executive director. GLMA is among several national health organizations that oppose financial barriers to medically necessary sex reassignment surgeries and related treatments.

Gender reassignment surgery can cost from a few thousand dollars to $50,000.

The American Medical Association supports public and private health insurance coverage for treatment of gender identity disorder as recommended by the patient’s physician. American Psychiatric Assn. policy advocates for removal of barriers to care and supports both public and private health insurance coverage for gender transition treatment.

For physicians treating transgender patients, it’s extremely frustrating when patients cannot receive the care they need because of insurance restrictions, said internist Gal Mayer, MD. He is the former medical director of the Callen-Lorde Community Health Center, a New York health center that specializes in lesbian, gay, bisexual and transgender health needs. Gender reassignment surgery is complex, depending on a patient’s needs, and can cost anywhere from a few thousand dollars to $50,000, he said.

“When you have someone who needs this surgery in order to realize their gender expression and there is an administrative obstacle in your way, it’s very frustrating,” he said. “I think any physician could identify with trying to get someone medical treatment that they need but can’t access.”

The mental and emotional harm to transgender patients unable to undergo necessary medical treatments is not difficult to understand, he said.

“It’s so simple. All you have to do as a nontransgender person is just imagine if you were born with the sexual anatomy of the sex that you’re not,” he said. “It becomes obvious how this would affect your life, confidence, socializing [and] intimate relationships. All of those things that help people lead the life they are supposed to be leading.”

Oregon case may affect other states

In the Oregon case, Alec Esquivel, a law student employed by the Oregon Court of Appeals, sought health insurance coverage for a hysterectomy in 2010. Esquivel was born female but identifies with being male and was undergoing steps to become physically male. His physician submitted a request to Esquivel’s insurance plan that he have the surgery, according to court documents. The coverage was denied based on the plan’s exclusion of transition-related health care.

Esquivel sued the state, alleging that the exclusion violated Oregon’s anti-discrimination laws. Since 2007, Oregon law has included gender identity as part of its employee anti-discrimination statute. The state settled with Esquivel in January, agreeing to change its policy to cover all medically necessary sex transition treatments.

The lawsuit was the first legal challenge to state rules regarding transgender health treatment, and it provided an opportunity for Oregon to revisit its insurance regulations, said Jacqueline Kamins, assistant attorney general for the Oregon Dept. of Justice. She represented the state in the case.

“The law had a lot to do with” the settlement, she said. “In light of the amendment made in 2007, it appears that to have that exclusion based on gender identity would be in conflict with the Oregon Equality Act.”

The case was the first time a state’s employment discrimination laws were used to challenge health coverage denials for sex reassignment treatment, said Levasseur of Lambda Legal. He believes the Oregon settlement could lead to other states lifting similar coverage restrictions. Sixteen states, including Oregon, include gender identity in their anti-discrimination employment laws.

“I don’t see how a court can any longer say, ‘We’re just not sure about treatment for transgender patients,’ ” he said. “Those days have passed.”

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