New York State Acknowledges Gender Non-Conforming New Yorkers’ Right to Health Coverage

June 4, 2018

Historic decision strengthens healthcare rights obtained in Cruz v. Zucker in 2014.

Willkie, The Legal Aid Society and the Sylvia Rivera Law Project (SRLP) lauded a decision rendered May 11 by the New York State Department of Health (NYSDOH) that acknowledges gender non-conforming New Yorkers’ right to health coverage under Medicaid. The case is an outgrowth of the firm’s significant victory in 2016 along with Legal Aid and SRLP in Cruz v. Zucker which challenged a New York State regulation that banned Medicaid coverage for transgender health care. Cruz led to a repeal of the ban and an amended regulation, which became effective in December 2016, requiring Medicaid coverage for all medically necessary health care for individuals diagnosed with gender dysphoria (GD).

The current matter involved a 27-year-old transgender person, AV, who identifies as non-binary and requested Medicaid coverage in 2017 for a reduction mammoplasty as medically necessary treatment for gender dysphoria. This procedure was denied by AV’s Medicaid plan, Healthfirst. AV requested a fair hearing to challenge the denial. An administrative law judge (ALJ) upheld Healthfirst’s denial of coverage, finding that New York’s post-Cruz regulation authorizing coverage of medically-necessary treatment for GD does not apply to non-binary individuals diagnosed with GD, thereby imposing a requirement that does not exist within the regulation: that individuals must be transitioning strictly either from male to female or from female to male to obtain Medicaid coverage.

On April 27, 2018, Cruz counsel sent a letter to New York State’s Office of the Attorney General alerting it that the erroneous fair hearing decision was a violation of the final judgment and order in Cruz and informing it of our intention to file a motion to enforce the judgment. One week later, on May 4, 2018, DOH informed Legal Aid that AV’s fair hearing decision would be vacated because the regulation does in fact provide coverage for non-binary individuals. A new decision ordering coverage for AV’s medically necessary health care was issued on May 11, 2018.

The case has garnered substantial press coverage, see “NY Health Dept. Affirms Right to Medicaid Coverage for Gender Dysphoria TreatmentNew York Law Journal, 5/18/18

The Willkie team included partners Wesley Powell and Mary Eaton and associate Tim Fleming.