Insurance coverage of medical treatments for “sex changes” is very controversial. Medicaid coverage of gender identity related conditions is practically a legal field of study unto itself.[i] Like the various definitions of “gender identity,” the rules that control driver’s license and birth certificate amendments, and whether violence against someone is considered a hate crime; health insurance is governed differently in every state.
In Oregon, the Insurance Division of the Department of Consumer and Business Services (division) recently issued a comprehensive bulletin (INS 2012-01)[ii] about health insurance coverage of medical treatments for gender identity/gender dysphoria (GI/GD) (see discussion of meaning below, Principle #4). I will use the framework of this guidance to highlight some of the legal and practical inconsistencies that concern me about the socially constructed intersection of sex and gender and what it means to consider gender non-conformity a medical anomaly. Insurance coverage of GI/GD is strategically oversimplified in political discourse as a matter of “fairness” and “equality” (an emotional appeal to our collective sense of justice), but the issues are actually much more complicated and have serious implications for biological determinism and sex stereotyping.
TO: All Insurers Transacting Insurance in Oregon (December 19, 2012)
RE: Application of Senate Bill 2 (2007 Legislative Session) to Gender Identity Issues in the Transaction and Regulation of Insurance in Oregon
The bulletin contains six guiding principles interpreting the proper application of the state’s “gender identity” anti-discrimination protections to health insurance policies. In short, medical treatments for GI/GD–from mental health counseling and synthetic hormone replacement to surgeries– must be covered at all times and without restriction.
Principle #1: An insurer may not discriminate on the basis of an insured’s or prospective insured’s actual or perceived gender identity, or on the basis that the insured or prospective insured is a transgender person.
Principle #1 is broken down into 4 finer points, including the mandate that an insurer may not “designate GI/GD as a preexisting condition for which coverage will be denied or limited.” I agree with this. Preexisting condition exclusions and limitations should be illegal. Life is a preexisting condition! The industry standardization of these exclusions represents widespread profiteering at the expense of human dignity and health. They concern me, especially when inconsistently applied.
As I was researching preexisting conditions in Oregon,[iii] I discovered that the state has a program called the Oregon Medical Insurance Pool (OMIP). It’s a health insurance plan for people with preexisting medical conditions for whom private insurance premiums are prohibitively expensive. Ironically, the OMIP itself limits coverage for preexisting conditions in the first six months of enrollment. These preexisting conditions include pregnancy, a female-specific condition. From their website:
Q. I have not had insurance for years. I am pregnant and need insurance coverage. Can OMIP help me?
A. Maybe. Again, the OMIP benefit plans have a six-month limitation for pre-existing conditions (except HCTC), including pregnancy. Therefore, depending on when your baby is delivered (regardless of when the due date is), you may be covered. If the baby is delivered after you have had your policy in force for six months or more, you would be covered for that delivery.[iv]
Pretty harsh. Even if you have a high-risk pregnancy or a premature birth, OMIP will not cover you in the first six months of your policy. So, according to the state of Oregon, pregnancy can be designated as a preexisting condition, but GI/GD cannot be. This arrangement doesn’t make sense for a number of reasons. Pregnancy is a temporary condition with a known end (it is often defined as a short term disability). Within the biologically limited timeframe of gestation, pregnancy is an escalating condition that commonly requires treatment more urgently in its later stages than its early ones. Pregnancy can be physically, urgently life-threatening. GI/GD, on the other hand, is a long term, chronic condition. The medical treatment for GI/GD, including plans for “sex change” surgery, is an evolutionary process, often taking years. GI/GD is not directly, physically life-threatening. But Oregon’s legal priorities have been clearly established: it is more important to ensure immediate, continuous medical coverage for GI/GD than for a common, female-specific health condition that represents the main event of human reproduction. I think that is a human rights violation.
Principle #2: A health insurer may not deny or limit coverage or deny a claim for a procedure provided for GI/GD if the same procedure is allowed in the treatment of another non-GI/GD-related condition.
This attempt at “equality” may sound reasonable on first read, but let’s back it up a step: payment of health insurance benefits always turns on the meaning and application of medical necessity for any particular treatment. The bulletin further explains:
For example, if an insurer provided coverage for breast reduction surgery to alleviate back pain, the insurer could not deny breast reduction surgery for gender reassignment purposes so long as the treatment is deemed medically necessary. This places an insured who is seeking coverage of a condition related to GI/GD on equal footing with any other person by basing the decision about coverage on medical necessity, not on GI/GD. . .
First, a finding of medical necessary to relieve the symptoms of one condition does not logically validate or lend credence to the idea that the same intervention is medically necessary and/or effective at treating a wholly different condition. But secondly, in this example, major surgery on the physical source of back pain is analogized to the use of major surgery on the same body part to relieve a physically unrelated mental condition. GI/GD seems to be the singular exception to the rule that establishing medical necessity for physical interventions on otherwise healthy body parts is logically inconsistent.[v] The “brain sex” theory of transsexualism[vi] has been thoroughly[vii] debunked,[viii] but social and legal opinion has been slow to catch up because political power and money is concentrated in the hands of those whose agenda is harmed by this evidence (I am mostly referring to the misplaced interests of LGBT organizations).[ix]
Female transsexuals undergo mastectomies, but a common “treatment” for male transsexualism (or GI/GD) is breast implants. I want to ask what would happen if Oregon’s mandate were applied to Medicare (which it doesn’t because Medicare is a federal program). Medicare is a bit more discerning in its coverage rules:
Medicare doesn’t cover cosmetic surgery unless it’s needed because of accidental injury or to improve the function of a malformed body part. Medicare covers breast prostheses if you had a mastectomy because of breast cancer. [x]
By comparison, Oregon’s bulletin effectively requires coverage of breast prostheses for everyone, not just those females who have suffered physically objective health problems so extreme that they ultimately required a mastectomy. Instead of being able to limit coverage to instances of breast reconstruction (following the medically necessary removal of naturally formed breasts for life-saving purposes), the state of Oregon now expects private health insurance carriers to cover breast prostheses for anyone who “needs” breasts for the first time as a result of their aberrant “gender identity” even while the body itself functions normally and naturally.
I’m concerned about how medical necessity is applied to current conceptions of gender identity. If gender identity and/or gender dysphoria (GI/GD) medically necessitates physical changes to the body, then certain “gender identities” are medically consistent with particular kinds of bodies. In other words, there is a “right” and a “wrong” way to embody gender. Depending on one’s “gender identity,” certain sex-specific body parts can be diagnosed as erroneous and, therefore, in need of medical treatment or correction. Contrast this with the radical idea that gender non-conformity is a sociologically foreseeable departure from, and/or individually calculated resistance to, rigid gendered conditioning.
The medicalization of gender non-conformity is consistent with and legitimizes compulsory heteronormativity. Changing the sexed appearance of one’s body to accommodate society’s expectations of “man” or “woman” does not challenge the status quo; it is a capitulation to and reinforcement of the stereotypes that limit these social categories in the first place. As a female who violates certain gender norms and as a woman who cares about women’s freedom to express themselves without “gender” related limitations, the medicalization of gender non-conformity deeply concerns me.
[ix] I believe it’s only a matter of time before the law catches up to the latest scientific skepticism about biological bases for gender non-conformity (i.e., there isn’t one). The studies relied on to substantiate the currently popular neurological theories about transsexualism are no longer worthy of the authority they were once granted. As a litigation strategy, this will ultimately become a “battle of the experts.”