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Today I stumbled upon "Categorical Exclusions: Exploring Legal Responses to Health Care Discrimination Against Transsexuals" [PDF], a 2002 article in the Columbia Journal of Gender and Law by Kari E. Hong. In my opinion, the most interesting point Hong raises in her discussion of how American law enshrines anti-trans discrimination is about the Americans with Disabilities Act (ADA).
Is being trans a disability? Arguably so, under the ADA's definition of "disability":
Even from the perspective of trans activists who believe the only unpleasant thing about being trans is the marginalization that we experience by cisnormative society (a perspective I don't share), being trans qualifies under clause (3): even trans people who don't believe they have a medical condition, don't believe that "gender dysphoria" or "gender identity disorder" are real things, and don't feel they require medical intervention are regarded as "impaired" by others. Under one definition, being trans means to have one's gender and/or sex not universally recognized as valid. That means that you are regarded as impaired in an area of life that most people consider essential (having a gender and sex that are concordant and unambiguous). So at least by the ADA's standards, being trans is a disability. I don't have a problem with that, since I don't feel the need to perpetuate ableism by holding myself as superior to and apart from people who have disabilities.
Since the ADA makes it illegal for health insurance companies (as well as health care providers) to discriminate on the basis of disability, you might wonder why a significant majority of group health insurance plans in the US (and every individual health insurance plan that I know of) have specific trans exclusion clauses in their policies, which exclude coverage for what is usually -- crudely and non-clinically -- referred to as "sex transformation" or "sex changes". Actually, these clauses exclude coverage for a variety of reconstructive surgeries (mostly on the genitals, chest, or face) when trans people are having them. Often, the policy covers the very same reconstructive surgery for cis people that's excluded for trans people: for example, breast reconstruction for cis women who have had mastectomies due to breast cancer is covered (this is required by federal law), while breast reconstruction for trans women is not.
So according to the ADA, isn't this blatantly illegal discrimination? Well, no, and for that, you can thank Republican senators (at the time) William Armstrong, Orrin Hatch, and Jesse Helms, all of who were involved in introducing a heinous amendment to the ADA:
If you read Hong's article, you can find some of the despicable things that Armstrong and Helms said on the Senate floor that led to the introduction of this amendment. As Hong points out, Armstrong and Helms made no attempt to hide that their antipathy for trans people, pyromaniacs, drug users, and so on had nothing to do with evidence or medical science. I can't help thinking about much more recent controversies over Republicans like Todd Akin, who also made medical claims (that cis women who experience rape can't become pregnant) that are completely contradicted by fact. It's hard not to think that there not only hasn't been progress in the past quarter-century, but that we've gone backwards. While Armstrong's and Helms' ignorant statements could maybe, maybe be excused by the lack of widespread knowledge about and experience with trans people, Akin lacked that excuse for his asinine statements about pregnancy -- not a marginal condition, but one experienced by up to half the human population.
Because nobody in the Senate really gave a shit about trans people (not that I have any reason to think that's changed), the Armstrong-Hatch amendment passed, and continues to be law today. There are other legal bases on which somebody who was denied insurance coverage just for being trans could challenge that decision, but without some significant effort to show that the Armstrong-Hatch amendment violates the Equal Protection clause of the Constitution, the ADA won't be one of them. Then again, it does violate the Equal Protection clause, so you'd think someone would get on that.
Hong's article is ten years old; since then, I've seen very little other writing that explored a potential ADA-based challenge to trans exclusion. Recently, groups like the National Center for Transgender Equality and the Transgender Law Center, as well as writers like Melissa Harris-Perry, have lauded how the Affordable Care Act (ACA) adds additional legal protections for trans people facing health care discrimination. However, I find these celebrations to be premature and totally misleading and harmful, since the ACA in no way addresses the core issue that trans people can be denied medical care that cis people get with no obstacles, simply because we belong to a socially stigmatized group. So long as social stigma affects the kind of health care I can access more than medical necessity does, I won't be celebrating.
Postscript: There's one thing I think Hong is totally off-base about: her assertion that trans kids shouldn't receive medical treatment. If her opinion were policy, at least one person I know probably wouldn't be alive today, and that would be bad, since I prefer her to be around. She seems to confuse reparative therapy for trans kids as practiced by Ken Zucker and supported by his pals entourage Ray Blanchard and J. Michael Bailey, cheerled by Anne Lawrence and Alice Domurat Dreger -- something that is absolutely harmful and unethical -- with treating trans kids by letting them be the gender they are. These two modalities are about as similar as antifreeze and ginger ale, but Hong seems to fall for the harmful misconception (allow me: cisconception?) that medical treatment for trans kids amounts to forcing gender roles on them. That couldn't be further from the truth, since denying medical treatment is an attempt to force a gender role on a trans child: the gender role the child was arbitrarily and coercively assigned at birth. When it comes to adults, though, I find Hong's arguments pretty sound (aside from some of the language -- like the self-contradictory phrase "biological gender" -- which reflects the standards of the time).
Is being trans a disability? Arguably so, under the ADA's definition of "disability":
"(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."
Even from the perspective of trans activists who believe the only unpleasant thing about being trans is the marginalization that we experience by cisnormative society (a perspective I don't share), being trans qualifies under clause (3): even trans people who don't believe they have a medical condition, don't believe that "gender dysphoria" or "gender identity disorder" are real things, and don't feel they require medical intervention are regarded as "impaired" by others. Under one definition, being trans means to have one's gender and/or sex not universally recognized as valid. That means that you are regarded as impaired in an area of life that most people consider essential (having a gender and sex that are concordant and unambiguous). So at least by the ADA's standards, being trans is a disability. I don't have a problem with that, since I don't feel the need to perpetuate ableism by holding myself as superior to and apart from people who have disabilities.
Since the ADA makes it illegal for health insurance companies (as well as health care providers) to discriminate on the basis of disability, you might wonder why a significant majority of group health insurance plans in the US (and every individual health insurance plan that I know of) have specific trans exclusion clauses in their policies, which exclude coverage for what is usually -- crudely and non-clinically -- referred to as "sex transformation" or "sex changes". Actually, these clauses exclude coverage for a variety of reconstructive surgeries (mostly on the genitals, chest, or face) when trans people are having them. Often, the policy covers the very same reconstructive surgery for cis people that's excluded for trans people: for example, breast reconstruction for cis women who have had mastectomies due to breast cancer is covered (this is required by federal law), while breast reconstruction for trans women is not.
So according to the ADA, isn't this blatantly illegal discrimination? Well, no, and for that, you can thank Republican senators (at the time) William Armstrong, Orrin Hatch, and Jesse Helms, all of who were involved in introducing a heinous amendment to the ADA:
At the end of the bill, add the following:
Under this act the term `disability' does not include `homosexuality,' `bisexuality,' `transvestism,' `pedophilia,' `transsexualism,' `exhibitionism,' `voyeurism,' `compulsive gambling,' `kleptomania,' or `pyromania,' `gender identity disorders,' current `psychoactive substance use disorders,' current `'psychoactive substance-induced organic mental disorders,' as defined by DSM-III-R which are not the result of medical treatment, or other sexual behavior disorders.'
If you read Hong's article, you can find some of the despicable things that Armstrong and Helms said on the Senate floor that led to the introduction of this amendment. As Hong points out, Armstrong and Helms made no attempt to hide that their antipathy for trans people, pyromaniacs, drug users, and so on had nothing to do with evidence or medical science. I can't help thinking about much more recent controversies over Republicans like Todd Akin, who also made medical claims (that cis women who experience rape can't become pregnant) that are completely contradicted by fact. It's hard not to think that there not only hasn't been progress in the past quarter-century, but that we've gone backwards. While Armstrong's and Helms' ignorant statements could maybe, maybe be excused by the lack of widespread knowledge about and experience with trans people, Akin lacked that excuse for his asinine statements about pregnancy -- not a marginal condition, but one experienced by up to half the human population.
Because nobody in the Senate really gave a shit about trans people (not that I have any reason to think that's changed), the Armstrong-Hatch amendment passed, and continues to be law today. There are other legal bases on which somebody who was denied insurance coverage just for being trans could challenge that decision, but without some significant effort to show that the Armstrong-Hatch amendment violates the Equal Protection clause of the Constitution, the ADA won't be one of them. Then again, it does violate the Equal Protection clause, so you'd think someone would get on that.
Hong's article is ten years old; since then, I've seen very little other writing that explored a potential ADA-based challenge to trans exclusion. Recently, groups like the National Center for Transgender Equality and the Transgender Law Center, as well as writers like Melissa Harris-Perry, have lauded how the Affordable Care Act (ACA) adds additional legal protections for trans people facing health care discrimination. However, I find these celebrations to be premature and totally misleading and harmful, since the ACA in no way addresses the core issue that trans people can be denied medical care that cis people get with no obstacles, simply because we belong to a socially stigmatized group. So long as social stigma affects the kind of health care I can access more than medical necessity does, I won't be celebrating.
Postscript: There's one thing I think Hong is totally off-base about: her assertion that trans kids shouldn't receive medical treatment. If her opinion were policy, at least one person I know probably wouldn't be alive today, and that would be bad, since I prefer her to be around. She seems to confuse reparative therapy for trans kids as practiced by Ken Zucker and supported by his pals entourage Ray Blanchard and J. Michael Bailey, cheerled by Anne Lawrence and Alice Domurat Dreger -- something that is absolutely harmful and unethical -- with treating trans kids by letting them be the gender they are. These two modalities are about as similar as antifreeze and ginger ale, but Hong seems to fall for the harmful misconception (allow me: cisconception?) that medical treatment for trans kids amounts to forcing gender roles on them. That couldn't be further from the truth, since denying medical treatment is an attempt to force a gender role on a trans child: the gender role the child was arbitrarily and coercively assigned at birth. When it comes to adults, though, I find Hong's arguments pretty sound (aside from some of the language -- like the self-contradictory phrase "biological gender" -- which reflects the standards of the time).