Victory for Transgender Rights
FRIDAY, JULY 08, 2016

New York State must remove restrictions on medically necessary healthcare for transgender Medicaid recipients under a decision issued late yesterday by a federal judge in Manhattan. Under the ruling, New York will be one of very few states where transgender individuals can obtain Medicaid funding for treatments that will bring their physical appearance in line with their gender. A trial will be held to determine to what extent coverage must be provided for transgender Medicaid recipients under the age of 18.

The decision came in Cruz v. Zucker, 14 Civ. 4456 (JSR), a class action lawsuit filed by The Sylvia Rivera Law Project ("SRLP"), The Legal Aid Society, and Willkie Farr & Gallagher LLP ("Willkie Farr") on behalf of Medicaid-eligible transgender individuals diagnosed with gender dysphoria in the United States District Court for the Southern District of New York. In early 2015, the same case prompted the New York State Department of Health to amend a regulation, 18 N.Y.C.R.R. §505.2(l), adopted in 1998 by Governor George Pataki's administration that had banned Medicaid coverage of all transgender care. As a result, in March 2015 the state began covering hormone therapy and gender-reassignment surgery for adults. But the revised regulation still excluded coverage for certain treatments deemed "cosmetic procedures"-such as facial feminization surgery, breast augmentation, and tracheal shaving- which experts in the case testified are medically necessary for some patients to reduce the acute distress and suicide risk associated with gender dysphoria. "This is an incredible victory for the transgender community. It is recognition that medical standards and the needs of individual patients should determine coverage, not the state's designation of certain medical care as simply cosmetic," said attorney Mik Kinkead of SRLP.

Judge Jed S. Rakoff ruled the regulation violated the federal Medicaid Act, which requires state Medicaid programs to provide Medicaid recipients with coverage for medically necessary treatment falling within certain specified categories to Medicaid recipients, and prohibits Medicaid plans from selectively denying coverage of treatments on the basis of diagnosis. "Most of the procedures that were excluded by the regulation were already being covered by New York's Medicaid program for other diagnoses, but not for gender dysphoria. This decision declares such discrimination to be unlawful," said attorney Kimberly Forte of the Legal Aid Society. Judge Rakoff ruled that New York must provide Medicaid coverage for the procedures that the state had previously deemed "cosmetic," and thus not covered. Some Medicaid recipients have been denied coverage for the procedures in recent months, even after demonstrating they were medically necessary.

"For 16 years, Albany turned a deaf ear to the chorus of medical experts who said these treatments were necessary and safe," said attorney Mary Eaton, who argued the motion on behalf of Willkie Farr & Gallagher. "This decision is a strong rebuke to playing politics with the healthcare of our state's most vulnerable citizens."

The revised regulation also excluded all treatment for people under age 18, including pubertal suppressants (also known as puberty blockers), which allow transgender adolescents to temporarily delay the physical changes associated with puberty, permitting them additional time to determine whether to seek further medical treatment for their gender dysphoria. Judge Rakoff concluded that there are disputed issues of material fact regarding what types of treatments are medically necessary to treat gender dysphoria in individuals under the age of 18, necessitating a bench trial to resolve those issues.

The decision represents a dramatic victory for transgender New Yorkers. The attorneys will be happy to further explain the decision and comment on the case.