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for states to ad­min­is­ter the pro­grams through block grants that al­low wide flex­i­bil­ity as to how they use the money to pro­vide health cov­er­age. Though some state Med­i­caid pro­grams like, say, the one in Mas­sachusetts will cover all trans-re­lated health­care all the way through to Gen­der Con­fir­ma­tion Surgery (GCS), other states like Ge­or­gia ex­plic­itly deny any tran­si­tion­re­lated med­i­cal cov­er­age. A doc­u­ment ac­ces­si­ble on the web­site of the Ge­or­gia Depart­ment of Com­mu­nity Health (DCH) ti­tled “Amount, Du­ra­tion, and Scope of Med­i­cal and Re­me­dial Care And Ser­vices Pro­vided To The Cat­e­gor­i­cally Needy” de­scribes pol­icy that’s been our state pol­icy since 1993 when it comes pro­ce­dures cov­ered by Ge­or­gia Med­i­caid. A list of “Lim­i­ta­tions” un­der the head­ing “I. In­pa­tient Hos­pi­tal Ser­vices” in­cludes a para­graph that states: “Hys­terec­tomies, ster­il­iza­tions, and abor­tions are cov­ered only when ap­pli­ca­ble Fed­eral re­quire­ments are met.” An­other sec­tion with the head­ing “Non Cov­ered Ser­vices and Pro­ce­dures” in­cludes a num­bered list of things Ge­or­gia Med­i­caid won’t cover. Para­graph num­ber 7 of this list be­gins with: “Ex­per­i­men­tal or in­ves­ti­ga­tional ser­vices, drugs or pro­ce­dures which are not gen­er­ally rec­og­nized by the Food and Drug Ad­min­is­tra­tion, the U. S. Pub­lic Health Ser­vice, Medi­care and the Depart­ment’s con­tracted Peer Re­view Or­ga­ni­za­tion as ac­cept­able treat­ment.” The fol­low­ing list is rep­re­sen­ta­tive of non­cov­ered pro­ce­dures that are con­sid­ered to be ex­per­i­men­tal or in­ves­ti­ga­tional and is not meant to be ex­haus­tive: “… trans­sex­ual surgery.” An­other sec­tion of the di­rec­tive lists the kinds of out­pa­tient pro­ce­dures that are “Non-Cov­ered Ser­vices” and in­cludes “Cos­metic surgery or mam­mo­plas­ties for aes­thetic pur­poses.” Taken to­gether, these poli­cies have more or less worked to sys­tem­at­i­cally deny trans and GNC Ge­or­gians on Med­i­caid cov­er­age for tran­si­tion-re­lated med­i­cal care. A lucky few may have doc­tors who can jus­tify pay­ment for tran­si­tion-re­lated care and pro­ce­dures ex­plic­itly for rea­sons other than gen­der tran­si­tion, but they are rare ex­cep­tions to the sta­tus quo. Be­gin­ning with the pas­sage of the Af­ford­able

Au­gust 3, 2018

Care Act ( ACA) in 2010, how­ever, the cat­e­gor­i­cal de­nial of Med­i­caid cov­er­age for tran­si­tion-re­lated ser­vices and pro­ce­dures be­came il­le­gal. Sec­tion 1557 of the law pro­hibits health­care dis­crim­i­na­tion “on the ba­sis of race, color, na­tional ori­gin, sex, age, or dis­abil­ity in cer­tain health pro­grams or ac­tiv­i­ties.” In 2016, the U.S. Depart­ment of Health and Hu­man Ser­vices, the fed­eral agency most re­spon­si­ble for en­forc­ing the non-dis­crim­i­na­tion lan­guage of the ACA, is­sued its Fi­nal Rule in re­gard to how the law pro­tects against sex dis­crim­i­na­tion in gen­eral. In par­tic­u­lar the Fi­nal Rule’s de­ter­mi­na­tion of what amounts to sex dis­crim­i­na­tion nec­es­sar­ily in­cludes pro­tec­tion against dis­crim­i­na­tion on the ba­sis of gen­der iden­tity and sex stereo­typ­ing. It ex­plic­itly states that its def­i­ni­tion of gen­der iden­tity in­cludes gen­der ex­pres­sion as well as trans­gen­der sta­tus. The Fi­nal Rule also left open the pos­si­bil­ity of pro­tec­tion based on sex­ual ori­en­ta­tion. Ad­vo­cates and al­lies of the trans and GNC com­mu­nity re­joiced at the re­lease of the Fi­nal Rule, though they knew that en­force­ment of the law was go­ing to be a long, sus­tained strug­gle. Even in states where Med­i­caid is sup­posed to cover tran­si­tion-re­lated med­i­cal care, peo­ple still ex­pe­ri­ence dif­fi­cul­ties such as wrong­ful de­nials of cov­er­age, and in­cor­rect in­for­ma­tion on Med­i­caid cards like name or gen­der. Anti-LGBTQ or­ga­ni­za­tions stir up out­rage among the pop­u­lace for cov­er­age of GCS. Now, on top of all that, there is an ad­min­is­tra­tion oc­cu­py­ing the ex­ec­u­tive branch of fed­eral gov­ern­ment that is ac­tively hos­tile to any law that pro­tects LGBTQ peo­ple and who are work­ing to dis­man­tle laws like the Af­ford­able Care Act. Though they’ve been un­suc­cess­ful so far with out­right re­peal of statu­tory pro­tec­tions, there’s an ac­tive cam­paign to un­der­mine the law and end all en­force­ment ac­tiv­i­ties re­gard­ing laws they deem po­lit­i­cally in­cor­rect. Al­most im­me­di­ately af­ter the Fi­nal Rule was is­sued, the re­ac­tion from anti-LGBTQ ac­tivists be­gan with a law­suit brought in the most con­ser­va­tive fed­eral court pos­si­ble — the U.S. District Court for the North­ern District of Texas — to stop the en­force­ment of the Fi­nal Rule. The re­sult was a na­tion­wide in­junc­tion against en­force­ment by the HHS of the Fi­nal Rule’s pro­hi­bi­tions against dis­crim­i­na­tion on the ba­sis of gen­der iden­tity and ter­mi­na­tion of preg­nancy, in a de­ci­sion in the case Fran­cis­can Al­liance, Inc. et. al. v. Bur­well. Even as we speak, this case is still be­ing lit­i­gated and the ad­min­is­tra­tion is work­ing, through the HHS, to is­sue new reg­u­la­tions re­gard­ing sex dis­crim­i­na­tion in med­i­cal care that are likely to re­peal the Fi­nal Rule. Signs of what’s com­ing in­clude the HHS Depart­ment of Civil Rights chang­ing its own web­site, ac­cord­ing to the Na­tional Women’s Law Cen­ter, re­gard­ing pro­tec­tions against sex dis­crim­i­na­tion in health­care based on Sec­tion 1557, and with­draw­ing ac­cess to pre­vi­ously avail­able train­ing ma­te­ri­als. Nonethe­less, there is a body of case law that fully sup­ports the in­ter­pre­ta­tion of the ACA that is con­sis­tent with the Fi­nal Rule as it ex­ists now and that HHS cited as the jus­ti­fi­ca­tion for the Rule. That cases law in­cludes land­mark de­ci­sions such as Price Water­house v. Hop­kins in­ter­pret­ing Ti­tle VII of the Civil Rights Act of 1964’s pro­hi­bi­tion against sex dis­crim­i­na­tion to in­clude pro­tec­tion against sex-role stereo­typ­ing, as well as de­ci­sions that con­form in­ter­pre­ta­tion of sex for the pur­poses of en­force­ment of the non-dis­crim­i­na­tion por­tions of Ti­tle IX of the Ed­u­ca­tion Amend­ments of 1972 to the def­i­ni­tion of sex in Ti­tle VII cases. Tay­lor Brown, an at­tor­ney with Lambda Le­gal, wants to re­as­sure peo­ple with a mes­sage of hope, say­ing that while the Texas de­ci­sion is be­ing re­viewed by the 5th Cir­cuit, other de­ci­sions in fed­eral court, like Boy­den v. Con­lin in the U.S. District Court for the Western Cir­cuit of Wis­con­sin, are reaf­firm­ing the pro­tec­tions in Sec­tion 1557 against dis­crim­i­na­tion based on gen­der iden­tity. This case was brought by two transwomen who are state em­ploy­ees get­ting cov­er­age through their state ben­e­fit plan. Ac­cord­ing to Brown, “In­di­vid­u­als still have a pri­vate cause of ac­tion to as­sert dis­crim­i­na­tion based on Sec­tion 1557.” That’s why Lambda Le­gal is reach­ing out to trans and GNC folks in Ge­or­gia re­ceiv­ing Med­i­caid through its Ge­or­gia Med­i­caid Tracker (Lamb­daLe­gal.org/ Ge­or­gia-Med­i­caid) in or­der to en­sure that the Ge­or­gia is fol­low­ing the law for each and ev­ery cov­ered in­di­vid­ual. “We’re look­ing not just for in­di­vid­u­als who have re­quested prior autho­riza­tion for cov­er­age of tran­si­tion-re­lated med­i­cal pro­ce­dures and were de­nied, but in­di­vid­u­als who are seek­ing prior autho­riza­tion or who may want to seek prior autho­riza­tion in the fu­ture for these ser­vices.” She also wants to push the pro­gram to bring physi­cians into the state who are more qual­i­fied to pro­vide tran­si­tion-re­lated med­i­cal care, so folks won’t have to go through the ar­du­ous process of get­ting ap­proval for cov­er­age for treat­ments from providers from out of state.

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