Press Release: Class Action Lawsuit Against New York Dept. of Health on Behalf of Transgender New Yorkers Proceeds

Judge Jed S. Rakoff issues decision denying the State’s motion to dismiss the lawsuit calling for an end to continued exclusions for some transgender-related health care treatments by New York Medicaid.

NEW YORK, NY, July 31, 2015 – On Wednesday, July 29, 2015, Judge Jed S. Rakoff of the Southern District of New York issued an opinion denying a motion to dismiss a federal class action lawsuit, Cruz v. Zucker, being brought by the Sylvia Rivera Law Project (SRLP), The Legal Aid Society (LAS), and Willkie Farr & Gallagher LLP (“Willkie Farr”) against the New York State Department of Health on behalf of transgender and gender non-conforming New Yorkers under New York State’s Medicaid program. Judge Rakoff issued a “bottom line” decision dismissing the motion on June 26, 2015. “The immediate question before the Court is whether the plaintiffs here can sue for redress of this alleged wrong,” writes Judge Rakoff in his decision. “The Court concludes that they can.”

The lawsuit will now proceed on the following claims:

• That the State must provide certain medical assistance to all transgender Medicaid recipients;
• That the State cannot deny coverage to transgender Medicaid recipients for procedures that are available to non-trans (or cisgender) Medicaid recipients;
• That transgender Medicaid recipients under the age of 21 are entitled to certain Early and Periodic Screening, Diagnostic, and Treatment services as specified by the Medicaid Act and federal regulations;
• And finally, that failure to provide transgender-related health care constitutes sex discrimination, which is prohibited by the Affordable Care Act.

Cruz v. Zucker was originally filed on June 19, 2014, and challenged a then-existent discriminatory Medicaid regulation, enacted in 1998, which prohibited all forms of treatment for gender dysphoria.  On December 17, 2014, in response to Cruz v. Zucker, the State announced that it intended to amend the regulation, and on March 11, 2015, promulgated a revised regulation that mandates Medicaid coverage for some transgender-related health care. Even as amended, however, the regulation continues to exclude medically necessary procedures from coverage, deeming certain medically necessary procedures for transgender people as “cosmetic” and denying vital health care coverage to transgender Medicaid recipients under age 21 and age 18.

“This important decision makes clear that Plaintiffs can move forward on their claims that the State cannot deny health care to needy transgender recipients, in violation of various Medicaid statutes.  Hopefully now New York State will decide to cover medically necessary care for the transgender community,” says Belkys Garcia from the Legal Aid Society.

“We are delighted with the decision and look forward to demonstrating at trial that New York continues to deny its transgender residents Medicaid coverage for the health care they need,” says Mary Eaton of Willkie Farr.

Medicaid is meant to ensure that qualifying low-income people have access to medically necessary health care; however, transgender people are being denied treatments that are necessary for survival. While transgender people live in poverty at four times the national average, according to the National Transgender Discrimination Survey, a staggering 19% of transgender people report lacking any form of health insurance, including Medicaid.  Studies have shown that the lack of access to safe and comprehensive health care correlates with increased suicidality, higher rates of drug and alcohol abuse, and higher rates of unemployment.

Health care coverage for transgender people is available through many private and some public insurance plans, and no jurisdiction, employer, or insurance company that covers trans health care has found the cost to be prohibitive. In November 2013, SRLP and GLAAD launched a public awareness campaign, which included a series of educational PSA videos featuring transgender advocates, allies, and health care providers discussing popular misconceptions about transgender health care, and infographics illustrating how this population is being prevented from accessing adequate health care because they are transgender.

By ending Medicaid’s continued exclusions for coverage of certain transgender-related health care treatments, as well as treatment for those under age 21 and 18, the New York State Department of Health can ensure that transgender people receiving Medicaid have the same access to essential care, and the opportunities that grow from it, as their non-transgender peers.

Members of our communities and allies march against Medicaid exclusions in 2014

Media Contacts:

Sumani Lanka
Belkys Garcia
The Legal Aid Society
212-577-3314/3582
svlanka@legal-aid.org/brgarcia@legal-aid.org

Antoinette McGovern
Mary Eaton
Wes Powell
Willkie Farr & Gallagher LLP
212-728-8000
amcgovern@willkie.com

Mik Kinkead
Sylvia Rivera Law Project
212-337-8550 x302
mik.kinkead@srlp.org