Liza Khan - Academia.edu (original) (raw)

Papers by Liza Khan

Research paper thumbnail of Transgender health at the crossroads: legal norms, insurance markets, and the threat of healthcare reform

Yale journal of health policy, law, and ethics, 2011

Tull for helping me conceive of and develop this Note; to Pratik Patel, Eli Lazarus, and my paren... more Tull for helping me conceive of and develop this Note; to Pratik Patel, Eli Lazarus, and my parents for their support and encouragement; and to Anna Shabalov, Matthew Hegreness, and Carolyn Brokowski for their outstanding editorial assistance. This Note examines the current landscape of transgender healthcare and 1. 1 use the terms "transgender," "gender variant," and "gender nonconforming" interchangeably to reference a wide range of people whose self-identity does not conform to the identity or norms usually associated with the sex they were assigned at birth. Some of these individuals may seek medical care to transition to a different sex while others do not. See A. Evan Eyler, Primaty Medical Care of the Gender-Variant Patient, in PRINCIPLES OF TRANSGENDER MEDICINE AND SURGERY 15, 19-21 (Randi Ettner et al. eds., 2007) (discussing a range of health treatments sought by transgender patients). I use the term "transsexual" to refer to individuals who seek genital sex reassignment surgery only when the phrase is used in the literature being cited. Like Katharine Franke, I believe the term "transsexual" focuses too much on the alteration of genitalia and ignores the diversity of transgender individuals and their health needs. See Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 32 n.130 (1995). Finally, I refer to the various procedures that alter a transgender patient's physical appearance to reflect the individual's gender identity as "transitionrelated," "transitional," or "gender-confirming" care. 2. JAIME M. GRANT ET AL., INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY 73-74 (2011), available at http://transequality.org/PDFs/ NTDSReport.pdf (reporting that 19% of a national sample of transgender individuals had been refused care by a medical provider due to their transgender or gender non-conforming status; 28% of respondents experienced verbal harassment in a medical setting; 2% were physically attacked in a doctor's office). 3. Transgender individuals are "less likely than the general population to have health insurance, more likely to be covered by public programs such as Medicare or Medicaid, and less likely to be insured by an employer." Id. at 76. 4. Id. at 77. 5. Id. at 82. Transgender populations also experience extraordinarily high rates of physical violence, sexual assault, and HIV, as well as above average rates of drug and alcohol abuse. Id. at 80-81. 376 XI:2 (2011) TRANSGENDER HEALTH AT THE CROSSROADS coverage and evaluates how the Patient Protection and Affordable Care Act (PPACA), the Obama Administration's landmark health insurance legislation, may change the state of transgender care. 6 Called "the most expansive social legislation enacted in decades," 7 the PPACA extends health insurance to millions of previously uninsured Americans, extensively modifies public insurance plans, and imposes new requirements on private insurance companies. 9 By eliminating pre-existing condition exclusions and mandating certain essential insurance benefits, the PPACA promises to expand access to care. But for transgender populations, the care promised may not be the care sought. Depending on how it is interpreted and applied, the legislation may secure new medical benefits for transgender individuals, or it may worsen the state of transgender healthcare altogether. The PPACA's impact on transgender patients will hinge on administrative and legal interpretations of the legislation. Medicine and insurance play a part in determining sexual identities for transgender persons, but importantly, so does law. Legal institutions have traditionally understood sex as immutable, unambiguous, and fixed at birth.' 0 The law assumes that sex is binary: an individual can be a man or a woman, but not both or neither." Nevertheless, current medical discourse, along with a growing body of legal scholarship, suggests that for gender-variant populations, sex is not solely defined by biological factors, but is actually "a human-made process, often involving a legal process."' 2 The state's role in determining and defining sex compels us to consider how benefits, particularly health benefits, are allocated to or withheld from transgender individuals. This Note proceeds in three Parts. Part I explores the complicated relationship between transgender medicine and transgender law, which has 6.

Research paper thumbnail of Transgender health at the crossroads: legal norms, insurance markets, and the threat of healthcare reform

Yale journal of health policy, law, and ethics, 2011

Tull for helping me conceive of and develop this Note; to Pratik Patel, Eli Lazarus, and my paren... more Tull for helping me conceive of and develop this Note; to Pratik Patel, Eli Lazarus, and my parents for their support and encouragement; and to Anna Shabalov, Matthew Hegreness, and Carolyn Brokowski for their outstanding editorial assistance. This Note examines the current landscape of transgender healthcare and 1. 1 use the terms "transgender," "gender variant," and "gender nonconforming" interchangeably to reference a wide range of people whose self-identity does not conform to the identity or norms usually associated with the sex they were assigned at birth. Some of these individuals may seek medical care to transition to a different sex while others do not. See A. Evan Eyler, Primaty Medical Care of the Gender-Variant Patient, in PRINCIPLES OF TRANSGENDER MEDICINE AND SURGERY 15, 19-21 (Randi Ettner et al. eds., 2007) (discussing a range of health treatments sought by transgender patients). I use the term "transsexual" to refer to individuals who seek genital sex reassignment surgery only when the phrase is used in the literature being cited. Like Katharine Franke, I believe the term "transsexual" focuses too much on the alteration of genitalia and ignores the diversity of transgender individuals and their health needs. See Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 32 n.130 (1995). Finally, I refer to the various procedures that alter a transgender patient's physical appearance to reflect the individual's gender identity as "transitionrelated," "transitional," or "gender-confirming" care. 2. JAIME M. GRANT ET AL., INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY 73-74 (2011), available at http://transequality.org/PDFs/ NTDSReport.pdf (reporting that 19% of a national sample of transgender individuals had been refused care by a medical provider due to their transgender or gender non-conforming status; 28% of respondents experienced verbal harassment in a medical setting; 2% were physically attacked in a doctor's office). 3. Transgender individuals are "less likely than the general population to have health insurance, more likely to be covered by public programs such as Medicare or Medicaid, and less likely to be insured by an employer." Id. at 76. 4. Id. at 77. 5. Id. at 82. Transgender populations also experience extraordinarily high rates of physical violence, sexual assault, and HIV, as well as above average rates of drug and alcohol abuse. Id. at 80-81. 376 XI:2 (2011) TRANSGENDER HEALTH AT THE CROSSROADS coverage and evaluates how the Patient Protection and Affordable Care Act (PPACA), the Obama Administration's landmark health insurance legislation, may change the state of transgender care. 6 Called "the most expansive social legislation enacted in decades," 7 the PPACA extends health insurance to millions of previously uninsured Americans, extensively modifies public insurance plans, and imposes new requirements on private insurance companies. 9 By eliminating pre-existing condition exclusions and mandating certain essential insurance benefits, the PPACA promises to expand access to care. But for transgender populations, the care promised may not be the care sought. Depending on how it is interpreted and applied, the legislation may secure new medical benefits for transgender individuals, or it may worsen the state of transgender healthcare altogether. The PPACA's impact on transgender patients will hinge on administrative and legal interpretations of the legislation. Medicine and insurance play a part in determining sexual identities for transgender persons, but importantly, so does law. Legal institutions have traditionally understood sex as immutable, unambiguous, and fixed at birth.' 0 The law assumes that sex is binary: an individual can be a man or a woman, but not both or neither." Nevertheless, current medical discourse, along with a growing body of legal scholarship, suggests that for gender-variant populations, sex is not solely defined by biological factors, but is actually "a human-made process, often involving a legal process."' 2 The state's role in determining and defining sex compels us to consider how benefits, particularly health benefits, are allocated to or withheld from transgender individuals. This Note proceeds in three Parts. Part I explores the complicated relationship between transgender medicine and transgender law, which has 6.