A New Legal Challenge Renews Debate: Should Medicaid Cover Transgender Health Care?

A lawsuit against the New York Department of Health demands that Medicaid support transgender-related care.

(Photo: Spencer Platt/Getty Images)

Jun 30, 2014· 3 MIN READ
Nicole Pasulka is a writer and reporter who lives in New York City. She has written for Mother Jones, BuzzFeed, The Believer, and the New York Observer.

Since she was a child, 50-year-old Angie Milan-Cruz has received Medicaid benefits—no-cost health insurance for the very poor—in New York City.

Milan-Cruz is a transgender woman; she began thinking of herself as a girl when she was 10. She started taking hormones when she was a teenager “to help align her physical appearance with her gender identity.” In 2004, Milan-Cruz was diagnosed with a medical and psychiatric condition known as gender identity disorder, or GID.

The National Institute of Health defines GID as “a conflict between a person’s physical gender and the gender he or she identifies as. For example, a person identified as a boy may actually feel and act like a girl.” Symptoms include depression and anxiety, and the NIH recommends treating the condition with therapy, sex reassignment surgery, and hormone therapy. In 2012 the Diagnostic and Statistical Manual of Mental Disorders changed the diagnosis from GID to “gender dysphoria.” People with gender dysphoria have “a marked incongruence between one’s experienced/expressed gender and assigned gender,” but being transgender is no longer considered a disorder.

Hormone therapy made Milan-Cruz feel more “comfortable and confident” because it gave her a more feminine appearance. However, throughout her life she has had inconsistent access to hormones. She would like to be on estrogen full-time and have gender-affirming surgery—vaginoplasty and a breast augmentation—as treatment for gender identity disorder. In New York, Milan-Cruz can’t have this treatment because, since 1998, Medicaid has refused to cover any transition-related health care, calling medical procedures and treatments such as top or bottom surgery and hormone therapy “cosmetic” and “experimental” rather than medically necessary.

Now, as LGBT people celebrate the 45-year anniversary of the Stonewall riots—a three-day revolt against police abuse of gay, lesbian, and transgender people in New York City—Milan-Cruz and a plaintiff known as I.H. have filed a class-action lawsuit against the Department of Health. They hope to force New York state to repeal this ban.

One of the main arguments in Milan-Cruz’s lawsuit is that while Medicaid explicitly will not pay for “care, services, drugs, or supplies” for “gender reassignment,” it covers many of the same services, drugs, and supplies in circumstances when the recipient is not transgender. Transgender people are denied coverage not because the procedures are thought to be excessive or unnecessary in general but because Medicaid doesn’t consider them medically necessary when treating gender identity disorder or gender dysphoria.

Increasingly, expert opinion, the federal government, and many states disagree with this ban on medical and psychological care for transgender people. The American Medical Association supports public and private insurance coverage of transgender health care. The American Association Psychiatric Administrators recognizes the benefit of medical and surgical “gender transition treatments,” as does the American Psychological Association. The American Academy of Family Physicians advocates that insurers “provide coverage for comprehensive care of [transgender] individuals including medical care, screening tests based on medical need rather than gender, mental health care, and, when medically necessary, gender reassignment surgery.”

Last month, a federal Department of Health and Human Services board ruled that it was “no longer reasonable” for Medicare to exclude gender-reassignment surgery from coverage. Because Medicare is insurance for senior citizens, this only affects transgender people over 65. But on June 20, Massachusetts followed California and Vermont in announcing it would cover transgender health care, including gender-reassignment surgery, as part of its government health plan for low-income residents.

New York state has none of these protections, so why does Milan-Cruz’s lawsuit target Medicaid? Transgender people face a myriad of challenges, such as discrimination at work, in school, and at home. They are twice as likely to live in poverty than those who are not transgender. Because Medicaid is health insurance for those in poverty, not providing coverage for transgender-specific health care means that a significant number of transgender people will not receive transition-related benefits or health care appropriate to their gender.

This can have devastating consequences.

“When we don’t get the care we need, our suicidality goes up really high, and our mental health goes down,” says Reina Gossett, membership director at the Sylvia Rivera Law Project, a legal organization that brought the lawsuit along with the Legal Aid Society. “A lot of times people engage in criminalized economies to get treatment”—meaning buying hormones on the black market or doing sex work to earn money for surgery.

Last Wednesday, Angie Milan-Cruz went on Democracy Now to talk about the lawsuit and why, as a transgender person, she needs health care. “My personal experience has been hardship, depression, not being just accepted for who I am. I have to look at myself every day in the mirror and see the perfect me, but I want the whole package, where I can feel comfortable under my own skin.”

A New York State Health Department spokesperson said the department does not comment on matters in litigation and declined to discuss any DOH efforts to promote or support transgender health. But if the ban is repealed, Kim Forte, a lawyer with the Legal Aid Society, says that Cruz and others who have a diagnosis of gender dysphoria or GID “will be able to request medical treatment from the state—just like anyone else who has a medical diagnosis.”