By Samuel Rosh
This Note addresses a major barrier to care that transgender individuals face: “categorical exclusions” barring payment for healthcare related to gender transition in state Medicaid programs, along with policies prohibiting payment for such care when deemed “cosmetic.” It first argues that because the dysphoria and discrimination that transgender individuals experience affect their quality of life and mental well-being, and derive from a discord between their appearance and gender identity, those considerations should be taken into account in the legal determination of medical necessity. As medical studies and the views of major medical associations demonstrate, healthcare for gender transition has been found medically necessary for some individuals to mitigate their gender dysphoria.
This Note then describes the arguments for and against the invalidity of categorical exclusions and other policies that deny transgender individuals access to medically necessary care, focusing on Section 1557 of the Affordable Care Act as well as more general provisions of federal Medicaid law. It then examines these issues in the context of litigation regarding New York’s limitations on transgender healthcare, which ultimately culminated in a medical necessity standard. Finally, it considers the arguments that Medicaid coverage for gender transition would be too costly, and that requiring states to cover such care would undermine principles of federalism.