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.
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.”
Are Transgender Laws National or State Specific?
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. States, on the other hand, have different statutes and definitions of hate crime law. As such, transgender laws are state specific.
Twenty-one states and Washington D.C. protect people who are targeted because of real or perceived gender identity or gender expression. But there are no less than fifteen states that have introduced bills to restrict medical procedures and access for trans minors. These 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. And as of February 10, 2023, there have been at least 85 bills introduced this legislative session across several states trying to limit gender-affirming health care. And five states have bills seeking to limit transgender healthcare for adults. The ACLU tracks transgender and overall LGBTQ bills here.
You’ve likely heard that several states are reviewing or have passed legislation restricting medical procedures and 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 seven of these states including Idaho, Texas, Arkansas, Alabama, Mississippi, Tennessee, and Florida passed laws from 2020 to 2022 limiting sports participation based on biological sex.
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.
What Can Transgender People Do to Affirm the Gender They Feel They Are?
Trans individuals have different options to pursue gender-affirming care. These include medical procedures and gender non-conforming practices. Read 2022 treatment guidelines and the standard of care for the health of transgender and gender diverse individuals from the World Professional Association for Transgender Health here. Non-conforming refers to assuming practices that are not usually associated with their gender at birth. For example, they might convey their gender identity via their hairstyle or how they dress, act, speak, or other behavior. Transgender people might change their names as well or select different pronouns. Pronouns might include him, his, her, she, they, them, and more.
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 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.
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.
Download: Steps to Take If You’ve Been Denied Transgender Health Care
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 .
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.
