Transgender Health Insurance Denial
Transgender individuals face a variety of challenges starting with internal struggles and feeling uncomfortable in their bodies. They also face outer challenges such as harassment, isolation from others, and general discrimination. Getting gender-affirming medical care can be life-altering. And some states like California mandate insurance coverage for this care. But many health insurance companies deny transgender-related care. This page highlights information about transgender individuals, medical procedures, state laws, and more. We cover what to do if you receive a transgender insurance denial. There is no shame in getting gender-affirming care – in fact, it’s your right. If you receive a transgender health insurance denial, contact the Law Offices of Scott Glovsky. We care about you and have been fighting for the rights of policyholders for over 20 years.
Download: Steps to Take If You’ve Been Denied Transgender Health Care
What is Transgender?
Transgender is a word used to refer to people who are assigned a gender at birth but who identify as something else. (Transgender is also sometimes shortened to “trans.”) For example, someone assigned male at birth may identify as a female or feel as if they are a female. Or someone assigned female at birth may identify as a male. Some transgender individuals don’t identify as male or female. Instead, they may identify as neither male nor female, as both male and female, or as one or the other at different points in time. Other terms for these individuals include genderqueer, nonbinary, genderfluid, no gender, and multiple genders. By contrast, the word “cisgender” describes people who are born in one sex and identify as that same sex.
It is important to note that a person’s gender identity is different from one’s sexual orientation. In other words, being transgender doesn’t say anything regarding an individual’s romantic preference. Sexual orientation refers to a person’s preference for a relationship with a male, female, or both. The term “straight” refers to those attracted to the opposite sex. “Homosexual” or “gay” or “lesbian” refers to individuals attracted to the same sex. A “bisexual” person is attracted to both sexes. And a “transgender” individual could be straight, homosexual, bisexual, or something else.
How Many Americans are Transgender?
A study published in June 2022 estimates that almost 1.64 million Americans age 13 and older identify as transgender. The same study estimates that about 300,000 Americans aged 13 to 17 identify as transgender and that 1.3 million of adults (0.5%) identify as transgender. These numbers have remained steady since the 2016 and 2017 estimates. It is important to note, however, that these numbers likely underestimate the true number of transgender individuals. The reason is that the survey measurement terms weren’t ones that all transgender individuals use. Also, there are likely transgender people who do not publicly acknowledge or express their gender identity.
What is Gender Dysphoria?
People have gender incongruence when they experience incongruence between their gender at birth and the gender they identify with. Gender incongruence is a sexual health condition. People experience gender dysphoria when they suffer and feel distress from their gender incongruence. Gender dysphoria may show up as irritability, depression, anxiety, or other changes in behavior. Oftentimes trans youth have gender dysphoria. Treatments for this dysphoria include seeing a mental health professional and expressing the gender they feel they are. They might do this by changing their names, making behavioral changes such as dressing differently or undergoing medical procedures.
Gender dysphoria, formerly called, “gender identity disorder,” is a medical diagnosis defined by the Diagnostic and Statistical Manual of Mental Disorders. DSM is the American Psychiatric Association’s handbook of official diagnoses. The World Health Organization also acknowledges gender dysphoria. And in a 2008 resolution, the American Medical Association recognized that gender dysphoria (then referred to as GID) is a “serious medical condition” with symptoms including “distress, dysfunction, debilitating depression and, for some people without access to appropriate medical care and treatment, suicidality and death.”
What Transgender Laws Are State Specific?
Twenty-four states and Washington D.C. protect people who are targeted because of real or perceived gender identity or gender expression. However, transgenders have been targeted in many states. As of April 18, 2023, there were over 400 anti-transgender bills introduced across the United States. Anti-trans bills range from proposing to criminalize surgeries and treatments, to forcing parental consent for trans medical care, to categorizing some transgender-related healthcare as child abuse. The ACLU tracks transgender and overall LGBTQ bills here.
As of August 26, 2024, twenty six states had laws and/or policies that limit 13-17 year olds’ access to gender affirming care (GAC). These states include Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming. These states represent over thirty eight percent of all transgender 13-17 year olds. The majority of these states have legal or professional penalties for healthcare practitioners who provide GAC to minors and six states as of August 2024 make it a felony to provide some forms of best practice medical care to transgender youth. Sixteen states have lawsuits that challenge state laws and/or policies limiting 13-17 year olds’ access to gender affirming care. On April 15, 2024, the Supreme Court temporarily permitted an Idaho ban of gender-affirming care for minors. Idaho’s law “Vulnerable Child Protection Act” stipulates that medical practitioners who give medical care to transgender teens commit a crime.
You’ve likely heard that several states are reviewing or have passed legislation restricting the inclusion of trans minors on sports teams. In fact, thirty-seven states in 2021 introduced bills to limit participation in college and high school sports teams based on “biological sex.” And as of September 2023, twenty-three states ban transgender students from participating in sports consistent with their gender identity.
In terms of transgender adults, seven states including Alabama, Arkansas, Florida, Mississippi, Montana, Nebraska and North Carolina limit trans healthcare in some fashion.
Are There National Transgender Laws?
Federal hate crime laws include race, religion, color, national origin, sexual orientation, gender, disability, and gender identity. That said, these laws apply to federal cases only, not to state cases. There are some national policies inclusive to transgender individuals. Americans can mark their gender as “X” in addition to male or female on passports. As of October 19, 2022, the Social Security Administration allows individuals to place the gender they identify with in records without supporting legal or medical documentation. And the Transportation Security Administration offers a gender “X” option for its Trusted Traveler Program.
The Equal Employment Opportunity Commission (EEOC) issued new workplace discrimination guidance on April 29, 2024. In this guidance, companies could be considered to be creating a hostile work environment if they call employees by incorrect names or pronouns. In addition, companies might be committing workplace harassment if they deny employees access to a sex-segregated facility like a bathroom or changing room based on these employees’ appropriate gender identities.
What Can Transgender People Do to Affirm the Gender They Feel They Are?
Trans individuals have different options to pursue gender-affirming care including social, behavioral, psychological, and medical procedures. Social and behavioral aspects include assuming a different name and/or pronoun(s). Other non-conforming elements incorporate presenting oneself as a preferred gender via hairstyles, clothes, actions, speech, or other behavior. Psychological aspects may include therapy or counseling. Often an initial medical step is getting puberty blockers and/or hormones. (Some but not all of the resulting changes from using these are reversable.) Read treatment guidelines and the standard of care for the health of transgender and gender diverse individuals from the World Professional Association for Transgender Health and from the Endocrine Society.
What are Transgender Medical Procedures?
There are many transgender medical procedures. These gender-affirming procedures include the list below.
Hormone therapy – This is the main medical treatment that transgender individuals get. This therapy helps align sex characteristics with one’s gender identity. Hormone therapy may include puberty blockers.
Surgeries
- Augmentation Mammoplasty – creation of breasts
- Feminizing vaginoplasty – creation of a vagina
- Vaginectomy – removal of the vagina, also performed for vaginal cancer
- Hysterectomy / Oophorectomy – removal of female organs including the uterus and ovaries
- Masculinizing Phalloplasty / Scrotoplasty / Metoidioplasty – creation of a penis, scrotum, female to male reassignment surgery
- Orchiectomy – removal of testicles, also performed for testicular cancer
- Scrotectomy – complete or partial removal of the scrotum
- Top Surgery – creation of a masculine or feminine chest
- Facial Gender Surgery – masculinization, feminization, nonbinary
- Reduction Thyrochondroplasty – shaving tracheal cartilage
- Voice Surgery – speech modifications including intonation, pitch, stress patterns, and others (there are also non-surgical approaches to voice modification)
Facial Hair Removal – removal of hair
Genital Tucking and Packing, And Chest Binding – non-surgical approaches to gender affirmation
Is Transgender Care Medically Necessary?
Several organizations consider transgender-related care, or gender affirming care, to be medically necessary. Sometimes trans-related care is also lifesaving. These organizations include the American Medical Association, the American Academy of Family Physicians, the American Academy of Pediatrics, the American Psychological Association, the National Association of Social Workers, and the World Professional Association for Transgender Health (WPATH).
The American Medical Association’s 2008 resolution acknowledges “an established body of medical research” that “demonstrates the effectiveness and medical necessity of mental health care, hormone therapy, and gender-affirming surgery as forms of therapeutic treatment for many patients diagnosed with [gender dysphoria].” Other groups including those listed above have similar policy statements.
American courts have recognized gender dysphoria as a legitimate medical condition with real medical needs many times. And they acknowledge that mental health therapy is often not sufficient, and that surgery might be the only useful treatment.
Does the Affordable Care Act Protect Gender Dysphoria Treatments?
The ACA prohibits discrimination based on sex, gender identity, and sexual orientation. Several states including California, Oregon, Colorado, Illinois, Connecticut, Maryland, New York, Vermont and Washington D.C. have sent “insurance bulletins” to private insurance companies telling them that state law prohibits discrimination against transgender members. On April 26, 2024, HHS finalized a rule (section 1557 of the Affordable Care Act) that reinstates federal protections (removed by the previous administration) for transgender and LGBTQ individuals. The rule outlines nondiscrimination standards that organizations that receive federal health funding, health insurers, groups that do business with government plans, and others must adhere to. Section 1557 bans healthcare practitioners from discrimination based on color, race, national origin, sex, age, and disability in all health programs that receive federal funds. The definition of sex discrimination includes both gender identity and sexual orientation.
On April 29, 2024, a federal appellate court ruled that state healthcare plans must cover gender-affirming surgeries. Restrictions to this coverage discriminate based on gender and sex, violations of the Affordable Care Act’s anti-discrimination provision.
Do Medicare and Medicaid Cover Gender Dysphoria Treatments?
People on Medicare are somewhat protected in that they cannot be automatically denied for gender-affirming surgeries. Medicaid is different, however, because it is run by each state.
Medicaid programs cover low-income individuals and families, pregnant women, disabled people, and the elderly. Twenty-six states, Puerto Rico and Washington D.C. have Medicaid programs that cover trans-related healthcare. Fifteen states and four territories have no Medicaid policy on transgender care. And Medicaid’s policy in nine states including Arizona, Texas, Nebraska, Missouri, Arkansas, Tennessee, Kentucky, Ohio and Florida excludes transgender health coverage.
California (aka Medi-Cal), Oregon, Massachusetts, Washington D.C. and Vermont Medicaid programs cover transgender-related care. This care includes gender reassignment surgery.
In terms of medical care bans, three states including Arizona, Arkansas and Alabama have state laws that restrict or ban best practice transgender minor medical care. In fact, Arkansas law considers this care for trans minors a felony. Forty-seven states, five territories and Washington D.C. don’t ban best practice medical care for trans minors.
Can Health Insurance Deny Transgender Care?
Twenty-four states and Washington D.C. have laws that prohibit insurance companies from denying transgender care. Fifteen states, one territory and Washington D.C. have laws or guidance from regulators preventing private insurance companies from denying care based on gender identity or sexual orientation. Seven states ban denying care based on gender identity only. Twenty-seven states don’t have any LGBTQ insurance protections. And Arkansas law allows insurers to deny gender-affirming healthcare.
Does California Protect Transgender Insurance Coverage?
The short answer is yes, California protects trans individuals in their insurance policies.
Under California law, health insurance companies may not discriminate based on a person’s sex, gender identity or gender expression in any of the following ways:
- Refuse to issue a health insurance policy (Health & Safety Code §1365.5(a))
- Impose limitations, exceptions, exclusions, reductions, copayments, coinsurance, deductibles, or reservations (Health & Safety Code §1365.5(b))
- Impose premium, price, or charge differentials (Health & Safety Code §1365.5(b))
- Cancel or refuse to renew or reinstate your health insurance policy (Health & Safety Code §1365.5(a))
In addition, your health insurance company cannot deny or limit coverage or deny a claim for the following services because of your actual or perceived gender identity or because you are transgender:
- Health care services related to gender transition if coverage is available for those same services under the policy when the services are not related to gender transition. This includes but is not limited to hormone therapy, hysterectomy, mastectomy, and vocal training.
- Any health care services that are ordinarily or exclusively available to individuals of one sex, when the denial or limitation is due only to the fact that you are enrolled as belonging to the other sex or have undergone, or are in the process of undergoing, gender transition. (Cal. Code Regs., tit. 10, § 2561.2(a)(4)(A)&(B))
Life and disability companies may not discriminate based on a person’s sex, gender identity or gender expression in any of the following ways:
- Refuse to issue you a life or disability insurance policy (Insurance Code §10140(a))
- Impose conditions on your life or disability insurance policy (Insurance Code §10140(a))
- Cancel your life or disability insurance policy (Insurance Code §10140(a))
California Transgender Protections Added in September 2022
On September 29, 2022, Governor Newsom signed Senate Bill 107 into law. This law protects transgender kids under the age of 18 and their families from being punished by their home states when they come to California for gender-affirming care. This law prevents California healthcare companies from providing medical information. And it prohibits courts from enforcing subpoenas from other states regarding gender-affirming care for minors.
On September 29, 2022, Governor Newsom signed Senate Bill 923 into law. California is the first state in the country to require professional standards and training for healthcare practitioners for their trans patients. Health insurance companies must also reveal in their network directories which practitioners provide gender-affirming care .
California Transgender Protections Added in September 2023
These are a small number of several new LGBTQ laws that go into effect as early as January 1, 2024:
- SB 345: Protects California healthcare practitioners when they provide reproductive or gender affirming services in the state to all patients, regardless of which state a patient lives in. This law shields providers and individuals from other states’ criminal laws.
- AB 571: Forbids insurance companies from discriminating against reproductive and gender affirming healthcare practitioners.
- AB-223: The Transgender Youth Privacy Act requires courts to seal petitions for a gender change or sex identifier filed by a minor.
- SB-760: All California K-12 schools must provide accessible all-gender restrooms.
- SB-407: Foster families must demonstrate they can meet the needs of children regardless of their sexual orientation, gender expression, or gender identity.
2024 California Enforcement of Gender Dysphoria Services
On August 15, 2024, California’s Department of Managed Healthcare (DMHC) fined Blue Cross of California $850,000 for illegally limiting gender dysphoria medical care. This fine was broken out between Anthem Blue Cross ($450,000) and Blue Cross of California Partnership Plan, Inc. ($400,000). Gender dysphoria health care services are protected under California’s insurance Gender Nondiscrimination Act (IGNA) in which health insurance plans must give transgender individuals the same healthcare coverage that non-transgender people receive. But Blue Cross of California illegally withheld laser hair removal/electrolysis, voice therapy, voice modification surgery, and facial feminization procedures. The Blue Cross plans agreed to complete corrective action plans to prevent these exclusions in the future.
What Should I Do If I Receive a Transgender Health Insurance Denial?
First, review your state’s health insurance coverage laws. As you can see here, there are many states in which health insurers must cover trans-related healthcare. Unfortunately, even in states mandating trans healthcare coverage, some insurers still deny claims.
Sometimes, insurers deny claims because they consider a procedure “sex specific” and the policyholder signed up as a different gender. Other times, denials stem from the absence or inadequacy of ICD medical diagnosis and procedure codes. The International Statistical Classification of Diseases and Related Health Problems (ICD) classifies health conditions, disorders, diseases, and more. Physicians submit ICD codes to health insurance companies to get reimbursed for patient care. One challenge is that gender dysphoria is classified as a mental health disorder in ICD-10, the version American doctors use. ICD-11, however, classifies gender incongruence as a sexual health condition. As such, transgender care at times is considered mental healthcare as opposed to physical healthcare. And even though the Mental Health Parity Act says they are supposed to be treated the same, insurance companies sometimes scrutinize mental healthcare claims more than physical healthcare claims.
My State Covers It, But I Still Received a Transgender Health Insurance Denial
If your state covers trans-related care, you can appeal your insurance company’s denial. Before you appeal, however, determine if you have an ERISA or non-ERISA plan. ERISA stands for Employment Retirement Income Security Act of 1974. Most health plans offered by private employers are ERISA plans. But there are exceptions. Non-ERISA plans include government employee plans, religious organization plans, and business plans that only insure business owners (and their families). Other plans that are non-ERISA include individual and family plans purchased through healthcare.gov or through private insurers such as Blue Shield and Anthem Blue Cross.
You have fewer options with an ERISA plan than with a non-ERISA plan. With an ERISA plan, you should file an appeal because you are required to complete your administrative remedies. It’s a good idea to speak with a highly experienced health insurance attorney before you file your appeal. Learn more about steps to take with ERISA plans here. But if you have a non-ERISA policy, you have more options. It is best to speak with a qualified lawyer before you take next steps with your insurer. Learn about the non-ERISA appeals process here.
Contact Law Offices of Scott Glovsky if You Receive a Transgender Health Insurance Denial
Southern California-based Law Offices of Scott Glovsky has been fighting for the rights of health insurance policyholders for more than twenty years. Scott Glovsky is recognized as one of the most experienced, well-respected, and trusted insurance lawyers in the country. We have helped many patients get the care they need. Results of our cases have impacted millions of California insurance policyholders by forcing insurance companies to change their behavior – including their processes of reviewing requests for medically necessary care.
*Information on this page was collected in September 2022. Numbers will likely change in future timeframes.