Federal Appeals Court Upholds Ruling that Sex Change Surgery is Merely "Cosmetic"

[NEW YORK, NY] - Finding that gender-reassignment surgery is merely "cosmetic" and not "medically necessary," a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit, in New York, upheld on December 20 the refusal of an employee benefits plan to cover the costs of such procedures.

Born female in 1955, Margo Mario began working for P & C Food Markets in 1992 as a supervising pharmacist. Beginning in the mid-1990s, Mario, who had been diagnosed as having gender dysphoria, decided to begin the process of transforming from female to male. Mario advised P & C of this decision, and was given permission to begin dressing as a male and presenting himself as male at work, using the name Marc Mario. Mario began hormone therapy, and underwent two surgeries in support of his transformation, a bilateral mastectomy in September 1996 and a hysterectomy in October 1997.

P & C has a self-insured employee health plan, so the company pays directly for all the benefits it provides. Mario sought reimbursement from the plan for his hormone therapy and mastectomy. The plan provides coverage only for "medically necessary" treatments. P & C concluded, after some investigation of the issue, that medical treatments for gender dysphoria, including hormone therapy and surgery, were elective, not mandated, and thus not covered by the plan. His claims were denied, and he was advised that any future claims for services or procedures related to the gender-reassignment would also be denied.

Mario sued in the U.S. District Court for the Western District of New York in Buffalo, alleging violations of the Employment Retirement Income Security Act (ERISA), the federal law that governs employee benefit programs, the federal Civil Rights Act's sex discrimination provisions, and New York State laws forbidding discrimination against persons with disabilities.

In the district court, a magistrate judge found that ERISA provided for only limited review of a benefits plan's decisions, which must be upheld unless it was found to be "arbitrary and capricious." Under federal law, plan administrators are given considerable discretion in making decisions about benefits coverage.

The magistrate concluded that the plan administrator had gathered information from doctors, medical institutions, and insurance carriers that supported the conclusion that gender reassignment surgery was not medically necessary.

The magistrate judge also concluded that there was no valid federal civil rights sex discrimination claim, since discrimination on account of gender dysphoria or transsexualism are not covered. The magistrate also found no basis for a discrimination claim.

A federal district judge approved the magistrate's decision, and Mario appealed.

Writing for the appellate court, Judge Guido Calabresi found that it was not clear cut that the "arbitrary and capricious" standard was the appropriate one to follow on the ERISA claim, but nonetheless found that the plan administrator's decision would survive even more demanding levels of judicial review. The plan administrator had presented the magistrate with "sufficient evidence to show that a treatment is not medically necessary in the usual case," the court found, so it was up to Mario to show that he was unusual in requiring this procedure.

Calabresi's opinion specifically noted the testimony of Dr. Ivan Fras, who told the court that "the surgical removal of healthy organs, for no purpose other than gender dysphoria, would fall into the category of cosmetic surgery and would therefore not be 'medically necessary.'"

P & C's plan administrator, Bernadette Barber, concluded based on her research that there was "substantial disagreement" in the medical community about whether gender dysphoria was a "legitimate illness" and "uncertainty as to the efficacy of reassignment surgery."

Finding that Mario had not come forth with any evidence that his case differed in a relevant way from the "ordinary one," Calabresi ruled that the plan administrator's determination was final.

As to the federal sex discrimination claim, Calabresi noted the doubts about whether transsexuals are covered, and sounded a skeptical note about Mario's argument that he was a victim of gender stereotyping because his employer was denying him coverage for operations that would be covered for women. But Calabresi based his rejection of Mario's civil rights claim on the grounds that the facts raised no inference that there was any discrimination. The court found that P & C had a legitimate, non-discriminatory reason for rejecting the benefits claim--its conclusion that the procedures involved were not medically necessary.

This decision is an anomaly in light of the many recent developments signaling a growing acceptance of the reality of transsexualism. A recent European Court of Human Rights decision compelled the British government to introduce legislation recognizing sex changes and allowing transgendered people to marry. Even in the United States, the Medicaid program in many jurisdictions, sometimes in response to litigation, has begun to cover sex-reassignment surgery, under regulations that limit coverage to medically necessary procedures. Given current developments in the legal treatment of transsexuals, this decision is out of step.