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SSG. Douglas M. Ducote Sr.
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DES MOINES, Iowa —The Iowa Supreme Court has unanimously upheld a lower court ruling that determined the State must allow “sex change” operations to be covered under Medicaid.
“[T]he history behind the rule supports our holding that the rule’s express bar on Medicaid coverage for gender-affirming surgical procedures discriminates against transgender Medicaid recipients in Iowa under the ICRA (Iowa Civil Rights Act),” wrote Justice Susan Christensen on behalf of the panel.
“After the DHS amended the rule to bar Medicaid coverage for gender-affirming surgery, the legislature specifically made it clear that individuals cannot be discriminated against on the basis of gender identity under the ICRA,” she said.
“Given our holding that rule 441—78.1(4)’s exclusion of Medicaid coverage for gender-affirming surgery violates the ICRA as amended by the legislature in 2007, we need not address the other issues raised on appeal.”
As previously reported, two men, who go by the names Carol Ann Beal and EerieAnna Good, had sued the Iowa Department of Human Services (DHS) in 2017 after their doctors were informed that Medicaid would not cover procedures to remove their male reproductive organs.
Under the Iowa Administrative Code, DHS prohibits coverage of cosmetic, reconstructive or plastic surgeries “primarily for psychological reasons or as a result of the aging process” or “for the purpose of sex reassignment.”
Beal and Good, with the aid of the American Civil Liberties Union (ACLU) and the testimony of their doctors, argued that their surgeries were “medically necessary,” advising the court that they struggle with depression and anxiety due to their gender dysphoria.
“This surgery is not just something that I want. It’s something that I very much need to resolve the depression and anxiety I face because my outside fails to match who I know I am: a woman,” Good said in a statement at the time.
The ACLU also argued that the denial violated the Iowa Civil Rights Act and the Iowa Constitution, because “the same or substantially equivalent treatments” would be allowed for those who don’t have gender dysphoria. It cited the example of a mastectomy.
Last June, Gamble sided with the plaintiffs, stating that the DHS did not prove that its exclusion served a substantial government interest. He also denied a request from DHS to create criteria to determine whether or not to approve coverage for gender dysphoria-related surgeries in the future.
“The court is … perplexed by this request,” Chief District Judge Arthur Gamble stated. “DHS does not explain why the medical necessity of requests for sex reassignment surgeries could not simply be evaluated under the same criteria as other requested surgeries or treatment of non-transgender individuals.”
He therefore ordered the reversal of DHS’ denial of coverage for Beal and Good’s operations, and declared the state regulation to be in violation of the Iowa Constitution.
“[T]he language of Iowa Administrative Code rule 441-78.1(4) pertaining to the exclusion of coverage for sex reassignment surgery in connection to the treatment of transsexualism should be and is hereby held to violate the Iowa Civil Rights Act and the Equal Protection Clause of the Iowa Constitution,” Gamble wrote.
“The language of the regulation excluding coverage for sex reassignment surgery for transsexualism shall be stricken from the regulation and the remaining language must be interpreted and applied in a manner allowing transgender individuals coverage under Iowa Medicaid for medically necessary gender affirming surgery for the treatment of Gender Dysphoria,” he ordered.
On Friday, the Iowa Supreme Court upheld Good’s decision, stating that the exclusion of coverage violates the Iowa Civil Rights Act.
“In 2007, the Iowa legislature amended the ICRA to add ‘gender identity’ to the list of protected groups,” Christensen wrote. “The ICRA’s gender identity classification encompasses transgender individuals—especially those who have gender dysphoria—because discrimination against these individuals is based on the nonconformity between their gender identity and biological sex.”
“This prohibition against denying coverage for Good’s and Beal’s gender-affirming surgical procedures extends to the director and staff of the DHS, as well as its agents, the MCOs.”
While Beal and Good cheered the decision, stating that the operations “save lives” since “[t]ransgender people are at such risk for suicide,” others said that cutting people’s bodies is not the answer to the pain and confusion they feel.
“We grieve to see measures that encourage—and now compel taxpayers to fund—others seeking fulfillment outside of God’s design,” Drew Zahn of The Family Leader told the Des Moines Register.
As previously reported, Walt Heyer, a man who identified as a woman for eight years until he became regenerated by the Spirit of God, similarly wrote an article in 2017 remarking that allowing those with gender dysphoria to conform their bodies to their psychology does not solve the underlying problem.
“Too many U.S. medical practitioners direct all gender-distressed people toward the extreme measures of conforming the body to the mind, rather than exploring the psychological issues that lie beneath the feelings,” he stated. “Giving powerful hormones and recommending radical surgeries without screening for psychological issues first causes great harm to the patients and their families.”
“Many people who are regretful and suicidal followed to the letter the generally accepted treatment protocol of doctor-prescribed hormone therapy and genital surgery,” Heyer, who now helps those with sex-change regret, outlined. “It is not homophobic, transphobic, or bigoted to look at the causes of dissatisfaction and suicide among the transgender population. Rather, it is a caring, heartfelt way to prevent dissatisfaction and suicides.”
Rita Bettis, legal director of the ACLU of Iowa, talks June 7, 2018, after Iowa's Medicaid ban on transgender transition-related care was struck down. Luke Nozicka, lnozicka@dmreg.com
Aiden Vasquez needed more than an hour to collect himself before he could talk about Friday’s Iowa Supreme Court decision ruling that transgender people like himself could use Medicaid funds to pay for transition-related care, including surgeries.
Tears blurred his vision as he read the verdict over and over. Sobs caught his voice in his throat as the Davenport resident barely squeaked out to his wife what the court decided.
As a transgender man, the ruling’s stuffy language was so much more than legalese — these words were his ticket to being able to live fully as the man he knows he is.
“They are now finally acknowledging us as human beings,” he said. “They are finally acknowledging that this is not a plastic surgery or about what I look like. This is a matter of life and death.”
Transgender surgeries can range from $20,000 to $100,000, putting it out of reach of individuals who qualify for the assistance.
In affirming a district judge's decision, Justice Susan Christensen wrote that the “express ban on Medicaid coverage for gender-affirming surgical procedures” contradicted the gender-identity protections in the Iowa Civil Rights Act.
Or, as Rita Bettis Austen, the ACLU of Iowa’s legal director, put it: “Any discriminatory ban on care — whether that's from a medical provider, which is less likely, or it's from an insurance provider, which is more likely — is illegal in Iowa.”
Advocates believe the decision is the first by a state's highest court to hold that transgender people have the right to use public money for transition-related surgeries. As issues of LGBT rights swirl nationally, the decision could help open the door for challenges to bans in other states, about half of which have language like Iowa’s in their administrative codes.
Gender identity — or the deeply held sense of who one is, which may differ from the sex organs with which one was born — and sexual orientation were added to the Iowa Civil Rights Act as protected classes in 2007.
Under that statute, transgender Iowans have legal protections against discrimination in education, employment, housing and public accommodations. Medicaid, a state and federally funded program, is considered a public accommodation.
But the court stopped short of ruling that this was a violation of the equal protection clause in the Iowa Constitution. Polk County Chief District Judge Arthur Gamble held in his June ruling that it did. Christensen said that question wasn't necessary to decide to resolve this case.
That leaves the door open to legislators to change laws that would put Friday's decision in the balance, said Sharon Malheiro, a Des Moines-based lawyer and LGBT advocate.
“It still leaves the question of transgender rights up in the air,” said Malheiro. “And the Iowa Civil Rights Act can be amended to remove gender identity, leaving those lives in fear that the rights they enjoy today may not be here tomorrow.”
Two-year battle over medical necessity
The verdict ended an almost two-year legal battle that hinged on whether transition-related surgery was “medically necessary” or a procedure provided solely for psychological purposes.
After years of dealing with denials and headaches regarding their health coverage, Carol Ann Beal, 43, of northwest Iowa, and EerieAnna Good, 29, of southwest Iowa, sued the Department of Human Services in 2017. They alleged that the state’s blanket ban denying their use of public funds for doctor-prescribed surgery singled them out solely because of their gender identity.
When prescribed by a doctor, all forms of transition care, including surgeries, are recommended by most professional medical organizations, including the American Medical Association, the American Psychological Association and the American Psychiatric Association.
But not every transgender person is interested in surgery, Dr. Joe Freund, one of the most sought-after transition-care doctors in the state, previously told the Register.
Transitioning is a spectrum, and some patients find alignment simply by dressing in gender-specific clothing. Other patients may find hormone-replacement therapy enough while some may need surgery to make themselves whole, he said.
In the district court ruling, Gamble wrote that DHS did not “rebut the medical evidence that gender affirming surgery is medically necessary treatment” and that Good and Beal’s denials were issued “without regard to the law and facts,”
“The agency acted in the face of evidence upon which there is no room for difference of opinion among reasonable minds,” he wrote.
The state appealed, arguing the ban is not discriminatory because the department denies all surgeries performed primarily for psychological reasons — which is how it has characterized transition-related surgeries.
“We are covering these surgeries in the same instances when the primary purpose is to address a non-psychological purpose,” Assistant Attorney General Matthew Gillespie said during oral arguments before the Supreme Court. “And we don't cover surgeries in the same instance, regardless of gender identity, when the surgery is performed primarily for a psychological purpose.”
The Supreme Court didn’t agree. Christensen wrote that Beal and Good were “expressly denied” coverage because the procedures were “related to transsexualism.”
The court also noted that the department covers other procedures that serve psychological purposes, including the revision of scarring.
"As the ruling showed, this case presented a difficult question involving individual rights and the state’s interests," said Lynn Hicks, spokesman for the Attorney General's Office. "This issue was a first for Iowa’s courts, and we thank the court for its guidance and for resolving this issue."
For next steps, Hicks directed the Register to the Department of Human Services, which through spokesman Matt Highland declined to comment.
Comes too late for some
Beal has known she was a woman despite being born with male genitalia since before she started kindergarten.
She began presenting as a girl at 10 and started taking hormones in her teens after being diagnosed with gender dysphoria, the medical term for feeling that one's inner masculinity or femininity is incongruent with his or her biological sex.
Both her family and her spouse supported her decision to go through with this litigation, Beal said when the lawsuit was filed in 2017.
"You go through so many years transitioning, and now I hit a brick wall with Iowa's discriminatory ban on Medicaid coverage for transition-related care," Beal said in 2017. "It has caused me stress and depression and affects every aspect of my life."
Overwhelming gender dysphoria also causes severe anxiety for Good, who has been living as a female for almost a decade. To align her body with her gender identity, she “wears a tight girdle and ‘tucks’ her male genitalia for up to 12 hours each day,” according to court documents.
After the ruling, Good said in a statement that this decision will “save lives.”
“Transgender people are at such risk for suicide,” she said. “And I’ve lost transgender friends to suicide. I hope this decision helps change that.”
Like Good and Beal, many of the patients at the award-winning University of Iowa LGBTQ Clinic are on Medicaid, co-founder Dr. Nicole Nisly previously told the Register. Some of them meet the medical criteria for surgical intervention and are in desperate need of that kind of care.
"When they are denied this care, it is heartbreaking for us and heartbreaking for them," Nisly said. "Imagine it from their perspective: They have been on hormones and transitioned in every other way for a year, and then they find out they can't take that extra step to fully become themselves.
"Some (of my patients) do become suicidal."
For The Family Leader, a conservative, Christian advocacy group in Iowa, human sex and sexuality is immutable and determined by God.
“We grieve to see measures that encourage — and now compel taxpayers to fund — others seeking fulfillment outside of God's design,” Drew Zahn, the group’s communications director, said in a written statement.
Tabulating the cost of transition is difficult because of the variation of care needed or desired, but the Philadelphia Center for Transgender Surgery prices the full suite of procedures for both transgender women and transgender men at about $100,000.
However, single surgeries cost much less. For example, a vaginoplasty, the creation of a vagina, or a phalloplasty, the creation of a penis, costs about $20,000.
Despite what could be considered high costs, transgender people make up a relativity small portion of the national population. One estimate found about 0.3 percent of the total population, or about 964,000 people nationally and 9,300 in Iowa, identify as transgender, according to the Williams Institute, a think tank at UCLA's law school.
A smaller subset of that population would seek surgeries.
Vasquez, who was profiled in the Register’s Trans in Iowa series, couldn’t wait for approval for his top surgery — as a mastectomy for transgender men is commonly known — to wind its way through the Iowa Medicaid system. Instead, he took out a costly loan to have the procedure done.
Since being publicly viewed as a man has become easier, his depression has eased, suicidal thoughts subsided, and he has lost more than 100 pounds.
“It’s too late for me,” he said. “But it gives me hope for all the guys coming after me.”
He pauses, collecting his emotions one more time, “And I am just so happy for them.”
