Trans healthcare victory: NY State will no longer allow “gender dysphoria treatment” refusal

trans-flag-healthcare-31805

According to the December 11th 2014 guidance issued by the New York State Department of Financial Services “insurers authorized to write accident and health insurance in New York State, article 43 corporations, and health maintenance organizations” are no longer allowed to deny coverage for the treatment of gender dysphoria “solely on the basis that the treatment is for gender dysphoria.”  the guidance goes on to state that any issuer (person who is issued the insurance) who is still denied “any gender dysphoria treatment” based on perceived medical necessity is allowed the right to appeal the decision.

It is important to note, however, that this care is not provided because trans people are seen as needing care because they are trans, but instead because they have a condition that is diagnosable in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM).  The guidance specifically references Timothy’s Law, a law that prevents insurance-discrimination as it relates to mental illness, and continues to refer back to the diagnosable mental disorder “of gender dysphoria” previously diagnosable as “gender identity disorder”:

The current, fifth edition of the DSM recognizes a diagnosis of gender dysphoria for people whose gender at birth is contrary to the one with which they identify. Since the DSM classifies gender dysphoria as a mental disorder, and it is thus covered under the Empire Plan, Timothy’s Law requires an issuer delivering or issuing a group or school blanket policy in New York that provides coverage for inpatient hospital care or for physician services to provide coverage for the diagnosis and treatment of gender dysphoria.

[…] Issuers in New York should use the DSM as the recognized independent standard of current medical practice in determining what constitutes a mental health condition. Therefore, since the DSM recognizes a diagnosis of gender dysphoria, an issuer’s definition of mental health condition is also required to include gender dysphoria, entitling persons with gender dysphoria to MHPAEA’s [Mental Health Parity and Addiction Equity Act of 2008] protections.

The MHPAEA requires that diagnosis and definitions be “consistent with generally recognized independent standards of current medical practice” meaning that without the DSM diagnosis of “gender dysphoria” this coverage would not be possible.  This guidance requires that any issuer of health insurance that covers mental health conditions cannot pick and choose which mental health issues to cover, so gender dysphoria must be included.  If the diagnosis of gender dysphoria is removed from the DSM come edition 6, this trans health coverage will no longer be mandated.

The Transgender Legal Defense & Education Fund’s Executive Director Michael Silverman responded to the release of this guidance with this statement:

Transgender people have suffered because of discriminatory health insurance exclusions that target the medically necessary care they need. We thank and congratulate New York State for moving aggressively to ensure that transgender people can access the same health care that everyone else receives. We commend New York Governor Andrew Cuomo and State Superintendent of Financial Services Benjamin Lawsky for taking this important step to eliminate health care discrimination. We thank New York State Senator Brad Hoylman for his leadership in helping to bring about this change and for including TLDEF in the process.

We should applaud New York state for it’s positive step forward for trans health care inclusion (and for becoming the 10th jurisdiction to do so, joining the ranks of California, Colorado, Connecticut, Illinois, Massachusetts, Oregon, Vermont, Washington, and Washington DC).  As cited in the TLDEF’s article, we should also remember the federal government’s end of its decades-long exclusion of transition-related surgery under Medicare.

In celebrating New York state’s progressive guidance issuance we cannot forget the important role medical diagnosis plays in Medicare and other-non-Medicaid covered New Yorker’s ability to receive this care through this guidance.  Should we not forget our history too much and look to the battle to remove “homosexuality” and “ego-dystonic homosexuality” from the DSM IV.  While the fight was to de-pathologize being gay, we need to think more critically about our community’s need or desire for therapy (specifically covered by insurance) and SRS or physical treatment (specifically covered by insurance).

It is important to celebrate this guidance, and to hope that the change is also made for our Medicaid-receiving peers, and to remember that this mandated medical coverage victory is dictated by the DSM.  I write this post not to support gender dysphoria as a diagnosis or as a “mental illness”, but rather to remind our community that this is not a victory that is based in the goodness of our Governor’s heart–it is an enforcement of equitable treatment for all diagnoses in the DSM in accordance with national and state law.  I write this in an attempt to ensure that we do not use this victory to support claims to remove gender dysphoria from the DSM, because if this diagnosis is removed so is our access to the mandated, equitable health coverage required in Governor Cuomo’s guidance.

Selected resources:

Download the DSM’s to explore the diagnosis: gender dysphoria fact sheet

The Transgender Legal Defense & Education Fund’s article announcing this victory: http://transgenderlegal.org/headline_show.php?id=550

New York Time article: http://www.nytimes.com/2014/12/11/nyregion/in-new-york-insurance-must-cover-sex-changes-cuomo-says.html

Gothamist article: http://gothamist.com/2014/12/11/gender_reassignment_surgery_is_now.php

Article on “The Hisotry of Psychiatry and Homosexuality”: http://www.aglp.org/gap/1_history/

Further history of “Homosexuality” in the DSM: http://www.tsroadmap.com/info/gender-identity-disorder.html

HuffPo article on the shift from Gender Identity Disorder to Gender Dysphoria in the DSM 5: http://www.huffingtonpost.com/2013/06/04/gender-dysphoria-dsm-5_n_3385287.html

Legal Aid Society info on the class action lawsuit against NY State seeking health coverage for transgender residents on Medicaid: http://www.legal-aid.org/media/184306/1.pdf

Sylvia Rivera Law Project info on class action suit: http://srlp.org/breaking-srlp-sues-ny-state-doh-for-medicaids-exclusion-of-transgender-healthcare-2/

Advertisements