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Florida Won’t Cover Transgender Health Care. Two Trans Women Are Suing.

It’s the latest legal challenge to state health plans that deny coverage for gender-affirming procedures.

Protesters block the street in front of the Supreme Court as it hears arguments on whether gay and transgender people are covered by a federal law barring employment discrimination on the basis of sex on October 8, 2019.

Two transgender women are suing Florida government agencies for being denied gender-affirming health care under the state employee health plan’s exclusion for “gender reassignment or modification services or supplies.”

It’s the latest legal challenge to state health plans that deny coverage for gender-affirming procedures.

The Florida lawsuit, filed Monday, argues that the state’s exclusion of gender-affirming care violates Title VII of the Civil Rights Act and the U.S. Constitution’s equal protection clause. The plaintiffs, Jami Claire and Kathryn Lane, are state workers who were denied treatment for gender dysphoria. Claire is a scientist who has worked at the University of Florida for over three decades, and Lane is an attorney in the public defender’s office in Tallahassee.

“This was an intentional decision made by the [Florida] Department of Management Services to exclude this type of care, and we know that because there is already an exclusion for non-medically necessary care,” Simone Chriss, attorney at Southern Legal Counsel, told Rewire.News. “If what our plaintiffs were seeking was not medically necessary, it would just be denied for that reason, but it wasn’t. It was denied under the exclusion for gender-affirming care, which means that they recognize it is medically necessary but they choose not to cover it.”

The ACLU of Florida, Southern Legal Counsel, and pro bono attorney Eric Lindstrom filed the lawsuit against the Florida Department of Management Services, the Public Defender of the Second Judicial Circuit of Florida, and the University of Florida.

Claire said Florida’s exclusion of gender-affirming care has affected her financially and emotionally. She has had to pay out of pocket for many of the procedures she needs.

“When I had tried to access the medical care, the exclusion was there and I couldn’t access it and I had three suicide attempts,” she said. “Life wasn’t worth living at that point.”

Claire added, “I’ve spent thousands of dollars already and if this exclusion is not overturned and I get to the point where I retire, I will have to use approximately a third of my retirement money to pay for bottom surgery.”

Hormone replacement therapy, electrolysis, augmentation mammoplasty, orchiectomy, and facial feminization surgery were some of the procedures denied by the plaintiffs’ state plans due to the exclusion of gender-affirming care.

Transgender people face numerous barriers to health care access, including discrimination by health-care providers and economic barriers to accessing affordable care. According to the 2015 U.S. Trans Survey from the National Center for Transgender Equality, one-third of respondents who had seen a health-care provider in the past year had at least one negative experience related to being transgender. One in four respondents said they had a problem with their insurance in the past year related to being transgender, such as being denied gender-affirming care. Black, Native American, Latinx, and multiracial trans people were more likely to be uninsured than white trans people, according to the survey.

Twenty-two states and the District of Columbia have policies that prohibit health-care discrimination based on gender identity, according to the Pew Charitable Trusts’ Stateline. Twenty-one states have no policy for health-care coverage for trans people.

Billy Huff, a transgender man who worked at the University of Florida as the director of LGBTQ Affairs, said he was surprised when he found out about the state’s exclusion. He had only researched Aetna to find out if he had coverage.

“I was heartbroken,” he said. “I was at that point literally marking days off on my calendar until my surgery date and already had my consultation and paid for my down payment on the surgery out-of-pocket.”

There have been other lawsuits against exceptions for gender-affirming care in state plans. In 2018, Lambda Legal filed a lawsuit against the state of Alaska on behalf of Jennifer Fletcher, a state legislative librarian, because the state prohibited coverage for her transition-related care. The LGBTQ rights-focused organization, which does litigation and public policy work, said the denial of care violated Title VII of the Civil Rights Act. The case is still open.

Lambda Legal and the Transgender Legal Defense & Education Fund (TLDEF) filed a lawsuit in 2019 on behalf of current and former employees of the state of North Carolina who were denied transition-related care under the state employee health plan. In the complaint, Lambda Legal and TLDEF argue this violates the equal protection clause, the nondiscrimination clause of Affordable Care Act, and Title IX, since the defendants include state colleges and universities.

Lambda Legal attorney Taylor Brown told Rewire.News that defense of state plan exclusions vary from arguing that the procedures aren’t medically necessary and qualify as “cosmetic” to claiming that refusing to cover gender dysphoria is not discriminatory.

“We’re doing the research about these exclusions and looking into state plans and looking into public record requests on when these decisions were made and debated, and they often rely on outdated science or just pure speculation and misinformation,” Brown said.

“Every major medical association in the United States recognizes the medical necessity of transition-related care for improving the physical and mental health of transgender people and has called for health insurance coverage for treatment of gender dysphoria,” according to the American Medical Association. The American Medical Association also cites studies showing that health coverage that includes gender-affirming care is cost-effective compared to the costs associated with untreated gender dysphoria.

Brown said the claim that refusing treatment for gender dysphoria isn’t sex discrimination doesn’t hold legal water.

“We argue that it’s sex discrimination because these procedures we call transition-related health care — they’re often procedures available to cisgender people. So they’ll say that this is not sex discrimination. It’s condition discrimination. We’re not treating gender dysphoria. But we understand that the only people who have gender dysphoria are transgender people,” she said.