Laws Affecting Health Plan Coverage for Gender-Affirming Care: Continued Shortcomings at the Federal Level and a Role for Progressive States

Abstract

Gender-affirming health care, sometimes called transition-related care, encompasses a wide range of medical services that many transgender people rely on to help them safely transition to living lives consistent with their gender identity. Individuals’ needs differ; some transgender individuals, in consultation with their doctors, will end up needing more extensive treatments than other transgender folks. But at least two things are common to all transgender people who find themselves in need of gender-affirming care: (1) the overwhelming consensus among doctors is that such care is “medically necessary”—a term of art in the insurance industry—and yet (2) it has been, and continues to be, challenging in many instances for transgender people to convince their health plans to cover the cost of the care. Those challenges, in turn, delay or impair transgender people’s capacity to address the stigma and emotional distress caused by societal gender norms. And that stigma and distress contributes to, among other things, the extraordinarily high rates of suicide attempts within the transgender community. Picture, for example, a transgender woman who has lived her life as a woman for years and undergone some surgical procedures to transition. She asks her doctor whether insurance will cover hair removal treatments and voice feminization therapy to address issues of deep concern to her. Her doctor says that, although the treatments would be medically indicated, insurance payments would depend on what her health plan covers. Could the health plan administrators deem the treatments “cosmetic” and thus not “medically necessary” and not covered? Would they do so? Who would be involved in that decision? If they deny it, what options would the woman have? How onerous would those options be, and how likely would they be to result in a reversal? The answers to those questions and others are often nonexistent, confusing, or inconsistent. This story, while familiar to all who navigate the American healthcare system, is especially pronounced in the context of gender-affirming care. Whether and to what extent American health plans cover and are required to cover gender-affirming care remains largely up in the air. On the surface, yes, progress has been made. But like so much in America’s byzantine system, the devil is in the details, many of which lurk in obscurity and complexity. Direct discrimination against transgender people is nominally illegal in many states and now also, at least to some degree, at the federal level. Further, the federal Affordable Care Act (“ACA”) now ensures a certain degree of independent review of coverage claims that are denied. But beneath the surface, several factors persist in permitting unpredictable and unjust denials of coverage for gender-affirming care. This Article discusses those factors and how they fit into the federal system of healthcare regulation in the post-ACA world. Then, in light of congressional dysfunction and the current bent of the federal courts, this Article looks for solutions not from the federal government but instead from progressive states, exploring the crucial ways in which states are able to—and have already started to—expand upon federal protections and fill the gaps.