Health Justice Clinic helps secure change in policy covering gender-affirming surgery
The clinic was part of a team that advocated for Blue Cross Blue Shield of North Carolina to cover facial feminization surgeries for transfeminine members.
Blue Cross Blue Shield of North Carolina (BCBSNC) will now cover gender-affirming facial feminization surgeries for transgender individuals after a legal team including Duke Law’s Health Justice Clinic successfully advocated for the change in policy.
Along with the Transgender Legal Defense & Education Fund (TLDEF) and two law firms, the Health Justice Clinic convinced the insurer to reclassify such procedures as medically necessary rather than cosmetic for transfeminine members. As a result, two clients whom the clinic represented in appeals after their claims were denied will now have insurance coverage for their surgeries. The legal team also represented Equality North Carolina and the LGBTQ Center of Durham.
“This change has the power to affect so many individuals in ensuring that they feel comfortable in their bodies and represents an important step in making health care more inclusive,” said Serena Tibrewala ’21, who worked on the project for two semesters in the clinic.
“It was such a pleasure to work with our client on this matter, and inspiring to see someone take control of their life in this way.”
BCBSNC is the largest health insurer in North Carolina, covering 3.8 million members through employer-provided and individual plans.
Said Kathryn Vandegrift, one of the clients: “Transgender health care is health care, and health care is a human right. No one should be denied the medical treatment they need. Knowing that care may be within reach has me hopeful that my life might finally move past transitioning. I might finally be able to exist fully as myself.”
Over three semesters, the cases were handled by seven Duke Law students: Andrea Boutros ’21, Alex Cochran ’21, Edward Gonzales ’22, Ada Lin ’21, Kailen Malloy ’21, Amanda Ng ’20, and Tibrewala. It was the first time the clinic had worked on a case of this nature, said Clinical Professor and Health Justice Clinic Director Allison Rice, calling it “a really great, rich opportunity for students.” Also part of the Duke team was Clinical Professor Hannah Demeritt, the clinic’s supervising attorney.
“Working with the client was probably the best part of my experience. She was very open and forthcoming, and I was grateful that she shared her story with me,” Gonzales said.
“Law school often focuses on high-level concepts, and it was a nice change of pace to get to listen and focus on an individual’s story. I am so happy she now has access to the care she needs, and that other trans individuals in North Carolina can benefit from her fight.”
The change in policy means that a request for facial feminization procedures will now be processed promptly and assessed for medical necessity like any other claim.
“There’s still a lot of paperwork and documentation for the services, but at least people who can get all that documentation can be approved for this kind of medical care,” Rice said. “We are much further along and over time I think it’s really going to move the ball forward with other companies. This change will provide access to transgender people statewide and also enable employers to offer health insurance that includes this important coverage.”
TLDEF brought the clinic in to help with the North Carolina cases as part of a larger campaign to get insurance carriers nationwide to revise their policies on gender-affirming care for transgender people. As a result of TLDEF’s effort, Aetna expanded coverage in January to include breast augmentation for transfeminine members in most of its commercial plan. In May, Anthem updated its coverage to include breast augmentation, facial surgeries, and voice surgery.
“Across the country, health insurance companies are increasingly recognizing the need to end systemic denials of lifesaving gender-affirming health care for transgender people,” said Noah Lewis, Trans Health Project director for TLDEF. “We are pleased that Blue Cross Blue Shield of North Carolina has revised its medical policy to acknowledge that facial surgery is medically necessary when used to alleviate gender dysphoria in transgender people.”
The new policy aligns with the World Professional Association for Transgender Health, which says procedures affecting external presentation often have “greater practical significance in the patient’s daily life than reconstruction of the genitals.”
“People look at the face when making a determination about gender, and being able to present with a female face is often a really big safety issue for trans women,” Rice explained.
“Certain features are more easily identified as male, so getting that piece dealt with helps people to be able to live a normal life in safety, and to address the gender dysphoria that other surgeries or treatments may not have dealt with adequately.”
A study published this spring found that transgender people who underwent gender-affirming surgery had “significantly lower odds of past-month psychological distress, past-year tobacco smoking, and past-year suicidal ideation” compared with transgender people who did not.
“Not being able to have the surgery I need has affected every aspect of my life — from my mental and physical health to my professional life, everything has suffered,” said Lauren, one of the clients. “I am so happy to know that I can finally start making plans for a brighter future for myself.”
Duke Law student-attorneys worked on several matters: the larger project of attempting to engage BCBSNC in structured negotiations, a form of alternative dispute resolution, over the policy, and direct representation of two individual clients, one on an appeal to the insurer on her coverage determination and another on drafting a structured negotiation letter to her employer over offering insurance that excludes coverage for the procedures. An initial meeting with the first client just before Spring Break 2020 was the last activity the clinic held in the Law School building before the pandemic ended in-person meetings. After that all work was done virtually, including regular team meetings and strategy sessions.
Working with co-counsel, which also included private law firms Pillsbury Winthrop Shaw Pittman and Harris, Wiltshire & Grannis, was a valuable learning experience, Gonzales said, with each organization contributing its access to different resources and perspectives.
“When an environment is focused on collaboration, people naturally feel a part of something bigger than themselves,” he said. “It was really humbling to witness first-hand the fight for trans legal rights, and to see it pay off was just the cherry on top.
“I look forward to the day when queer and trans people no longer have to fight for basic legal rights and access, but until that I day I will continue to work within the LGBTQ community to advance our rights.”
Tibrewala said the case had taught her skills that she will use throughout her career. “I am so grateful to have gotten the chance to work with such amazing clients who have gone through so much, and yet remain so hopeful and optimistic in life,” she said.
“Law school is tough for anyone, but having a broader perspective on life through these clients really helped me get through it. On a more personal note, I learned a lot about the American health care system and its flaws, and I hope to see much needed reforms in the next couple of years.”