Removing the Constraints to Coverage of Gender-Confirming Healthcare by State Medicaid Programs

Abstract:     
In April of 2010, the United States Tax Court, in O’Donnabhain v. Commissioner held sex reassignment surgery and hormone therapy to be tax-deductible medical expenses under the Internal Revenue Code. In the course of reaching its decision, the court made a number of findings, including that sex reassignment surgery is a medically necessary treatment for gender identity disorder and that the general consensus of the medical community is that this treatment is both appropriate and effective. While these findings were made in reference to a decision under the Internal Revenue Code, they have the potential to change the current understanding existing under the Federal Medicaid Act. Currently individuals diagnosed with gender identity disorder face a great deal of difficulty in obtaining coverage of most gender-confirming treatment, particularly sex reassignment surgery, through Medicaid and private insurance. This Note focuses on coverage of sex reassignment surgery and other gender-confirming healthcare by state Medicaid programs and argues that courts reviewing denials of coverage for these treatments should adopt the findings in O’Donnabhain. This Note also argues that the states with these exclusionary provisions should repeal them or, in the alternative, that the courts in these jurisdictions should judicially invalidate these provisions because they no longer comply with the requirements imposed by the Federal Medicaid Act.

Number of Pages in PDF File: 55

Keywords: Medicaid, Gender Identity Disorder, Transsexual, Sex Reassignment Surgery

Accepted Paper Series