Bill seeks coverage for gender-affirming procedures advocates call ‘anything but cosmetic’
In 2021, Lexa Baldwin was denied coverage for a facial surgery under a policy adopted by her state-sponsored health insurance plan prohibiting “certain procedures associated with gender dysphoria treatment.”
Baldwin, a Marine veteran hired as an information technology technician at UNR in 2019, is transgender. She experienced strong gender dysphoria — where an individual experiences discomfort or distress because of a mismatch between gender identity and assigned gender at birth — after leaving the military and, as she began to transition, she lost job opportunities and was homeless for a short time.
“There were several occasions during my period of homelessness and actually after too, where my life was threatened, strictly due to my trans status and the fact that people knew that I was trans outwardly,” Baldwin said in an interview.
As her transition progressed, Baldwin made plans and underwent consultations for facial surgery — a procedure often deemed “cosmetic” by insurers but that an increasing amount of medical research is concluding is medically necessary for transgender individuals.
“These surgeries, they are anything but cosmetic,” she said.
After her state-sponsored insurance rejected the plan and denied her appeal, Baldwin sued and filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). In November, the state settled, agreeing to remove the blanket ban on facial surgery exclusions, cover the surgery and pay Baldwin $45,000.
Even after the settlement, there’s still no language in state law prohibiting insurance companies and other health care providers from denying coverage for patients seeking gender-affirming care.
But that could soon change.
On Wednesday, state lawmakers held a hearing on proposed legislation that would mandate health insurance, including Medicaid, cover all medically necessary gender-affirming treatments and eliminate the administrative exclusions that have historically been used to avoid paying for treatments classified as “cosmetic.”
“The goal of the bill is to stop insurance companies from discriminating against people based on their gender or their gender identity,” Sen. Melanie Scheible (D-Las Vegas) said during an interview about her proposed legislation, SB163.
Without insurance coverage for treatments such as hormone therapy or gender-affirming surgery, Scheible said many transgender people may be unable to access the care that they need to manage their condition and improve their quality of life. She said this can lead to increased health risks and reduced well-being, as well as economic burdens from out-of-pocket expenses.
In 2015, under then-Gov. Brian Sandoval, the Nevada Division of Insurance issued bulletin 15-002 prohibiting the denial, exclusion or limitation of medically necessary health care services based on gender identity or expression. For example, a plan covering a medically essential mastectomy for a cisgender woman must also cover a medically necessary mastectomy for a transgender man.
Despite the bulletin and other legal decisions indicating that it is discriminatory to deny coverage or care to people based on their gender or gender identity, Scheible said transgender people are still facing discrimination and claim denials.
She said the proposed law seeks to enshrine existing protections into state law and put in place safeguards that will lead to fewer denied claims.
What the bill does
Proponents of the bill say it is strictly about access to health care and how third-party payers cover medically necessary health care treatments.
The bill defines the term “medically necessary” as “health care services or products that a prudent provider of health care would provide to a patient to prevent, diagnose or treat an illness, injury or disease, or any symptoms thereof that are necessary.”
Gender incongruence refers to a condition in which an individual experiences a mismatch between gender identity and physical sex characteristics. Medical providers describe gender dysphoria as a condition in which an individual experiences discomfort or distress because of a mismatch between gender identity and assigned gender at birth.
During the bill hearing, Scheible said gender dysphoria and incongruence can include a desire to live as a gender other than the one assigned at birth and may lead to feelings of distress and discomfort. She cited studies indicating that people with these conditions may experience anxiety, depression andsocial isolation, and may seek medical treatment to alleviate their symptoms, such as hormone therapy and gender-affirming surgery to align their physical appearance with their gender identity.
As proposed in the bill and a conceptual amendment submitted Wednesday, the measure would prohibit public and private insurers from discriminating against any person based on actual or perceived gender identity. That includes requiring coverage of surgical treatment addressing gender dysphoria for adults and minors.
Under most ethical standards and the World Professional Association for Transgender Health standards of care, those seeking gender-affirmation surgery already require separate surgical referral letters of support from a psychiatrist or psychologist and a medical doctor. At least one letter is necessary for some surgeries and at least two for genital surgery. The letters have to attest that the patient has performed certain levels of therapy and medical interventions before qualifying for the surgery.
The bill also stipulates that any treatment for a person under the age of 17 would need to be recommended by a psychologist or other mental health professional and a physician. The minor receiving treatment would also need to provide a written expression of the desire to undergo treatment, and have at least two providers approve a written plan for treatment that covers at least one year.
During the hearing, Scheible clarified that the bill does not allow minors to access gender-affirming care without parental consent. She said it also allows insurance companies to require minors to undergo a more extensive vetting process than adults to access the same types of treatment.
Included in the bill is a list of actions by insurers that would constitute discrimination, including using a person’s gender identity as a basis to cancel or renew an insurance policy, or using it as a basis for a payment or premium. Insurers would also be prohibited from considering gender identity as a preexisting condition or denying/canceling services related to gender transition.
Under the legislation, health insurers are also prohibited from applying categorical cosmetic or blanket exclusions to gender-affirming treatments or procedures when they are determined to be medically necessary.
The bill requires that an insurer make reasonable efforts to ensure that the benefits required by the bill are made available, and prevents insurance companies from deliberately excluding providers from their network in order to avoid covering services.
At a time when states across the country are considering legislation aimed at restricting access to gender-affirming care, Scheible’s proposed measure is an outlier. But she said it’s not out of the ordinary for Nevada, a state consistently ranked as LGBTQ-friendly.
“I'm really proud to work in a legislature where I have been able to discuss issues around the trans community with my colleagues in both houses in both parties,” Scheible said. “Here in the state of Nevada we start at a different square one. Our square one is that we treat people with respect and dignity, and we value equality.”
Support and opposition
But not everyone is supportive of the legislation. The Legislature’s opinion database indicates that the proposed measure drew the fourth-most opinions of any bills in the Legislature as of Wednesday.
One of the most vocal opponents is the Nevada Republican Party, which highlighted the bill on its legislative advocacy page and tweeted Wednesday that it would result in “genital mutilation of children paid for by the state.”
“The public should not have to use their tax dollars to fund anti-scientific, barbaric practices that result in permanent damage to children,” they wrote.
Other opponents pushed back on the use of taxpayer dollars to fund gender-affirming care through the state’s Medicaid program and echoed similar sentiments as the state GOP, reiterating that the term “parental consent” is not in the measure’s text and needs to be included.
Scheible responded to the opposition by noting the legislation does not remove existing parental consent laws and does not change the law surrounding minors consenting to medical treatment.
LGBTQ advocates and health care providers testified Wednesday that the bill’s protections and requirements for care are vital for the health and safety of all members of the community.
“When a person cannot access the health care for which they need, other types of health maintenance [are] avoided, increasing the likelihood of the development of chronic diseases such as heart conditions, diabetes and cancer,” transgender rights advocate Brooke Maylath said during the bill presentation. “All of which create higher costs to treat than gender-affirming treatments.”
Nurse practitioner Rob Phoenix and the owner of Las Vegas-based Huntridge Family Clinic, the largest provider of LGBTQ-affirming care in Nevada, said gender-affirming care is essential.
“This is a medical condition that someone is born with and we need to help them match inside and outside. And that's why this is important,” Phoenix said in an interview. “I look at this from a harm reduction perspective. So we're trying to improve healthy behaviors.”
Phoenix said he and other care providers are not mutilating adolescents or adults, but helping those who were born as the wrong gender. One example is a young boy Phoenix treated who is now a successful football and soccer player.
“He's very successful at school,” he said. “He is thriving in his identified gender, whereas if he was still trapped in that female gender where he didn't belong, that would not be the success story that he's able to share.”
The cost of discrimination
Excluding treatments that are medically necessary to treat gender dysphoria is legally discriminatory, Maylath said.
“Insurance companies are beginning to understand that exclusions are costing far more in legal costs to defend and in behavioral costs to spend than the cost of a modest number of additional claims, which provide immense relief to those with gender dysphoria,” she said.
During the 2021 legislative session, Scheible brought forward a similar measure aimed at prohibiting insurers from denying treatment for gender dysphoria. Though the bill passed out of its first committee, it received substantial fiscal notes from the state’s Public Employees’ Benefits Program and Medicaid and died in the Senate budget committee.
This year, only the Department of Health and Human Services has provided a cost estimate, noting that Nevada Medicaid covers treatment for gender dysphoria, including hormonal, psychosocial and surgical interventions, but does not cover services defined as “cosmetic.”
If the bill is passed, the department said it would need to cover those “cosmetic” services, leading to a cost of about $8.3 million over the course of the next fiscal year, and $16.5 million in future two-year budget cycles.
However, that cost was calculated as 30 percent of Medicaid recipients when less than 1 percent of the state’s population identifies as transgender. A spokesperson for Nevada Medicaid responded to questions about the discrepancy by saying the 30 percent refers to data that shows approximately 25-30 percent of transgender individuals opt to seek surgical treatment options when available.
“Nevada Medicaid is working with the author and may lower this utilization number based on further research, which will reduce the overall cost,” he wrote.
Laura Rich, executive officer of the Public Employees Benefits Program, said the agency submitted a $0 fiscal impact assessment because the health plan already provides coverage that adheres to what the legislation is proposing.
She said the board made changes to the state employee health plan since the 2021 legislative session. Rich added that though the lawsuit brought by Lexa Baldwin occurred around the same time the board made changes to the state health plan, the lawsuit was “unrelated” to the decision.
Baldwin is still waiting on her gender-affirming surgery, scheduled for October 2024. She said transgender people like herself who speak out still face threats and danger, but someone has to do so.
“You wouldn't withhold this care from someone who was born with a cleft palate,” Baldwin said. “Why would you withhold care from someone who was born trans? I can't change how I was born. This is wired in my brain.”