November 16, 2011

Transgender Woman Wins Disability Leave Coverage for Facial Feminization Surgery

Transgender-Related Health Care Is Treated Like All Medically Necessary Care Under Plan

New York, NY – Transgender Legal Defense & Education Fund (TLDEF) today announced that it has resolved a claim on behalf of a transgender woman who had been denied short-term disability leave benefits for reconstructive facial feminization surgery. Lina Kok, a 47-year-old North Carolina woman, underwent the surgery in November 2010 as part of her transition from male to female. Her insurance company denied her claim on the grounds that her surgery was undertaken for cosmetic reasons, and therefore was not covered under the policy.  After two failed appeals, her claim was approved after TLDEF argued that her reconstructive surgery was medically necessary and covered under the policy.

“Transgender-related health care is medically necessary care, and it should be treated that way in all respects,” said TLDEF staff attorney Noah Lewis.  “No one should be denied benefits based on the incorrect view that transgender-related health care is optional or cosmetic. Transgender employees simply want the same benefits as any other employee,” he added.

Facial feminization surgery is a set of reconstructive surgical procedures designed to bring distinctly male facial features closer in shape and size to typical female facial features. For transgender women who need it, it is often more important than other transgender-related procedures in alleviating the distress caused by gender dysphoria.

“My doctor and I both believed that this surgery was absolutely medically necessary for my well-being,” said Ms. Kok.  “Since adolescence, I struggled with seeing my face become more and more male. Now the outside matches, which makes me feel whole. For the first time in 47 years, I feel like the world sees me as the woman I am.”

In preparation for her surgery, in November 2010, Ms. Kok submitted a claim for benefits under her employer’s short-term disability leave policy.  That policy provides pay continuation for employees who are temporarily disabled due to medical treatment. Ms. Kok’s surgery had an anticipated 3-week recovery period during which she would be unable to work, and she sought benefits to reimburse her for lost income consistent with the policy’s terms.

The insurance company denied Ms. Kok’s claim and her two subsequent appeals.  TLDEF intervened and submitted the third appeal, which resulted in the claim being granted on September 30.  

The medical and legal consensus is clear that facial feminization surgery is medically necessary.  The World Professional Association for Transgender Health recognizes that "medically necessary sex reassignment procedures" include "certain facial plastic reconstruction as appropriate to the patient."  Last year, the United States Tax Court ruled in O'Donnabhain v. Commissioner of Internal Revenue that transgender-related surgery is medically necessary and therefore tax deductible. The court also noted that there is “substantial evidence” that surgery to feminize facial features can be used to treat gender dysphoria and is not merely cosmetic.

In addition to TLDEF, the legal team representing Ms. Kok included Juan Pena and Peter Cohen-Millstein of Linklaters LLP.