Introduction. I. Medicaid Coverage of Gender-Affirmng Healthcare A. Definitions and Terms Used to Discuss Gender Affirming Healthcare B. Diagnosis and Treatment of Adolescent Gender Dysphoria 1. Diagnosis of Adolescent Gender Dysphoria 2. Occurrence of Gender Dysphoria Among Children and Adolescents 3. Treatment of Gender Dysphoria Among Adolescents C. Medicaid Coverage of Gender-Affirming Healthcare 1. Federal and Private Insurance Coverage of Gender-Affirming Healthcare 2. Three Approaches to Medicaid Coverage of Gender-Affirming Healthcare 3. New York's Medicaid Coverage of Gender Affirming Healthcare 4. New York's Age-Based Limitations of Medicaid Coverage for Gender-Affirming Care II. Conflicts Doctrine and Law That May Arise From Medicaid Age Restrictions on Gender-Affirming Healthcare. A. The Medical Community's View as to the Medical Necessity of Gender-Affirming Treatment for Individuals Under the Age of Eighteen B. Age Restrictions on the Access to Gender-Affirming Healthcare May be Inconsistent with Principles of Informed Consent 1. Support for the Age-Based Restriction as a Mechanism to Enforce the Doctrine of Informed Consent 2. Age-Based Restrictions May Conflict with Exceptions to the Doctrine of Informed Consent C. Age Restrictions May Give Rise to Legal Claims 1. Age-Based Restrictions Could Give Rise to Claims Under the Affordable Care Act 2. Age Restrictions May Be Vulnerable to Challenges Under the Reasonable Standards Requirement of the Medicaid Act a. The Medicaid Act Conditions Federal Funding of State Medicaid Programs on Certain Requirements b. Programs That Restrict Coverage of Gender Affirming Healthcare May Be Interpreted as Unreasonable III. Proposal for Medicaid Regulations That Extend Coverage to Transgender Youth A. Necessary Provisions for a Trans-Inclusive Medicaid Program to Meet Medical and Legal Standards 1. States Should Align Regulations with WPATH Standards a. Aligning Regulations with the WPATH Standards of Care Would Determine Coverage on an Individual Basis Rather Than a Fixed Age 2. New York Should Align Its Regulation with the Exceptions for Informed Consent B. Policy Justifications for Extending Medicaid Coverage of Gender-Affirming Healthcare 1. Replacing the Age-Based Restrictions Will Resolve the Disparity in Health Coverage That Youth May Receive When in Custody of the State 2. Removing Age-Based Restrictions Will Allow Individuals to Obtain Benefits Based on Their Legal Sex Without Delay 3. Mental Harm and Risk of Violence That Transgender Youth Face Without Treatment. C. Cost Justifications for Extending Medicaid Coverage of Gender-Affirming Healthcare to Transgender Youth 1. Removing the Age Restriction Would Impose a Marginal Cost on States That Have Extended Medicaid Coverage for Gender-Affirming Healthcare 2. Removing the Age Restrictions Would Avoid Other Costs Conclusion INTRODUCTION
In the early hours of December 28, 2014, a seventeen-year-old transgender girl named Leelah Alcorn left her home in Kings Mills, Ohio, and walked three miles to Interstate 71. (1) Before leaving, Alcorn had set up her Tumblr (2) account to automatically upload a post entitled "Suicide Note." (3) At 2:20 AM, Alcorn walked onto the six-lane highway and stepped in front of a tractor-trailer. (4) A few hours later, the post appeared on Alcorn's Tumblr page: "If you are reading this, it means that I have committed suicide and obviously failed to delete this post from my queue." (5)
In her post, Alcorn explained why she chose to take her life. (6) She described the feelings of gender nonconformity she had experienced since she was four, and the joy she felt when she found an explanation for these feelings. (7) "When I was 14," Alcorn wrote, "I learned what transgender meant and cried of happiness. After 10 years of confusion I finally understood who I was." (8) In her post, Alcorn also explained how her parents did not accept her identity, and the toll this took on her. (9) Alcorn's letter stated, "[w]hen I was 16 I realized that my parents would never come around, and that I would have to wait until I was 18 to start any sort of transitioning treatment, which absolutely broke my heart. The longer you wait, the harder it is to transition. I felt hopeless, that I was just going to look like a man in drag for the rest of my life." (10) Alcorn ended her post by stating: "My death needs to mean something. My death needs to be counted in the number of transgender people who commit suicide this year. I want someone to look at that number and say 'that's fucked up' and fix it. Fix society. Please." (11)
Alcorn's death drew widespread attention from media outlets and advocacy groups. Commentators wrote that Alcorn's letter shed light on the painful experience that many transgender youth face. (12) Reports of the incident cited the disproportionately high rate of suicide attempts among transgender youth. (13) Prominent transgender writers and actors, such as Laverne Cox, described their own suicide attempts to bring more attention to the issue. (14) With this publicity, Alcorn's death became a part of a larger conversation about transgender rights and gender-affirming policies. (15) Some commentators argued that improved access to the gender-affirming healthcare that Alcorn sought could reduce the suicide attempt rate among transgender youth and ultimately save lives. (16)
Health organizations such as the American Psychiatric Association (APA), (17) 18 19 the World Health Organization, (18) the American Medical Association (AMA), (19) the Endocrine Society, (20) the American Academy of Family Physicians, (21) the American College of Obstetricians and Gynecologists, and the American Psychological Association have recognized a form of anxiety, termed gender dysphoria (GD), that results from a discrepancy between an individual's sex identity assigned at birth and their gender identity. (22) Mental health experts note that GD can exist during childhood and adolescence and that gender-affirming healthcare can alleviate GD. (23) Indeed, mental health organizations, such as AMA, have noted the seriousness of GD and the medical necessity of gender-affirming healthcare for certain individuals. (24) Without access to gender-affirming healthcare, individuals experiencing GD may develop "clinically significant psychological distress, dysfunction, debilitating depression, and ... suicidality. (25)" Thus, gender-affirming healthcare may be necessary for at least some adolescents. Given the experience of transgender youth like Leelah Alcorn, it is imperative for policy makers to consider adolescent access to medically necessary gender-affirming healthcare.
The psychological effects of GD raise important concerns for policymakers considering whether adolescents should have access to medically necessary gender-affirming healthcare. In particular, municipal governments and urban policymakers have an interest in considering the costs and benefits of providing access to gender-affirming healthcare to transgender individuals and youth. (26) Urban areas possess a high density of transgender individuals, including transgender youth, since the geographic distribution of transgender and gender non-conforming individuals roughly mirrors that of the overall U.S. population. (27) In addition, studies suggest that the transgender population may be disproportionally eligible for Medicaid due to the disparities in income and unemployment that are likely the result of transphobia. (28) As a result, the urban transgender population consists of many individuals who are eligible for Medicaid and other services. Transgender youth may be particularly vulnerable and in need of medical services in urban areas, as reports on runaway homeless youth populations suggest that transgender youth are disproportionally represented in the homeless population. (29) These youth typically move to urban areas where identity-based homeless services organizations that are best prepared to serve transgender youth are based. (30) Municipal governments and urban policymakers therefore have a particular interest in trans youth (31) access to gender-affirming healthcare.
Despite the medical community's recognition that gender-affirming healthcare is medically necessary for certain transgender youth, many are unable to gain access to it. Some, like Alcorn, are deterred from transitioning by their parents or families, while others find that they cannot afford the costly treatments and appointments. (32) While many private insurers have begun to cover gender-affirming healthcare, (33) the majority of state Medicaid programs do not. (34) Thus, in recent years, trans-rights activists have advocated for greater access to gender-affirming healthcare. New York, California, Vermont, Oregon, Massachusetts, and Washington D.C. have lifted the bans in their Medicaid programs for coverage of gender-affirming healthcare, but several of these states restrict coverage on the basis of age, requiring individuals to wait until they are eighteen to receive treatment. (35)
Given the importance of gender-affirming healthcare for transgender youth, this Note considers whether age-based restrictions on Medicaid coverage of this healthcare are necessary and good policy. Part I of this Note provides context for the policy and law regarding gender-affirming healthcare and discusses the terms and rhetorical framing that mental health experts, trans-rights advocates, and legislators use to describe gender-affirming healthcare. In addition, it outlines the empirical research that supports the commonly held view of the mental health field that gender-affirming healthcare may be a medical necessity for transgender individuals. Lastly, it outlines the three approaches that states have taken to cover or exclude gender-affirming healthcare from Medicaid.
Part II examines the New York Medicaid program,...