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Mental Health Parity Arguments for Accessing Gender Affirmation Surgery
Published online by Cambridge University Press: 12 February 2024
Abstract
Many insurers exclude coverage for transgender individuals. Litigation challenging these exclusions has increased. Most of these cases successfully advance equality claims by arguing that trans exclusions discriminate based on sex. That is, procedures performed on patients for reasons unrelated to gender affirming care are being denied to transgender individuals. There are, however, limitations to this argument. First, some courts may construe care narrowly and hold that some procedures are unique to gender affirming care that have no analog in other contexts. Second, a court that is hostile to the sex discrimination argument might hold that the denial does not arise from sex discrimination, but rather, because of the kind of diagnosis at issue. Further, the sex discrimination argument might force transgender individuals into making claims based on a binarized gender identity which may not conform with their lived experience.
Claims based on the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) can address these shortcomings. This Act prohibits insurers from discriminating against mental health diagnoses—for example, procedures that insurers cover because of medical or surgical diagnoses should also be covered if indicated for mental health diagnoses. Gender dysphoria is a recognized mental health diagnosis. Transgender individuals seeking gender affirming care arising from gender dysphoria can thus claim that exclusions of coverage violate the MHPAEA. Some transgender individuals might raise concerns that such an approach would lead to increased medicalization of trans identity. However, an MHPAEA claim would only appear in cases where a transgender individual is voluntarily submitting themselves to medical assistance in order to advance their own autonomy.
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References
1 Gender Confirmation Surgeries Rise 20% in First Ever Report, Am. Soc. Of Plastic Surgeons (May 22, 2017), https://www.plasticsurgery.org/news/press-releases/gender-confirmation-surgeries-rise-20-percent-in-first-ever-report [https://perma.cc/K9GX-QH7L].
2 Anna Kirkland et al., Health insurance rights and access to health care for trans people: The social construction of medical necessity, 55 Law & Soc. Rev. 539 (Dec. 6, 2021).
3 State Health Insurance Laws and Guidance, TLDEF’s Trans Health Project (2023), https://transhealthproject.org/resources/state-health-insurance-laws-and-guidance/views/explicit-guidance/ [https://perma.cc/39X6-XF76]; Kirkland, supra note 2.
4 Christy Mallory & Will Tentindo, Medicaid Coverage for Gender-Affirming Care, UCLA School of L. Williams Inst. (Dec. 2022), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Medicaid-Gender-Care-Dec-2022.pdf.
5 Kirkland et al., supra note 2.
6 That is, who underwrite the costs of employee medical care, though they might use another plan administrator. See Craig Konnoth, Health Data Federalism, 101 B.U. L. Rev. 2205 (Dec. 2021).
7 See Petition for Writ of Certiorari, L.W., by and Through her Parents and Next Friends, Samantha Williams and Brian Williams, et. Al, Petitioners, v. Jonathan Skrmetti, et al., Respondents, No. 23-466 (Nov. 1, 2023), 2023 WL 7300257 [hereinafter “Williams Petition”].
8 64 A.L.R. Fed. 3d Art. 1 (originally published in 2021).
9 Dean Spade, Documenting Gender, 59 Hastings L.J. 731, 733 n. 2 (2008). See also E. Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, 23 Int’l J. of Transgender Health S1 (Sept. 15, 2022).
10 Am. Psych. Ass’n, Diagnostic & Statistical Manual 71 (3d ed., rev. 1987) (DSM-III-R).
11 Williams v. Kincaid, 45 F.4th 759, 766–68 (4th Cir. 2022).
12 See Coleman, supra note 9 (“gender diversity is common to all human beings and is not pathological.”).
13 Gender Dysphoria, Am. Psychiatric Ass’n (2013), https://www.psychiatry.org/File%20Library/Psychiatrists/Practice/DSM/APA_DSM-5-Gender-Dysphoria.pdf.
14 Id.
15 Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013).
16 Kevin M. Barry et al., A Bare Desire to Harm: Transgender People and the Equal Protection Clause, 57 B.C. L. Rev. 507, 516 (2016) (“For many transgender people, the incongruence between gender identity and assigned sex does not interfere with their lives; they are completely comfortable living just the way they are.”); DSM-5, supra note 14, at 451 (“[N]ot all individuals will experience distress as a result of such [gender] incongruence.”).
17 Spade, supra note 9, at 1171.
18 See Coleman et al., supra note 9.
19 Good v. Iowa Dep’t of Hum. Servs., 924 N.W.2d 853, 857 (Iowa 2019).
20 “In the most extreme example, an insurer denied a transsexual coverage for routine treatments: office visits, blood tests, physical exams, sinus medication, and two emergency visits, once for a cut on the hand and another for a deviated septum.” Categorical Exclusions: Exploring Legal Responses to Health Care Discrimination Against Transsexuals, 11 Colum. J. Gender & L. 88, 97 (2002). I have not identified similar restrictions more recently, but Hong herself obtained data through interviews.
21 Lange v. Houston Cnty., Georgia, No. 5:19-CV-392 (MTT), 2022 WL 1812306, at *11 (M.D. Ga. June 2, 2022) (defendant claiming that all coverage relating to transition not covered).
22 Boyden v. Conlin, 341 F. Supp. 3d 979, 988 (W.D. Wis. 2018); Kadel v. Folwell, No. 1:19CV272, 2022 WL 3226731, at *3 (M.D.N.C. Aug. 10, 2022).
23 Fletcher v. Alaska, 443 F. Supp. 3d 1024, 1027 (D. Alaska 2020) (“AlaskaCare no longer excluded hormones, hormone therapy and counseling related to changing sex or sexual characteristics, but continued to exclude “[s]urgical procedures to alter the appearance or function of the body” and “[p]rosthetic devices.”).
24 Hammons v. Univ. of Maryland Med. Sys. Corp., 551 F. Supp. 3d 567, 573 (D. Md. 2021), reconsideration denied, No. CV DKC 20-2088, 2021 WL 4951921 (D. Md. Oct. 25, 2021).
25 I do not consider arguments that might be specific to a certain kind of coverage. For example, some challenges have proceeded under Medicaid medical necessity standards, Smith v. Rasmussen, under deliberate indifference standards in prison contexts, Hicklin v. Precynthe, No. 4:16-CV-01357-NCC, 2018 WL 806764, at *10 (E.D. Mo. Feb. 9, 2018), and under ERISA. Baker v. Aetna Life Ins. Co., 228 F. Supp. 3d 764, 769 (N.D. Tex. 2017). I also do not consider other less prominent lines of argument. See, e.g., OutFront Minnesota v. Piper, No. 62-CV-15-7501, 2016 WL 11898980 (Minn.Dist.Ct. Nov. 14, 2016) (right of control and autonomy).
26 See Boyden v. Conlin, 341 F. Supp. 3d 979, 982 (W.D. Wis. 2018); Flack v. Wis. Dep’t of Health Servs., 328 F.Supp.3d 931 (W.D. Wis. 2018); Hammons v. Univ. of Md. Med. Sys. Corp., 551 F. Supp. 3d 567, 590 (D. Md. 2021); Fain v. Crouch, 618 F. Supp. 3d 313, 320 (S.D.W. Va. 2022).
27 Fain v. Crouch, 618 F. Supp. 3d 313, 335 (S.D.W. Va. 2022). “The West Virginia Medicaid Program exclusion denying coverage for the surgical care for gender dysphoria invidiously discriminates on the basis of sex and transgender status. Such exclusion violates the Equal Protection clause of the Fourteenth Amendment, the Affordable Care Act, and the Medicaid Act. Defendants are enjoined from enforcing or applying the exclusion.”
28 Kadel v. Folwell, No. 1:19CV272, 2022 WL 3226731, at *19 (M.D.N.C. Aug. 10, 2022) is the only case I have seen that lays out the distinctions clearly.
29 As this article goes to press, the Supreme Court has a pending cert petition seeking reversal of the Sixth Circuit’s holding in L.W., et al., and United States of America v. Skrmetti, et al., No. 23-5600 (6th Cir. June 30, 2023) rejecting the sex discrimination argument. See Williams Petition, supra note 7.
30 Franklin H. Romeo, Note, Beyond a Medical Model: Advocating for a New Conception of Gender Identity in the Law, 36 Colum. Hum. Rts. L. Rev. 713, 731 (2005).
31 Id.
32 42 U.S.C. § 12102(1)(A).
33 Id. at § 12211(b); 29 U.S.C. § 701 et seq.
34 Williams v. Kincaid, 45 F.4th 759, 779–80 (4th Cir. 2022), cert. denied, 143 S. Ct. 2414 (2023).
35 Sixth Circuit Allows Tennessee’s Ban on Care for Transgender Youth to Take Effect, ACLU (July 8, 2023), https://www.aclu.org/press-releases/sixth-circuit-allows-tennessees-ban-on-care-for-transgender-youth-to-take-effect [https://perma.cc/L82T-RLGU].
36 Marie Casciari, Recent Trends in Transgender Healthcare Law, Debofsky (June 24, 2020), https://www.debofsky.com/articles/recent-trends-in-transgender-healthcare-law/ [https://perma.cc/GA6U-U8VJ].
37 Colleen L. Barry et al., A Political History of Federal Mental Health and Addiction Insurance Parity, 88 Milbank Q. 404, 408 (Sept. 2010).
38 Caroline V. Lawrence & Blake N. Shultz, Divide and Conquer? Lessons on Cooperative Federalism from a Decade of Mental Health Parity Enforcement, 130 Yale L. J. 1952 (June 2021).
39 Mental Health Parity Act of 1996, Pub. L. No. 104-204, 110 Stat. 2944 (1996) (“annual or lifetime dollar limits on mental health benefits [can] be no lower than any such dollar limits for medical and surgical benefits offered by a group health plan or health insurance issuer offering coverage in connection with a group health plan”).
40 The Mental Health Parity and Addiction Equity Act (MHPAEA), Ctrs. For Medicare & Medicaid Servs. (2023), https://www.cms.gov/CCIIO/Programs-and-Initiatives/Other-Insurance-Protections/mhpaea_factsheet [https://perma.cc/SP55-TZPY].
41 Kaye Pestain, Mental Health Parity at a Crossroads, KFF (Aug. 18, 2022), https://www.kff.org/private-insurance/issue-brief/mental-health-parity-at-a-crossroads/ [https://perma.cc/GP6F-JLST]; Kelsey N. Berry et al., Litigation Provides Clues to Ongoing Challenges in Implementing Insurance Parity, 42 J. Health Politics, Pol’y & L. 1065, 1098 (2017).
42 See Aviv Shamash, A Piecemeal, Step-by-Step Approach Toward Mental Health Parity, 7 J. Health & Biomedical L. 273, 287-92; Douglas et al, Evaluating State Mental Health and Addiction Parity Statutes: A Technical Report (2018).
43 For a helpful overview, see Substance Abuse and Mental Health Services Administration, The Essential Aspects Of Parity: A Training Tool For Policymakers (2021).
44 The Mental Health Parity and Addiction Equity Act (MHPAEA), Ctrs. For Medicare & Medicaid Servs. (2023), https://www.cms.gov/CCIIO/Programs-and-Initiatives/Other-Insurance-Protections/mhpaea_factsheet [https://perma.cc/84VE-VGMA]; Ryan Kingshill, Finding Parity Through Preclusion: Novel Mental Health Parity Solutions at the State Level, 125 Dick. L. Rev. 555, 562–63 (2021).
45 78 Fed. Reg. 68240.
46 Id.
47 Heather E. v. California Physicians’ Servs., No. 2:19-CV-415, 2020 WL 4365500, at *3 (D. Utah July 30, 2020) (quoting Nancy S. v. Anthem Blue Cross & Blue Shield, No. 2:19-cv-231, 2020 WL 2736023, at *3 (D. Utah May 26, 2020)). New York district courts add an extra requirement, that the “the mental-health treatment limitation is in the same classification as the medical treatment to which it is being compared.” But that appears implicit in the comparison. Julie L. v. Excellus Health Plan, Inc., 447 F. Supp. 3d 38, 54 (W.D.N.Y. 2020); Bushell v. UnitedHealth Grp. Inc., No. 17-CV-2021 (JPO), 2018 WL 1578167, at *5 (S.D.N.Y. Mar. 27, 2018).
48 29 C.F.R. § 2590.712(c)(4)(i).
49 John R. v. United Behavioral Health, 2019 WL 6255085 (D. Utah 2019) (“insurer applied the medical-necessity requirement to determine coverage, whether it be for mental health and addiction treatment or treatment of disorders arising in the medical/surgical context.”).
50 Michael P. v. Aetna Life Insurance Company, 2017 WL 4011153 (D. Utah 2017). See C.M. v. Fletcher Allen Health Care, Inc., 2013 WL 4453754 (D. Vt. 2013).
51 K.H.B. by and through Kristopher D.B. v. UnitedHealthcare Insurance Company, 2019 WL 4736801 (D. Utah 2019).
52 Lawrence & Schultz, supra note 38, at 2226.
53 Id. This is ironic as regulators find it harder to assess nonquantitative limitations in the abstract. See JoAnn Volk et al., A Review of State Efforts to Enforce Mental Health Parity: Lessons for Policymakers and Regulators, Georgetown Univ. Health Pol’y Inst. Ctr. on Health Insurance Reforms 3 (2022).
54 Duncan v. Jack Henry & Assocs., Inc., 617 F. Supp. 3d 1011, 1057 (W.D. Mo. 2022).
55 Id. at 1022.
56 Id.
57 State of Conn. Insurance Dept., BULLETIN IC-34 (Reissued) (Nov. 2, 2011).
58 See Insurance Circular Letter No. 7, N.Y. Dept. of Fin. Servs. (Dec. 11, 2014), https://www.dfs.ny.gov/industry_guidance/circular_letters/cl2014_07 [https://perma.cc/PX7Q-AYKL].
59 Id.
60 Id. Note that the statute has been replaced with clearer parity requiring language: “Coverage under this paragraph shall not apply financial requirements or treatment limitations to mental health benefits that are more restrictive than the predominant financial requirements and treatment limitations applied to substantially all medical and surgical benefits covered by the policy,” and incorporated the DSM standard. N.Y. Ins. Law § 3221(l)(5)(C), § 3221(l)(5)(E)(iv) (McKinney).
61 Id. Note that at the time, the diagnosis was for gender identity disorder. See id.
62 See Insurance Commissioner Ricardo Lara, Enactment of Senate Bill 855—Submission of Health insurance Policies for Compliance Review, insurance.ca.gov (Dec. 10, 2020), https://www.insurance.ca.gov/0250-insurers/0300-insurers/0200-bulletins/bulletin-notices-commiss-opinion/upload/Notice-to-Health-Insurers-re-Requirements-of-Senate-Bill-855.pdf [https://perma.cc/86RL-6GMP ]; Tiffany Stecker, California Plans Deny Mental Health Claims Despite New Law (1), Bloomberg (Dec. 21, 2022), https://news.bloomberglaw.com/health-law-and-business/california-plans-deny-mental-health-claims-despite-new-law [https://perma.cc/FJ3F-DFM3].
63 Robert A. Whitney, Transitioning to a New View: Coming to See Health Insurance Coverage For Gender Dysphoria in a New Light, Conn. Insurance L. J. 20. (2019).
64 Key Parity Litigation Trends, ParityTrack, https://www.paritytrack.org/key-parity-litigation-trends/ [https://perma.cc/C6U2-7CAX].
65 H.R. 6983—110th Congress (2007-2008).
66 Craig Konnoth, Medicalizing Minorities [working draft] 2023.
67 CPT overview and code approval, Am. Med. Ass’n (2023), https://www.ama-assn.org/practice-management/cpt/cpt-overview-and-code-approval#:~:text=CPT%C2%AE%20code%3F-,What%20is%20a%20CPT%C2%AE%20code%3F,reporting%2C%20increase%20accuracy%20and%20efficiency [https://perma.cc/ZGC7-35TM].
68 This reflects judicial commentary on the Act. “Essentially, [the Parity Act requires] ERISA plans [to] treat sicknesses of the mind in the same way that they would a broken *728 bone.” New York State Psychiatric Ass’n, Inc. v. UnitedHealth Grp., 980 F.Supp.2d 527, 542 (S.D.N.Y. 2013). ‘to end discrimination in the provision of insurance coverage for mental health and substance use disorders as compared to coverage for medical and surgical conditions in employer-sponsored group health plans.’” Candace B. v. Blue Cross, No. 2:19-cv-39, 2020 WL 1474919, at *4 (D. Utah Mar. 25, 2020) (quoting Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 356 (2d Cir. 2016)). Munnelly v. Fordham Univ. Fac., 316 F. Supp. 3d 714, 727–28 (S.D.N.Y. 2018).
69 No. 17-CV-2021 (JPO), 2018 WL 1578167, at *5 (S.D.N.Y. Mar. 27, 2018).
70 Alice F. v. Health Care Serv. Corp., 367 F. Supp. 3d 817, 831 (N.D. Ill. 2019) 29 C.F.R. § 2590.712(c)(2)(ii).
71 A final consideration is that treating gender dysphoria as mental illness pathologizes and de-normalizes transgender individuals. As the former Deputy Commissioner and General Counsel for the Massachusetts Division of Insurance explains, in 2014, the Division declined to follow its Connecticut counterpart and rely on parity laws out of this concern. I would argue that any national level enforcement can rely on the process that the DSM committee took in resolving to treat gender dysphoria as mental illness, which involved taking into account the opinions of transgender rights advocates around the world. See Konnoth, Stan. L. Rev. And any individual plaintiff can make their own decisions. Robert A. Whitney, Transitioning to a New View: Coming to See Health Insurance Coverage For Gender Dysphoria in a New Light, Conn. Insurance L. J. 20. (2019).
72 Realizing Parity, Reducing Stigma, and Raising Awareness: Increasing Access to Mental health and Substance Use Disorder Coverage, 2022 MHPAEA Report to Congress 19 (2022).
73 JoAnn Volk et al., A Review of State Efforts to Enforce Mental Health Parity: Lessons for Policymakers and Regulators, Georgetown Univ. Health Pol’y Inst. Ctr. on Health Insurance Reforms 7 (2022).
74 The case settled for 15 million. United Healthcare agrees to pays $15.6M in mental health parity law case [sic], Schwartz, Conroy & Hack, PC (2021), https://schlawpc.com/case-study/united-healthcare-agrees-to-pays-15-6m-in-mental-health-parity-law-case/ [https://perma.cc/9GYT-8GQM ].
75 Kingshill, supra note 44, at 569.
76 Marcia C. Peck & Richard M. Scheffler, An Analysis of the Definitions of Mental Illness Used in State Parity Laws, 55 Psychiatric Servs. 1089 (Sept. 2022).
77 Id. at 1090.
78 Id. at 1091.
79 Kingshill, supra note 44, at 569.
80 Mills v. Bluecross Blueshield of Tennessee, Inc., No. 3:15-CV-552-PLR-HBG, 2017 WL 78488, at *6 (E.D. Tenn. Jan. 9, 2017).
81 Am. Psychiatric Assoc. v. Anthem Health Plans, 50 F. Supp. 3d 157, 161 (D. Conn. 2014), aff’d sub nom. Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352 (2d Cir. 2016) (dictum); Mingus v. Blue Cross & Blue Shield of Kansas, Inc., No. 217CV02362JARKGS, 2017 WL 4882658, at *2 (D. Kan. Oct. 30, 2017) (dictum).
82 Rea v. Blue Shield of California, 226 Cal. App. 4th 1209, 1219, 172 Cal. Rptr. 3d 823, 830 (2014), as modified on denial of reh’g (July 9, 2014).
83 Craig Konnoth, Privatization’s Preemptive Effects, 134 Harv. L. Rev. 1937, 1961 (2021).
84 Baker v. Aetna Life Ins. Co. & L-3 Commc’ns Corp., No. 3:15-CV-3679-D, 2018 WL 572907, at *2 (N.D. Tex. Jan. 26, 2018); see also 84 F.R. 27846.
85 Lawrence & Schultz, supra note 38, at 2226.; see also Executive Office Of The President Of The United States, The Mental Health & Substance Use Disorder Parity Task Force Final Report 14-15 (2016).
86 Notably, one concern that commentators raise—that patients lack awareness and resources—likely presents less of an issue in the trans context, which involves a more cohesive community and litigation resources.
87 Megan Douglas et al., Evaluating State Mental Health and Addiction Parity Statutes: A Technical Report 10 (2018).