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California Healthcare Appeal Sets Precedent for Transgender Coverage

With an estimated 41 percent of trans and gender non-conforming people attempting suicide every year–a percentage even higher for trans people of color–it's imperative that American healthcare providers fully establish a supportive system where...

by Ian Frisch
Aug 9 2015, 10:00am

image by Kat Aileen

Kenna Fisher, a 64-year-old trans woman living in San Francisco, started to suspect she identified as a woman at the age of six. Born Ken, she grew up at the southern tip of Albany, New York, in a neighborhood flanked by a stretch of railroad tracks and rows of abandoned buildings. Shortly after her sixth birthday, she had a dream of transforming into a girl. Laying in bed one night, she envisioned herself leaving school and, instead of going home, walking towards an outcrop of rundown buildings and into an empty lot. She faced a brick wall and pulled out one of the red blocks, revealing a door. An older woman appeared and invited her in. "She cooed and awed over me and dressed me in girl's clothing," Fisher explained. "It made me feel so good, like the feeling of drinking a hot cup of cocoa--that calm feeling in my stomach and instantly I was in a deep sleep. Just relaxed." This vision, as she refers to it, happened again and again over time. But, eventually, the woman behind the brick wall started reshaping her body, too. "She formed me, like I was made out of clay," Fisher said. "She gave me breasts."

On June 26, the same day the Supreme Court ruled same-sex marriage legal nationwide, Fisher won a healthcare appeal through the State of California's Department of Managed Health Care (DMHC) against Kaiser Permanente, her insurance provider, for the right to have breast augmentation included under her insurance coverage. The victory set a precedent for the healthcare system of California that categorical exclusions for gender dysphoria procedures are unlawful, and that requested procedures need to be individually assessed for transgender patients. With council by the Transgender Law Center, Fisher fought to prove that breast reconstructive surgery, for her, was not merely cosmetic. It was necessary care for her gender dysphoria. And now, after a two-year legal battle, her surgery was scheduled for August 7 of this year.

The healthcare system has posed the most significant infrastructural problems for transgender individuals in the United States. Despite the American Medical Association, American Psychiatric Association, American Psychological Association, and even the IRS putting out statements defining trans-specific procedures as medically necessary, the healthcare offered nationwide has failed to support the transgender community. Transition-related care is explicitly excluded from Medicaid coverage in 16 states, and another 25 do not have a standard policy regarding medical rights for transgender individuals. It's even worse for veterans: VA healthcare denies surgical procedures altogether. On the private healthcare side, only ten states and the District of Columbia require that insurers cover transition-related care. Although California is one of those ten states, with the DMHC issuing a letter banning discrimination against transgender patients in 2013 under the Insurance Gender Nondiscrimination Act, the language used in the letter left room for interpretation and patients like Fisher, who requested specific procedures for gender dysphoria, were still denied by their insurance providers.

If [transgender people] can't access proper healthcare that they need to treat their condition, it can lead to significant psychological distress and severe depression.

Many transgender persons, like Kenna Fisher, have struggled to find reliability in the medical field throughout their transition--an outlet for solace, inclusion, and understanding that with the proper formation, could literally save lives. In the National Transgender Discrimination Survey, released in 2011 by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, out of the 6,500 transgender persons included, 41 percent have attempted suicide due to their gender dysphoria. "If they can't access proper healthcare that they need to treat their condition, it can lead to significant psychological distress and severe depression," said Sasha Buchert, staff attorney at the Transgender Law Center, who oversaw Kenna Fisher's appeal. "It's a matter of life or death for many of these people."

After being caught as a pre-teen by her mother trying on her sister's clothes, Fisher's parents were worried that something may be wrong with their son. As a means of attempted masculinization, Fisher spent Saturdays working with her alcoholic father at a local car wash. A poor and uneducated family, Fisher's parents also sent her to Catholic school. "We were a charity case," she admitted. "I always say that I was educated Catholic and raised alcoholic." When puberty hit, Fisher's penchant for cross-dressing intensified, mixing with her attraction to women. She continued to live with her secret identity when she moved, at 28, to Jackson Hole, Wyoming--"cowboy country"--where she worked in construction and played on a fast-pitch softball team. Fisher even fell in love and got married to a woman in the mountains. "To anyone on the outside I was a typical young man, but on the inside I was tortured," she said.

Eight years later, in 1987, while still in Jackson Hole, Fisher started seeing a therapist about her gender dysphoria. Her therapist recommended she move to San Francisco to pursue her transition. "Instead, I fell for a blonde with a great ass and ended up going to Florida with her," Fisher mused. "That was horrible." Fisher's wife back in Wyoming divorced her and, with her fling in Florida short-lived, she found herself in Asheville, North Carolina where she started exploring her spirituality through a Cherokee teacher and interacting with a community of trans people. "I did some vision quests to get straight about this stuff," Fisher said. She became a fan of the author and comparative mythologist Joseph Campbell and, after traveling to Santa Barbara for a seminar on his works in 1998, decided to move to California. She met her second wife in the Bay Area and, in 2004, married a woman again

"I tried to live authentically as a man," Fisher explained of her mindset after marrying her second wife. "I'll be a sensitive, good man, I thought. I tried that. But it didn't work out." The couple eventually divorced and, after a year of grieving, Fisher's proclivities for identifying as a woman intensified. "This time, when it came back, it came back really strong," she said. "I felt like I needed to come to terms with it. It was the one thing that's been with me since the age of six. Women have come and gone, places have come and gone, jobs have come and gone. The one thing that stuck is the desire to be a female." In 2008, Fisher went back to North Carolina to embark on one last vision quest--"a sacred honor." Four days in the woods with no food or water. "I was almost forced to decide," she said. "So I chose. I chose to be a woman."

The following year, in 2009, Fisher, in her second year working at the University of California at Berkeley as a library assistant, requested a medical transfer to a different, less-public department to begin her public gender transition. The first employee at Berkeley to make the request, the university's human resources department approved her position of choice: Manuscripts Cataloger at The Bancroft Library. After the transfer, Fisher started immediately on hormones. "I developed some breast tissue, but not much at all," she admitted. Fisher was also approved for gender-reassessment surgery, which she has yet to execute due to the fact that she is still attracted to women. "I'm not ready for that surgery just yet," she said.

But what Fisher really wanted, and what she knew would help her gender dysphoria tremendously, was a more feminine bust. Despite the Insurance Gender Nondiscrimination Act, she was denied the procedure by Kaiser Permanente, her insurance company. According to Fisher, Kaiser stated that they cover hormone surgery, gender-reassessment surgery, and mastectomy (for trans men), but do not cover breast augmentation for trans women. According to Kaiser, breast augmentation is an elective cosmetic procedure, not a physical and psychological necessity for gender transition. To them, hormone therapy is the necessary treatment to develop breasts. If a patient, like Fisher, doesn't develop breast tissue that they are happy with--that makes their new gender identity feel complete--then that's just the way it is. Tough luck. "Breast are a really important part of our identity," Fisher said. "So why am I being compared to a [cisgender] female [regarding my intentions]?" Kaiser Permanente did not respond to requests for comment.

If a Kaiser Permanente customer is denied service, and wants to challenge the decision, they are required to go through a grievance process, where the patient's physicians can present information to advocate for the care requested. After being denied by Kaiser again, which wasn't a surprise to Fisher, she appealed the decision through the Department of Managed Health Care. Once the DMHC receives a formal appeal for a denied healthcare procedure, they are required to submit the patient's claim to an independent medical reviewer, who is kept anonymous, for objective assessment. It took seven months for Fisher's appeal to come back from the independent medical reviewer. They concluded that the surgery was not necessary care for her gender dysphoria. She lost. But Fisher refused to give up.

A natural for bulk amounts of information--"I am a librarian, after all"--Fisher started researching the citations used on the medical review. It is required that cited sources used to make a decision on an appeal have knowledge of the patient's condition. In this case: gender dysphoria. But the citations used by the independent medical reviewer included a plastic surgeon from England with no experience with gender dysphoria, as well as a study by Yale that was affiliated with ETNA, another health insurance provider. "That's your citation? Another health insurance company?!" said Fisher. And that's when the Transgender Law Center got involved.

Fisher, along with her attorney Sasha Buchert, pressured the DMHC for answers. Although medical reviews are final under company policy, the DMHC couldn't deny that the review's citations were flawed and eventually allowed the appeal to be re-submitted and evaluated on testimony from medical professionals experienced with gender dysphoria. Around this same time, too, in February 2015, the DMHC released the All Plan Letter, which expanded on their 2013 bulletin under the Insurance Gender Nondiscrimination Act to say, more specifically, that "enrollees diagnosed with gender dysphoria must be treated in the same manner as any other enrollee when a service is requested." It also detailed that cosmetic and reconstructive surgery are two separate procedures, and that a person with gender dysphoria can request reconstructive surgeries, including breast reconstruction for trans women, to "create a normal appearance, to the extent possible." Fisher's case to have her procedure covered was looking more and more promising.

However, during this time, Fisher's condition was getting worse. She was using silicone inserts to make the appearance of a larger chest, and her therapist agreed that a permanent solution was necessary. Luckily, in June, her case was granted an expedited independent review and, five days later, the DMHC called Fisher to let her know that the verdict was in. She had won. One of the first things she did was call Sasha Buchert, her attorney at the Transgender Law Center, to share the news. "I'm happy for all of us," Buchert said. "Trans-misogyny and this patriarchal bias against us: I'm happy to take that on." Fisher became the first trans woman to win coverage for breast reconstructive surgery in California.

As Fisher mentally prepared for her surgery, which was scheduled for August 7, she reflected on the state of transgender rights as a whole, and how her case can be viewed as a template for how individualized assessments are necessary for people transitioning. "California has always been a bellwether state," Fisher said. "I hope other states can see that each transgender person is different, and we have to be treated with individual conditions." She wants to see the national model make a turn from big insurance companies deciding which procedures are necessary for transgender people to a more condition-related healthcare model. "You can't apply a cookie-cutter policy for trans folks," said Buchert, echoing Fisher's mentality

But the concept of cultural competency in the medical field still shows glaring disparities between the trans community and cisgender patients. The National Transgender Discrimination Survey revealed that 50 percent of transgender patients had to teach their doctor about specificity of care, and 28 percent postponed seeking care due to discrimination. And despite the larger conversation of transgenderism filtering into the mainstream, it has yet to fully trickle down into the medical community. Milestones like Fisher's, though, can act as a much-needed catalyst for change in areas where the transgender community needs them the most.

For Fisher, she is taking this victory as just another chapter of her ever-evolving life. "Everything is a story to me," she said. "Because, to me, that's how I experience life. Life as a story. Life as a metaphor. [When I started this journey] I thought, maybe I'll get hurt, people will laugh at me if I do this. But I've been taught the importance of speaking my truth and living an authentic life of integrity. And so here I am."