Too Costly? The Fight for Trans Health Care in the Courts and Legislature

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by Lars Z. Mackenzie
September 26, 2017

 

On July 26, 2017, President Trump caused a national uproar with three tweets announcing a ban on transgender military service. Trump declared, “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.” Responses ranged from displays of trans patriotism to analyses of the true costs of trans health care. The Washington Post, for its part, reported that the U.S. military spends five times as much on Viagra than it would on transition-related procedures. Policies that seek to restrict the use of federal funds for trans health care using this “tremendous medical cost” rhetoric send a broader message of disapproval for medical procedures that many conservatives deem to be morally questionable.

While trans health care costs have not been proven to be particularly financially burdensome to insurance providers, any money spent on gender transition is generally considered an inappropriate use of federal funds.

In this way, restrictions on publicly-funded trans health care mirror another policy, the 1976 Hyde Amendment, which restricts access to abortions for public health insurance recipients. The justifications come in similar packages: tax-payers should not foot the bill for morally questionable medical procedures.

Arguments that trans health care is too expensive and burdensome have long circulated in legislative debates. In Minnesota, lawmakers have grappled with these questions since the 1970s, and their experiences can help us anticipate what we’ll see if the promised Medicaid and Medicare cuts materialize and states gain greater autonomy in restricting reproductive and trans health care access for low-income Americans.

 

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On November 14, 2016, the U.S. District Court in Minnesota overturned a ban on transition-related surgical procedures for Medicaid recipients. The court ruled in favor of OutFront MN, a statewide LGBT rights organization working on behalf of a 63-year-old trans man from St. Paul, granting Minnesotans who use Medical Assistance (MA), the state’s Medicaid program, access to gender affirmation surgeries.

Hailed as a victory, the ruling actually reverts Minnesota law back to a 1977 ruling granting broad MA access to transition care (and making Minnesota the first state to cover gender affirmation surgeries under its Medicaid program). However, since 1995, the Minnesota legislature has chipped away at that once-progressive policy. Let’s take a look.

Beginning in 1968, the University of Minnesota’s Medical School performed state-funded surgeries on transsexual adults, free of charge. By the mid-1970s, the funding for this program had run out. A 45-year-old trans woman (referred to as “Jane Doe”) had received hormone therapy, a prerequisite for surgery, through the University clinic, but was unable to undergo her surgery before the program ended. In 1977, Doe petitioned the Hennepin County Department of Public Welfare (DPW) to cover her surgeries as a MA-covered individual. Her request was approved by an officer for the county, but later reversed by the statewide DPW. The state argued that because she could not “prove that the requested surgery would allow him [sic] to become self-supporting,” the procedure would not be covered by MA (Doe v.  State of MN 1977). The Supreme Court of Minnesota reversed this decision, citing that the requirement “to be self-supporting” was illegal on the grounds that it would not be required as pre-authorization for any other type of medical procedure.

The Doe ruling fundamentally changed trans Medicaid access in Minnesota. The MA handbook had explicitly prohibited “transsexual surgery,” an exclusion that the Supreme Court declared violated Title XIX of the Social Security Act (as it was the only excluded procedure, even if deemed medically necessary by a physician). By striking this exclusion, the Supreme Court of MN enabled trans Medicaid recipients to apply for coverage for surgeries, so long as they could prove that the procedures were medically necessary.

From 1977 until 1995, trans Minnesotans insured under MA could access insurance coverage for gender affirmation surgeries.

For the most part, these procedures went unnoticed by the public or policy-makers. Then gender and sexuality protections began to emerge in the Minnesota state legislature. In 1993, that body amended the Human Rights Act, making discrimination on the basis of sexual orientation illegal (and broadly including gender identity and expression under the umbrella of “sexual orientation”). The amendment sparked backlash, especially against trans people. Suddenly, gender affirmation surgeries were under public scrutiny.

In 1994, the MN legislature introduced the first bill that would have denied any state coverage of transition procedures. By 1995, it passed a bill that successfully removed transition surgeries from the state’s Medicaid coverage, and, by 1998, hormone therapy was banned, too.

Legislators provided no economic rationale to justify these change; instead, Republican State Senator Jerry Ralph articulated a moral logic: although the total cost of transition-related health care billed to MA between 1995-1998 totaled just $20,000, Senator Ralph stated, “I don’t think that’s a lot, but I don’t think it’s something many of our tax payers want to be paying for with their taxes.”

Restrictions soon multiplied. In 2005, the legislature adjusted the 1998 amendment, removing the restriction on hormone therapy access but categorically excluding any Medicaid recipient from coverage for “sex-reassignment surgery.” The state estimated it would save $15,000 a year. Thus, as in 1998, transition care was excluded following an irrational economic justification. And it continues to shape Medicaid legislation. In May 2017, West Virginia Senator Robert Carnes suggested that his state could save money by refusing to cover “transgender surgery,” despite the fact that Medicaid there already excludes transition-related procedures. Determined to be unnecessary, excessive, and burdensome to state health care budgets, trans health care is targeted as an easy cut to Medicaid programs, even when this care is already excluded. And in the meantime, low-income trans people are positioned as underserving recipients of public assistance.

The argument that MN tax payers would not want to fund gender affirmation surgeries with their tax contributions also echoes Hyde’s logic in curtailing federal funds’ use in abortion procedures recently affirmed by the 1973 Supreme Court (passed just 11 months before the Doe decision).

Congressmen opposed to abortions used the only mechanism they had—a fiscal one—to obstruct what they saw as an immoral procedure. People with private insurance or those who can pay out-of-pocket can access gender affirmation surgeries and obtain abortions, the prohibitive costs of these procedures cause significant burdens to those who cannot use their insurance to pay for them. Legislators declare that the moral costs are too high, devaluing the health care needs of already marginalized populations.

So long as trans health care is framed as cosmetic, not medically necessary, or an excessive burden on state health and human services budgets, trans Medicaid recipients face impossible decisions about their health and wellbeing. Only 18% of low-income trans people have undergone any type of gender affirmation surgery. One in 3 trans people report that they’ve put off medical care because they cannot afford it. Elected officials have actively created a climate in which trans lives are devalued.

 

What to do? 

Without support at the federal level, it is up to the states to demonstrate that all people deserve broad access to health care. The Affordable Care Act makes categorical exclusions of transition-related care illegal, but its future is unsure, and the current Secretary of Health and Human Services, Tom Price, has resisted this provision, signaling that states may opt-out. States can forge ahead, though, by creating protections for transition-related care under state Medicaid laws. Some states have already taken steps in this direction. Similarly, abortion coverage might also be changed at the state level, but just three states voluntarily pay for medically necessary abortions for Medicaid recipients today.

As debates about the ACA continue, federal legislators must refuse the rhetoric that trans health care is too costly to find protection in any new iteration of “repeal and replace.”  Trans health is too easily framed as an “easy” cut, despite the small impact it would have on health care budgets. But morality-based justifications for restricting abortion and transition care access to low-income people are—and always will be—indefensible.

 

-– Lars Z. Mackenzie is a PhD candidate in Feminist Studies at the University of Minnesota. You can follow him @larszmac.

— Photo by Reina Gossett