G. B. v. Lackner

• Decision Date: 20 April 1978
• Court: California Court of Appeals Court of Appeals
• Parties: , 2 A.L.R.4th 752 G. B., Plaintiff and Appellant, v. Jerome LACKNER, Director, Department of Health, State of California, Defendant and Respondent. Civ. 41363.

Page 555

145 Cal.Rptr. 555

80 Cal.App.3d 64, 2 A.L.R.4th 752

G. B., Plaintiff and Appellant, v. Jerome LACKNER, Director, Department of Health, State of California, Defendant and Respondent.

Civ. 41363.

Court of Appeal, First District, Division 3, California.

April 20, 1978.

As Modified May 1, 1978.

Hearing Denied June 29, 1978.

Paul R. Perdue, Patricia D. Lee, Managing Atty., San Francisco Neighborhood Legal Assistance Foundation, San Francisco, David C. Moon, Berkeley, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., Asher Rubin, John Davidson, Deputy Attys. Gen., San Francisco, for defendant and respondent.

ABBE, ^* Associate Justice.

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 surgery, 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 surgery. 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 psychiatric 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 transsexual 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. of 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. (P) 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 pre-operative 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) 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 (Sup.1977) 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. (P) 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. ...