by Kristie L. Seelman and Brendon T. Holloway, 2021
DOI: https://doi.org/10.4135/9781544393858
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Table of Contents
- History of Trans Health Care Access and Legal Issues
- Transition-Related Care
- Gatekeeping
- Negative Experiences With Health Insurance
- Denying Health Care to Trans Youth
- Current Legal Issues With General Health Care
- Discrimination in Health Care Services
- Discrimination in Insurance Coverage
- Disclosure of Protected Health Information
- Legal Issues With Providers
- Discrimination by Medical Providers
- Legal Issues With Health Care Programs and Insurance Coverage
- Documentation
- An Intersectional Perspective on Legal Issues in Health Care
- Further Readings
- Metadata
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Access to health care is a critical issue for many trans people. Yet, barriers abound, and discrimination continues to be a major problem. This entry details examples of legal issues related to trans health care access over time, including access to transition-related and general health care and discrimination based on trans identity. In the sections that follow, legal issues for various health care programs and policies are discussed, including the Affordable Care Act, Medicaid, Medicare, and health care for incarcerated people. In addition, the entry provides information about related documentation barriers as well as intersectional considerations with health care access.
History of Trans Health Care Access and Legal Issues
Trans people’s access to health care across history has been rife with stigma and barriers, including the pathologization of gender diversity in medicine. Throughout the 20th century, myriad medical treatments were tried (and failed) to “cure” gender nonconformity, including prefrontal lobotomy, electric shock therapy, reparative therapy, and pharmaceuticals. Viewing trans identities akin to an “infectious disease” is now commonly acknowledged by medical professionals as inappropriate, ineffective, and harmful to patients. Nonetheless, there are continued efforts to promote harmful, unproven practices, such as reparative therapy for youth, which is still the subject of proposed legislation in some U.S. states as of early 2021.
Transition-related care, including hormone therapy and transition-related surgeries (e.g., breast augmentation, hysterectomy, vaginoplasty, orchidectomy), has developed over time and been supported by a variety of medical professionals as being important for trans individuals. Magnus Hirschfeld of Germany (1868–1935) was one of the first doctors who surgically altered patients’ genitalia. By the early 1920s, some doctors in the United States were carrying out castrations or hysterectomies for patients desiring to live as another gender, and endocrinologist Harry Benjamin was administering hormone therapy to patients as early as the 1930s. For the next 20 years, only a few American doctors were known to perform sex reassignment surgery on patients who were not intersex. Benjamin helped trans patients connect with surgeons who would perform genital plastic surgery, although this was difficult at the time, as multiple U.S. states as well as European countries banned such surgeries. In 1949, Edmund Brown, the attorney general of California, issued a decision that genital surgeries contributed to “mayhem” by harming healthy tissue, arguing that such procedures should be illegal. This ruling also contributed to the difficulties of making genital surgeries more widely available. Thus, some of Benjamin’s work supporting trans patients had to be conducted clandestinely.
Throughout this history, cisgender (those who are not trans; cis) scientists and medical providers were generally the ones controlling the types of health care that trans patients could access. In the mid-20th century, cis psychiatrists were still often critical of gender-affirming surgeries and believed that transsexual individuals had a mental disorder that could not be addressed through surgery. Physicians educated on genital plastic surgeries regularly denied trans people access. By 1979, a group of researchers, physicians, and therapists developed the Harry Benjamin International Gender Dysphoria Association, now called the World Professional Association for Transgender Health (WPATH). During the 1980s, WPATH played a role in challenging legal barriers and discrimination affecting trans patients who wished to transition, such as local laws requiring transitioning individuals to be sterilized or to divorce their spouses.
With the emergence of the HIV/AIDS epidemic in the 1980s and 1990s, trans people were greatly affected and subjected to a systemic lack of attention by medical professionals and government. Trans individuals living with HIV were among those engaged in activist groups such as ACT-UP, Queer Nation, and Transgender Nation that drew attention to HIV/AIDS and the need for interventions. There are numerous other examples of trans activists pushing for changes to legal issues related to health care. For example, in 1986, Louis Sullivan, a gay trans man, created FTM International and lobbied the American Psychiatric Association and WPATH to eliminate sexual orientation (being heterosexual) as a qualifier for supporting gender transition.
WPATH played a role in challenging the use of pathologizing diagnostic codes for trans people to access transition-related health care. When gender identity disorder was added as a diagnosis to the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1980 (a publication of the American Psychiatric Association that classifies mental health disorders), it was based on a stigmatizing understanding of trans identities stemming from Freudian and Eriksonian psychodynamic theories. The most recent versions of the DSM (DSM-5), WPATH Standards of Care (Version 7), and International Classification of Diseases all use categorizations and medical codes that are intended to be nonpathological means for indicating the need for transition-related care. WPATH identified the phrase “gender dysphoria” to describe the distress caused by a mismatch between gender identity, gender expectations, and sex assigned at birth and identified criteria through which this condition could be diagnosed and medical treatments offered to contribute to a therapeutic process. Yet, this diagnostic code often means that access to gender-affirming treatment hinges upon the gatekeeping of medical professionals, particularly (cis) mental health professionals. Some trans leaders and medical professionals advocate for the use of an informed consent model, which prioritizes the patient’s ability to fully understand the ramifications of and consent to gender-affirming treatments rather than relying on the mental health provider to give permission after an assessment for readiness to transition.
Transition-Related Care
Trans people’s access to health care across history has been rife with stigma and barriers, including the pathologization of gender diversity in medicine. Throughout the 20th century, myriad medical treatments were tried (and failed) to “cure” gender nonconformity, including prefrontal lobotomy, electric shock therapy, reparative therapy, and pharmaceuticals. Viewing trans identities akin to an “infectious disease” is now commonly acknowledged by medical professionals as inappropriate, ineffective, and harmful to patients. Nonetheless, there are continued efforts to promote harmful, unproven practices, such as reparative therapy for youth, which is still the subject of proposed legislation in some U.S. states as of early 2021.
Transition-related care, including hormone therapy and transition-related surgeries (e.g., breast augmentation, hysterectomy, vaginoplasty, orchidectomy), has developed over time and been supported by a variety of medical professionals as being important for trans individuals. Magnus Hirschfeld of Germany (1868–1935) was one of the first doctors who surgically altered patients’ genitalia. By the early 1920s, some doctors in the United States were carrying out castrations or hysterectomies for patients desiring to live as another gender, and endocrinologist Harry Benjamin was administering hormone therapy to patients as early as the 1930s. For the next 20 years, only a few American doctors were known to perform sex reassignment surgery on patients who were not intersex. Benjamin helped trans patients connect with surgeons who would perform genital plastic surgery, although this was difficult at the time, as multiple U.S. states as well as European countries banned such surgeries. In 1949, Edmund Brown, the attorney general of California, issued a decision that genital surgeries contributed to “mayhem” by harming healthy tissue, arguing that such procedures should be illegal. This ruling also contributed to the difficulties of making genital surgeries more widely available. Thus, some of Benjamin’s work supporting trans patients had to be conducted clandestinely.
Throughout this history, cisgender (those who are not trans; cis) scientists and medical providers were generally the ones controlling the types of health care that trans patients could access. In the mid-20th century, cis psychiatrists were still often critical of gender-affirming surgeries and believed that transsexual individuals had a mental disorder that could not be addressed through surgery. Physicians educated on genital plastic surgeries regularly denied trans people access. By 1979, a group of researchers, physicians, and therapists developed the Harry Benjamin International Gender Dysphoria Association, now called the World Professional Association for Transgender Health (WPATH). During the 1980s, WPATH played a role in challenging legal barriers and discrimination affecting trans patients who wished to transition, such as local laws requiring transitioning individuals to be sterilized or to divorce their spouses.
With the emergence of the HIV/AIDS epidemic in the 1980s and 1990s, trans people were greatly affected and subjected to a systemic lack of attention by medical professionals and government. Trans individuals living with HIV were among those engaged in activist groups such as ACT-UP, Queer Nation, and Transgender Nation that drew attention to HIV/AIDS and the need for interventions. There are numerous other examples of trans activists pushing for changes to legal issues related to health care. For example, in 1986, Louis Sullivan, a gay trans man, created FTM International and lobbied the American Psychiatric Association and WPATH to eliminate sexual orientation (being heterosexual) as a qualifier for supporting gender transition.
WPATH played a role in challenging the use of pathologizing diagnostic codes for trans people to access transition-related health care. When gender identity disorder was added as a diagnosis to the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1980 (a publication of the American Psychiatric Association that classifies mental health disorders), it was based on a stigmatizing understanding of trans identities stemming from Freudian and Eriksonian psychodynamic theories. The most recent versions of the DSM (DSM-5), WPATH Standards of Care (Version 7), and International Classification of Diseases all use categorizations and medical codes that are intended to be nonpathological means for indicating the need for transition-related care. WPATH identified the phrase “gender dysphoria” to describe the distress caused by a mismatch between gender identity, gender expectations, and sex assigned at birth and identified criteria through which this condition could be diagnosed and medical treatments offered to contribute to a therapeutic process. Yet, this diagnostic code often means that access to gender-affirming treatment hinges upon the gatekeeping of medical professionals, particularly (cis) mental health professionals. Some trans leaders and medical professionals advocate for the use of an informed consent model, which prioritizes the patient’s ability to fully understand the ramifications of and consent to gender-affirming treatments rather than relying on the mental health provider to give permission after an assessment for readiness to transition.
Gatekeeping
According to the WPATH Standards of Care, it is recommended that a trans person receive a letter, or multiple letters, from a mental health provider to access transition-related care. Unless a medical provider operates under an informed consent model, many health care organizations and university hospitals require a letter from a mental health provider to schedule various gender-affirming surgeries or to prescribe hormones. If a mental health provider has an issue with a trans person accessing care or does not support someone who is transitioning, they may decline to write a letter, resulting in the trans person’s having to find a different provider. This is a barrier for trans people who need a life-changing or even lifesaving procedure and can be referred to as gatekeeping. Gatekeeping is when someone in a position of power decides who does or does not have access to something. Gatekeeping particularly affects the lives of trans people who hold multiple marginalized identities, such as being Black or brown, poor, or having a disability.
Negative Experiences With Health Insurance
According to the 2015 United States Transgender Survey (USTS), which surveyed over 27,000 trans adults, 55% of respondents who submitted a request to their insurance company were denied coverage for a transition-related surgery, and 25% were denied coverage for transition-related hormone therapy. Another issue trans people often face with insurance companies is a refusal to update or change legal documentation. The USTS found that 17% of trans people had an insurer refuse to change their name and/or gender marker in their insurance record. This can result in a denial for transition-related coverage due to gender not aligning with the procedure or service requested. An example of this is that if a trans man needs testosterone for HRT, the insurance may deny the request if the insurance record states that the patient’s sex is female.
Denying Health Care to Trans Youth
In 2020, legislators in 10 states introduced bills that would criminalize lifesaving medical care for trans youth. These bills focus on hormone replacement therapy or, in some cases, all transition-related care, insisting that trans youth are too young and incapable of making a decision that will affect them long term. Should any of these bills pass, medical providers could lose their state license or face criminal charges for providing transition-related care to youth, even with parental consent.
Current Legal Issues With General Health Care
Beyond transition-related care, trans people need access to other health services, from primary care and emergency care to specialists, prescription medications, and nursing homes. Since the early 2000s, legal protections to ensure such access have expanded, although there remains a frequently changing patchwork that depends on the priorities of presidential administrations and legislative bodies. The 2010 Affordable Care Act (ACA) made it illegal for most health providers and organizations to discriminate against trans people. Such protections extend to doctors’ offices, health clinics, rape crisis services, nursing homes, and home health providers, among other settings. Through the ACA, trans patients should not be treated differently than other patients, should not be refused care or charged more, and should not be forced to undergo unnecessary examinations or reparative therapy. Furthermore, trans patients should be able to access care and services that match their gender identity. Nonetheless, trans people continued to regularly experience mistreatment in the medical system after the ACA’s implementation.
In 2020, the Trump administration ordered rule changes to the ACA that removed prohibitions against discrimination based on gender identity and sexual orientation. But these changes were reversed by the Biden administration, based on the Supreme Court having ruled in 2020 that the prohibition against sex discrimination in employment in Title VII of the Civil Rights Act of 1964 includes discrimination based on gender identity and sexual orientation. The decision set a precedent for trans people being covered under laws banning sex discrimination in other areas, including health care. Indeed, a district court in Minnesota ruled in 2015 that the ban on sex discrimination in the ACA includes discrimination based on gender identity.
Discrimination in Health Care Services
Many medical schools still provide little if any information about effectively serving trans patients, and providers who espouse transphobic beliefs may feel little impetus to treat trans patients in an affirming and equitable manner without legislative or institutional policies in place. Some entities have initiated their own policies; for example, the Joint Commission Hospital Accreditation Standards prohibit discrimination against trans patients.
Numerous legal cases have addressed the issue of trans discrimination in general health care. The 2016 case Prescott v. Rady Children’s Hospital focused on a 14-year-old trans boy, Kyler Prescott, who was admitted to a hospital for self-injurious behavior and suicidal ideation after experiencing trans harassment from other youth. Hospital staff continued to refer to Kyler as a girl and use she/her pronouns, even after Kyler’s mother repeatedly corrected them, subjecting him to additional trauma. Kyler was released before the recommended 72-hour period and died by suicide several weeks later. This case was eventually settled with the family but is one indication of how transphobic treatment in mental health care can affect trans patients.
Discrimination in Insurance Coverage
Despite most public and private health insurance plans banning discriminatory practices, insurance discrimination against trans people is not uncommon. In the 2015 USTS, 13% had been denied coverage for services often associated with one gender such as mammograms, and 7% were denied coverage for other routine care.
Disclosure of Protected Health Information
The Health Insurance Portability and Accountability Act (HIPAA) protects the privacy of patients’ health and medical records and applies to most health care providers and insurance programs. Protected information includes one’s identity as trans as well as one’s medical history, diagnoses, anatomy, and sex assigned at birth. Such information is not to be shared without the patient’s consent—including with family members—and should only be disclosed to other medical staff when necessary. Yet, research and legal cases have documented numerous instances of providers who illegally disclose information about trans patients, such as gossiping about a patient’s anatomy or telling family members that the patient is questioning their gender. Such occurrences can be a violation of HIPAA.
Legal Issues With Providers
Discrimination by Medical Providers
A 2019 study in the midwestern United States indicated that increasing providers’ education about trans health may not improve their sensitivity in serving trans patients. This study suggests that the underlying issue is transphobia and that addressing transphobia in medical education is needed to help providers effectively serve trans patients. According to the USTS, 23% of trans people avoided seeking necessary health care for at least 1 year, owing to the fear of being mistreated. In addition to this, trans patients are often placed in educator roles, being expected to teach a provider about trans people. As a result of such situations, trans people are four times more likely to delay needed health care.
Legal Issues With Health Care Programs and Insurance Coverage
The ACA is not the only health care program that affects trans people. Many trans people have served in the U.S. military, and data suggest they may be more likely to serve than the general population—even though trans people were only allowed to openly serve in the military from 2016–2017, when the Obama administration rescinded the trans military ban, and then again in 2021, when the Biden administration lifted the ban reimposed by the Trump administration. Many trans people receive health care through various programs associated with the military, including the Veterans Health Administration (VHA), TRICARE (for active duty service members), and the CHAMPVA program for certain dependents of veterans. The Veterans Administration (VA) has policies in place to prohibit discrimination for trans patients and for ensuring patients are treated according to their gender identity and medical information is kept confidential. Although veterans’ health programs cover mental health care, medically necessary prosthetics (such as dilators and binders), pre- and postoperative care, and hormones related to transitioning, there continues to be a lack of insurance coverage by the VHA, TRICARE, and CHAMPVA for gender-affirming surgeries, which has been the subject of numerous lawsuits. This exclusion continues despite estimations by the RAND Corporation that transition-related health care would constitute an “extremely small” number of cases of active duty service members.
Medicaid policies related to trans patients vary by state according to their interpretations of the federal government’s regulations for this program. As of early 2021, 22 states, Washington, D.C., and Puerto Rico cover transition-related care under Medicaid; 18 states have no policy regarding coverage; and 10 states exclude transition-related care in Medicaid.
Medicare covers medically necessary hormone therapy and gender-affirming surgeries, as well as preventive care (including prostate exams, mammograms, etc.), even when there may be a gender mismatch on medical/billing documents. Private Medicare plans also cover prescription drugs related to hormone therapy. Beneficiary cards for Medicare Parts A and B no longer indicate gender, so one’s records are usually tied to Social Security data (which can be updated); regardless, one’s gender on these records should not affect Medicare coverage. Like coverage for other services through Medicare, transition-related care is evaluated on a case-by-case basis. Certain Medicare contractors and Medicare Advantage plans have their own precise policies for coverage of transition-related care that affect decisions about what care will be covered. The National Center for Transgender Equality encourages trans patients who have a Medicare Advantage plan to seek preauthorization for transition-related care before attempting to access these services. Trans patients sometimes experience denial of coverage for transition-related services as well as other needed care, and in such cases, they are encouraged by advocates to talk with a lawyer and consider filing an appeal to Medicare.
There continues to be a lack of clarity from Medicare about how providers should bill for gender-affirming surgeries, which can create barriers for trans patients. Medicare does not approve payments until after a surgery is completed. This lack of clarity has led some private providers not to accept Medicare as a form of coverage for transition-related care. Thus, many of the gender-affirming surgeries that are performed under Medicare occur at university medical centers because they cannot opt out of Medicare coverage.
When Medicare billing procedures are unclear, doctors may become confused about which billing codes to use and run the risk of not being paid or placing the financial costs on the shoulders of patients. A disproportionate number of trans patients already face significant financial barriers for medical care, as they may live in poverty, be homeless, and/or not be employed outside of the home. Furthermore, while Medicare beneficiaries among the general population are most often aged 65 or older, a 2016 report from the Centers for Medicare & Medicaid Services indicated that 77% of trans beneficiaries were younger than age 65, and 85% of all trans beneficiaries accessed Medicare through disability insurance.
Private health insurance plans have varying policies regarding covering trans patients. As of early 2021, 24 states and Washington, D.C. had laws stating that private insurance plans could not exclude trans patients from services.
Several legal cases have argued that trans prisoners should be treated equitably in health care and have access to transition-related care. All seven of the U.S. circuit courts have noted that gender dysphoria is a serious medical condition, and several courts have recently found that denying medically necessary care for gender dysphoria to prisoners constitutes cruel and unusual punishment. In the case Adams v. Bureau of Prisons, the Bureau reversed an earlier rule that kept trans prisoners from using transition-related care unless they had accessed such care before entering prison. In December 2018, a federal district court decided in favor of a trans woman in Idaho accessing medical care for gender dysphoria. In August 2019, the 9th U.S. Circuit Court of Appeals upheld this ruling, stating that not providing adequate health care to trans prisoners is cruel and unusual punishment.
Documentation
Trans people often need to update their legal documents to reflect their correct name and gender. To change the name listed on a federal or state identification (ID) card, the first step is typically receiving a legal name change from a court. This process varies by state, with some states requiring name changes to be published in a newspaper before a court will grant the name change. To update a gender marker, most states require some form of documentation from a health provider to confirm that a person is transitioning. This must be a provider who has completed a gender-affirming procedure or prescribed or continued HRT. This also varies in each state, and some states will not permit gender marker changes on some forms of documentation, such as birth certificates. Depending on the state, a trans person may have a different gender marker on their state ID card than what is on their birth certificate.
Because of the emotional and financial hardship that may come with updating legal documentation, many trans people do not update their documents. According to the 2015 USTS, 68% of respondents did not have their correct name and gender marker on their legal documents. This likely creates barriers for trans people accessing care because they must present documents in a way that feels inauthentic. This also could result in trans patients being called their former names or being misgendered by medical clinic staff.
An Intersectional Perspective on Legal Issues in Health Care
Trans people’s experiences of health care and related legal issues are affected by the myriad identities they hold and forms of marginalization that affect their lives, above and beyond their status as trans. Black trans women are disproportionately harmed by social systems in the United States. Black trans women are more likely to be murdered, experience violence, and experience police brutality than other trans people. More broadly, people of color are more likely to experience health care discrimination than their white counterparts. Race is a substantial determinant of health care discrimination, particularly for African Americans and Native Americans. In a 2015 study, trans people of color had substantially higher reports of discrimination than white trans people. In the USTS, Middle Eastern and American Indian participants were more likely to report not going to a health care provider because of fear of being mistreated due to being trans. Similar to communities of color, people with lower socioeconomic status (SES) encounter significant barriers when navigating health care systems, including struggles with paying for care out of pocket.
Most research focused on the trans community is binary, with a lack of research on nonbinary identities. Owing to the lack of research, health care providers are not likely well informed about nonbinary patients and their needs. With nonbinary visibility increasing, as of early 2021, 19 states and Washington, D.C., allow people to select an “X” as the gender marker on their driver’s licenses and 13 states enable adults to have an “X” on their birth certificates.
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See Also
See also entries for: Affirmative Therapy; DSM; Gatekeeping in the Transition Process; Health Care, Discrimination; History; Informed Consent Model; Medicine; Nondiscrimination Laws, Federal, State, and Local
Further Readings
Bevan, D. J. (2019). Transgender health and medicine: History, practice, research, and the future. Santa Barbara, CA: Praeger.
Dubov, A., & Fraenkel, L. (2018). Facial feminization surgery: The ethics of gatekeeping in transgender health. American Journal of Bioethics, 18(12), 3–9. doi:10.1080/15265161.2018.1531159
Halbach, S. (2015). Framing a narrative of discrimination under the Eighth Amendment in the context of transgender prisoner health care. Journal of Criminal Law and Criminology, 105(2), 463–497.
Movement Advancement Project. (2020). Healthcare laws and policies. Retrieved from https://www.lgbtmap.org/equality-maps/healthcare_laws_and_policies/map
National Center for Transgender Equality. (n.d.). Know your rights: Health care. Retrieved from https://transequality.org/know-your-rights/health-care
Stroumsa, D., Shires, D. A., Richardson, C. R., Jaffee, K. D., & Woodford, M. R. (2019). Transphobia rather than education predicts provider knowledge of transgender care. Medical Education, 53(4), 398–407. doi:10.1111/medu.13796
Transcend Legal. (n.d.). State health insurance laws and guidance. Retrieved from https://transhealthproject.org/resources/state-health-insurance-laws-and-guidance/
World Professional Association for Transgender Health. (2012). Standards of care for the health of transsexual, transgender, and gender non-conforming people (7th version). Retrieved from https://www-wpath-org.offcampus.lib.washington.edu/
Kristie L. Seelman Brendon T. Holloway
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Metadata
- Author: Kristie L. Seelman, Brendon T. Holloway
- Pub. Date: 2021
- Product: Sage Reference
- DOI: https://doi.org/10.4135/9781544393858
- Keywords: access to health care, legal issues
- Disciplines: Gender & Sexuality (general), Gender & Sexuality, Sociology Access
- Date: July 31, 2023
- Publishing Company: SAGE Publications, Inc. City: Thousand Oaks
- Online ISBN: 9781544393858
Experimenting with what a bot might look like if it posted entries from a trans studies reference encyclopedia
Not sure if it would actually be that useful of a resource, but also Cohost seems to do well with SEO? I'm not sure if search engines will index text under the "read more" break
it would be cool if cohost markdown let me anchor link to other headers within a post for the table of contents, but probably that just indicates the post is too long
open to thoughts & ideas!
