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Medicare asked to review ban on gender reassignment surgery

Anti-trans policy established in 1981

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transgender, caduceus, medicare, gay news, Washington Blade, health
transgender, caduceus, medicare, gay news, Washington Blade, health

LGBT groups are askng Medicare to lift its ban on gender reassignment surgery. (Image public domain)

Medicare is being asked to review a policy that prohibits transgender people from receiving coverage for gender reassignment surgery.

Last week, a quartet of LGBT rights groups — the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders and civil rights attorney Mary Lou Boelcke — filed an administrative challenge to eliminate Medicare’s ban on coverage for the procedure.

Joshua Block, a staff attorney with the ACLU’s LGBT Project, said the challenge was filed because a policy change is “overdue.”

“It is completely out of line with any scientific or medical evidence or standards of practice,” Block said. “There are people out there who are in desperate need of the surgery. Their doctors have told them they need the surgery. And they’re being told it’s not covered because it was allegedly experimental 30 years ago.”

The challenge, sent on March 26, was filed on behalf of Denee Mallon, a transgender woman in Albuquerque, New Mexico. A Medicare recipient who’s age 73, Mallon was recommended to have gender reassignment surgery by doctors to treat her gender dysphoria.

A veteran of the U.S Army, Mallon joined the the service when she was 17 and worked as a forensics investigator for a city police department. She was later diagnosed with gender identity disorder.

Mara Keisling, executive director of the National Center for Transgender Equality, said she’s “very excited” about the challenge.

“Americans, in general, are really tired of health care decisions being made by legislators and bureaucrats and insurance companies,” Keisling said. “Most of us believe that health care decisions should be made by patients and doctors, and the medical community is pretty unified. This is a legitimately necessary surgery.”

Keisling said NCTE isn’t directly involved in the challenge because it involves lawyers representing clients, and the organization doesn’t provide those legal services.

The ban, which is codified as National Coverage Determination 140.3, was put in place in 1981 during the Reagan administration. Keisling said the ban was put in place as a result of the stigma on transgender people at the time and lobbying from insurance groups.

The National Coverage Determination from 1981 spells out why transgender people are unable to receive this coverage under Medicare.

“Transsexual surgery for sex reassignment of transsexuals is controversial,” the regulation states. “Because of the lack of well controlled, long term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism, the treatment is considered experimental. Moreover, there is a high rate of serious complications for these surgical procedures. For these reasons, transsexual surgery is not covered.”

Despite this policy, the American Medical Association and the American Psychological Society support gender reassignment surgery for transgender people.

Block said the challenge has been filed at this time — more than 30 years after the ban was put in place — because “each year that goes by, it becomes ever more clear how unfounded the categorical sweeping ban is.”

“Each year that goes by, there’s more and more evidence that just reaffirms the widely accepted view that these surgeries are safe, medically necessary and effective to treat a serious medical condition,” Block said.

Now that the challenge has been filed, the Department Appeals Board of the Department of Health & Human Services is set to review the ban, determine if it’s reasonable under current standards of care and make a decision on whether to reverse it. It’s estimated the process could take months to resolve.

It’s unclear how many transgender people the change would affect. A recent study from the Williams Institute found that one-third of one percent of Americans identify as transgender. Given that an estimated 48 million people receive coverage under Medicare, about 144,000 transgender people are believed to receive coverage under Medicare.

In an apparently separate development last week, the Centers for Medicare & Medicaid Services included a statement on its website asking for public comment because it would reconsider the ban. But the notice was removed on Friday from the agency’s website after conservative media, such as Drudge Report, took note of it.

Brian Cook, a CMS spokesperson, told the Blade solicitation for public comment was removed as a result of the legal challenge from LGBT groups coming to light.

“An administrative challenge to our 1981 Medicare national coverage determination concerning sex reassignment surgery was just filed,” Cook said. “This administrative challenge is being considered and working its way through the proper administrative channels. In light of the challenge, we are no longer re-opening the national coverage determination for reconsideration.”

Although the challenge was filed last week, LGBT groups didn’t notify the press about it until Monday. Block said the notice that went up on the Medicare website — and its subsequent removal — prompted the news statement.

“I think there were a lot of questions — particularly by members of the transgender community — about the status of NCD and what this administrative challenge was, and so we thought it was important to give affirmative clarification about what this challenge is and how it’s separate from the CMS process,” Block said.

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Federal Government

Lambda Legal praises Biden-Harris administration’s finalized Title IX regulations

New rules to take effect Aug. 1

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U.S. Secretary of Education Miguel Cardona (Screen capture: AP/YouTube)

The Biden-Harris administration’s revised Title IX policy “protects LGBTQ+ students from discrimination and other abuse,” Lambda Legal said in a statement praising the U.S. Department of Education’s issuance of the final rule on Friday.

Slated to take effect on Aug. 1, the new regulations constitute an expansion of the 1972 Title IX civil rights law, which prohibits sex-based discrimination in education programs that receive federal funding.

Pursuant to the U.S. Supreme Court’s ruling in the landmark 2020 Bostock v. Clayton County case, the department’s revised policy clarifies that discrimination on the basis of sexual orientation and gender identity constitutes sex-based discrimination as defined under the law.

“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona said during a call with reporters on Thursday.

While the new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, the question is addressed in a separate rule proposed by the agency in April.

The administration’s new policy also reverses some Trump-era Title IX rules governing how schools must respond to reports of sexual harassment and sexual assault, which were widely seen as imbalanced in favor of the accused.

Jennifer Klein, the director of the White House Gender Policy Council, said during Thursday’s call that the department sought to strike a balance with respect to these issues, “reaffirming our longstanding commitment to fundamental fairness.”

“We applaud the Biden administration’s action to rescind the legally unsound, cruel, and dangerous sexual harassment and assault rule of the previous administration,” Lambda Legal Nonbinary and Transgender Rights Project Director Sasha Buchert said in the group’s statement on Friday.

“Today’s rule instead appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity,” she said. “Schools must be places where students can learn and thrive free of harassment, discrimination, and other abuse.”

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Michigan

Mich. Democrats spar over LGBTQ-inclusive hate crimes law

Lawmakers disagree on just what kind of statute to pass

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Members of the Michigan House Democrats gather to celebrate Pride month in 2023 in the Capitol building. (Photo courtesy of Michigan House Democrats)

Michigan could soon become the latest state to pass an LGBTQ-inclusive hate crime law, but the state’s Democratic lawmakers disagree on just what kind of law they should pass.

Currently, Michigan’s Ethnic Intimidation Act only offers limited protections to victims of crime motivated by their “race, color, religion, gender, or national origin.” Bills proposed by Democratic lawmakers expand the list to include “actual or perceived race, color, religion, gender, sexual orientation, gender identity or expression, ethnicity, physical or mental disability, age, national origin, or association or affiliation with any such individuals.” 

Democratic Gov. Gretchen Whitmer and Attorney General Dana Nessel have both advocated for a hate crime law, but house and senate Democrats have each passed different hate crimes packages, and Nessel has blasted both as being too weak.

Under the house proposal that passed last year (House Bill 4474), a first offense would be punishable with a $2,000 fine, up to two years in prison, or both. Penalties double for a second offense, and if a gun or other dangerous weapons is involved, the maximum penalty is six years in prison and a fine of $7,500. 

But that proposal stalled when it reached the senate, after far-right news outlets and Fox News reported misinformation that the bill only protected LGBTQ people and would make misgendering a trans person a crime. State Rep. Noah Arbit, the bill’s sponsor, was also made the subject of a recall effort, which ultimately failed.

Arbit submitted a new version of the bill (House Bill 5288) that added sections clarifying that misgendering a person, “intentionally or unintentionally” is not a hate crime, although the latest version (House Bill 5400) of the bill omits this language.

That bill has since stalled in a house committee, in part because the Democrats lost their house majority last November, when two Democratic representatives resigned after being elected mayors. The Democrats regained their house majority last night by winning two special elections.

Meanwhile, the senate passed a different package of hate crime bills sponsored by state Sen. Sylvia Santana (Senate Bill 600) in March that includes much lighter sentences, as well as a clause ensuring that misgendering a person is not a hate crime. 

Under the senate bill, if the first offense is only a threat, it would be a misdemeanor punishable by one year in prison and up to $1,000 fine. A subsequent offense or first violent hate crime, including stalking, would be a felony that attracts double the punishment.

Multiple calls and emails from the Washington Blade to both Arbit and Santana requesting comment on the bills for this story went unanswered.

The attorney general’s office sent a statement to the Blade supporting stronger hate crime legislation.

“As a career prosecutor, [Nessel] has seen firsthand how the state’s weak Ethnic Intimidation Act (not updated since the late 1980’s) does not allow for meaningful law enforcement and court intervention before threats become violent and deadly, nor does it consider significant bases for bias.  It is our hope that the legislature will pass robust, much-needed updates to this statute,” the statement says.

But Nessel, who has herself been the victim of racially motivated threats, has also blasted all of the bills presented by Democrats as not going far enough.

“Two years is nothing … Why not just give them a parking ticket?” Nessel told Bridge Michigan.

Nessel blames a bizarre alliance far-right and far-left forces that have doomed tougher laws.

“You have this confluence of forces on the far right … this insistence that the First Amendment protects this language, or that the Second Amendment protects the ability to possess firearms under almost any and all circumstances,” Nessel said. “But then you also have the far left that argues basically no one should go to jail or prison for any offense ever.”

The legislature did manage to pass an “institutional desecration” law last year that penalizes hate-motivated vandalism to churches, schools, museums, and community centers, and is LGBTQ-inclusive.

According to data from the U.S. Department of Justice, reported hate crime incidents have been skyrocketing, with attacks motivated by sexual orientation surging by 70 percent from 2020 to 2022, the last year for which data is available. 

Twenty-two states, D.C., Puerto Rico, and the U.S. Virgin Islands have passed LGBTQ-inclusive hate crime laws. Another 11 states have hate crime laws that include protections for “sexual orientation” but not “gender identity.”

Michigan Democrats have advanced several key LGBTQ rights priorities since they took unified control of the legislature in 2023. A long-stalled comprehensive anti-discrimination law was passed last year, as did a conversion therapy ban. Last month the legislature updated family law to make surrogacy easier for all couples, including same-sex couples. 

A bill to ban the “gay panic” defense has passed the state house and was due for a Senate committee hearing on Wednesday.

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Indiana

Drag queen announces run for mayor of Ind. city

Branden Blaettne seeking Fort Wayne’s top office

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Branden Blaettner being interviewed by a local television station during last year’s Pride month. (WANE screenshot)

In a Facebook post Tuesday, a local drag personality announced he was running for the office of mayor once held by the late Fort Wayne Mayor Tom Henry, who died last month just a few months into his fifth term.

Henry was recently diagnosed with late-stage stomach cancer and experienced an emergency that landed him in hospice care. He died shortly after.

WPTA, a local television station, reported that Fort Wayne resident Branden Blaettne, whose drag name is Della Licious, confirmed he filed paperwork to be one of the candidates seeking to finish out the fifth term of the late mayor.

Blaettner, who is a community organizer, told WPTA he doesn’t want to “get Fort Wayne back on track,” but rather keep the momentum started by Henry going while giving a platform to the disenfranchised groups in the community. Blaettner said he doesn’t think his local fame as a drag queen will hold him back.

“It’s easy to have a platform when you wear platform heels,” Blaettner told WPTA. “The status quo has left a lot of people out in the cold — both figuratively and literally,” Blaettner added.

The Indiana Capital Chronicle reported that state Rep. Phil GiaQuinta, who has led the Indiana House Democratic caucus since 2018, has added his name to a growing list of Fort Wayne politicos who want to be the city’s next mayor. A caucus of precinct committee persons will choose the new mayor.

According to the Fort Wayne Journal Gazette, the deadline for residents to file candidacy was 10:30 a.m. on Wednesday. A town hall with the candidates is scheduled for 6 p.m. on Thursday at Franklin School Park. The caucus is set for 10:30 a.m. on April 20 at the Lincoln Financial Event Center at Parkview Field.

At least six candidates so far have announced they will run in the caucus. They include Branden Blaettne, GiaQuinta, City Councilwoman Michelle Chambers, City Councilwoman Sharon Tucker, former city- and county-council candidate Palermo Galindo, and 2023 Democratic primary mayoral candidate Jorge Fernandez.

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