The views expressed in this article do not necessarily reflect those of the Legal Pulse Editor or the Syracuse Law Review.
Written by Cynthia Moore
On May 11, 2018, New York State Department of Health overturned a 2017 decision by an administrative judge, who upheld a Medicaid insurer’s denial of coverage for a mammoplasty procedure for a nonbinary transgender person. This decision affirmed the right to Medicaid coverage for surgeries or procedures for gender nonbinary and nonconforming residents of New York.
Gender Dysphoria as a Diagnosis
“Gender identity disorders” were first introduced in the DSM-III, a diagnostic manual authored by the American Psychiatric Association, as a psychosexual disorder, which later moved to a section on disorders manifested in infancy, childhood, or adolescence. In the DSM-IV, gender identity disorder diagnoses moved to the chapter on sexual and gender identity disorders. In the most current Diagnostic and Statistical Manual of Mental Disorders, the DSM-V, the diagnosis of gender identity disorder was removed and a new chapter named Gender Dysphoria was created. A diagnosis of gender dysphoria is required for Medicaid coverage of medically necessary treatments and procedures related to this diagnosis.
Non-Binary Gender Identity
Non-binary gender identities are generally those that do not exclusively fall within the male or female categories. Examples of these identities include: “genderqueer, gender fluid, agender, and bigender.” Those who identify within this spectrum may reject gender entirely, blend features of both, or fluctuate between the traditional roles of masculinity and femininity.
In a 2016 study, the number of transgender individuals in New York was estimated as 78,600 or .51% of the total population. Nationally, the number of adults who self-identified as transgender was estimated as 1.4 million or .6% of the U.S. population. Nevertheless, population estimates are difficult to track since they have not been included on questionnaires for the census and American Community Survey. The U.S. Census Bureau stated that it does not plan to propose this topic to Congress for the 2020 Census and American Community Survey, which may make it difficult to track statistics on Americans who identify within the transgender population.
In 2014, the Legal Aid Society, Sylvia Rivera Law Project, and Willkie Farr filed a federal lawsuit opposing a state regulation that banned Medicaid coverage for treatments and procedures related to sex reassignment. In July 2016, U.S. District Judge Jed Rakoff for the Southern District of New York decided Cruz v. Zucker in favor of the plaintiffs. The ban was repealed and the regulation was amended to require Medicaid to cover medically necessary procedures for those with a gender dysphoria diagnosis. New York was the ninth state to adopt a policy allowing Medicaid to cover gender affirmation surgery.
As a result of this decision, four academic medical centers—Mount Sinai, NYU Langone, Montefiore, and Northwell—created programs to perform these surgeries. In 2015, Medicaid covered 115 procedures and in 2016 it covered 257 procedures, marking a substantial increase in services provided.
Medicaid Denial of Coverage
In 2017, a 27-year-old non-binary transgender individual sought a procedure for a reduction mammoplasty. The patient’s doctor requested Medicaid coverage for the procedure and was denied by the plan, Healthfirst. The patient sought an appeal but the administrative law judge held that the regulation did not apply to non-binary individuals, requiring that the individual transition strictly from male to female or female to male.
Department of Health Overturns the Denial
In April, legal counsel who represented the plaintiff in the 2016 federal case sent a letter to the New York State Office of Attorney General stating that the fair hearing decision was decided incorrectly, since it violated the final judgement and order of Cruz v. Zucker. Two weeks later, the Department of Health amended the decision, noting that the 27-year-old met the requirements of the statute and the insurer should have approved coverage of this procedure. In its decision, the Department of Health noted:
“[r]equiring conformance to the opposite gender is inconsistent with the diagnosis of gender dysphoria as specified by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which specifically provides that individuals with [sic] diagnosed with gender dysphoria have a marked incongruence between the gender they have been assigned to (usually at birth, referred to as “natal gender”) and their experienced or expressed gender, and experience stress about this incongruence. Experienced gender may include non-binary gender identity. Therefore, the distress associated with gender dysphoria is not limited to a desire to just be of the opposite gender, but may include a desire to be non-binary.”
Advocates noted the importance of this decision in increasing access to healthcare for non-binary and non-conforming transgender residents of New York, particularly for those who fall below the poverty line. One 2015 survey found that transgender residents of New York were more likely to experience poverty and unemployment than the general population: 37% of survey respondents were living in poverty, more than double the national poverty rate at the time of the survey and 18% were unemployed, which was three times greater than the national unemployment rate.
This decision was made three weeks after the Trump administration expressed a plan to roll back a rule issued by President Obama, which “. . . prevents doctors, hospitals and health insurance companies from discriminating against transgender people.” If President Trump were to revoke this rule, it would apply to doctors who receive Medicaid payments, hospitals that accept Medicare plans, and health insurance companies.
Andrew R. Flores et al., How Many Adults Identify as Transgender in the United States? 2–4 (2016).
Arielle Webb et al., Non-Binary Gender Identities Fact Sheet 1 (2015).
Christina Capatides, The type of transgender you haven’t heard of, CBS News (Mar. 27, 2017).
Cruz v. Zucker, 195 F. Supp.3d 554 (S.D.N.Y. 2016).
Dan Goldberg, Transgender programs flourish following New York Medicaid coverage, Politico (Dec. 12, 2017).
Hansi Lo Wang, U.S. Census To Leave Sexual Orientation, Gender Identity Questions Off New Surveys, NPR (Mar. 29, 2017).
In Historic Decision, NYS Acknowledges Gender Non-Conforming New Yorker’s Right to Health Coverage, The Legal Aid Society: News (May 17, 2018).
In the Matter of the Appeal of Redacted, F.H. No. 7510067L (St. of N.Y. Dep’t of Health, Apr. 6, 2017).
Jan Hoffman, Estimate of U.S. Transgender Population Doubles to 1.4 Million Adults, N.Y. Times (June 30, 2016).
Kenneth J. Zucker, Management of Gender Dysphoria: A Multidisciplinary Approach, in The DSM-5 Diagnostic Criteria for Gender Dysphoria 33 (Carlo Trombetta et al. eds., 2015).
MP McQueen, NY Health Dept. Affirms Right to Medicaid Coverage for Gender Dysphoria Treatment, N.Y. L. J. (May 18, 2018).
National Center for Transgender Equality, 2015 U.S. Transgender Survey: New York State Report 1 (2017).
N.Y. Comp. Codes R. & Regs. tit. 18, § 505.2 (2018).
Robert Pear, Trump Plan Would Cut Back Health Care Protections for Transgender People, N.Y. Times (Apr. 21, 2018).
Photo courtesy of WQAD.