Even as the law has become an instrument for combating sex discrimination, it has continued to impose a rigid, binary sex-classification system where fundamental legal rights and protections depend on one being labeled “male” or “female.” In this Note, Jerry Dasti examines how this binary system of sexual identification has created a vicious Catch-22 for the small yet significant population of transgender people whose chosen sex and gender diverge from their sex at birth. While the law’s conception of gender identity is inconsistent and ad hoc, one theme emerges: Courts will not recognize a transgender person’s chosen sex or gender without successful completion of sex-reassignment surgery. Because the costs of the procedure, including pre- and postoperative treatment, are prohibitively high, many transsexual individuals are forced to seek coverage through Medicaid. Medicaid, however, only covers those procedures deemed “medically necessary,” which, for transsexuals, means they must first be diagnosed with a gender identity disorder that can only be cured by sex-reassignment surgery. Therefore, in order to establish a legal identity, transsexuals have to pathologize their social identity, which explains the backlash from many transgender groups against the coverage of sex-reassignment surgery under Medicaid. The law’s sex-classification system not only creates tension for the person seeking surgery but also puts the interests of individual transsexuals at odds with the interests of the transgender community as a whole. This Note argues for a broader conception of medical necessity—one that recognizes the legal and social necessity of the surgery to transsexuals’ full participation in society but does not simultaneously stigmatize gender variance as a “disease” that must be “cured. “
LawReview
