Lawsuit Says Georgia Medicaid Should Cover Gender-Affirming Surgeries

By Lizzie Kane | Atlanta Journal-Constitution | July 13, 2021

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The American Civil Liberties Union is suing the Georgia Department of Community Health and its commissioner on behalf of Shon Thomas, left, and Gwendolyn Cheney, right, two transgender women from the greater Atlanta area.

Two Georgians have filed a lawsuit saying their constitutional rights were violated when the state Medicaid program declined to cover the gender-affirming surgeries they say they need to live a full life.

At issue is whether the reconstructive or plastic surgeries sought by Shon Thomas and Gwendolyn Cheney are a matter of medical necessity.

Georgia Medicaid guidelines “incorrectly characterizes their gender-confirming health care needs as ‘cosmetic’ and/or ‘experimental or investigational,’ when the medical community recognizes that they are effective treatments for gender dysphoria,” attorneys for the American Civil Liberties Union said in suit filed on behalf of the transgender women.

Gender dysphoria is when one’s biological sex and gender identity do not align, leading to psychological distress, according to the American Psychiatric Association. Common transgender surgery options include facial reconstructive surgery to make features more masculine or feminine, or procedures on the chest or genitals, according to the Cleveland Clinic.

The ACLU is arguing that, by not covering those procedures, Georgia’s Medicaid program is violating the U.S. Constitution, the Affordable Care Act and the Medicaid Act.

Around a dozen states explicitly ban coverage of gender-affirming care under Medicaid, a program that offers assistance to people who can’t afford to pay for medical care. Georgia’s ban is focused on gender-affirming surgeries. Hormone treatments and psychological services are covered, said ACLU staff attorney Taylor Brown, who is taking the lead in the case.

“Gender-affirming health care is essential health care,” said Eric Paulk, the deputy director of nonprofit Georgia Equality. “The state’s refusal to cover essential and often life-saving gender-affirming health care is discrimination, full stop.”

Roughly 0.75% of adults in the state —55,650 — identify as transgender, the fourth highest percentage in the nation, according to a 2016 UCLA School of Law study. About 5,000 are on Medicaid, the ACLU says.

Thomas, 45, who lives in metro Atlanta, said both her doctor and psychiatrist have recommended surgeries.

“This is a battle I have been dealing with all my life,” Thomas said. “First, I didn’t have support from my family; now, it is Medicaid. I had to overcome the trials and tribulations with my family, and I am hoping that I can be successful with Medicaid.”

The ACLU has filed similar suits in two other states.

In Georgia, the organization partnered with King & Spalding. Named as defendants are the state Department of Community Health, which administers Medicaid, and its commissioner. A spokeswoman for the Georgia DCH declined to comment, citing the ongoing litigation.

“This case is about health care equity and equal justice under the law,” Brown said. “We are not suing the state of Georgia just for fun. We are suing on behalf of transgender people who are being denied medically necessary, lifesaving care.”

Though the state argues that the surgeries are cosmetic and nonessential, “every single leading medical institution” disagrees, said Rodrigo Heng-Lehtinen, executive director of the National Center for Transgender Equality.

This lawsuit comes at a time when anti-LGBTQ+ legislation is on the rise around the nation. According to the Human Rights Campaign, 2021 is the “worst year for anti-LGBTQ legislation in recent history,” with 17 anti-LGBTQ+ bills becoming law and many others awaiting governors’ signatures or making their way through state legislatures.

In Georgia, two of the bills seek to prohibit transgender women from participating in female high school athletics and to criminalize gender-affirming care for minors.

But there have been some victories in the last year. Just last month, the Department of Veterans Affairs amended its policies and now will cover gender-affirming surgeries. In the past, the department argued it would be too costly.

LGBTQ+ advocacy groups hope the ACLU lawsuit will push other agencies to reexamine their policies.

“This is one of the tactics that has to happen in order to change our reality,” said Aesha Rasheed, co-director of Southerners on New Ground. “It is really important that our public infrastructure systems recognize (transgender people’s) needs and respect their needs for real medical care.”