Two different federal courts granted rulings last week in favor of allowing transgender people to access the medically necessary care prescribed to them by their doctors.
The rulings confirm the Affordable Care Act’s protections on the basis of sex extend to transgender people.
In Wisconsin, two University of Wisconsin employees challenged an exclusion to the Uniform Benefits established by the state’s Government Insurance Board. The exclusion prohibited coverage of “[procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment.” One of them sought reimbursement for her gender confirmation surgery, while the other was still pursuing that procedure. In Minnesota, a nurse practitioner sued after her health insurance plan refused to cover hormone treatment for her transgender son.
Federal judges in both cases agreed that the categorical exclusions violated Section 1557 of the Affordable Care Act. Section 1557 dictates that any program that receives funding from the federal government cannot discriminate on the basis of race, color, national origin, sex, age, or disability. Following similar rulings in cases related to discrimination in employment and education, the judges both found that “sex” includes the category of gender identity.
“Because Title VII, and by extension Title IX, recognize that sex discrimination encompasses gender-identity discrimination,” wrote U.S. District Judge Donovan Frank in the Minnesota case, “the Court concludes that Section 1557 also prohibits discrimination on the basis of gender identity.”
In the Wisconsin case, U.S. District Judge William Conley also found that the categorical exclusion violated the Equal Protection Clause of the Fourteenth Amendment. This follows a precedent set by the U.S. Court of Appeals for the Seventh Circuit in a case about a school discriminating against a transgender student. The Minnesota decision also referenced this precedent, despite being in another circuit and not being bound by it.
Both cases had to address the question of a rule established by the Department of Health and Human Services (HHS) under the Obama administration that specified Section 1557 included transgender people. In 2016, a number of states (including Wisconsin) challenged that rule, and a Texas judge issued a nationwide injunction prohibiting its enforcement. The Trump administration has subsequently announced its intentions to rescind the rule, essentially granting a green light for discrimination against transgender people in health care.
Wisconsin had even relied on this injunction as justification for maintaining its exclusion, but neither judge felt the fate of the rule was relevant. They both made their own determination that Section 1557 is inclusive of gender identity, whether HHS interprets it that way or not.
Conley, an Obama appointee, was particularly harsh in condemning Wisconsin’s arguments in favor of discrimination, which relied entirely on the expertise of anti-trans author Lawrence Mayer. The judge was not convinced by Mayer’s supposed “expertise,” accusing him in one footnote of feigning confusion about why transgender people benefit from transition.
One of the state’s arguments against covering gender confirmation surgery was that it would somehow reinforce cultural stereotypes about gender. Conley called this position “unhinged from reality,” noting that coverage does nothing to compel anyone to obtain any particular procedure. “For example, a cisgender woman who has a mastectomy for treatment of breast cancer may opt not to have reconstructive surgery. That choice, however, may be untenable to another cisgender woman placed in the same position,” he offered. “Similarly, a transgender woman may require breast augmentation to address her gender dysphoria, whereas another transgender woman may not.”
Conley went on to call Wisconsin “entirely disingenuous” for suggesting the exclusion does not restrict transgender individuals from living their gender identity. At least some portion of that population, he explained, “will suffer from profound and debilitating gender dysphoria without the necessary medical transition.”
These victories do not establish any precedents at this stage, but they are nevertheless an important bulwark for transgender people against the Trump administration’s attempts to roll back protections guaranteeing them access to medically necessary health care.