The Biden administration is pushing for more insurers, and thus anyone who buys their insurance, to cover transgender surgeries. Such genital, breast, and facial surgery, as well as hormone therapy and more, would be considered “medically necessary” for those wishing to identify with the other sex.
Discrimination based on race, color, national origin, sex, age, or disability is prohibited in federally funded health-care facilities under the Affordable Care Act, passed during the Obama administration. A proposed rule, issued by the U.S. Department of Health and Human Services on January 5, would add “sexual orientation and gender identity” to that list.
The rule “places ideology ahead of sound medicine,” the Ethics and Public Policy Center said in a comment Thursday opposing the rule. It “is without legal support, contradicts long-standing scientific understandings of the human person, attempts to evade court injunctions, promotes harm to patients (especially minors), tramples religious freedom,” and more, according to the EPPC.
Taxpayers are already paying for transgender procedures, as they are covered by the federal program Medicaid in some states. Some insurers also already cover the procedures.
“Nearly half of transgender respondents in one survey said their health insurance company denied them gender affirming [sic] surgery, and a similar proportion reported that they were denied coverage for hormone therapy,” the proposed rule states, in reference to a Center for American Progress study.
Kids Included Despite the Evidence
The rule appears to offer no exclusion for children, Roger Severino, a senior fellow at the EPPC, told The Federalist. It would “put kids on a transgender treadmill and they don’t get off,” Severino said. Children could take puberty blockers and cross-sex hormones only to regret it later when they have damaged their bodies and may find they are infertile, he said.
Indeed, the rule offers legal cover to “those experimenting on these kids,” according to Severino, who was the director of the HHS Office for Civil Rights during the Trump administration. By requiring insurers to cover such surgeries, the rule will make it much harder for adolescents to sue later, he said.
There is no medical consensus that such treatments help with gender dysphoria, and leading health authorities around the world are ending or curtailing opposite-sex interventions for minors, according to the EPPC scholars.
“It is well known that symptoms of gender dysphoria in children naturally resolve with little to no intervention in 61-98% of cases and that once a child is placed on transition, including through medical intervention, the odds of persistence skyrocket,” the EPPC scholars wrote in their comments on the rule.
It’s also not clear how the nondiscrimination provisions will apply to religious organizations and people. HHS needs to explain how it will enforce the proposed nondiscrimination provisions in ways that comply with conscience and religious freedom protection laws, the EPPC says.
Essential or Cosmetic?
“The right to feel safe, happy, and comfortable in one’s body should be a basic, fundamental position everyone can support,” Daily Kos writer Marissa Higgins believes. At issue is whether insurers are actually discriminating by denying transgender people a benefit that people of the opposite sex receive.
“A significant number of women have persistent emotional and psychological distress because of their breast size, which helps explain why breast augmentation is the leading cosmetic surgery procedure in America,” the EPPC scholars write in their comment on the rule. Such surgery, like that for male-pattern hair loss, is traditionally considered cosmetic and thus not covered by insurance.
The rule opens the back door for requiring insurance coverage for any cosmetic surgery, such as breast or other augmentations. There’s no limit to the number of surgeries someone could have, Severino said.
“Is one chin surgery covered, or five? It all depends on how the person feels,” he said.
Advocates Misleadingly Say It’s Cost-Effective
HHS’s determination that the benefits of the rule outweigh the costs is “arbitrary,” the EPPC scholars note. There’s no way to accurately estimate the cost of the rule, especially as it’s not clear exactly which procedures would be covered or how many people would get them.
The cost of transgender surgeries can range from roughly $5,000 to $100,000, on top of hormone administration costs, voice therapy, and other care, Bloomberg estimates.
A 2016 study estimated 1.4 million adults in the U.S. identify as transgender. A Gallup poll in 2021 found 0.6 percent of Americans identify as transgender, with 1.8 percent of Generation Z (born 1997-2002) identifying so, 1.2 percent of millennials (born 1981-1996), and 0.2-0.3 percent of those born earlier.
What’s Best for Mental Health?
Meanwhile, advocates argue that the increased coverage would have an “immaterial” impact on premium costs because of improved mental health, reduced suicide risk, less substance use, and increased adherence to HIV treatment regimens.
Yet “studies purporting to show better mental health outcomes from social and medical transition while framing alternative psychotherapeutic approaches as per se harmful are seriously flawed,” according to EPPC.
Additionally, the scholars cite a study that 56.7 percent of detransitioners, or people who try to reverse their transgender surgery, believe they received inadequate mental health assessments before transitioning and 58.0 percent believe that their gender dysphoria was caused by trauma or a mental health condition.
A common theme among those who detransition is that “they blame a society that was hostile to people like them—particularly to people with same-sex attractions and other gender-nonconforming people—as they believe this hostility contributed to their thinking that transition was the only option,” according to the EPPC.
Colorado First to Require Paying for Trans Medicine
The rule does not specify which medical procedures might be covered, but they will likely be the same as those in Colorado’s new plan, approved in October by HHS, Severino said. Colorado became “the first state in the country to explicitly include gender-affirming [sic] care services in its plan,” the Colorado Division of Insurance announced at the time.
Starting in 2023, the state will require individual and small group insurance plans (for employers with less than 100 employees) to cover, at a minimum, transgender surgery such as chest or genital surgery; hormone therapy; breast/chest augmentation, reduction, and construction; eye and eye-lid modification; face, forehead, and neck tightening; facial bone remodeling; chin width reduction; lip lift/augmentation; jaw reduction; orbital recontouring; nose reshaping; cheek, chin, and nose implants; and laser or electrolysis hair removal.
Twenty-four states and Washington, D.C., prohibit transgender exclusions in health insurance coverage, according to the nonprofit Movement Advancement Project. Arkansas is the only state allowing all insurers in the state to refuse to cover transgender surgeries.
The proposed rule results from President Biden’s executive order on first day in office to combat “discrimination on the basis of gender identity.”
Administration Violates Norms of Comment Period
For most rules, a federal agency should give the public at least 60 days for meaningful comment, whereas only 22 days were allowed “to provide input on a complex, major and economically significant proposed rule,” the EPPC scholars complained in their comment on the 145-page rule.
“Twenty-two days is offensive,” said Severino. “All year they’ve been destroying the norm that allows the public to have their say. It creates a rush, which shows that they’re trying to jam things through.”
“In the middle of a surge in the pandemic, they’re rushing to pay back their friends in the LGBT lobby,” Severino said, referring to the acronym for lesbian, gay, bisexual, and transgender.
New Front in Transgender Push
Transgender “advocates are looking to bring more cases to sue insurers who don’t cover transgender surgery,” Thomson Reuters reported earlier this month. Such litigation “is poised to be the next front for transgender workers’ rights,” according to Bloomberg Law.
“It’s the law that you can’t discriminate against a participant in an employer-sponsored health plan based on them being transgender. There are open legal questions about what that means in practice,” Sam Schwartz-Fenwick, a labor and employment partner at Seyfarth Shaw LLP, told Bloomberg.
“Dozens of workers diagnosed with gender dysphoria—a mismatch between a person’s biological sex and gender identity—have sued employers, insurers, and state health plans in recent years,” Bloomberg Law found in a review of federal court cases.
In a recent example, last Tuesday, a former Yellowstone County, Montana, employee was awarded $66,500 in damages because the county’s health benefits plan denied health care related to “sex reassignment,” the Associated Press reported.