Several organizations representing gay, lesbian, and transgender people have filed an administrative challenge seeking to overturn Medicare’s 32-year-old prohibition on coverage of sex reassignment surgery.
"This administrative challenge is being considered and working its way through the proper administrative channels," a spokesman for the Centers for Medicare and Medicaid Services said.
The American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, the National Center for Lesbian Rights, and civil rights attorney Mary Lou Boelcke filed the challenge on March 26 on behalf of Denee Mallon, "a transgender woman whose doctors have recommended surgery to alleviate her severe gender dysphoria," according to a statement.
"Medicare’s categorical exclusion of this care lacks any scientific basis," said NCLR legal director Shannon Minter, in the statement. "Study after study has shown that these surgeries are the only effective treatment for many patients suffering from severe gender dysphoria."
Joshua Block, a staff attorney with the ACLU Lesbian Gay Bisexual Transgender Project, noted that "the American Medical Association, the Endocrine Society, and the American Psychological Society all support these treatments for transgender patients." He added, "These procedures have been performed for decades and are proven to be safe and effective."
The AMA House of Delegates adopted a resolution in 2008 advocating private and public health insurance coverage for treatment of gender identity disorder, as recommended by a physician. The American Psychological Association’s Council of Representatives adopted a policy statement the same year that, among other things, advocated adequate mental and physical health care for transgender and gender variant individuals. The Endocrine Society approved guidelines for transgender care in 2009.
In 2012, the American Psychiatric Association’s Assembly approved a new policy backing public and private insurance coverage of gender transition treatment, and opposing exclusions for medically necessary treatment for transgender and gender variant people.
Kenneth Zucker, Ph.D., chair of the DSM-5 Workgroup on Sexual and Gender Identity Disorders, said in an interview that "there’s considerable evidence that hormonal therapy and sex reassignment surgery is often the treatment of choice for adults with gender dysphoria who are carefully assessed." Dr. Zucker, psychologist in chief at the Centre for Addiction and Mental Health in Toronto, called that "beyond debate." The DSM-5, which is to be published in mid-May, will include gender dysphoria as a diagnosis.
But Dr. Zucker said that a diagnosis does not dictate the best practice or treatment for any individual patient. He added that gender dysphoria had existed as a diagnosis since the DSM-III was published in 1980; however, it previously was known by other terms.
Surgical and other medical treatment of gender dysphoria has lagged in the United States primarily because of a lack of insurance coverage, Dr. Zucker said.
"If Medicare endorses sex reassignment surgery as a treatment option for carefully evaluated patients and this was then taken up and supported by more private insurers, this would reduce barriers to care," he said.
"A decision by Medicare that this treatment is medically necessary and not experimental could impact other health coverage of this surgery," agreed Dr. Dan Karasic, clinical professor of psychiatry at the University of California, San Francisco. He said a Medicare policy change could benefit some, including those who are disabled by HIV or mental illness, and elderly patients with gender dysphoria. "The clear preponderance of the evidence and consensus of experts supports the medical necessity of surgical treatment for gender dysphoria," Dr. Karasic said in an interview.
Treatment for the gender dysphoria is covered in many countries with national health systems including the Netherlands, Belgium, and the United Kingdom, Dr. Zucker said.
Mr. Block of the ACLU notes that California, Oregon, the District of Columbia, and Colorado have issued regulations clarifying that private insurers cannot exclude transition-related health care from their coverage.
According to the Human Rights Campaign’s Corporate Equality Index, only 25% of Fortune 500 companies currently offer transgender inclusive health benefits. That is defined as equal health coverage for transgender individuals without exclusion for medically necessary care, without blanket exclusions, and based on the World Professional Association for Transgender Health Standards of Care.
The administrative challenge was filed with the departmental appeals board of the U.S. Health and Human Services department. Mr. Block of the ACLU said that the board will first weigh the evidence that was used to make the initial coverage decision in 1981. If it finds that the decision was not properly supported – or that developments have called into question the reasonableness of the decision – it will consider new evidence. The ACLU-led complaint included an expert declaration "that collects the contemporary evidence to show the national coverage decision lacks any scientific basis," Mr. Block said.