Last week, the Sylvia Rivera Law Project, Legal Aid Society and the law firm of Willkie, Farr and Gallagher filed a class action lawsuit against the state of New York, which has discriminated against transgender people seeking healthcare since 1998 with a regulation that categorically denies Medicaid coverage for gender affirming healthcare. SRLP has been working to reverse this regulation since they opened in 2002.
The lawsuit was filed on behalf of two women, Angie Milan-Cruz and I.H., who have both been denied medically necessary healthcare by New York State Medicaid because of the discriminatory regulation. While Milan-Cruz and I.H.’s names are on the suit, Sylvia Rivera Law Project staff attorney Elana Redfield said, “Class action is the right avenue for this case, because so many people are impacted by the issue. We estimate that as many as 8,000 people could be affected by this regulation — too many to represent on a case-by-case basis.”
In a press release on the SRLP website, SRLP Staff Attorney Pooja Gehi said, “This regulation aggravates discrimination against a community that is already struggling to survive… When our clients cannot access healthcare they need, they have a harder time getting identity documents such as state ID, or getting jobs, housing, and basic social services.” The release also described the legal case they are making against the regulation:
“The lawsuit challenges the regulation on three main legal points:
- New York State’s Medicaid regulation conflicts with the federal Medicaid Act, which prohibits certain forms of discrimination in state Medicaid programs. Medicaid discriminates because it provides most of the healthcare transgender people need to others who are not transgender.
- New York State’s Medicaid regulation conflicts with the Affordable Care Act, section 1557, which prohibits discrimination in health care on the basis of gender identity expression amongst an entity that receives federal funding.
- The New York State Constitution prohibits discrimination on the basis of sex, which includes sex stereotyping. Denial of necessary medical care solely on the basis of assigned birth sex is discrimination on the basis of sex stereotyping.”
The suit comes shortly after the Obama administration’s recent announcement that gender affirming healthcare will no longer be excluded from federal Medicare coverage. While this announcement still leaves state Medicaid programs like the one in New York free to keep regulations like the trans exclusionary one intact, Redfield is hopeful states to follow the federal government’s lead: “Since the Medicare decision, we have also seen Massachusetts reverse its exclusion, and Washington state declare that transgender discrimination is illegal in private healthcare. I think it’s only a matter of time before other jurisdictions follow suit.”
Last month, SRLP members drew statewide attention to the exclusion by storming the stage during the New York State Health Commissioner’s presentation at the HrX conference, calling attention to the fact that the regulation excluding transgender health coverage is not a law, and could be repealed by the Health Commissioner at any time.
While the lawsuit goes forward, there are other ways that New Yorkers can advocate for the repeal of the regulation. Redfield said,
“This is a regulation that the New York State Department of Health has the power to change. It’s discriminatory and has direct consequences for our community members. Showing public support for repeal is critical. Showing that New Yorkers don’t want this exclusion is critical. Call the governor’s office! Call your elected officials!”
This has otherwise been a disappointing month for legislative action that would benefit transgender New Yorkers. Last week, the New York Senate blocked passage of the Gender Expression Nondiscrimination Act (again) and a bill that would have banned “conversion therapy” practices. But this regulation doesn’t need a bill to be repealed. The Department of Health just needs to say so.
You can visit srlp.org/healthcare for more information and ways to get involved, and check out Gehi and Milan-Cruz discussing the lawsuit on Democracy Now: