Challenging Transition-Related Care Exclusions Through Disability Rights Law

UDC Law Review (Symposium: Disability Rights: Past, Present, and Future), 2020

42 Pages Posted: 18 Feb 2020

See all articles by Kevin M. Barry

Kevin M. Barry

Quinnipiac University - School of Law

Date Written: February 5, 2020

Abstract

Despite the growing visibility and acceptance of transgender people, discrimination against them persists. One area in which transgender people experience discrimination is healthcare — specifically, the denial of coverage for transition-related care such as hormone therapy and surgery.

Advocates have successfully argued that such denials constitute sex discrimination under Title VII of the Civil Rights Act of 1964, Section 1557 of the Affordable Care Act ("ACA"), and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In several cases, advocates have pursued an additional legal theory: transition-related care exclusions constitute disability discrimination under the Americans with Disabilities Act of 1990, its predecessor, Section 504 of the Rehabilitation Act, and the ACA. Specifically, advocates argue, such exclusions discriminate based on gender dysphoria — the clinically significant distress experienced by transgender people who cannot live consistent with their gender identity.

Although underdeveloped in the legal literature, disability theory is an important tool for the advancement of transgender rights, particularly given the uncertain fate of sex discrimination protections for transgender people under a newly constituted Supreme Court and the success of transgender litigants in securing protection under disability rights laws. This Article considers the use of disability rights laws to challenge transition-related care exclusions. It concludes that there is no legitimate reason to deny insurance coverage for transition-related care. Such care is medically necessary and effective treatment for gender dysphoria, and its costs are “immaterial,” given the small fraction of people who utilize such care. The only conceivable purpose for denying coverage for transition-related care is its effect: to single out transgender people for inferior medical coverage, and to avoid paying for a stigmatized form of health care.

Keywords: transgender, gender identity, gender dysphoria, insurance, disability, transition, discrimination, healthcare, sex discrimination, Title VII, ADA, Rehabilitation Act, Affordable Care Act

Suggested Citation

Barry, Kevin M., Challenging Transition-Related Care Exclusions Through Disability Rights Law (February 5, 2020). UDC Law Review (Symposium: Disability Rights: Past, Present, and Future), 2020, Available at SSRN: https://ssrn.com/abstract=3532168

Kevin M. Barry (Contact Author)

Quinnipiac University - School of Law ( email )

275 Mt. Carmel Ave.
Hamden, CT 06518
United States

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