Transgender Health at the Crossroads: Legal Norms, Insurance Markets, and the Threat of Healthcare Reform

Yale Journal of Health Policy, Law, and Ethics Volume 11 Issue 2 Yale Journal of Health Policy, Law, and Ethics Article 4 2011 Transgender Health at the Crossroads: Legal Norms, Insurance Markets, and the Threat of Healthcare Reform Liza Khan Follow this and additional works at: https://digitalcommons.law.yale.edu/yjhple Part of the Health Law and Policy Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Liza Khan, Transgender Health at the Crossroads: Legal Norms, Insurance Markets, and the Threat of Healthcare Reform, 11 Yale J. Health Pol'y L. & Ethics (2011). Available at: https://digitalcommons.law.yale.edu/yjhple/vol11/iss2/4 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Health Policy, Law, and Ethics by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Khan: Transgender Health at the Crossroads NOTE Transgender Health at the Crossroads: Legal Norms, Insurance Markets, and the Threat of Healthcare Reform Liza Khan INTRODUCTION ........................................................................................... 376 I. MEDICALIZED IDENTITY ...................................................................... 379 ..................................... 380 A. TRANSGENDER HEALTHCARE B. TRANSGENDER LAW AND MEDICINE: INTERSECTION OR DISCONNECT?.. 382 C. NEGOTIATING THE MEDICAL CONSTRUCTION OF GENDER: A ....................................... TRANSGENDER DEBATE ..... 386 II. GENDER CONFUSION IN INSURANCE MARKETS......................... A. IS GENDER VARIANCE AN INSURABLE INTEREST? . . . . . . . . . . . . . . . .. . . . 387 388 B. APPROACHES TO EXCLUDING GENDER-CONFIRMING CARE ...... ..... 390 .................... ..... 391 1. DENIALS FOR PRE-EXISTING CONDITIONS 2. EXCLUSIONS FOR COSMETIC AND EXPERIMENTAL PROCEDURES......... 393 ..... 399 C. CATEGORIES OF COVERAGE FOR TRANSITION-RELATED CARE............... 402 3. MEDICAL-NECESSITY REVIEW ............................. D. CONFORMING TO THE DISCOURSE OF DISEASE ...................... 407 III. THE PATIENT PROTECTION AND AFFORDABLE CARE ACT: IMPLICATIONS FOR TRANSGENDER CARE........................................ 410 A. EXPANDED ACCESS TO HEALTH INSURANCE, CONSTRICTED ACCESS TO ...... 411 ................................ CARE..................... B. RECASTING MEDICAL NECESSITY ...................... CONCLUSION ........... 414 ........................................... ................. 417 * Yale Law School, J.D. 2011; Harvard Kennedy School of Government, M.P.P. 2006; Brown University, A.B. 2002. Many thanks to George Priest, William Eskridge, and Justin Weinstein-Tull for helping me conceive of and develop this Note; to Pratik Patel, Eli Lazarus, and my parents for their support and encouragement; and to Anna Shabalov, Matthew Hegreness, and Carolyn Brokowski for their outstanding editorial assistance. 375 Published by Yale Law School Legal Scholarship Repository, 2011 1 Yale Journal of Health Policy, Law, and Ethics, Vol. 11 [2011], Iss. 2, Art. 4 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS XI:2 (2011) INTRODUCTION Few groups confront as many barriers to healthcare as transgender patients.' Transgender individuals are frequently denied access to health services because of their gender identity or expression, and many report experiencing verbal and even physical harassment in medical offices and hospitals.2 Those who are able to locate care often find that they cannot actually access services, due to a lack of insurance or financial resources.3 Even transgender patients with health insurance have difficulty obtaining care. This is particularly true if the care sought is for transition related purposes, since most policies exclude coverage for genderconfirming interventions and surgeries.4 The transgender population's lack of access to care is all the more striking when considered alongside the group's elevated risk for a number of serious health problems. One study reports, for example, that forty-one percent of transgender individuals have attempted suicide at some point in their lives.5 This Note examines the current landscape of transgender healthcare and 1. 1 use the terms "transgender," "gender variant," and "gender nonconforming" interchangeably to reference a wide range of people whose self-identity does not conform to the identity or norms usually associated with the sex they were assigned at birth. Some of these individuals may seek medical care to transition to a different sex while others do not. See A. Evan Eyler, Primaty Medical Care of the Gender-Variant Patient, in PRINCIPLES OF TRANSGENDER MEDICINE AND SURGERY 15, 19-21 (Randi Ettner et al. eds., 2007) (discussing a range of health treatments sought by transgender patients). I use the term "transsexual" to refer to individuals who seek genital sex reassignment surgery only when the phrase is used in the literature being cited. Like Katharine Franke, I believe the term "transsexual" focuses too much on the alteration of genitalia and ignores the diversity of transgender individuals and their health needs. See Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 32 n.130 (1995). Finally, I refer to the various procedures that alter a transgender patient's physical appearance to reflect the individual's gender identity as "transitionrelated," "transitional," or "gender-confirming" care. 2. JAIME M. GRANT ET AL., INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY 73-74 (2011), available at http://transequality.org/PDFs/ NTDSReport.pdf (reporting that 19% of a national sample of transgender individuals had been refused care by a medical provider due to their transgender or gender non-conforming status; 28% of respondents experienced verbal harassment in a medical setting; 2% were physically attacked in a doctor's office). 3. Transgender individuals are "less likely than the general population to have health insurance, more likely to be covered by public programs such as Medicare or Medicaid, and less likely to be insured by an employer." Id. at 76. 4. Id. at 77. 5. Id. at 82. Transgender populations also experience extraordinarily high rates of physical violence, sexual assault, and HIV, as well as above average rates of drug and alcohol abuse. Id. at 80-81. 376 https://digitalcommons.law.yale.edu/yjhple/vol11/iss2/4 2 Khan: Transgender Health at the Crossroads TRANSGENDER HEALTH AT THE CROSSROADS coverage and evaluates how the Patient Protection and Affordable Care Act (PPACA), the Obama Administration's landmark health insurance legislation, may change the state of transgender care. 6 Called "the most expansive social legislation enacted in decades," 7 the PPACA extends health ins (...truncated)