Categorical Exclusions: Exploring Legal Responses to Health Care Discrimination Against Transsexuals

Abstract

This article examines health care discrimination against transgender individuals by undertaking a national survey of those impacted; looks at the ADA exclusion clause that resulted in disparate health insurance coverage; and ends with examining constitutional protections for transgender individuals through sex, sexual orientation, and gender identity. The paper ends with a call to permit all three protections to co-exist rather than selecting which means is superior to the others.

From the findings of the survey, sex-reassignment surgery (SRS) exclusion clauses are motivated by non-medical and non-fiscal criteria. Like all forms of discrimination, an unlawful action belies a much more dangerous and powerful intent to manifest further harm. In the health care setting, doctors and nurses who dismiss transsexuals' health needs provide transsexuals with sub-standard medical care. Most disturbing, many insurers liberally apply the SRS exclusion clauses to deny transsexuals coverage for non-transition related, medically necessary conditions such as back pain, intestinal cysts, and even cancer, under the rationale that any medical care a transsexual needs is an excludable transsexual-related condition.

Since invidious bias permeates the entirety of health care administration, Congress designed the ADA to protect patients with stigmatized medical conditions from employers who whimsically deny medical insurance coverage and from doctors and nurses who treat patients with disrespect and humiliation rather than with medicine. The previously described examples of injury are precisely the nature of the harm intended to be remedied by the ADA. However, transsexuals who encounter this harm cannot turn to the ADA, because the ADA contains an explicit exclusion clause denying protection for conditions related to gender dysphoria.

This Article describes the social problem of how private insurers and practitioners rely upon the SRS exclusion clause to discriminate against people with, or believed to have, gender dysphoria; explores the legal problem of the ADA exclusion clause; and searches for a legal remedy to the ADA exclusion clause.

Keywords: Health care, transsexual, transgender, ADA, anti-discrimination, gender identity, sex, sexual orientation, overlapping identities, sex-reassignment surgery