Americans have dueling and irreconcilable expectations of the healthcare industry. On the one hand, they believe that access to healthcare should be an affordable and accessible entitlement—their privilege as American citizens. On the other hand, when Americans seek treatment, they expect it to be flawless—they demand the best physicians and the best care centers.
However, since the passage of the Medicare legislation in 1965, Americans have been unable to agree on how people should receive healthcare and who should receive it. The Patient Protection and Affordable Care Act of 2010 (ACA), known as “Obamacare,” is the latest healthcare fix. In response, Americans elected Republican Donald Trump—who ran on repealing “Obamacare”—to the presidency just six years later. Now, especially as the COVID-19 pandemic exposes many of the failures within the current United States healthcare systems, Americans are once again debating healthcare and asking, “what should this look like?” Should the federal government create universal single-payer healthcare plans? Or would it be better to cut Medicare and Medicaid spending and reduce the number of insured?
Throughout this debate, one group of Americans has historically lacked a real advocate for their healthcare needs. Until the dawn of the twenty-first century, transgender Americans were not taken seriously, nor had their specific, medically necessary needs met by healthcare providers, insurers, or politicians. Even today, transgender Americans, as a class, experience significant economic and health challenges compared to their cisgender counterparts. Cisgender refers to those whose gender identity matches their sex assigned at birth, i.e., anyone who is not transgender or gender non-conforming. The fundamental purpose of healthcare is to enhance a person’s quality of life by improving their health, which is crucial for transgender Americans that need medical care for their health. While our elected officials and voting population value healthcare, and many want to make it accessible to every American, transgender Americans have often been forgotten in this debate.
Today, our healthcare system is systematically failing transgender Americans because many transgender patients cannot access gender-affirming healthcare. Insurers view gender-affirming healthcare claims as either medically unnecessary or make the care prohibitively expensive for patients. Presently, few legal remedies address this issue. This Article will discuss how transgender Americans historically interacted with the healthcare system, what kind of care they require, and what policy solutions legal professionals can implement to help transgender Americans get the care they need and deserve.
&This argument is broken into several sections. First, I have broken down transgender healthcare (also referred to as gender-affirming care) into four key concepts: what it means to be transgender and diagnosed as transgender, a 120-year history of transgender medicine, the causes of the transgender diagnosis and gender dysphoria, and finally, how providers treat transgender patients. The second section examines the medical necessity doctrine, when payers must reimburse patients and providers, including for traditionally cosmetic procedures, and the patient’s right to appeal a denial of coverage. Finally, I address statistically proven barriers to accessing care and how courts can provide a remedy—because there are remedies. By examining the appropriate laws and examining the facts surrounding the medicalization of transgender healthcare, it is clear the law is on the transgender patient’s side.