Putting Transgender Health Care Myths on Trial

Last year, the Wisconsin legislature held sessions on a bill that, if passed, would terminate all state funding of hormone therapy and sex reassignment surgery for transgender people in state custody. The legislators who sponsored this misguided bill labeled it the “Inmate Sex Change Prevention Act,” and issued press releases touting the end of “extreme prison makeovers.” Various state officials attempted to educate the legislators about transgender health needs, testifying that transgender inmates removed from their medication were likely to require new treatments for resulting conditions, such as depression and suicidal ideation. These new treatments would incur additional unknown costs for the state, they said, although the bill had been presented as a cost-savings measure for Wisconsin. But the bill’s cosponsors were uninterested in developing any understanding of transgender health needs, and the bill passed into law. As a result, numerous transgender inmates in state prisons faced the abrupt termination of the hormone therapy they had received for years.

After the law took effect, Lambda Legal and cocounsel ACLU filed a constitutional challenge in federal district court, asserting that the law violated the Eighth and Fourteenth Amendments of the federal Constitution and we obtained a preliminary injunction barring the law from taking effect. The transgender inmates we represent have now been restored to their full dosage of hormone therapy as the case advances toward trial. Lambda Legal is awaiting the outcome of the class certification motion we filed asking the court to certify a class of transgender people who are, or will be, in the state’s custody.

The Wisconsin law was a particularly egregious example of the barriers to health care many transgender people face. But problems stemming from the misunderstanding of transgender health care needs are common, and often arise as transgender people navigate the complex maze of state vital records departments. In fact, Lambda Legal’s work in this growing area of civil rights law is as much about debunking myths and misconceptions about transgender people as it is about representing their claims in court.

In 2002, Lambda Legal represented a transgender man who had undergone sex reassignment surgery and obtained a court order declaring that his sex had been changed. Despite the order, the Virginia Department of Vital Records refused to change the sex marker on his birth certificate, claiming that no such change was possible until the man underwent a phalloplasty — an expensive form of sex reassignment surgery that is not always deemed medically necessary and that, moreover, is not required by the relevant Virginia laws and regulations. Officials at Virginia’s Office of Vital Records stated that, because he had not had a phalloplasty, the man didn’t meet the state’s legal requirement of changing his sex “by medical procedure.” Therefore, they disregarded the court order. Lambda Legal wrote a letter to the Virginia Attorney General threatening to sue the state over the agency’s actions. Faced with the truth about the procedure and Lambda Legal’s impending lawsuit, the state attorney general’s office backed down and finally granted the birth certificate amendment.

As in the Virginia case, many state health officials across the country require proof of a “sex change” or genital surgery before they will alter the sex marker on birth certificates. These types of policies reinforce the myth that all transgender people undergo a single “sex change operation,” regardless of an individual’s need or ability to undergo, or afford, the surgical procedures at issue. Possession of inaccurate identity documentation may limit a person’s ability to travel, apply for jobs or educational programs or obtain necessary government services, and makes transgender people vulnerable to violence and harassment. Attorneys, however, can work with public health departments to eradicate these misguided surgery requirements, and in states where court orders are required for document changes, attorneys can help their transgender clients by filing petitions that present sufficient evidence of gender transition.

Access to transgender health care is challenged further by laws and policies across the country that codify myths that the care is risky, cosmetic or monolithic. For example, the federal Medicare program excludes coverage of sex reassignment surgery, deeming it “controversial” and “experimental,” despite decades of research supporting its effectiveness. Exclusions like this one are rampant in the private insurance context, with many large insurance companies excluding all coverage for “sex reassignment treatments” or equivalent care.

Without insurance coverage, transgender people often struggle to afford necessary treatments; some are ultimately forced to obtain hormones and silicone injections illegally on the streets. In addition, transgender people often struggle with outright discrimination by health care providers, apprehension about disclosing their transgender status or full medical history to providers, reluctance to seek preventive care (such as pap smears for transgender men) and concern about leaked medical records. Moreover, widespread employment discrimination against transgender people has resulted in disproportionate unemployment rates and a consequent lack of any health insurance coverage.

Attorneys can be advocates for their transgender clients and the community members who face this array of obstacles to health care. They can write letters to biased institutions and providers, demanding that transgender people be provided with the same quality and scope of care that is provided to others. They can network with transgender-friendly health care providers in their area, in order to assess the community’s resources and provide assistance where needed. They can advocate for health insurance policies that include coverage for transgender care to be adopted in their own workplaces. Attorneys may contact Lambda Legal for assistance in drafting these advocacy letters. Lambda Legal also highly encourages attorneys interested in fighting transgender discrimination to become cooperating attorneys.

Too often, transgender people fall victim to discriminatory health care practices and regulations, especially in state systems such as prisons and juvenile justice facilities. Attorneys are well positioned to fight this discrimination and to oppose the codification of transphobia in health care laws and policies. We encourage you to join Lambda Legal in this struggle that is, for many, a matter of life or death. Learn more about Lambda Legal’s transgender advocacy.