Lawsuit: Iowa Medicaid ban on sex-reassignment surgery is 'unconstitutional'

Two transgender women are suing the Iowa Department of Human Services, saying the agency's ban on Medicaid coverage for transition-related medical services such as sex-reassignment surgery is illegal and unconstitutional.

In their challenge of the Human Services rule, the women — Carol Ann Beal of northwest Iowa and EerieAnna Good of the Quad Cities — argue that the state's Medicaid ban violates patients’ rights to equal protection under the law as promised by the Iowa state constitution and the Iowa Civil Rights Act.

“As the result of this sweeping exclusion, all surgical treatments for gender dysphoria are excluded from coverage, even though the same or substantially equivalent treatments are provided to non-transgender Iowans,” said Rita Bettis, legal director of the ACLU of Iowa, which is representing the woman.

Gender dysphoria is the medical term for feeling that one’s inner masculinity or femininity is incongruent with his or her biological sex.

Human Services declined to address Thursday’s filing, saying the department doesn’t comment on pending litigation.

Bettis pointed to mastectomies as an example of the inherent unfairness of the ban.

The same breast-removal surgery that is covered under cancer treatment is banned as a treatment for gender dysphoria, even if doctors in both cases deem the surgery to be "medically necessary."

The administrative code governing Medicaid in Iowa classifies transition-related surgeries as “cosmetic, reconstructive or plastic surgery” and explicitly bans “surgeries for the purpose of sex reassignment.”

The code goes on to specifically exclude some operations, including “breast augmentation mammoplasty, surgical insertion of prosthetic testicles, penile implant procedures” and any “procedures related to transsexualism, hermaphroditism, gender identity disorders or body dysmorphic disorders.”

Gender identity — or the gender a person identifies as, no matter what sex organs the individual was born with — and sexual orientation were added to the Iowa Civil Rights Act as protected classes in 2007.

Under the statute, transgender Iowans have legal protections against discrimination in education, employment, housing and public accommodations. The ACLU’s lawsuit will challenge the Medicaid ban under the public accommodations provision.

Beal, one of the plaintiffs in the case, said she was nervous to speak during Thursday’s afternoon press conference.

Reading a prepared statement, Beal said she has known since she was 5 that she's female, despite being born with male genitalia. She said she started taking hormones at 14 and has lived as a woman since then.

She is currently working toward a bachelor’s degree in public health and epidemiology, she said, and both her family and her spouse are supporting her through this litigation.

“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. “It has caused me stress and depression and affects every aspect of my life.

"But I remain determined to change this outdated law and move forward with my life.”

Medical necessity

The question of the medical necessity of many of these procedures often lies at the heart of conversations about transition-related care.

Dr. Joe Freund, who is one of the most sought transition doctors in the state, strongly believes that medical intervention, including surgeries, can be necessary for some transgender patients.

Without these surgeries, transgender patients can experience extreme depression and anxiety and may have suicidal thoughts.

“There is a tremendous amount of damage that is done to someone when their body does not match who they are,” Freund said. “People don’t understand how very important this is. … It is costing people their lives.”

He also cautioned that not every transgender person wants surgery. Transitioning is a spectrum, and some patients find alignment with their inner and outer selves simply by dressing in gender-specific clothing.

For some patients, hormone-replacement therapy is enough, while other patients need surgery to make themselves whole, he said.

“Number one, where else are we asking any other group of people to prove that their medical need is necessary to get addressed,” he said. This “should be something between a physician and a patient."

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.

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 more than $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.

“I’m passionate about this because I have lost patients to suicide because of their inability to get care they have needed,” Freund said, “and I will do whatever I need to help people get the care they need (to) get to that person that they know they are.”

A full docket

Beal and Good's lawsuit is one of several transgender-rights cases that the ACLU of Iowa has publicized over the last year.

Seeking equal rights for transgender individuals is "a priority" for the organization, Bettis said, because it "goes right to the heart of the ACLU's mission."

In November, the organization announced a successful negotiation with Amerigroup, a Medicaid manager, to cover the breast-removal surgery of Iowan Andrew Evans.

However, that settlement had more to do with an administrative issue within Amerigroup than with the question of whether the surgery was medically necessary.

After being denied for breast-removal surgery, Evans and his doctor appealed. Amerigroup missed the legal deadline to deny that appeal, meaning it had to cover the surgery.

In August, the ACLU of Iowa filed a workplace discrimination suit on behalf of Jesse Vroegh, a former prison nurse, alleging he was denied access to the men’s restrooms and locker rooms and treated differently than other male employees because he is transgender.

Wellmark Blue Cross and Blue Shield also is named in that suit because the company denied Vroegh transition-related care.

Some conservative and religious groups, including The Family Leader, opposed the addition of gender identity and sexual orientation as protected classes to the Iowa Civil Rights Act in 2007.

The Family Leader remains opposed to those classes’ inclusion and would like the Medicaid exclusions to remain in place, according to previous Register reporting.

“Gender identity is ambiguous, limitless, undefinable and changeable,” Drew Zahn, the Family Leader’s communications director, said during the Register’s Trans in Iowa series last year. “Creating protected classes based on a person’s feelings creates confusion in all areas and undermines other protections.”

Beal, who nodded in agreement with much of what Dr. Freund and Bettis said, believes her medical care should be a private issue. She never wanted the spotlight, but “someone needs to be the trailblazer here,” she said.

And she’s standing up now so that younger people won't have to deal with the inability to pay for their needed surgeries in the future.

“I look forward to the day when someone needing to get the transition-related medical care they need isn’t in the news because they had to go to court to fight for this,” she said.