G. B. v. Lackner

80 Cal. App. 3d 64, 145 Cal. Rptr. 555, 2 A.L.R. 4th 752, 1978 Cal. App. LEXIS 1400

Opinions

Opinion

ABBE, J.

Footnotes

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In 1975, the appellant, hereinafter referred to as G. B., consulted Dr. John Brown, a plastic surgeon, who diagnosed him as suffering from gender identity dysphoria or transsexualism. Dr. Brown determined that it was medically necessary and reasonable to perform surgeiy, which would involve the removal of the male sex organs and construction of female genitalia.

Dr. Brown filed a treatment authorization request with the San Francisco Medi-Cal field office. The request was denied by Dr. Wayne Erdbrink, a Medi-Cal consultant who is an ophthalmologist. No examination of any kind was ever performed on G. B. by the Department of Health.

G. B. requested a hearing pursuant to Welfare and Institutions Code section 10950 and got it. It was held in San Francisco on October 28, 1975, before Lester Lisker, a referee for the Department of Health, who ordered the treatment authorization request be granted.

The order of the referee was reversed by the Director of the California Department of Health (hereinafter referred to as Director). His refusal to authorize Medi-Cal to pay for the proposed surgery is set forth in a document entitled “Decision of the Director” and was signed by Lee Helsel, Deputy Director. The decision reads, in part, as follows: “The proposed operation as described by the claimant’s doctor is a description of a cosmetic operation that would change the appearance of the claimant’s external genitalia. Inasmuch as the proposed operation is to be performed solely for that purpose, it must be considered a cosmetic operation that is not covered under the Medi-Cal Program.”

At the hearing before the referee, G. B. presented evidence by Dr. W. A. Tennant, a psychologist, Dr. Richard Crews, a psychiatrist, Dr. Jack Leibman, a medical doctor whose specialty is internal medicine and is a consultant to the Stanford University gender dysphoria program and Dr. John Brown, a physician specializing in surgeiy. Dr. Erdbrink, the ophthalmologist, appeared on behalf of the Department of Health and presented a Medi-Cal bulletin dated September 1974, which contained the following announcement: “All medical services directly related to the diagnostic workup, surgical procedure, hormonal therapy or psychia trie care involved in trans-sexual surgery are not payable under the Medi-Cal Program. Medi-Cal will, however, cover the medical complications of such medical care to the extent the complications are typical of those encountered in the general population, such as a recto-vaginal fistula following such trans-sexual surgery. Claims submitted for treatment of such complications must contain sufficient documentation to justify the medical need. ...”

Dr. Leibman asserted that G. B. “must have this [gender change] surgery to alleviate her emotional problems, prevent them from exacerbation, and to rehabilitate her to the point where she can function as a normal person and participate fully in society.”

Dr. Brown stated that G. B. “must have the requested surgery to treat her disorder and prevent further suffering, enable her to participate in normal living, and obtain steady employment.”

Dr. Tennant concluded a discussion of this type of surgery as follows: “Denial of this valid medical treatment can lead to a further deterioration in the psychological health of the transsexual resulting in self-mutilating acts and in some cases suicide.”

Dr. Richard Crews declared that, “As a general rule transsexuals have an improved psychological, social, and vocational adjustment after transsexual surgery. I believe this will prove to be the case for [G. B.]. Numerous attempts by way of therapy, pharmacology, behavioral and disciplinary approaches have generally been unavailing in treating the transsexual. Surgery is thus indicated for [G. B.] and I believe she would benefit significantly by it.”

The reversal of the referee’s decision by the Director was on the sole ground that the proposed surgery was cosmetic in that it would change the appearance of G. B.’s external genitalia and, therefore, was not covered under the Medi-Cal program. The Director’s conclusion that castration and penectomy changes the appearance of male genitalia seems strained.

There is no dispute that G. B. is an adult male transsexual. Adult male transsexuals, such as G. B., are not transvestites nor homosexuals but are males who have irreversibly accepted a gender identification as female. (See generally, Stoller, Sex and Gender (1968); Green & Money, Transsexualism and Sex Reassignment (1969) p. 268.) Medical experts agree that the etiology of transsexualism is unknown but that it occurs early in life and is a serious problem of gender role disorientation. (Benjamin, Should Surgery be Performed on Transsexuals? 25 Am.J. Psychotherapy, pp. 74-75.)

Dr. Leibman, quoted above, describes transsexuals as a “.. . unique group of people who suffer from a profound disorder of sexual gender identity of an unknown cause .... This disorder is almost always associated with secondary emotional illnesses such as adjustment reactions, anxiety neuroses or depressive neuroses. [1] Psychotherapy has been uniformly unsuccessful in alleviating the primary and secondary illnesses described above. The only treatment which has been found to be effective is hormonal feminization and eventual sex change surgery. In many cases the described illnesses are cured completely.”

Dr. Brown,^G. B.’s physician, states that surgery “is reasonable and necessary for the treatment of this mental disorder, an illness which, in the vast majority of cases, only surgery will cure. . . . Failure [to obtain the surgery] will inevitably lead to serious frustration and possible self-mutilation or suicide. Additionally, a preoperative transsexual, in my experience, is often unable to obtain employment due to employer’s biases, the requirements of a physical examination prior to employment, or psychological instability resulting from the frustration at being trapped in the body of a person of the opposite sex.”

John Hoopes, M.D., of the Gender Identity Clinic at the Johns Hopkins Medical Institute points out: “Over the years, psychiatrists have tried repeatedly to treat these people without surgery, and the conclusion is inescapable that psychotherapy has not so far solved the problem. The patients have no motivation for psychotherapy and do not want to change back to their biological sex. The high incidence of suicide and self-mutilation among these people testifies to the magnitude of the problem. If the mind cannot be changed to fit the body, then perhaps we should consider changing the body to fit the mind.” (Green & Money, Transsexualism and Sex Reassignment, supra, at p. 268.)

The severity of the problem of transsexualism becomes obvious when one contemplates the reality of the male transsexual’s desperate desire to have normally functioning male genitals removed because the male sex organs are a source of immense psychological distress. Transsexuals consider themselves members of the opposite sex cursed with the wrong sexual apparatus.

In Doe v. State, Dept, of Public Welfare (1977) — Minn. — [257 N.W.2d 816, 819], the Supreme Court of Minnesota, after discussing the nature of transsexualism, found that; “The only medical procedure known to be successful in treating the problem of transsexualism is the radical sex conversion surgical procedure requested” by the appellant in that case.

In Richards v. United States Tennis Ass’n (1977) 93 Mise. 2d 713 [400 N.Y.S.2d 267, 271], the court states: “Medical Science has not found any organic cause or cure (other than sex reassignment surgery and hormone therapy) for transsexualism, nor has psychotherapy been successful in altering the transsexual’s identification with the other sex or his desire for surgical change.” (See Transsexualism, Sex Reassignment Surgery, and the Law (1970-71) 56 Cornell L.Rev. 963; Transsexuals in Limbo: The Search for a Legal Definition of Sex (1971) 31 Md.L.Rev. 236.)

The extent of Medi-Cal coverage is set forth in Welfare and Institutions Code section 14059 as follows: “Health care provided under this chapter may include diagnostic, preventive, corrective, and curative services and supplies essential thereto, provided by qualified medical and related personnel for conditions that cause suffering, endanger life, result in illness or infirmity, interfere with capacity for normal activity including employment, or for conditions which may develop into some significant handicap, [f] Medical care shall include, but is not limited to, other remedial care, not necessarily medical. Other remedial care shall include, without being limited to, treatment by prayer or healing by spiritual means in the practice of the religion of any church or religious denomination.”

Welfare and Institutions Code section 14105 states in part: “The director shall prescribe the policies to be followed in the administration of this chapter ... and shall adopt such rules and regulations as are necessary for carrying out, not inconsistent with, the provisions thereof.”

Pursuant to this authority, the Director promulgated title 22, California Administrative Code, section 51305, subdivision (g), which reads: “Procedures for the treatment of defects for cosmetic purposes only are covered subject to prior authorization. Authorization for procedures primarily for purposes of correcting cosmetic defects may be granted only to: [U] (1) Complete the repair of serious disfigurement resulting from disease or trauma. [1Í] (2) Correct disfiguring defects which substantially interfere with opportunities for employment. These cases shall be referred to the California Department of Rehabilitation for consultation, evaluation or case management as provided in Section 51014. [1Í] (3) Provide necessary services to patients eligible for coverage by Crippled Children Services. These patients shall be referred to Crippled Children Services for case management as provided in Section 51013.”

Title 22, California Administrative Code, section 51301 provides that benefits covered by Medi-Cal are limited to those set forth in article Four. Section 51303 authorizes health care services which are reasonable and necessary for the prevention, diagnosis and treatment of disease, illness or injury and are covered by the Medi-Cal program to the extent specified.

Counsel for respondent has indicated that the Director relies solely on the statutes and duly promulgated regulations set forth in title 22 of the California Administrative Code, not on the statement of policy contained in the bulletin presented at the administrative hearing.

The Department of Flealth has adopted a definition of cosmetic surgery which was approved by the California Medical Association. It defines cosmetic surgery as, “Surgery to alter the texture or configuration of the skin and its relationship with contiguous structures of any feature of the human body. [|] This alteration would be considered by the average prudent observer to be within the range of normal and acceptable appearance for the patient’s age and ethnic background and by competent medical opinion to be without risk to the patient’s physical or mental health. [H] It means only surgery which is sought by the patient for personal reasons and is not used to denote surgery which is needed to correct or improve physical features which may be functionally normal but which attracts undue attention or even ridicule by his peers, or which an average person would consider to be conspicuous, objectionable, abnormal or displeasing to others. [If] Operations performed to correct congenital anomalies, to remove tumors, or restore parts which were removed in treatment of a tumor or repair a deformity or scar resulting from injury, infection, or other disease process is obviously not cosmetic even though the appearance may be improved by the procedure.”

Surely, castration and penectomy cannot be considered surgical procedures to alter the texture and configuration of the skin and the skin’s relationship with contiguous structures of the body. Male genitals have to be considered more than just skin, one would think.

The definition relied upon by the Director to establish that the surgery must be considered cosmetic requires that the alteration (of the skin) would be considered by the average prudent observer to be within the range of normal and acceptable appearance for the patient’s age and ethnic background. The average prudent observer probably has no desire and will not observe what is under the skirts or trousers of either a pre- or postoperative transsexual. It is not a generally recognized characteristic of transsexuals to move about in public in the nude. Dr. Hoopes, previously quoted, states at page 268: “You would probably never recognize a transsexual as such if you met him casually, or even if you knew him well. I cannot state too emphatically how completely these people assume the role of the opposite sex. The male transsexual looks, dresses, and acts exactly like a woman, and the same is true for his female counterpart. They are not simply transvestites, people who receive pleasure from just wearing the clothes of the opposite sex; nor are they homosexuals, as commonly defined.”

It is clearly impossible to conclude that transsexual surgery is cosmetic surgery, even using the definition relied on by the Director. Drs. Leibman and Brown and Webster’s dictionary define cosmetic as “beautifying, pertaining to or making for beauty,” that which tends “to beautify or enhance the appearance of a person.”

The only evidence presented in this case was that the surgery was necessary and reasonable.

We conclude that the proposed surgeiy cannot be arbitrarily classified as cosmetic and inasmuch as this was the sole basis of the Director’s decision, his decision must be set aside.

The judgment denying the writ is reversed and the case is remanded to the trial court with instructions to issue a writ of mandate directing respondent to grant the treatment authorization request for appellant’s surgery.

Feinberg, J., concurred.

Assigned by the Chairperson of the Judicial Council.