For international readers, and readers who are just confused (because it is confusing, darn it), I'll give you a quick rundown on how the Supreme Court decision will affect the whole country.
Even though my own State allows gay marriage, it doesn’t mean anything if one goes to a state that doesn’t recognize it. It also means nothing on the federal level, which means gay couples do not enjoy the protections of marriage in regards to taxes, retirement and death benefits (such as they are).
We have fifty states that are allowed to make their own laws about a lot of things--and these laws affect only that state. The federal government makes laws that cover the country as a whole, keep the army, mint money, and makes sure states don’t pass laws violating the US Constitution.The Supreme Court is the body that decides the constitutionality of any laws, state or federal, that are brought before it.
The Supreme Court is debating whether the federal Defence of Marriage Act, which defines marriage as one man and one woman, is legal under our Constitution. If it is not found to be legal, then it would take an amendment to our Constitution to change it and we hate amending our Constitution. It takes a long time and a lot of effort. Gay marriage would then be recognized on the federal level, but not at the state. The matter would then get turned over to the individual states to deal with. Eventually, states governments will get sued because of the statutes requiring states to recognize contracts made in other states. Slowly, the wheels turn and changes are made.
An epic and historic process to be sure. Ingrid covers it with much depth in her post from last week. However, there is another debate happening that is nearly invisible, but equally historic; the Center for Medicare and Medicaid (CMS) and the Department of Health and Human Services are debating whether they should cover gender change surgery.
On March 30, CMS announced that they would be reconsidering the coverage of what has been called gender reassignment surgery. Up until now, gender change surgery has been classified as “experimental” or “cosmetic”. Even though the American Psychiatric Association studies have found over the decades that it is a solid treatment (probably the only solid treatment) for gender dysphoria.
Currently, some private insurers cover hormones and surgery, but the vast majority do not. Many trans* people save up for years for the treatment or get treatment overseas. Sadly, there is also a thriving black market for illicit and potentially unsafe hormones.
CMS's decision to reconsider coverage of surgical treatment was supposed to trigger an initial 30-day public comment period, which was supposed to end April 27. The public comment period was shut down in less than thirty hours due to an appeal by the American Civil Liberties Union (ACLU), the National Center for Lesbian Rights (NCLR) in San Francisco, and other gay-rights organizations, that was filed Friday
The challenge will trigger review by the HHS Departmental Appeals Board, rather than a public comment period. The purpose is to determine if the current standard of care is reasonable or not. If it is not, then the standard of care will be changed to include gender change surgery as a medically necessary treatment.
Essentially, this would take the debate to the legal arena, since the surgery has been shown over decades to be a safe and effective treatment for gender dysphoria.
Why is this important? Medicare and Medicaid are the two government administered health plans in US. Medicaid is for the very poor and Medicare is for the elderly and disabled. What they cover or don’t cover tends to be taken as a guideline by the private insurers as what THEY should cover.
If it is decided that this is a medically necessary, safe, and effective treatment that Medicare and Medicaid are legally required to cover, then the private insurers will most likely follow suit.
Because of how the law works in the United States, since it is applying to a Federal program, in all likelihood this would take effect in all fifty states at the same time. There won't be any question of individual states blocking it on a legal level.
What will be interesting then will be the pushback from the private insurers. They will do anything to avoid paying for things. As it is, many of them are trying to avoid paying for women’s birth control through appeals to conservative values--arguing that employers should have veto power over an insurance company providing birth control on religious grounds. There will likely be challenges to covering gender change surgery on the same grounds.
Chances are, there will be lawsuits in state courts before this finally goes to the Supreme Court, or to hearings before Congress. Perhaps, in some far off Utopian future, the Supreme Court will decide that private insurers, employers, churches and assorted busybodies should not be deciding people’s medical treatment.
It’s fascinating how much medical treatment gets decided by lawyers in the US. Especially given that so many of them have so little grounding in science. They set quite as much medical and scientific policy as they do legal statute.
I’m crossing my fingers that both these different levels of policy makers and interpreters reach deep into whatever spot they keep their common sense in and make the right decisions here.
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