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

The author is an attorney in the San Francisco Bay Area. Areas of interest include immigration, family law, and LGBT rights. She is presently clerking for the Northern District of California.

This was originally published in the Columbia Journal of Gender and Law.

By Kari E. Hong

Copyright © 2002 by Columbia Journal of Gender and Law; Kari E. Hong

Introduction
I. Forms of Private Health Care Discrimination
II. Competing Legal Classifications of Transsexual Identity
III. Challenge to the Americans with Disabilities Act
IV. Conclusion

Health insurance has an enormous impact on determining who receives medical care. If a policy does not cover a particular treatment, an individual in need of care either pays for the medical procedure from her own resources or foregoes treatment altogether. When a person's income, rather than her established medical need, determines the quantity and quality of care she receives, society is confronted with troubling ethical questions of what type of medical delivery system it provides for its citizens. [FN1] Although this is an important inquiry, I begin this article by focusing on another disquieting aspect of health care access: How does the legal system respond to private insurers that do not cover treatments because of their dislike of a patient or their hostility toward a patient's condition? [FN2]

To date, the federal government has initiated two sweeping measures to protect patients who are denied health care for improper reasons. In 1965 Congress enacted the Medicaid Act to provide minimal medical care to lower- income individuals. [FN3] One of its most important components prevents state legislatures from refusing treatment or reducing payment for a targeted or singled-out medically necessary condition. [FN4] When a Medicaid recipient believes she is being unfairly denied medical treatment, she can turn to the federal courts to ensure that a state legislature's coverage of health conditions is based on proper medical and fiscal criteria.

The government's second major intervention occurred in 1990 when Congress passed the Americans with Disabilities Act (ADA). [FN5] The ADA protects privately insured individuals by prohibiting private employers, insurers, and health care providers from targeting a particular medical condition for discriminatory treatment. [FN6] The ADA does not directly influence the content of health insurance policies, however, which is why consumer advocates are calling for a Patients' Bill of Rights that, among other things, would mandate private insurers provide minimum standards of coverage in health care plans. [FN7] Currently there is an Equal Employment Opportunity Commission order interpreting the ADA that indirectly regulates insurance policies, prohibiting a private employer from withholding employee coverage in a discriminatory manner. [FN8] An employer's obligations in turn place economic pressure on insurance companies to standardize policy offerings. Further, the ADA provides individuals with a cause of action to ensure their employer's insurance company complies with the ADA's anti-discrimination provisions. Since the vast majority of Americans receive their health care from private employers, the ADA's dual-regulatory scheme and court-enforced remedies have been effective in providing many people with non-discriminatory access to health care. [FN9]

Against this backdrop, I examine the discrete issues of whether transsexual individuals are improperly denied health care and whether legal remedies are available to them. A transsexual is a person whose "gender identity (internal sense of being a man or woman) conflicts with [his or her] anatomical sex at birth." [FN10] A transsexual person is not necessarily a gay man or lesbian (person emotionally and sexually attracted to the same sex), hermaphrodite/intersexed person (person born with female and male genitals), transvestite (person who cross-dresses as a form of self-expression); or transgendered person ("transgender" is often used as an umbrella term to "include everyone who challenges the boundaries of sex and gender," which includes, but is not limited to, effeminate men, masculine women, intersexed people, and transsexual individuals). [FN11] Confusion arises when people conflate these identities or believe they are mutually exclusive of each other. The exact number of transsexuals is unknown, but estimates range from one to three percent of the population. [FN12] Statistics generally report biologically-born men transition (take steps to change their anatomical sex) more frequently than biologically-born women, but the reported gender discrepancy reflects researchers' male bias rather than the actual occurrence. [FN13]

In the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), [FN14] the American Psychiatric Association defines a subset of transsexuals as suffering from gender dysphoria or gender identity disorder. [FN15] Although of unknown origin, the medical community defines gender dysphoria as extreme discomfort with one's anatomical body and a persistent desire to be accepted as a member of one's self-identified or "psychological" sex. [FN16] Due to advances in medical science over the past eighty years, more and more transsexuals undergo sex-reassignment surgery [FN17] and take hormone treatments to align their biological sex with their gender identity. The national and international medical community overwhelmingly endorses sex-reassignment surgery and hormones as the only known medical treatment for transsexuals. [FN18] Not all transsexuals are diagnosed with gender dysphoria nor do all transsexuals desire surgical alignment. [FN19] However, for many who do, denial of medical surgery can lead to depression and even trigger suicidal tendencies. [FN20]

Despite the DSM-IV diagnosis, the medical community's internationally endorsed treatment, and the documented side effects of leaving gender dysphoria untreated, most public and private insurers explicitly exclude coverage for sex-reassignment surgery. [FN21] Many members of the general public are probably unconcerned upon learning this fact, believing that an insurer's refusal to cover "sex change operations" is a reasonable one. For many, the thought of a medical insurer paying for a sex change is what seems unusual.

However, closer examination of this issue is warranted. 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. [FN22] 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. [FN23]

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. [FN24]

In Part I of this article, I describe 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, and I explore the legal problem of the ADA exclusion clause. Over the past thirty years, transsexuals have appeared before state and federal courts requesting protection against discriminatory treatment in their jobs, public health care programs, and prisons. Courts have equivocated over whether a transsexual individual should be protected on the basis of her sex, status as a sexual minority, transsexual identity, or not at all. The vast spectrum of legal response--from confused hostility to empathetic protection--calls for inquiry and examination.

In searching for a remedy to the ADA exclusion, Part II looks at cases involving other forms of discrimination against transsexuals and courts' responses to other situations in which a new identity has failed to fit neatly into the then-currently defined categories. For instance, by examining how courts grappled with whether "race" extends to white Hispanics, whether "sex" includes pregnancy, women of color, or even men, history demonstrates that courts have often erred when responding to complex identities. Rather than seizing opportunities to reexamine old assumptions about how discrimination operates and harms its victims, courts too often have wrung the novelty from the emerging categories to make them fit past understandings of how the world is ordered. After eschewing competing categories of constitutional protection for transsexuals, I propose a framework through which courts can more fully understand the nuances of transsexual identity and best respond to the various forms of discrimination transsexuals face. Using this framework, Part III explores how the ADA exclusion clause probably violates the Equal Protection Clause [FN25] and should therefore be reconsidered, and ultimately repealed. Only when the ADA is fully enforced will all citizens be able to receive the health care they need and deserve, free from categorical exclusion.

I. Forms of Private Health Care Discrimination

As described in more detail in Part I.C and III, the ADA was explicitly amended to exclude from coverage: "homosexuality, bisexuality, transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual disorders; compulsive gambling, kleptomania, or pyromania; or current psychoactive substance use disorders resulting from current illegal use of drugs." [FN26] To understand how transsexuals are disadvantaged by the ADA exclusion clause, I began by searching for relevant legal cases and literature. Examining court cases to glean such information was fruitless. There is no "paper trail" of alleged denials because privately insured transsexuals are precluded from seeking remedies from the courts. I then surveyed other academic and scientific literature, but there are no studies documenting why and under what circumstances transsexual individuals are denied care or the extent of the problem.

Frustrated by the lack of information, I contacted attorney Shannon Minter, [FN27] who described several conversations with individuals who had experiences with insurance companies that refused to cover expenses for non-transition related conditions for transsexual individuals, and with doctors who refused to treat transsexuals in need of medical care. Minter's response indicated that health care discrimination was occurring, but ironically, the extent and nature of the problem would remain unknown until its solution--a legal remedy against private insurers and providers--was in place. The possibility of ongoing discrimination prompted me to locate and interview individuals from around the country who have first hand knowledge of how transsexuals are treated when they seek medical care. [FN28] Forty of the respondents were transsexual individuals and two were medical providers.

I recognize the limitations inherent in conducting such interviews, primarily that the number of transsexuals located is a small sample and there is no means by which to determine how representative the population interviewed is of the larger transsexual population. However, this initial effort is an important starting point. Even as a preliminary investigation, the findings provide valuable information about health care discrimination that is otherwise unavailable in currently published reports, studies, or legal cases. Other academic fields have long recognized the value of information gleaned from interviews, and in legal scholarship there are a growing number of scholars who assert that even though individual stories are neither typical nor validated objectively they constitute a legitimate epistemology. [FN29]

When I asked the interviewees about their experiences with medical insurers and providers, a large number reported discrimination by doctors, which often resulted in the transsexuals not receiving health care. In addition, the interviews confirmed that insurance companies use the SRS exclusion clause to deny any medical treatment to transsexuals on the grounds that any health care need required by a transsexual is an excludable transsexual-related condition. To my surprise, a number of individuals described having had positive experiences. The interviewees reported having doctors or employers who served as successful advocates against insurers' denials of health coverage, and even more importantly, a quarter of those interviewed had insurance companies that offered complete coverage for all medical conditions, including SRS surgery. [FN30] This initial, informal investigation raises two important points needing further attention. First, given that many employers and insurance companies will cover SRS procedures, on what basis can other insurance providers justify their refusal to cover SRS procedures? [FN31] Second, given the dire consequences of health care providers' refusal to treat patients, the current failure of the government to provide transsexuals with legal means by which to redress discriminatory treatment calls for reconsideration.

A. Discrimination by Private Insurers and Medical Providers

1. Examples of Private Insurance Discrimination against Transsexuals

Many private insurance companies exclude SRS and hormone treatments from their coverage. [FN32] Insurance companies defend the exclusion clause denying coverage of SRS as a reasonable measure to contain costs and disallow superfluous procedures. However, the medical profession is in near consensus that SRS and hormone treatment are the desired treatments for transsexuals. [FN33] Further, interviewees report some insurance companies pay for hormone treatment, [FN34] surgeries such as orchidectomy (removal of the testes) [FN35] and vaginoplasty (construction of a vagina), [FN36] and even entire sex-reassignment surgeries. [FN37]

The lack of rational medical or fiscal justifications suggests that the insurance policies' SRS exclusion clauses operate as a pretext for other purposes. The interviews confirmed that the most disturbing aspect of these exclusionary clauses is that they are being broadly applied to deny transsexuals medical care for non-transition related conditions they will or have acquired. For example, interviewees report being denied entire medical plans once the insurers learned they were transsexual. [FN38] The insurers defend their denials by stating that because every treatment will have the end result of surgery, the exclusion clause extends to cover all health conditions developed by transsexuals. [FN39] This justification is even used to deny coverage to "post-op" transsexuals who have already undergone surgery. [FN40]

Insurers also rely upon the clauses to terminate coverage for existing non- transition treatments. The interviewees reported that any mention of requesting treatment for gender dysphoria resulted in insurance companies stopping coverage for unrelated treatments such as anti-depression medication [FN41] and psychological care that had been ongoing for ten years. [FN42] In addition, a therapist reported that an insurance company denied her non- transsexual patient therapy coverage. Because the patient spoke about her spouse who was contemplating a sex-reassignment operation, the insurer reasoned that the exclusion clause extended to exclude from coverage the non- transsexual's therapy sessions. [FN43]

In the most extreme example, an insurer denied a transsexual coverage for routine treatments: office visits, blood tests, physical exams, sinus medication, and two emergency visits, once for a cut on the hand and another for a deviated septum. The insurance company also refused to cover treatment for her upper intestinal disorders, kidney cysts, and neck damage due to a work related accident. When the woman appealed the denial of non-gender dysphoria related medical treatments, the insurer told her that her medical treatment was denied because of her "condition," a reference to her transsexuality. [FN44]

2. Examples of Discrimination by Health Care Providers against Transsexuals

Most doctors would probably agree that failure to treat a patient is unconscionable and contrary to their ethical responsibilities. A medical resident explained that although some of her colleagues made jokes about transsexual patients behind their backs, her colleagues and the hospital where she worked never let such views interfere with their professional responsibilities to provide quality care. [FN45] Unfortunately, the interviews reveal that not all doctors adhere to these standards.

For instance, interviewees report incidents such as doctors who gape at their bodies [FN46] and refer to them by their non-requested pronoun. [FN47] Medical providers also turn away transsexual patients known to need medical treatment. [FN48] Doctors openly inform turned-away patients of their discomfort; in one instance, a hospital representative informed one patient that they did not treat her "kind." [FN49] In Washington, D.C., ambulance workers were tending to a woman who had been hit by a car. Once they realized the patient was transsexual, they cracked jokes, insulted her, and stopped administering care, resulting in her death (and a $2.9 million wrongful death jury award). [FN50]

Interviewed transsexuals also report that hospitals often prevent their own physicians from administering procedures to transsexual patients. [FN51] Female-to-male transsexuals report doctors who will not administer gynecological care, even when patients have abnormal vaginal discharges. [FN52] In an extreme case, when a transsexual was diagnosed with cancer, a psychiatrist tried to commit him, telling him that his contraction of cervical cancer should make him "deal with the fact that he is not a real man." Over the next ten months, over twenty gynecologists refused to treat him, often explaining that they could not help him as their other patients would be uncomfortable sitting next to him in the waiting room. Although the man finally found a doctor willing to treat him, he ultimately died from the cancer that had spread untreated for months. [FN53]

3. Transsexuals' Absence of Legal Recourse

If the incidents described in Part I.A.1 had involved public funding or government hospitals, Medicaid provides protections and a cause of action that transsexuals have successfully used to challenge the SRS exclusion clauses. [FN54] However, any disputes between a patient and her private insurer are a matter of contract law. During the 1970s, when insurance companies began denying payment for SRS, a transsexual sought a declaratory judgment in state court stating that her insurer had a contractual obligation to pay for SRS under its agreement to cover "all medically necessary procedures." [FN55] The insurance company defended its refusal to pay for the surgery on the basis that it was cosmetic in nature. The court reviewed the available medical literature and court decisions involving Medicaid and determined that SRS was a medically necessary, and therefore covered, medical procedure. Although the plaintiff received her payment, many insurance companies avoided covering future sex-reassignment surgeries by creating policies with an explicit clause denying coverage to all conditions related to SRS. No longer a matter of contract interpretation, the narrowed clause became a bargained-for contractual term, precluding further private actions against an insurer. However, the notion that health care policies contain bargained-for terms is a legal fiction given that most patients are stuck with the insurance offered by their employer. Individual consumers simply do not have the power to force a multi-million dollar company to change any terms of the blanket policy it offers to thousands, if not millions, of customers. [FN56]

In the past, insurance companies have also claimed that other treatments such as prenatal care, [FN57] post-mastectomy breast reconstruction, [FN58] and contraception [FN59] are either too costly or not medically necessary. In response, Congress and some state legislatures have mandated that private insurance companies cover these procedures. [FN60] This stop gap measure is currently an infeasible solution for transsexuals. Transsexuals lack the necessary political clout to pass such measures due to the enormous social hostility they face. [FN61]

If a non-transsexual had the problems described in Part 1.A.2-- difficulty receiving health care due to doctors or private insurance companies that were biased against her--she could turn to the ADA for protection. The Americans with Disabilities Act [FN62] has been heralded as the most sweeping civil rights legislation since the Civil Rights Act of 1964. [FN63] "The purpose of the ADA is to provide a clear and comprehensive national mandate to end discrimination against individuals with disabilities and to bring persons with disabilities into the economic and social mainstream of American life." [FN64] Prior to the enactment of the ADA, the Rehabilitation Act of 1973 [FN65] was the primary form of federal protection available to persons with disabilities. [FN66] The Rehabilitation Act prohibited physicians and hospitals that received public funding from discriminating against disabled people. However, the Rehabilitation Act failed to prohibit discrimination by private employers, state and local agencies, transportation services, and places of public accommodation. [FN67] Congress therefore designed the ADA to complement, not pre-empt, the Rehabilitation Act by extending its antidiscrimination mandate to all hospitals, schools, federal, state, and local agencies, and places of public accommodation. [FN68]

If a person with HIV or a paraplegic encounters a doctor who refuses to treat her based on the doctor's intolerance of or hostility toward the medical condition, the ADA protects the patient by offering her a cause of action against discriminatory treatment of disabled individuals by private health care providers who work out of private offices. [FN69] If a person with alcoholism or schizophrenia is unable to receive health care insurance because her employer or her employer's insurance company thinks the condition does not merit treatment or is too costly, the patient can rely upon the ADA to ensure that her private employer provides coverage for its employees in a non- discriminatory manner. [FN70] This basic guarantee that private health care will be offered and administered in non-discriminatory ways is not available to transsexuals because the ADA contains an explicit exclusion against covering transsexualism and gender identity disorders. [FN71]

B. Why Transsexuals Should Qualify for Protection Under the ADA

1. Legal Understandings of Disability

Under both the ADA and the Rehabilitation Act, a disability is defined as: "(1) a physical or mental impairment that substantially limits one or more of the major life activities ...; (2) a record of such impairment; or (3) being regarded as having such an impairment." [FN72] A pre-ADA case, Doe v. U.S. Postal Serv. [FN73] demonstrates why gender dysphoria is a legal disability. In Doe, a transsexual employee claimed that her employer violated the Rehabilitation Act when he fired her after she informed him of her plans to change her sex. The plaintiff claimed, in part, that she qualified under the statute due to 'her medically and psychologically established need for gender reassignment surgery." In support of her claim, she referred to the DSM-II, today the DSM-IV, definition of gender dysphoria.

The question in Doe was whether the particular medical condition of gender dysphoria rose to the level of a physical or mental "impairment which substantially limits one or more of such person's major life activities." The court reasoned that because "impairment" can be "any mental or psychological disorder," [FN74] the DSM diagnosis falls within this definition. Second, because "major life activity" includes "functions such as caring for one's self, ... speaking, breathing, and working," [FN75] the court concluded that being fired from one's job qualifies as a substantial limitation on a "major life activity." Finally, as the definition of a disabled person "extends to those who are merely regarded by others as having an impairment which substantially limits major life activities," the court reasoned that the plaintiff had a viable claim under the Rehabilitation Act. Accordingly, the court permitted the claim to proceed to trial. [FN76]

Under Doe, pre-operative transsexuals diagnosed with gender dysphoria satisfy all three prongs of what constitutes a disability, and transsexuals imputed to be impaired, regardless of whether the transsexual has had SRS or never plans to undergo surgery, meet the third aspect of this legal definition. Doe's legal conclusion that gender dysphoria is a medical condition meriting medical treatment is one shared by many other courts. While no federal appellate court has examined whether gender dysphoria is a Rehabilitation Act or ADA defined disability, in the Medicaid context, federal and state courts have determined that sex-reassignment surgeries are a medically necessary procedure for transsexuals who are diagnosed with gender dysphoria. [FN77] Internationally, the United Kingdom High Court of Justice ruled that denial of sex-reassignment and hormones to transsexuals by the national health system was without medical support. [FN78] Even more to the point, in the congressional debate over the ADA, senators were in complete agreement that transsexuals facing discrimination meet the ADA's legal definition of disability and discrimination. [FN79] As explained in Part III, the senators opposed to protecting transsexuals introduced an amendment to deny protections precisely because the medical and legal authorities supported the Rehabilitation Act's protection of transsexuals.

2. Controversy over the DSM's Classification of Gender Dysphoria as a Disability

In 1973, out of pressure from gay activists and a growing societal tolerance of gay individuals, the American Psychological Association stopped classifying homosexuality as a medical condition. However, in the subsequent version of the DSM, DSM-III (1980), "gender identity disorder" (later interchangeable with "gender dysphoria") was listed as a cognizable psychological condition for the first time. Some transsexual andgay activists are critical of inclusion of gender dysphoria in the DSM for two main reasons. First, although most medical professionals only administer treatment of gender identity disorder to adults, non-mainstream doctors still rely upon the diagnosis to prevent a child from growing up gay or transsexual. Parents and professionals have administered aversion therapy and behavior modification to effeminate boys and masculine girls for the purpose of keeping girls feminine and boys masculine. Activists are concerned that in practice, the removal of homosexuality from the DSM is disingenuous since a newly found disorder will be used to cure children of "gender non-conformity" through the same discredited techniques that were used to cure gay adults of their "sexual orientation." [FN80]

Activists are rightfully concerned about the flagrant abuse of children--that is, forcing them to conform to traditional gender roles through emotional and physical abuse--and subsequently call for the end of diagnoses of gender identity disorder in children. However, I argue that the existence of gender identity disorder as a medical disability is not the reason that non- mainstream doctors abuse children under this heading. Doctors that continue to subject children to such harms are most likely motivated by the desire to prevent adult homosexuality and transsexuality. [FN81] In such circumstances, gender dysphoria is turned into a tool to realize means and ends contrary to the medical profession's endorsement. Ending the diagnosis of childhood gender identity disorder is appropriate, ending the diagnosis of adult gender identity disorder is not. The treatment of transsexual adults, unlike the children who are subjected to these procedures, is voluntary, cautiously administered, and internationally endorsed as the proper medical treatment for a mental condition. Removing adult gender identity disorder from the DSM deprives adult patients any means of receiving needed medical treatment. The repeal of gender dysphoria should therefore be limited to childhood applications.

Second, some activists are concerned about the implications of having their identities classified as a mental disability. Before homosexuality was dropped from the DSM, lawmakers justified denying gay men and lesbians civil rights because homosexuality was a deemed a medical disorder. [FN82] Transsexual activists in turn cite concerns that DSM definition of gender dysphoria will be used against them to prevent them from entering mainstream society as healthy, and therefore equal, human beings. I argue, however, that the medicalization of the transsexual identity may actually be the means by which transsexuality is no longer stigmatized. Unlike the medical classification of homosexuality that was designed to impair gay people's advancements in society, the classification of gender dysphoria, and ADA's definition of legal disability, protects transsexuals from discrimination.

For instance, not all transsexuals are categorized as having gender dysphoria, it is only a subset requiring medical treatment who receive this diagnosis. I find this case-by-case diagnosis significant. Unlike the blanket conclusion that all gay people are deficient, gender dysphoria is diagnosed only for an individual who is in actual need of treatment. Moreover, the medical treatment for transsexuals is an internationally endorsed process that allows transsexuals to realize their identities, in sharp contrast to the aversion therapy applied to gay people that was intended to deny them their core identities. Additionally, "disability" as legally defined by the ADA and the Rehabilitation Act does not necessarily require a showing of pathology or permanent condition. For instance, some transsexuals only need medical care while they transition. Administering treatment to someone for a specific window of time parallels treatment of women who suffer from the disability of pregnancy who receive medical care only for the prenatal and birthing period. Likewise, some transsexuals need hormone treatment for an indefinite period, akin to the long-term care diabetes or asthma patients receive. As shown in the interviews with transsexual patients in Part I, without the medical understanding of "gender dysphoria," people would not have access to SRS and hormone treatment to assist them in aligning their gender identities with their anatomies.

The stigma of having gender dysphoria, then, does not arise from the actual medical condition or disability, but from societal discrimination toward it. Pragmatically speaking, the ADA definition of "disability" is the only means by which people can receive protection from discrimination. Denying someone medical treatment out of fear that others will pathologize her condition only takes away needed medical benefits and does not assuage any underlying societal prejudice against transsexuals. Protecting gender dysphoria as a medical condition and a legal disability is essential in guaranteeing that the woman who leaves work--either to have a child or to have sex-reassignment surgery--can return to the same job without discrimination in pay, advancement, or medical benefits. Calls to remove adult gender dysphoria from the DSM are simply without medical support, and worse, analogizing the treatment to the now discredited homosexuality classification obscures the needed legal protections to which those with gender dysphoria, like pregnant women before them, are entitled.

C. How the ADA Fails to Protect Transsexuals from Discrimination

In September 1989 as the ADA was nearing its final vote, Senators Armstrong and Helms took the floor and objected to the ADA's coverage of certain psychological conditions. Due to the Senators' efforts, the ADA was explicitly amended to exclude from coverage "homosexuality, bisexuality and transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual disorders; compulsive gambling, kleptomania, or pyromania; or current psychoactive substance use disorders resulting from current illegal use of drugs." [FN83] Under this bill, the Rehabilitation Act was also amended to exclude coverage of these conditions. [FN84] Transsexuals need coverage under the ADA to protect themselves against private insurers and medical providers who harbor hostility toward them. As much as Congress has the right to withhold benefits or favor some groups over others, I argue in Part III that the categorical exclusion of transsexuals from the ADA is a constitutionally impermissible congressional action. In formulating appropriate legal remedies, I begin Part II by examining competing jurisprudential conceptions of transsexual identity.»

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Notes

[FNa1]. Law Clerk to the Honorable Judge Jeremy Fogel, U.S. District Court, Northern District of California; J.D., Columbia University; B.A., Swarthmore College. I would like to thank Carrie Kingsley, Irit Tau, and the staff of JGL for excellent editorial assistance and Bronwen Gilbert for tremendous feedback on earlier drafts. Special thanks to Shannon Minter for getting me started and Carol Sanger for invaluable guidance and support during the writing process.

[FN1]. Unequal wealth distribution skews access to health care in two ways. First, lack of wealth serves to prevent some individuals from accessing treatments. See Frustration and Fury are Keeping Pace with Escalating Health Insurance Premiums, N.Y. Times, Sept. 18, 2000, at A1 (reporting that due to the costs of health insurance, more than forty million Americans are not insured); Martin F. Shapiro et al., Variations in the Care of HIV-Infected Adults in the United States: Results from the HIV Cost and Services Utilization Study, 281 JAMA 2305, 2314 (1999) (reporting findings that private insurance offers better care than Medicaid and that the poor, ethnic minorities, and women received worse quality and less quantity of care than white males received in the same period). See also Marianne Means, Equity for Women's Health Care Still Elusive, Fort Worth Star-Telegram, Oct. 24, 1998, at 15 (citing a 1994 Alan Guttmacher Institute study reporting that "in general women pay about 68 percent more in out-of-pocket health expenses than men, partly because many insurers don't cover basic reproductive health services" despite their coverage of "male-only needs" such as prostate conditions). Second, the inequitable distribution of wealth precludes consumer demand from being an accurate indicator of value. See Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 Md. L. Rev. 563, 608 (1982) ( "Consumers are too poor, given the other things they want to do or have to do with their money, to induce sellers to provide something that, under the free contract model, sellers don't have to provide unless the price is right.").

[FN2]. Private and public insurers have not covered conditions affecting women such as contraception, because of a sexist bias. See, e.g., Insurance Companies Should Provide Birth Control Coverage, Daily Collegian, Feb. 3, 1999, at A28 (reporting on a Pennsylvania bill to mandate insurance coverage for prescribed birth control. The purpose is "to end discrimination against women by health insurance companies [as women's health needs] have been sometimes ignored."). Further, insurers have provided inequitable coverage of a particular illness or disease due to hostility toward that disease, that is usually based on moral judgments. See, e.g., Federal Judge Says HIV Cap Is Illegal under Americans of [sic] Disabilities Act, Mealey's Ins. L. Wkly., Dec. 7, 1998, at 10 (reporting that the Mutual Insurance company set "a lifetime ceiling" on non-AIDS related conditions at $1 million, but set "a lifetime ceiling on HIV-related benefits" on two policies at $100,000 and $25,000. "Mutual conceded in court that there was no justification for its caps.").

[FN3]. 42 U.S.C. § 1396 (1994). The Medicaid Act is a cooperative scheme by which statesadminister medical treatment to needy individuals residing within their borders and the federal government reimburses participating states for incurred costs. See Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502 (1990).

[FN4]. Under the Medicaid Act, a participating state must cover "medically necessary" conditions by providing sufficient duration, scope, and services to abate a person's injury, illness, or condition. See 42 U.S.C. § 440.230(b) (1994). For more information, see infra note 37.

[FN5]. 42 U.S.C. § 12101 (1994).

[FN6]. See id.

[FN7]. For a discussion of Patients' Bill of Rights, see Robert Pear, Patients- Rights Bill Revised in Bid for Passage in Senate, N.Y. Times, Sep. 12, 2000, at A20 (describing the collapse of the negotiation efforts to reconcile differing House and Senate bills, that vary on the nature and type of remedies and causes of action provided to private individuals against HMOs); Robert Pear, New Insurance Rules for Patients Ease Way for Faster Decisions and Appeals, N.Y. Times, Nov. 21, 2000, at A14 (commenting on President Clinton's regulations requiring most private employer-sponsored health plans to change their procedures on January 1, 2002 to facilitate an appeals process that is more prompt and fair than the current system. The article notes that, absent Congressional endorsement, the regulations fall short of providing patients with a right to sue their HMOs).

[FN8]. See EEOC Interim Guidance on Application of ADA to Health Insurance, 109 BNA Disability L. Rep. E-1 (June 9, 1993) cited in Laura F. Rothstein, Disabilities and the Law, 496 (2d ed. 1997); see also EEOC Order 205.001, cited in Rothstein, supra, at 496 n.37; Henderson v. Bodine Aluminum, Inc., 70 F.3d 958 (8th Cir. 1995) (finding that employee health plan and its insurers violated ADA by denying insurance coverage for high-dose chemotherapy treatment for a covered employee's breast cancer if employee proves that such treatment is a medically sound treatment for breast cancer).

[FN9]. For a more in depth discussion of the ADA, see infra Part I.C and III.

[FN10]. Taylor Flynn, Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 101 Colum. L. Rev. 392, 420 n.4 (2001) (citations omitted); see also Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 Ariz. L. Rev. 265 (1999).

[FN11]. See Leslie Feinberg, Transgender Warriors, at x-xi (1996).

[FN12]. See San Francisco Human Rights Commission, Investigation Into Discrimination against Transgendered People 8 (1994).

[FN13]. See Marjorie Garber, Vested Interests 101-04 (1993) (noting that the statistics reporting that more biological men than women transition is probably due to the fact, among others, that male researchers began the investigations and for years clinics only accepted male-to-female patients). Garber also wryly observes that, due to sexism, known male-to-female transsexuals include Christine Jorgenson and Renee Richards, but well-known female-to-male transsexuals are discovered, and become famous, only upon their death. Id. at 110.

[FN14]. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) [hereinafter DSM-IV]. Commonly referred to as the DSM-IV, this authoritative manual enumerates all known and treatable psychological conditions and details recommended treatment.

[FN15]. Id. at 532-38.

[FN16]. Id.

[FN17]. Sex-reassignment surgery [hereinafter SRS] and hormone treatment is the process by which a person's anatomy is aligned with her identified sex. SRS is only administered to transsexuals diagnosed with gender dysphoria. "Depending on the physicality and the overall health of the patient," surgery may include for male to female transsexuals: vaginoplasty, penectomy, orchidectomy, clitorplasaty, breast augmentation, rhinoplasty, facial remodeling, thyroid chondroplasty and crico-thyroid approximation. For female to male transsexuals procedures may include: hysterectomy, ophorectomy, bilateral mastectomy, and phalloplasty. See Russell Reid et al., Transsexualism: The Current Medical Viewpoint § 4.2 (2d ed. 1996). See also David Brez Carlisle, Human Sex Change and Sex Reversal 374-82 (1998) (providing cross-cultural description of the nature, procedures, and costs of SRS).

[FN18]. See Gerald Mallon, Practice with Transgendered Children, in Social Services with Transgendered Youth 49, 55-58 (Gerald Mallon ed., 1999). Note that "the generally accepted view among the medical and psychological professions is that efforts to alter a person's core gender identity are futile and unethical." Flynn, supra note 10, at 394 n.10.

[FN19]. See Kate Bornstein, Gender Outlaw 119 (1994). Throughout history, many transsexuals passed as the other gender without technological aids. See Feinberg, supra note 11, at 83-89 (listing known transsexuals in the 18 superth , 19 superth , and 20 superth centuries). In addition, many contemporary transsexual activists are opposed to surgery as it medicalizes or pathologizes their identity. See Pat Califia, Sex Changes 265-68 (1997); see also infra Part I.B (for more information about the history of and controversy over the DSM classification of gender dysphoria).

[FN20]. See, e.g., R v. North West Lancashire Health Authority, (Q.B. 1998) (finding that the international and English medical community overwhelmingly endorsed SRS, the surgery's cost was minimal, and that transsexuals diagnosed with gender dysphoria who were denied the procedure suffered devastating consequences).

[FN21]. See infra Part I.

[FN22]. Id.

[FN23]. Id.

[FN24]. As described in more detail in Parts I.C and III, due to the efforts of a small number of Senators, the ADA was explicitly amended to exclude from coverage: "homosexuality, bisexuality, transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual disorders; compulsive gambling, kleptomania, or pyromania; or current psychoactive substance use disorders resulting from current illegal use of drugs." See 42 U.S.C. § 11211 (1994).

[FN25]. The Fourteenth Amendment applies to actions by a state. It does not apply to relations between the individual and the federal government. Instead the Fifth Amendment applies to the federal government and also contains an equal protection component. Bolling v. Sharpe, 347 U.S. 497, 499 (1954). "This Court's approach to Fifth Amendment equal protection claims has ... been precisely the same as to equal protection claims under the Fourteenth Amendment." Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975). See Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). For the sake of simplicity, I refer to Fourteenth Amendment jurisprudence throughout the article because it is this case law that a federal court would apply to the ADA via the Fifth Amendment.

[FN26]. 42 U.S.C. § 11211 (1994).

[FN27]. Shannon Minter is Senior Attorney at the National Center for Lesbian Rights in San Francisco, California.

[FN28]. Between August and September 1999, I sent letters and emails, and posted inquiries on internet sites of a handful of organizations that provide support to or political advocacy for transsexual individuals. I asked for people's experiences with medical insurers and professionals. The original recipients of my letter in turn forwarded my solicitation to membership lists or posted my solicitation on more internet websites. To counter skepticism about the interviews' reliability, I conducted extensive follow-up interviews and requested supporting documentation where possible to reduce inaccuracies and exaggerations. See generally David A. Hyman, Lies, Damned Lies, and Narrative, 73 Ind. L.J. 797 (1998) (positing that many "horror story" anecdotes are deceptively incomplete); Daniel Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993). For details of interview responses see infra Part I.A.

[FN29]. For an excellent discussion of the debate and articulation of the value individual anecdotes can bring to the law, see Ariela Gross, Beyond Black and White: Cultural Approaches to Race and Slavery, 101 Colum. L. Rev. 640 (2001); see also Kathryn Abrams, Hearing the Call of Stories, 79 Cal. L. Rev 971, 1028 (1991); Symposium, Legal Storytelling, 87 Mich. L. Rev 2073 (1989); William Eskridge, Gaylegal Narratives, 46 Stan. L. Rev 607 (1994); Carol Gilligan, In a Different Voice (1982); Alex M. Johnson, The New Voice of Color, 100 Yale L.J. 2007 (1991). All sources cited in Gross, supra, at nn.9 & 23. For criticism of this view, see Farber & Sherry, supra note 28.

[FN30]. When I asked the interviewees about their experiences with medical insurers and providers, fourteen reported problems with doctor and provider bias; twelve reported denials of SRS or hormones; and eighteen reported denials of non-transition related conditions. Despite the frequency of problems, interestingly enough, twenty reported having SRS and hormones covered; and ten reported no problems with current doctors or insurers (the numbers do not add up to forty-two as people responded to more than one category and typically had both positive and negative experiences). Notably, of those people who had no problems, seven explicitly informed their insurer that they are transsexuals and three were passing as biologically born women or men. In addition, one non- transsexual respondent reported being denied treatment for a congenital hormone imbalance by a state Medicaid program based on the mistaken belief that she was a transsexual.

[FN31]. For example, the City of San Francisco adopted a measure to extend health insurance to all municipal employees. The insurance covers SRS and hormone treatment. E.g., San Francisco Workers Get Sex-Change Coverage, N.Y. Times, Feb. 18, 2001, at A20; Tackling Bias in Health Care, The Advocate, May 23, 2000, at 18. I argue that evidence of such coverage sheds doubt on the rationale provided by insurers that claim providing such coverage is too costly.

[FN32]. See supra note 17 for a description of sex-reassignment surgery (SRS) and hormone treatment. SRS is only administered to transsexuals diagnosed with gender dysphoria.

[FN33]. See, e.g., Reid et al., supra note 17; Mallon, supra note 18.

[FN34]. See e-mail from David (Sept. 10, 1999); e-mail from Vicky Steele (Sept. 12, 1999); e-mail from Shane (Sept. 8, 1999); e-mail from Andrea James (Sept. 8, 1999). All e-mails cited in this article are on file with the author.

[FN35]. See e-mail from Nancy Zeitlin (Sept. 24, 1999).

[FN36]. See e-mail from Amanda Fournier (Oct. 10, 1999).

[FN37]. See e-mail from Vicky Steele, supra note 34; e-mail from Anne Ogborn (Oct. 23, 1999).

[FN38]. See e-mail from Jayne Fischer (Sept. 10, 1999) (Michigan plan withdrew offer to cover her); e-mail from Christine Howey (Sept. 7, 1999) (insurance broker explained to the post-op transsexual she was excluded from all medical plans); e-mail from Anne Ogborn, supra note 37 (an employer's insurer refused to cover a post-op transsexual employee on the basis its clause extended to all of her medical conditions. After the employer threatened to sue, the insurer backed down from its denial, and agreed to fully cover the transsexual employee).

[FN39]. See e-mail from Jayne Fischer, supra note 38.

[FN40]. See e-mail from Anne Ogborn, supra note 37; e-mail from Christine Howey, supra note 38.

[FN41]. See e-mail from Vicky Steele, supra note 37. When a transsexual requested treatment for gender dysphoria, a New York insurer stopped covering a patient's antidepressant prescription, despite the fact that it knew the patient had recently attempted suicide.

[FN42]. See e-mail from Respondent P (Sept. 8, 1999). A North Dakota insurance company abruptly ended paying for a woman's therapy after reading her therapist's case notes that the stated patient mentioned her sex-reassignment surgery. The woman had been diagnosed with depression twenty-five years prior and the company had paid for psychological care for ten years. This particular transsexual has coped with the overwhelming prejudice by withdrawing from doctors and health care, noting "[i]t is better to risk poor health than to deal with prejudice and insurance problems. If I die years earlier than I should have, so be it--at least I've lived as I believe." See e-mail from Respondent P (Oct. 9, 1999).

[FN43]. See e-mail from Arlene Istar Lev (Oct. 24, 1999).

[FN44]. See e-mail from Candice (Sept. 9, 1999).

[FN45]. See e-mail from Respondent A (Sept. 2, 1999).

[FN46]. See e-mail from Chris Faust (July 10, 1999).

[FN47]. See e-mail from Jes (Oct. 26, 1999).

[FN48]. See e-mail from David King (Sept. 8, 1999).

[FN49]. See e-mail from Sarah Fox (Sept. 8, 1999). A Seattle veterans hospital told a navy veteran who was exposed to radiation and chemical burns during his duty to go elsewhere, explaining that they do not treat her "kind." She received copies of her medical records, that referred to her as "gay" and a "faggot."

[FN50]. See Maria Elena Fernandez, Death Suit Costs City $2.9 Million; Mother of Transgendered Man Wins Case, Wash. Post, Dec. 12, 1998, at C1.

[FN51]. See e-mail from with Michele Taylor (Sept. 7, 1999); e-mail from Josh (Sept. 1, 1999). In one instance, a doctor performed a phalloplasty (construction of genitals) operation in his office, after being refused use of hospital facilities for the procedure. The patient subsequently developed an infection from having surgery in a non-hospital environment.

[FN52]. See e-mail from Mik (Aug. 31, 1999).

[FN53]. See e-mail from Lola Cola (Sept. 6, 1999). A documentary was made about Robert and his partner Lola. See Southern Comfort (Q-Ball Productions 2001). For a review of the film, see Kelly McWilliam, BIFF: Review of Southern Comfort, M/C Reviews, Aug. 2, 2001, at http://www.media- culture.org.au/reviews/screens/southerncomfort.html (last visited Oct. 11, 2001).

[FN54]. See, e.g., Pinneke v. Preiser, 623 F.2d 546 (8th Cir. 1980) (rejecting categorical exclusions as violation of the Medicaid Act guarantee of individualized assessments of medical necessity); Smith v. Rasmussen, 57 F. Supp 2d. 736, 771 (N.D. Iowa 1999) (dismissing Iowa's claim that SRS is not a medically necessary procedure); G.B. v. Lackner, 145 Cal. Rptr. 555 (Cal. Ct. App. 1978) (concluding that SRS is not a cosmetic procedure even though some cosmetic surgery is performed. The court stated that as reconstructive surgery is also required after an accident, SRS is medically necessary.); Doe v. State, Pub. Dep't of Welfare, 257 N.W.2d 816 (Minn. 1977) (finding Minnesota's blanket ban on SRS impermissibly broad). The State was unable to justify its ban in the face of uncontroverted medical evidence that some individual patients will be eligible for this treatment. The only decision that held to the contrary is Rush v. Parham, 625 F.2d 1150 (5th Cir. 1980) (finding SRS was not medically necessary), remanded to Rush v. Parham, 565 F.Supp. 856 (N.D. Ga. 1983). However, the court based its conclusions on medical opinions that are now completely outdated. As described in Mallon, supra note 18, medical providers used to "treat" gender identity disorder through aversion therapy. Today, however, there is consensus among members of the medical profession that any attempt to treat gender dysphoria through psychological care encouraging a person to ignore their self-identity and accept their biological gender as determinative is futile and even unethical. See Mallon, supra note 18.

[FN55]. See Davidson v. Aetna Life & Cas. Ins. Co., 420 N.Y.S.2d 450 (N.Y. Sup. Ct. 1979)

[FN56]. Among other factors, the inequitable distribution of wealth precludes consumer demand from being an accurate indicator of value. See, e.g., Kennedy, supra note 1, at 608 ("Consumers are too poor, given the other things they want to do or have to do with their money, to induce sellers to provide something that, under the free contract model, sellers don't have to provide unless the price is right.").

[FN57]. See Delia M. Rios, '78 Law Gave Pregnant Workers a New Future, Minneapolis Star Tribune, Sept. 27, 1998, at 9E (describing how the Health Insurance Association of America opposed the Pregnancy Disability Act, and the predicted "catastrophic" costs of the measure did not materialize).

[FN58]. See Christine Nardi, Comment, When Health Insurers Deny Coverage for Breast Reconstructive Surgery: Gender Meets Disability, 1997 Wis. L. Rev. 777, 778, 780 n.13 (1997) (citing a survey that found over one hundred insurance companies denied breast reconstruction surgery. Despite medical evidence to the contrary, insurers usually deny this procedure on the basis of its cost or "cosmetic" nature).

[FN59]. See Means, supra note 1, at 15 (criticizing insurers' double- standard finding Viagra, a drug for male impotency, medically necessary, while deeming birth control preventative and therefore not necessary).

[FN60]. See Rios, supra note 57, at 9E (Pregnancy Disability Act enacted to redress insurer's failure to cover pregnancy costs); Nardi, supra note 58, at 809 n.201 (listing state statutes mandating insurance coverage for post- mastectomy breast reconstruction); Daily Collegian, supra note 1 (reporting on a Pennsylvania bill to mandate insurance coverage for prescribed birth control).

[FN61]. See generally Mubarak Dahir, Whose Movement Is It? Transgender Activists Seek Allies Among Often Reluctant Lesbians and Gay Men, The Advocate, May 25, 1999, at 50 (noting that transsexuals are marginalized by the larger gay community); Elaine Herscher, S.F. Transgender Laws Called Ineffective, S.F. Chron., Nov. 17, 1999, at A22 (noting widespread discrimination despite legal protections); Gregory Sokoloff, Transsexuals Strive against Odds for Acceptance in US, Agence France Presse, Oct. 25, 1999, at 1 (observing that "transsexuals still have a long way to go before they can enjoy the same degree of legal protection accorded to gays and lesbians").

[FN62]. 42 U.S.C. § 12101 (1994).

[FN63]. 42 U.S.C. § 2000e (1994). The ADA is heralded as a "sweeping" civil rights act. See Rothstein, supra note 8, at 23. As such, comparisons to the Civil Rights Act are made as both statutes enable an enormous number of individuals to redress private acts of discrimination against them.

[FN64]. S. Rep. No. 101-116, at 2 (1989).

[FN65]. 29 U.S.C. § § 701-96 (1994). The legislative history of the Rehabilitation Act is recorded in S. Rep. No. 93-318 (1972).

[FN66]. In addition to the Rehabilitation Act, persons with disabilities receive piecemeal protection from statutes. See, e.g., Individuals with Disabilities Education Act, 20 U.S.C. § § 1401-20 (1994) (applies to state special educational programs); Architectural Barriers Act of 1968, 42 U.S.C. § § 4151-57 (1994) (applies to construction of buildings financed with federal funds); Fair Housing Act, 42 U.S.C. § § 3601-19 (1994) (applies to housing); Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. § 1002 (1994) (regulates employer-offered employee health plans). For an overview and listing of other statutes, see Rothstein, supra note 8, at § § 1.16-.35.

[FN67]. See S. Rep. No. 101-116, at 18-20 (1989).

[FN68]. See 42 U.S.C. § 12131 (1994).

[FN69]. Title III proscribes private health care providers from offering services to disabled people in a discriminatory manner. 42 U.S.C. § § 12181- 89 (1994).

[FN70]. See supra note 8.

[FN71]. See 42 U.S.C. § 12211 (1994). The ADA excludes from coverage "homosexuality, bisexuality, transsexualism, transvestitism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current use of drugs."

[FN72]. 42 U.S.C. § 12102 (1994).

[FN73]. 1985 WL 9446 (D.D.C. 1985). See also Blackwell v. U.S. Dep't of Treasury, 656 F. Supp. 713 (D.D.C. 1986) (citing King v. Palmer 778 F.2d 878 (extending protection to transvestites and homosexuals under the Rehabilitation Act)).

[FN74]. Doe, 1985 WL 9446, at *2 (citing 45 C.F.R. 84.3(j)(2)(i)(B)).

[FN75]. Id. at *3 (citing 45 C.F.R. 84.3(j)(2)(ii)).

[FN76]. The case settled before being tried. See William N. Eskridge & Nan D. Hunter, Sexuality, Gender, and the Law 1111 (1st ed. 1997).

[FN77]. The Medicaid Act is a cooperative scheme by which States administer medical treatment to needy individuals residing within their borders and the federal government reimburses a participating state for incurred costs. 42 U.S.C. § 1396 (1994); see Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502 (1990). Under Medicaid, a participating state must cover "medically necessary" conditions by providing sufficient duration, scope and services to abate a person's injury, illness, or condition. 42 U.S.C. § 1396(a) (1994). What is "medically necessary" is defined as a service that is "reasonable and necessary for the diagnosis or treatment of illness or injury or to improve functioning of a malformed body member." § 1395(y)(a)(1)(A). A procedure is not medically necessary if it is not cosmetic or experimental. § 440.230 (c)(d). Forty-two states have exclusions barring coverage for SRS and hormones. When these exclusions have been challenged in court, the courts do not uphold them. Nonetheless, survey respondents reported varying degrees of coverage. Some states covered SRS and other transition operations, while respondents reported other states denying SRS and hormone treatment. In Massachusetts, a doctor discovered that a woman had a cancerous cyst, which was due to her leaky silicon breast implants that had been implanted twenty-five years earlier. The doctor recommended removal of the cyst and new breast implants, a routine procedure for post-mastectomy women. The state Medicaid program refused on the basis that the woman was in actuality a transsexual and therefore the breast implants were part of her sex-reconstruction surgery. The state program made this rule despite the fact that the woman transitioned twenty-five years ago. See Matter of Germaine G. Berger, Mass. Bd. of Hr'g, Div. of Med. Assistance, No. 9902394 (Aug. 25, 1999) (on file with author). The need to eliminate the state exclusion clauses is pressing, but unfortunately beyond the scope of this note.

[FN78]. R v. North West Lancashire Health Authority, (Q.B. 1998). The British court found that the international and English medical community overwhelmingly endorsed the procedure, the cost was minimal, and that transsexuals diagnosed with gender dysphoria who were denied the procedure suffered devastating consequences. Id.

[FN79]. See infra notes 149-51 & 170-73 and accompanying text.

[FN80]. For an excellent overview of the medical profession's development, application, and later renunciation of treating children for gender identity disorder, see Shannon Minter, Diagnosis and Treatment of Gender Identity Disorder in Children in Sissies and Tomboys: Gender Nonconformity and Homosexual Childhood (Matthew Rottnek ed. 1999). Although usually pre-teens are treated, diagnosis begins as early as two to four years old, and the problem behaviors as described in DSM-IV include boys who "have a marked preoccupation with traditionally feminine activities." DSM-IV, supra note 14, at 532-38. The definition also includes: "dressing in girls' or women's clothes," and "drawing pictures of beautiful girls and princesses," playing with "[s]tereotypical female-type dolls, such as Barbie," and playing a "mother-role" while playing house, not playing "rough-and-tumble play and competitive sports" or having "little interest in cars and trucks." Id. Girls who purportedly suffer from GID suffer from symptoms such as eschewing playing with "dolls or any form of feminist dress up or role-play activity" Id. In addition, girls diagnosed with GID identify with "intense negative reactions to parental expectations or attempts to have them wear dresses or other feminine attire," prefer to wear "boy's clothing and short hair," admire "powerful male figures, such as Batman or Superman," prefer to play with boys "with whom they share interests in contact sports, rough-and-tumble play, and traditional boyhood games," DSM-IV, supra note 14, 532-38, cited in Minter, supra, at 10-11. Therapists treat children with gender identity disorder through behavior modification techniques that reward the child for playing with her gender's toys and punish her for playing with her opposite gender's toys. Id. at 15-16. The diagnosis and treatment of childhood GID was devised specifically with the intent to prevent adult homosexuality and transsexuality. Id. at 18-19. Therapists say things such as: "as [you] grow up, and if [you] continue to do sissy things, [you] won't have many friends, and people will not like you." Richard Green, The "Sissy Boy" Syndrome and the Development of Homosexuality (1987) quoted in Minter, supra, at 16. In the extreme cases, kids with gender identity disorder are sent to mental institutions where they are subjected to abuse, prodding to conforminto proper gender socialization. See Daphne Scholinski, The Last Time I Wore A Dress (1997) (the autobiographical story of a young woman institutionalized at age fourteen for not acting like a girl. Even though she was housed with insane adults, she was not released from the mental hospital until her eighteenth birthday). In addition to being ineffective treatment, most children are traumatized from growing up in a mental hospital inhabited by insane adults. As parents have complete legal authority over their children, children are forced into these institutions until age eighteen, when they are no longer legally obliged to stay there and most insurance companies end their medical coverage of the condition. Id.

[FN81]. Modern psychology recognizes that the problems experienced by gay, lesbian, bisexual, and transsexual youth arise from external societal intolerance and not innate defects caused by sexual orientation or gender identity. Minter, supra note 80, at 28-29. Doctors who embrace childhood GID do so with the goal of eliminating homosexuality or transsexuality in adults. Id. at 18-19. For example, Dr. Richard Green who advocates for childhood GID asserted, "Suppose that boys who play with dolls rather than trucks, who role- play as mother rather than as father, and who play only with girls tend to disproportionately to evolve as homosexual men. Suppose that parents know this, or suspect this. The rights of parents to oversee the development of children is a long-established principle. Who is to dictate that parents many not try to raise their children in a manner that maximizes the possibility of a heterosexual outcome?" Id. at 22 (quoting Dr. Green). Dr. Green's preference for a "heterosexual outcome" is a result contrary to the medical profession's understanding that homosexuality is not an abnormality requiring readjustment. Id. at 28. Moreover, his justification belies the fear that improper gender roles have the potential to cause homosexuality, effeminate boys, and although notably absent from the male researchers' caseloads, presumably mannish girls. Id. at 17-19, 22, 27. Based on their own follow-up studies, researchers found that their interventions were ineffective as the children studied were more likely to be gay than the general population. Id. at 20-21. Practitioners who continue to "cure" children are driven by ideological or religious reasons, that are contrary to (1) the medical profession's recognition that one's comfort with one's sexual orientation and gender identity is a reflection of self-actualization; and (2) medical and ethical support. Id. at 12-13.

[FN82]. See generally Urvashi Vaid, Virtual Equality (1995).

[FN83]. 42 U.S.C. § 12211 (1994). Senators Armstrong and Hatch introduced the original Amendment No. 722. For its text, see 135 Cong. Rec. 112,158 (1989).

[FN84]. See 42 U.S.C.A § 12211 (1994).