The US Department of Health and Human Services repealed a 1981 policy prohibiting Medicare from covering gender confirmation procedures on Friday, May 30.
A federal review board ruled that such procedures are in fact medically necessary for some people who have gender dysphoria, overturning the decision made over thirty years ago on the grounds that there was no justification for it. The case was brought by a transgender Army veteran whose attempt to have Medicare cover her genital reconstruction surgery was denied two years previously.
Over 49 million people are enrolled in Medicare, which provides medical services for the disabled and elderly.
Denee Mallon, a seventy-four-year-old resident of Albuquerque, New Mexico, told the Associated Press before the ruling was made, “Sometimes I am asked aren’t I too old to have surgery. My answer is how old is too old? When people ask if I am too old, it feels like they are implying that it’s a ‘waste of money’ to operate at my age. But I could have an active life ahead of me for another 20 years. And I want to spend those years in congruence and not distress.”
According to Mallon, she has lived as a woman sporadically since her teenage years and full-time since 2009, much longer than the two years usually mandated as a prerequisite to surgery. HHS now has thirty days to enact a new policy enabling coverage of gender confirmation surgery, and must re-evaluate Mallon’s case once the change has been made.
She said in a statement after the ruling, “This decision means so much to me and to many other transgender people. I am relieved to know that my doctor and I can now address my medical needs, just as other patients and doctors do.”
The ruling does not mean that requests for transgender-related healthcare will automatically be approved and paid for with federal funds. However, under the new policy, transgender Medicare patients will now be able to seek gender confirmation surgery coverage—the typical cost of which ranges between $7,000 and $50,000.
It is not known for certain how many people will benefit from the decision, as no statistics currently exist for the US. According to demographer Gary Gates from the Williams Institute, an LGBT-orientated think tank, only about .3 percent of the adult population in the US self-identifies as transgender.
The appeals board ruled that in 1981, HHS did not have sufficient evidence when it made a “national coverage determination” (NCD) that “transsexual surgery” was too “experimental,” controversial, and risky to be worth covering for Medicare patients.
According to the Associated Press, the panel stated that in the decades since then, surgical treatment has proven successful for those who experience severe distress due to a mismatch between their gender identity and physical sex: “We have no difficulty concluding that the new evidence, which includes medical studies published in the more than 32 years since issuance of the 1981 report underlying the NCD, outweighs the NCD record and demonstrates that transsexual surgery is safe and effective and not experimental.”
Thus, they concluded, “the grounds for the…exclusion of coverage are not reasonable.”
The board’s decision is binding, unless HHS chooses to appeal in federal court. The Centers for Medicare and Medicaid Services, which manages Medicare, is unlikely to do so, as they had declined to defend the gender confirmation ban to the appeals board, and had already begun working to lift the ban before Mallon’s case was filed.
Medicaid, which provides medical coverage for low-income families and individuals, is not bound under the ruling. Medicaid policies regarding transgender health coverage vary by state, with some excluding related surgery and hormone treatment from coverage, while others evaluate each claim and make decisions on a case-by-case basis.
Transgender rights advocates applauded the decision, adding that because the federal government often sets the standard for what is seen as medically necessary rather than “elective,” they are hopeful that the decision will set a precedent.
The director of the ACLU’s LGBT & AIDS Project, James Esseks, wrote that “Getting rid of Medicare’s blanket ban on coverage is a significant step forward and brings the country much closer to the day when basic health care is widely available to transgender people, regardless of whether they are disabled, elderly, or poor.”