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Categorical Exclusions: Exploring Legal Responses to Health Care Discrimination Against Transsexuals


Health insurance in the United States has an enormous impact on determining who receives medical care. If a policy does not cover a particular treatment, an individual in need of care either pays for the medical procedure from her own resources or foregoes treatment altogether. When a person’s income, rather than her established medical need, determines the quantity and quality of care she receives, society is confronted with troubling ethical questions of what type of medical delivery system it provides for its citizens. Although this is an important inquiry, I begin this article by focusing on another disquieting aspect of health care access: How does the legal system respond to private insurers that do not cover treatments because of their dislike of a patient or their hostility toward a patient’s condition? I examine the discrete issues of whether transsexual individuals are improperly denied health care and whether legal remedies are available to them. Despite the DSM-IV diagnosis of gender dysphoria, the medical community’s internationally endorsed treatment, and the documented side effects of leaving gender dysphoria untreated, most public and private insurers explicitly exclude coverage for sex-reassignment surgery.

In Part I of this article, I describe the social problem of how private insurers and practitioners rely upon the SRS exclusion clause to discriminate against people with, or believed to have, gender dysphoria, and I explore the legal problem of the ADA exclusion clause. In searching for a remedy to the Americans with Disabilities Act exclusion, Part II looks at cases involving other forms of discrimination against transsexuals and courts’ responses to other situations in which a new identity has failed to fit neatly into the then-currently defined categories. I propose a framework through which courts can more fully understand the nuances of transsexual identity and best respond to the various forms of discrimination transsexuals face. Using this framework, Part III explores how the ADA exclusion clause probably violates the Equal Protection Clause and should therefore be reconsidered, and ultimately repealed.

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