Tuesday, August 12, 2008

Medicaid and gender transition; High school GSA victory; Mixed surrogacy decisions

NY federal court dismisses challenge to New York's Medicaid exclusion for gender transition therapies. The case is Casillas v. Daines, 2008 WL3157825 (S.D.N.Y. Aug. 5, 2008), and concerns a trans woman who had hormone therapy covered by New York Medicaid for over 20 years, until it was cut off a few years ago by a new state rule. Interesting posts about the case are at Leonard Link and hunter for justice. There's also an article in the New York Law Journal. Previous litigation on this issue has been mixed; see The Necessity of Sex Change: A Struggle for Trans and Intersex Liberties (PDF) by Noa Ben-Asher, 29 Harv. J. L. & Gender 51 (2006).

This decision rests on a federal regulation that says states may "place appropriate limits" on Medicaid services through "cost utilization procedures." This suggests a broad discretion to exclude medically necessary services, even if they are otherwise mandated by the law. It cuts very much against the grain of the statutory text, and the court seems to read is granting states broad discretion to cut off services based on cost.

Technically, the decision involves whether the the plaintiff can to sue enforce the Medicaid Act under 42 U.S.C. Section 1983, which provides various remedies for violations of federal law; it does not necessarily resolve whether the Pataki-era regulation actually violates federal law or not (a question that could be presented by, for example, a federal preemption claim). But if "utilization control" reg is read - as the court does here - as limiting the statutory text of Medicaid, proving an actual violation could be an uphill battle as well.

Whatever the legal difficulties of challenging such an exclusion, I very much hopes that, as Arthur Leonard suggests, the much more progressive Paterson administration will be open to reversing this Pataki-era rule.

Via Feministing: Highschool Gay-Straight Alliance wins groundbreaking lawsuit in FL. Read the opinion in Gonzalez v. School Board of Okeechobee County here (PDF).

A Florida school district justified banning a gay-straight alliance because it
1) is necessary to maintain the integrity of the abstinence only program, 2) will avoid unhealthy premature sexualization of students, 3) will protect GSA members from the risk of contact with potentially dangerous outside adult influences, and 4) will ensure that GSA members do not have access to adult only materials.
The district even argued that simply saying it's okay to have a non-heterosexual identity is inconsistent with federal abstinence-only standards! The court saw through each of these transparently bogus justifications. I found particularly interesting the court's observation that "When directed towards non-heterosexual students, [the district's] abstinence only message loses the core of its health and safety and child welfare component because a marriage-dependant abstinence only message is of de minimus relevance to non-heterosexuals" who cannot legally marry in Florida. This is relevant here because the federal Equal Access Act has an exception for promoting students' well-being - and the court held that this exception can't be satisfied by banning a gay-straight alliance in favor of a rigid abstinence-only-until-marriage curriculum. The court also stated clearly that the district's other purported justifications were "speculative at best" and amounted to an argument for banning all student speech on sex

And from Leonard Link:New Connecticut Decisions Differ on Enforcement of Gestational Surrogacy Agreements Involving Gay Male Couples:

These different results arise partly because a recent amendment to the Connecticut law governing birth certificates, which specifically mentions gestational surrogacy contracts, does not go into effect until October 1 of this year, leaving the courts to try to determine how to handle this situation in light of prior statutes that make no mention of such agreements. In addition, the DPH, which plays the crucial role in issuing birth certificates, has taken the firm position that only biological or adoptive parents should be listed on the certificates.


There is a pressing need here for some clarity, as it appears from the nearly simultaneous appearance of three Connecticut cases involving gay couples that Connecticut’s general receptiveness to enforcing gestational surrogacy contracts – as evidenced by numerous prior decisions involving married couples contracting with women to bear children for them – has made the state a favored jurisdiction for such agreements. ...

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