Minnesota legislation drops medicaid for gender reassigment

[Betsy]

The following is an email exchange I had today:

The original email:
Dear Betsy,

A group of us have been campaigning to get MN to drop coverage of circumcision from Medicaid. Since I am licensed to practice law there, I used that, and my mini-pulpit at <removed> as leverage. Last week the governor signed a new budget that drops circumcision unlesss medically necessary or for religious reasons.
(The latter is clearly unconstitutional, but that challenge can come much later when someone has the chutzpah to charge their whole bris to the state.)

I noted with some surprise and thought of you instantly when I saw that gender reassignment surgery has ALSO been delisted. I need not preach to the choir, but that is a wonderful victory for both of us. Is that BLO at work or ISNA or whom?

I am embarrassed to say I would have assisted in that effort had I known it was in play.

Nevermind--a terrific result for us both. How many states have defunded gender reassignment surgery? How many never covered it? How many still do?
Cheers!

And the legislation as it was sent to me:

*Take a look at the language of the bill the governor signed (though I have this third hand and need to verify this.



> 43.29 Sec. 23. Minnesota Statutes 2004, section 256B.0625, is

> 43.30 amended by adding a subdivision to read:

> 43.31 Subd. 1a. [SERVICES PROVIDED IN A HOSPITAL EMERGENCY

> 43.32 ROOM.] Medical assistance does not cover visits to a hospital

> 43.33 emergency room that are not for emergency and emergency

> 43.34 poststabilization care or urgent care, and does not pay for any

> 43.35 services provided in a hospital emergency room that are not for

> 43.36 emergency and emergency poststabilization care or urgent care.

> 44.1 Sec. 24. Minnesota Statutes 2004, section 256B.0625,

> 44.2 subdivision 3a, is amended to read:

> 44.3 Subd. 3a. [GENDER SEX REASSIGNMENT SURGERY.] Gender Sex

> 44.4 reassignment surgery and other gender reassignment medical

> 44.5 procedures including drug therapy for gender reassignment

> are is

> 44.6 not covered unless the individual began receiving gender

> 44.7 reassignment services prior to July 1, 1998.

> 44.8 Sec. 25. Minnesota Statutes 2004, section 256B.0625, is

> 44.9 amended by adding a subdivision to read:

> 44.10 Subd. 3c. [CIRCUMCISION FOR NEWBORNS.] Newborn

> 44.11 circumcision is not covered, unless the procedure is medically

> 44.12 necessary or required because of a well-established religious

> 44.13 practice.

> 44.14 [EFFECTIVE DATE.] This section is effective July 1, 2005,

> 44.15 and applies to services provided on or after that date.

My reply to a listserv about it:
Someone sent me a copy of the Minnesota legislation that denies
Medicaid coverage for newborn circ. The legislation unfortunately
went a step further by denying medicaid coverage for sex
reassignment surgeries. The note I received felt this was a good
thing in our efforts to end unnecessary intersex genital mutilation.

That is not the case and this part of the legislation is troublesome
for me and likely other intersex activists. It's precisely the
reason we have chosen to go the route of education and not laws
because legislation does not consider all situations.

The worse thing is it doesn't affect intersex surgeries on infants
at all as few of them are considered reassignment surgeries. Most
would be considered 'assignment' in nature and the medical
profession often calls them "reconstructive" even though that
implies something is being put back when in reality, it is the
removal of tissue.

Transsexuals are the ones who will be most affected by it and yes,
some transsexuals are intersex. If someone managed to escape
surgery as a child but choses on their own to get it, they will now
be denied medicaid for it. Even if there is no intersex status
involved, this is very troublesome for some of our key allies.

This is a huge problem for us as well and it is something we
recognize as also a problem with insurance companies. When people
escape infant surgery and decide after childhood health insurance
runs out, it is usually considered transsexual surgery, even if the
person is not transitioning gender with it. For instance, a woman
born without a vagina and decides after age 18 or so to have a
vagina built, she can now be denied medicaid for it as it will
likely be considered reassignment surgery. We've encountered
several situations where this has occurred and women being told they
must satisfy the harry benjamin standards before undergoing the
procedure. This will add another unnecessary hurdle for her because
legally, it is considered cosmetic reassignment surgery.

Other situations where this legislation could be a problem is if the
person has partial androgen insensitivity and id's as female.
Around puberty, she would want her gonads removed, otherwise she
will suffer unwanted masculinizing side effects and this legislation
could deny her medicaid coverage for a cosmetic procedure she needs
(but is considered cosmetic) The person who had "reconstructive"
gender assigning surgery as an infant and decides later on the wrong
choice was made can now be denied medicaid coverage to correct it.

The consequences of short-sighted legislation can be horrible and I
would plead with anyone considering similar efforts to think out the
ramifications before pursuing it.

Betsy Driver
Bodies Like Ours

[Meadow]

Thank you for pointing out that laws and legislation can be a double edged sword, drawing blood from many who may stand near. It becomes scary to think to hand that power to uneducated knaves who could in turn wield that sword to justify and further their self interests.

[Betsy]

I'm not at liberty to share the replies to the listserv I participate in and where I posted the original note as it is a private list open by invitation only and each member agrees not to forward emails off list---the one I posted came off list so it was okay to share without identifying information included. The person who sent it to me is very well-intentioned and someone I respect. I think he just didn't realize the ramifications of he new law in his joy.

It appears (at this time based upon correspondance) that those who sought the anti-circ legislation were caught unaware on the inclusion of gender reassignment surgery (or so they say). One reply was a bit troublesome in that it implied collatoral damage was okay as long as medicaid stopped funding newborn circumcisions. To that poster's credit though, suggestions such as writing letters to the editor of the MN papers were put forth and it is something I will endeavor this week and I encourage others to do so as well.

I fear however that a rift could occur in some natural alliances (intersex/trans, interses/anti-circ, trans/anti-circ) by mere association with this being included in what is otherwise a good and well intentioned piece of legislation. That occurring is not a good thing as we really do need eachother in our fights for equal and fair rights.

Betsy

[Peter]

The anti-circumcision law is very poorly written. The law is dangerous in that it mixes medicine and religion in ways that are disturbing. It says that state funding for circumcision will be denied, except in the cases where circumcision is medically necessary, or "necessary or required because of a well-established religious practice." This language is a human rights nightmare that holds that religion comes before the human rights of the child. In my mind, it amounts to state funding of a religious practice as the law provides for state funding of medical treatments deemed religiously necessary. Secular parents seeking circumcision will be at a disadvantage measured against some religious parents. I am sure that secular parents will be quick to challenge the constitutionality of the law. No steps forward, and perhaps many steps backwards. One may be deeply opposed to circumcision. But it is important to frame arguments in terms of strengthening patient informed consent requirements as a human rights issue. Otherwise, you get monsters like this law that can be harmful to many people on many levels.

Peter

[Dana Gold]

There is a movement in the USA (supported by prominent conservative-minded physicians and psychiatrists) that call for a halt to “transsexual” surgeries. There are able to further this cause by inclusion of anti-gender re-assignment laws into heretofore activist causes…..seemingly providing social justice, but with a “price tag” that the original “supporters and promoters” do not have to “pay for”. I do not blame the any activist movements in and by themselves; rather the persons (like in below links) that take advantage of and twist the laws to their advantage and “conservative, moralized” social agenda....as well as any activists who sacrifice a particular member of the so-called GLBTI whatever ......as an example: ENDA establishing anti-discrimination for GLB at the expense of T a few years ago.....and this quote by Betsy:

One reply was a bit troublesome in that it implied collatoral damage was okay as long as medicaid stopped funding newborn circumcisions.

collateral damage????? to whom..........

Excerts from the link below

In the December 2000 Atlantic Monthly, University of Minnesota bioethicist Carl Elliott notes that "clinicians and patients alike often suggest that apotemnophilia is like gender-identity disorder and that amputation is like sex-reassignment surgery." This has the effect of undermining the uniqueness of sex-change surgery and challenging the social value attributed to it.

Here's an interesting argument from Paul McHugh, director of psychiatry at the Johns Hopkins University medical school: A patient feeling that he is a woman trapped in a man's body is not obviously different from an anorexic woman feeling that she is drastically overweight. In 1992, writing on sex-change operations in the American Scholar, he said: "We don't do liposuction on anorexics. Why amputate the genitals of these poor men? Surely the fault is in the mind, not the member." In the late 1970s, McHugh halted sex-change operations at Hopkins, calling them "perhaps, with the exception of frontal lobotomy, the most radical therapy ever encouraged by 20th-century psychiatrists."

McHugh is currently on the President’s Council on Bio-ethics, along with other like-minded individuals.

http://www.jewishworldreview.com/cols/leo030501.asp

Excerpts from the link below.

The promotion of "sex changes," and the normalizing of severe gender-identity disorders by radical feminists, pro-same-sex-attraction-disorder activists, and sexual revolutionaries is part of their larger agenda--namely, the destablization of the categories of sex and gender.

Welcome to the National Association for Research and Therapy of Homosexuality (NARTH) -- a non-profit, educational organization dedicated to affirming a complementary, male-female model of gender and sexuality.
NARTH, founded in 1992, is composed of psychiatrists, psychoanalytically informed psychologists, certified social workers, and other behavioral scientists, as well as laymen in fields such as law, religion, and education.

http://www.narth.com/index.html

My own thoughts and feelings about the "rift" between allies:

GLBT/I can exist as an alliance against the homo/trans/intersex- phobic medical/social/psychological aspects of this society; but I feel it is hardly a homogenous union (in terms of "understanding" each other)....and it is a thwart to the "alliance" and a slap-in-the face (to any individuals or group) when one starts making "expert" comments about the other; "borrowing and cutting/pasting" the uniqueness of one to establish the legitimacy of the "borrower", pushing laws to benefit one at the expense of the other, or denying the legitimacy of the reality of one because the originator has a "problem" with it.(some gays do not like/accept TS people)...the acronym should be more like this : G-L-B-/-(T)-/-(I)......collateral damage, indeed...

[Betsy]

I've been assured by the folks who worked towards the defunding of MGM that at no time was intersex, transsex, gender reassignment funding, etc. ever brought to the table. It appears that this part was inserted into the budget bill (it's a big bill and there is lots in there which is not germane to the discussion) by some stupid MN lawmaker.

One reply was a bit troublesome in that it implied collatoral damage was okay as long as medicaid stopped funding newborn circumcisions.

collateral damage????? to whom..........

I'm pretty sure the smiley inserted by Dana implies she is being sarcastic but just in case (mostly for the benefit of those who don't see it) and in consideration that the readers here are not privy to the email that implied it, the writer implied that the goal was the defunding of MGM, and while she also opposed SRS funding, their goal was met.

To me, it's a troublesome goal. Religious exemptions aside (I understand that part will be challenged, most likely through court action), I can't help but to think about how the LGB community sought exclusionary employment anti-discrimination legislation because it would be easier to see passage than to include gender in it. Thankfully, ENDA eventually did become GENDA and I do hope that eventually the MGM movement will become more inclusive to protect the rights of all children, not just a few and not on the shoulders of any other segment of our population.

Betsy

[Dana Gold]

It appears that this part was inserted into the budget bill (it's a big bill and there is lots in there which is not germane to the discussion) by some stupid MN lawmaker.

That action was intentional and is a part of what I like to term back-door politics.....a "controversial inclusion" of a part of a bill into the overall acceptable main legislation. That is how the Read ID Act ( federal/national bio-metric ID cards) got passed, even though there was widespread opposition to it.......it was a part of the main bill that called for increased funding for world anti-terrorism...........no legislator thus opposed it because the main bill was what everyone wanted or had to say yes to....politics really is a ruthless game

And, yes, I was being sarcastic.

[Peter]

I think that the anti-circ movement may have been used on this issue by some conservative lawmakers who want to end SRS and related treatments, and put the responsibility for ending it on the anti-circ movement. At this point there is no evidence that I have seen that the anti-circ movement was aware of the anti-SRS and related treatments aspects of the funding bill.
The anti-circ parts of the legislation are so poorly written that I believe that it would be fairly easy to get a judge to issue an injunction preventing the implementation of the anti-circ parts of the legislation. The language is so flawed that I believe that there is no chance of it surviving a constitutional challenge. But perhaps this was the intent of the authors of the legislation. Perhaps all they wanted to do was divide and conquer people to further a conservative agenda. My fear is that only the anti-SRS and related treatments aspects of the legislation will survive intact.
I believe that we need to discuss how anti-circ people and intersex people can co-operate. I believe that we should consider age factors in possible future anti-circ legislation. For instance, if a law was written that stated that no medically unnecessary infant genital surgeries, including circumcision, should be funded for children under the age of five, what position would we take on such proposed legislation? I believe that Betsy is correct that there are many instances where intersex people should have public funding for voluntary medical treatments, but these cases seem to fall at an older age, where issues of informed consent come more clearly into focus. I can see instances, where if the law was carefully written, that I would support removing public funding for IGM surgeries.

Peter

[Betsy]

Below is an email from the list I referenced above and is here with permission of the writer. It appears that the clause we are concerned about is not related to the MGM folks and is just an unfortunate result of the way the bill/law was written and any illusions of consanquinity are purely coincidental. I'm considering the matter closed on the issue of MGM/SRS collusion yet am open towards hearing opinions on how the MGM and IGM communities could work more closely.

-----Original Message-----
From: [mailto:icgi@yahoogroups.com] On Behalf Of Amber Craig
Sent: Tuesday, July 19, 2005 3:49 PM
To:
Subject: [icgi] Medicaid coverage for sex reassignment

Here are just a few interesting tidbits I have found while researching the issue. I would say that the issue of sex reassignment not being covered has been on the legislative radar screen far longer that circumcision defunding, please note that some of the court challenges are as far back as the 1970s.
If anything, the legislation provides a great educational opportunity - responses to the legislation, such as letters to the editor, would surely get printed.

http://www.nclrights.org/publications/tgclients.htm

2] Medicaid

In contrast, there is no exclusion of sex-reassignment under the federal Medicaid statute. As a result, almost every court that has ever considered the issue has concluded that States cannot categorically exclude sex reassignment surgeries from Medicaid coverage.47 Despite these holdings, many state Medicaid statutes contain a blanket exclusion for procedures related to sex-reassignment.48

In addition, even in states with positive case law on this issue, as a practical matter, it is extremely difficult to obtain Medicaid reimbursement for medical procedures related to sex-reassignment (especially surgery).
This is true for a number of reasons, including, among others: (1) the front line Medicaid staff who process Medicaid claims often automatically deny claims from transsexual persons based on the mistaken belief that the procedures are cosmetic or experimental, or based on the mistaken belief that the procedures are categorically excluded; (2) transsexual persons and their health care providers often fail to submit adequate documentation supporting the medical necessity of particular procedures, based on a lack of familiarity with the legal requirements for showing medical necessity;
(3) advocates and attorneys often fail to provide adequate representation for transsexual persons, based on prejudice, ignorance, or an inability to find information and models of good advocacy; (4) health care providers who specialize in transgender issues often do not accept Medicaid patients.

http://www.nls.org/conf/services.htm -



http://www.nls.org/conf2005/medicaid_decisions.htm

This is a summary of court decisions regarding sex reassignment coverage - it appears the sex reassignment surgery, which is typically not covered, has been challenged legally several times, in two of these cases payment was required, and in two of these cases, payment was denied:

Doe v. Minn. Dept. of Pub. Welfare
257 N.W.2d 816 (Minn. 1977)
Sex re-assignment surgery
Yes

Pinneke v. Preisser
623 F.2d 546 (8th Cir. 1980)
Sex re-assignment surgery
Yes

Rush v. Parham
625 F.2d 1150 (5th Cir. 1980)
Sex re-assignment surgery
No

Smith v.Rasmussen
249 F.3d 755 (8th Cir. 2001)
Sex Reassignment Surgery
No

http://www.daubertontheweb.com/psychologists.htm - Please note that Iowa is one of the many states that funds unnecessary circumcisions, but denies sex
reassignment:

Smith v. Rasmussen, 249 F.3d 755 (8th Cir. 2001). In defending refusal to fund sex-change surgery under Medicaid, Iowa offers testimony from board-certified psychiatrist on effectiveness and necessity of sex reassignment surgery. District court excludes such testimony and permits psychiatrist to testify only re general psychiatric principles and diagnostic criteria, because psychiatrist's specific opinions on gender identity disorder are beyond psychiatrist's expertise and are based on mere literature review. Exclusion affirmed. Psychiatrist had previously examined only one patient with gender identity disorder, some eight years before trial, and his opinions on patient sub judice were founded only on literature review, review of patient's file, and two interviews. Moreover, psychiatrist's opinions differed with sources acknowledged by psychiatrist to be respected medical authorities. Trial court could properly conclude that psychiatrist lacked expertise to support testimony specifically relating to treatment of gender identity disorder.

****

There also seems to be a large amount of literature that would support funding of sex reassignment, so there is excellent scientific backing to challenge this law:

http://www.ncbi.nlm.nih.gov/entrez/q...PubMed&list_ui
ds=2003772&dopt=Abstract

1: Arch Sex Behav. 1991 Feb;20(1):61-74. Related Articles, Links


Transsexual healing: medicaid funding of sex reassignment surgery.

Gordon EB.

Federal requirements for state Medicaid programs are surveyed, and case law regarding Medicaid funding of sex reassignment surgery is reviewed. States have attempted to exclude sex reassignment surgery (SRS) from Medicaid coverage on various bases, concluding, for example, that the procedure constituted "cosmetic surgery." Judicial scrutiny of such exclusions has usually resulted in the state action being found violative of the federal Medicaid statute and accompanying regulations. In those cases upholding the state exclusion, the primary judicial obstacle to funding has been a determination that SRS is "not medically necessary" or is "experimental."
The author explores the recent scientific literature concerning long-term outcomes following SRS and concludes that the procedure, for purposes of Medicaid funding, is neither "unnecessary" nor "experimental," and that the categorical exclusion of SRS from Medicaid coverage is therefore inappropriate. The author recommends case-specific determinations of eligibility for Medicaid funding, utilizing the standards of care promulgated by The Harry Benjamin International Gender Dysphoria Association.

Publication Types:
Review
Review, Tutorial

PMID: 2003772 [PubMed - indexed for MEDLINE]

**********

So, I do understand the importance of working for the benefit of all humans to genital integrity, and that certainly should include the rights of intersexed individuals making fully informed decisions about their bodies. I think I, along with others on this list, would like to help. But discarding male circumcision defunding is not the way. Educating about intersexed choices, challenging the blanket funding laws- I think this approach is very appropriate, and can hopefully help intersexed individuals have autonomy over their own bodies.


Amber