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Scholars and Students Delve into Removing Roadblocks to Transgender Care

10/25/2021

While access to gender-affirming healthcare for transgender and nonbinary people has improved in recent years, health insurance companies and government agencies continue to deny them coverage for the treatments and procedures they need.

At the Transgender Health Law and Policy Theory Practice Seminar held Oct. 22, faculty and students spoke with peer academics and clinicians to share information and strategize on tactics to help clients get the care they need. The virtual seminar featured two back-to-back panels covering issues at the intersection of the law with the transgender experience, including the challenges transgender individuals face when seeking medical care in legal and policy spaces. The event was co-sponsored by the Center for Health, Science and Public Policy and the LGBT Advocacy Clinic.

“[Gender-affirming medical care] is endorsed by all major medical associations… who see this as lifesaving care that allows people to participate fully in the community and lead full lives,” said Professor Susan Hazeldean, director of the LGBT Advocacy Clinic, who served as moderator. “It reduces the incidence of depression, self-harm, and suicidal ideation. And yet, young people are being denied and potentially deprived of this care. Physicians are potentially facing criminal liability if they continue to provide it. Even many transgender adults continue to face significant discrimination in the healthcare system and significant barriers accessing the care that they need.”

Shauhin Talesh, professor of law at the University of California Irvine School of Law, presented his research on how insurance policy terminology results in the insurance company mediating care in a socially contested and negotiated process. In conversation with Professor Frank Pasquale, Talesh explored how transgender people and their health care intermediaries navigate the health insurance process and contest the meaning of medical necessity and coverage determinations.

“This project sets up a classic ‘law on the books’ versus ‘law in action’ situation,” said Talesh. “Although the Affordable Care Act and Bostock v. Clayton County highlight how law is increasingly embedding rights in legal institutions for transgender persons, it’s an open question as to whether these laws can produce the desired impact for transgender persons seeking medical coverage through their health insurers.

“[Talesh’s presentation] was a real tour de force, both in terms of showing the relevance of social science to lawyers and how important it is that attorneys and the legal academy develop a much better understanding of the interactions on the ground,” said Pasquale. “Every year that I teach health law, I hear more horror stories about completely arbitrary and troubling insurance regulations getting in the way of care, and the insurer, rather than acting like a fiduciary and advancing the welfare of [their client], being a total barrier to care.”

Alejandra Caraballo ’16, clinical instructor at Harvard Law School, discussed the practical barriers to care and the discrimination that transgender people continue to experience when seeking gender-affirming procedures. Sofia Kaufman ’22, Leilani O’Sullivan ’23, and Walker Shockley ’23 shared the work they are performing in the LGBT Advocacy Clinic to overcome those barriers and secure gender-affirming care for clients who are incarcerated or are Medicare recipients.