In Pursuit of Equality in South Africa

Determining Medical Necessity: The Right to Accessible Medical Healthcare for Transgender Persons in South African Law

BUSISIWE DEYI

 

INTRODUCTION

With the recognition of same-sex marriages1 and the liberalisation of adoption2, pension benefits3 and morality laws, which had previously threatened same-sex couples engaged in consensual sexual acts with criminalisation4, the struggles of other minority groups also require constitutional-changing attention.

The strategic legal reform essentialism that characterised the legal reform movement of the lesbian and gay movements, although successful in many respects, did not result in the attainment of substantive equality for gender non-normative and differently sexed minorities. Academics5 have critiqued the judgments that resulted in same-sex marriage legal reform. Instead of creating liberatory conceptions of South Africa’s conception of marriage, the reform adopted an assimilationist understanding of marriage. Rather than accepting that human relations were complex creations, the case-law elevated a heteronormative and cisgendered conception of companionship6. The fundamentally heterosexist and cissexist conceptions of marriage were kept in place.

The intersex and transgender communities have been left behind and continue to be marginalised by the very legal reforms which were intended to be liberating for the entire Lesbian, Gay, Bisexual, Transgender, Intersex and Asexual (LGBTIA) community. Egregiously, even state-sponsored legislative reform intended to facilitate and encompass their gender transition has resulted in their further marginalisation and exclusion7.

The continued human rights violations of transgender and intersex minority rights in accessing health care in South Africa is supported by the cisgendered understandings of health care by both the public and private health care systems. The lack of a health system inclusive of non-normative gender and sexed identities has resulted in other rights violations, including the right to dignity, equal protection and benefit of the law, education and safety and security8.

The South African public and private health care systems have neglected transgender health care needs9. Currently only three hospitals provide medical health care – Groote Schuur (Cape Town, Western Cape), Chris Hani Baragwanath Hospital (Johannesburg, Gauteng) and Steve Biko Academic Hospital (Pretoria, Gauteng). With few options available, those who can afford it have resorted to seeking medical health care through private medical health institutions. Unfortunately private health care insurers in South Africa, with few exceptions, exclude gender reassignment surgery (GRS) on the basis that it is not medically necessary or is of a cosmetic nature.

Underpinning this is an understanding of GRS as primarily cosmetic and therefore elective medical treatment. Without expanding on the criteria used in determining what is or is not medically necessary, it has been difficult to assess whether the exclusion of GRS is reasonable and/or constitutionally compliant.

The exclusion of GRS and other transgender affirming treatments by both private and public medical care providers is prevalent within the medical field. This practice persists even in the face of growing medical research affirming the medical necessity of transgender-specific health care10. Globally, access to gender affirming health care is low, and where it is available through legislative mechanisms, transgender persons have found medical health care providers to be ignorant of their health care needs.

GENDER DYSPHORIA/TRANSSEXUALISM

Gender dysphoria, as diagnosed by the American diagnostic system through its Diagnostic and Statistical Manual of Mental Disorder (Fifth Edition), is characterised by ‘a marked difference between the individual’s expressed/experienced gender and the gender others would assign to him or her, and it must continue for at least six months11. The International Classification of Diseases lists diagnostic criteria for gender dysphoria as characterised by ‘recurrent sexual urges, fantasies, or behaviours in a heterosexual male involving cross-dressing, disorder characterised by recurrent, intense sexually arousing fantasies, sexual urges, or behaviours involving cross-dressing in a heterosexual male. The fantasies, urges, or behaviours cause clinically significant distress or impairment in social, occupational or other areas of functioning. Severe dysphoria, coupled with a persistent desire for the physical characteristics and social roles that connote the opposite biological sex; the act of dressing like and adopting the behaviour of the opposite sex, often for sexual gratification; and the urge to belong to the opposite sex that may include surgical procedures to modify the sex organs in order to appear as the opposite sex12.

The diagnostic definition makes it clear that a diagnosis of the condition requires subsequent medical intervention in the form of hormonal treatment and/or surgery. The DSM-5 recently changed Gender Identity Disorder (GID) to gender dysphoria. The American Medical Association states that a ‘critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.’13 Additionally, treatment options for the ‘condition include counselling, cross-sex hormones, gender reassignment surgery, and social and legal transition to the desired gender.’14

In both medical diagnostic manuals, medical interventions – both hormonal and surgical –are seen as a necessary aspect of treating and alleviating GID. Further, in all European countries, in order for transgender persons to access medical care – both hormonal and surgical – a GID diagnosis or its equivalent is critical15.

The World Professional Association for Transgender Health (WPATH), an international body founded in 1979, comprising over 300 professionals engaged in research and/or clinical practices affecting the lives of transgender and transsexual people16, published Standards of Care (SOC) for the Health of Transsexual, Transgender, and Gender Nonconforming People (SOC 7)17. The SOC 7 specifies the administration of both hormonal and surgical medical interventions in the treatment and management of GID. Hormone treatment involves the ‘administration of exogenous endocrine agents to induce feminizing or masculinizing changes’. According to the SOC 7, hormone treatment is a medically necessary intervention for transgender and gender non-conforming persons experiencing gender dysphoria18.

The above stipulations, for hormonal and surgical treatment, are the result of more than 40 years of clinical observation and treatment of transgender patients. There is nearly universal agreement, both within the medical field and the jurisprudence of various courts – from various foreign jurisdictions – that both hormonal and surgical interventions are a medical necessity and therefore not merely cosmetic.

The above clarification of the process of diagnosis and treatment illustrates the evident medical necessity of transgender-affirming medical treatment for transgender persons’ need to have access to health benefits. However, increasingly, the Legal Resources Centre (LRC) has been approached by transgender clients claiming they have been excluded by their medical aid schemes from accessing medical benefits. Through its work with various transgender individuals and non-profit transgender organisations, the LRC has identified the sources of exclusion: one is based in exclusionary legislative provisions and the other is based in the exclusionary categorisation by medical aid schemes of transgender-related medical treatment as ‘cosmetic’ and not ‘medically necessary’.

LACK OF ACCESS TO HEALTH BENEFITS

Jade19, a transgender woman, went through her transitioning process – she was evaluated and diagnosed with gender dysphoria in terms of the DSM-V and transsexualism and, in terms of the ICD-10, her diagnosis was confirmed by a clinical psychologist. She began her hormonal treatment, taking a feminising oestrogen hormone in accordance with the recommended clinical treatment protocols stipulated by SOC 7.

Her treating physician discussed and recommended GRS; however, as a result of the long waiting periods within the public sector, it was decided that Jade’s best option of receiving her GRS treatment was through the private medical health sector. Upon this recommendation, she enquired with her medical aid scheme as to whether they provided medical health benefits in line with her GRS treatment. She was informed by her medical aid scheme that her treatments where excluded by the medical aid scheme through its general exclusionary clause.

She then approached the LRC to assist her to make an ex gratia application to the medical aid scheme. In her application, she included both her subjective opinion as to why the GRS procedure was necessary, as well as objective opinion from medical experts specialising in transgender-affirming health care.

Her medical aid scheme responded and stated:

‘The Scheme does make provision for funding of treatment and related costs associated with the psychological effects and associated treatments for suffering from Transsexualism, however, paragraph C.1.3 of the Exclusion list of the Scheme state that:
‘Operations, treatment and procedures for cosmetic purposes’ are excluded.
Members ‘may apply to the Board for benefits relating to operations, treatment or procedures for cosmetic purposes on medical grounds’ and the application was therefore considered by the committee on its own merits and grounds with careful consideration and review of the application and motivations received.

During its deliberations in considering ex gratia applications, the committee is guided by a mandate approved by the Board of trustees of the Scheme, and a view on medical necessity is taken ‘having obtained input and recommendations from the Administrator’s (name of scheme redacted) Medical and Dental Advisors (as may be applicable), as well as any input and/or information provided by the treating medical practitioner.’

An Ex Gratia Committee meeting held on [redacted], the committee therefore considered the application together with the supporting documentation received under letter dated [redacted], and although the operation and procedures was found clinically appropriate it is not considered medically necessary.’ (mistakes and emphasis in original).

Two different clients also approached the LRC for assistance in their applications and they both received responses in the same terms as above from medical aid schemes. After a reading of all the responses from the medical aid schemes, two mutually enforcing and discriminatory classifications emerged. The first was that the medical aid schemes regarded GRS and other transgender-affirming procedures as ‘cosmetic’. Secondly, as a result of the categorical classification, transgender medical treatment is automatically ‘not medically necessary’.

The classification of transgender-affirming health care as cosmetic is undergirded by a biological determinist understanding of gender and sexed bodies which permeate both the legal and medical professions. A biological determinist understanding of gender is rooted in the idea that sex – a person’s biological sex – is inextricably linked and gives rise to a person’s gender20. Therefore, persons born male will grow into men with a masculine gender expression and persons born female will grow into women with feminine gender expressions. In a world framed in this manner, transgender persons – with no evidence of an intersex21 condition – are considered physiologically healthy and do not need medical intervention or treatment. In other words, there is no pathological source necessitating medical treatment. Additionally, a biological determinist understanding of gender means that gender and sex are fixed from birth.

This conception of gender as inextricably linked to sex within the legal field is evidenced by the case of W v W22. The case involved the determination of whether a valid marriage could be entered into between a male person and the plaintiff who was identified as having gone through a ‘sex-change operation’23. Nestadt J administered the Ormrod test24, a test for ‘true gender/sex, based on the congruency of a person’s chromosomes, gonads, and genitalia at the time of his/her birth.’25 In essence, through the test, the court held that gender was determined at birth – determined through a factual investigation of various biological aspects of a person – and was unchangeable whether through hormonal treatment or surgical treatment. Through this, we see that gender was established as a fixed idea and thus any medical intervention would ‘not be medically necessary’ and thus ‘cosmetic’.

Increasingly, this conception of gender as fixed at birth and determined through a factual establishment of biological congruency has been eroded and accepted as a medical fallacy – at least in relation to transgender and intersex persons. Various foreign and international courts have taken decisions which affirm the medical necessity of transgender-affirming medical treatment, including GRS.

INTERNATIONAL AND FOREIGN COMPARATIVE JURISPRUDENCE

The linchpin of contentions against the classification of GRS and other transgender-affirming medical care treatments revolve around the idea that transgender health care is not medically necessary and thus it is a choice and cosmetic. Various regional26 international courts and foreign courts have rejected this argument. However, for the purposes of this article, only two countries have been chosen as they provide crystallised principles that can be used effectively within the South African context.

a) United States of America

Prior to the Affordable Care Act, the provision of medical treatment and care for low-income persons was done through two primary Acts, namely the Medicare program27 and the Medicaid program28. Therefore, challenges to exclusion of transgender-specific surgery were brought under these Acts. However, the ushering of the Affordable Care Act has presented an opportunity for challenging the discriminatory practices and clauses excluding transgender-specific health care coverage29. The opportunity to challenge transgender-specific exclusions – which would have broad federal changes rather than state-by-state developments – comes as a result of the explicit inclusion by the Affordable Care Act of federal non-discrimination clauses which bar discrimination by an entity receiving federal funding on the basis of sex, gender identity and disability30.

In determining whether exclusion is arbitrary, the courts have employed a reasonableness standard. Consequently, courts have interpreted ‘medical necessity’ of a procedure as the ‘[standard] for the determination of the reasonableness of criterion set by State Medicaid plans.’31 In other words, where a medical treatment or procedure has been determined as medically necessary by a treating physician, a state department’s refusal to cover said medical treatment would likely be held to be arbitrary and in violation of the objects of Medicaid32. However, exclusion of unnecessary or experimental medical treatment by Medicaid plans is not arbitrary33. This is in line with the Supreme Court’s decision in Beal v Doe where the court held:

‘Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary though perhaps desirable medical services.’34

Thus, in the case of Doe v State of Minnesota Department of Public Welfare35, the court held that the absolute prohibition by the state of surgical reassignment surgery fell afoul of the objects of the federal law. The court reasoned that the absolute prohibition of surgical reassignment was arbitrary and unreasonable and that the medical necessity of each applicant must be determined individually, on a case-by-case basis. Additionally, the court held the state could not impose a higher standard of proof for medical necessity for transsexual surgery than for other, non-transsexual surgeries36.

It is clear from the above decisions that the medical necessity of a procedure or treatment is determined by the applicant’s treating physician, primarily. Where a state seeks to challenge a physician’s judgement, it cannot rely on clerical personnel or government officials but must seek other medical judgements37.

The judgments above crystallise important principles, namely that i) medical necessity is determined on a case-by-case basis, thus an irrefutable presumption that surgical reassignment surgery is cosmetic is irrational and unreasonable; ii) in determining whether a particular individual’s surgery is medically necessary, the prescribing physician’s recommendations take precedence; however, where there is a denial of medical treatment, such determination cannot be made by clerical personnel but must be substantiated through expert opinion; iii) lastly, determinations of medical necessity must be obtained through sound medical evidence and cannot be left to administrative clerks with no medical knowledge or information.

b) Canada

Josef v Ontario (undecided)

Born in 1953 with the biological characteristics of a boy, Michelle Josef suffered depression for years as a result of her gender dysphoria. However, after an attempted suicide at the age of 44, she decided to undergo gender transition. Following the decision to transition, Michelle received the necessary hormonal treatment and various other procedures, including electrolysis to remove facial hair, hair transplants to correct male-pattern receding hairline, surgical breast augmentation and facial reconstruction to further feminise her appearance, at the Centre for Addiction and Mental Health (CAMH).

After completion of the CAMH’s two-year Real Life Experience – which included full disclosure of her gender identity to her family, friends and co-workers – and obtaining a recommendation for sex reassignment surgery (SRS) from the CAMH, Michelle was unable to undergo SRS as it had been cut from OHIP funding by Regulation 528/98. Michelle then sought to challenge the Regulation as violating the right to equality contained in section 15 of the Charter of Rights and Freedoms and, further, that the Regulation was not a reasonable limit that could be justified under section 1 of the Charter.

However, the case never got to the hearing stage before the Canadian Supreme Court as the Province of Ontario rescinded the Regulation. The arguments that were to be made by the applicant provide key insights to the determination of whether SRS is a medical necessity as per the law or not.

i) SRS as an effective treatment for GID

With supporting expert evidence, counsel for Michelle first made the argument that SRS is an effective treatment for GID, thereby making it a ‘medically necessary’ treatment for transsexual and transgender persons. In research studies done with 300 patients who had undergone SRS, only 2% of patients who expressed regret or ambivalence with regards to having undergone SRS (about seven patients from the research sample). Further, Dr Dickey, an expert providing testimony in support of Michelle, stated that SRS was effective because ‘it removes the primary impediment to optimal psychological functioning in transsexuals, namely the acute and chronic sense of discord between their physical sex and their gender identity, thereby treating, and often curing, their accompanying co-morbid disorders.’38

Further, testimony was given on the effects of SRS through a review of available literature, which included alleviation of psychiatric symptomology39 (anxiety and depression), lessening of severe emotional distress and improved mental stability, socio-economic functioning, interpersonal and family relationships, and romantic and sexual experiences40. Expert evidence further revealed that suicide among post-operative transgender persons was rare. The therapeutic effectiveness of SRS is undisputed when provided in accordance with the minimum treatment criteria set out by SOC 741.

ii) SRS is the only effective treatment for GID

Arguments against the categorisation of SRS as ‘medically necessary’ place great emphasis on the fact that psychological interventions are effective in the treatment of GID. Countering this point, counsel for Michelle brought in expert testimony to the effect that, although psychological interventions can alleviate symptoms of GID, employing the triadic approach set out within the international SOC, which includes SRS as the final aspect of treatment, is the only known effective treatment for GID. No study has found that psychotherapy alone is sufficient in the treatment of severe GID.

Additionally, although psychiatric and hormonal treatments might work for some transgender patients, to use this standard to then determine what transgender persons as a whole would require for transitioning is severely limiting to those trans* persons who need SRS as an essential part of their treatment.

iii) SRS is a ‘medical necessity’

Often arguments on whether SRS is a medical necessity fail to draw the distinction between medical interventions which are a ‘medical urgency’ and those which are a ‘medical necessity’. Medically urgent procedures are those procedures which, if not performed, would result in the death of or severe complications for the patient. Medically necessary procedures, according to the expert evidence adduced on behalf of Michelle, are those procedures which ‘effectively improve the health and well-being by removing impediments to optimal functioning, not just if the [procedure] saves lives. For instance, treatments for schizophrenics are universally considered to be medically necessary because they tend to remove psychiatric impediments to optimal functioning. [SRS too has been] demonstratively proven to improve the well-being of individuals with severe GID by reducing or eliminating the most fundamental barrier to optimal health, namely gender dysphoria.’

First, to use an ‘impending death of the patient’ yardstick in the assessment of whether a treatment is a medical necessity sets too high a standard for trans* persons to achieve, and second, if that standard were to be applied to other medical health care benefits already provided, the list of benefits within South Africa’s Prescribed Minimum Benefits (PMB) list would be drastically reduced. The PMB list is a set of defined benefits to ensure that all medical scheme members have access to certain minimum health services, regardless of the benefit option they have selected. Third, should the ‘impending death of the patient’ be used as a yardstick to measure medical necessity, this standard unequally differentiates between those psychiatric conditions categorised as chronic under the PMB list.

Conclusion

Drawing from the arguments in Josef, medical necessity could be defined and argued in one of two ways. First, the determination must be done by the treating physician (as per the American model). Thus, only the treating physician can make a competent determination as to the medical necessity of SRS treatment for a particular patient. This model centres the needs of the patient, as determined by the treating physician, through a careful consideration of international or domestic trans* health guidelines. The translation of the physician-centred model into medical aid scheme reimbursement policy would have to take into consideration the full scope of potential medical treatments, including SRS, in formulating its medical treatments guidelines.

Where there is disagreement, the treating physician’s recommendations must be assessed and judged by an equally qualified specialist physician, according to clear policy guidelines, after review of all necessary medical documentation of the patient.

However, a contestation must be limited only to fiscal and qualitative grounds, i.e. where there is a cheaper and/or more effective alternative treatment in line with reasonableness considerations, accessing the alternative cannot impose an undue burden on the patient or require the patient to expand themselves financially to their detriment.
The above determination of ‘medical necessity’ has its limitations. As it is physician-centred it might have a negative impact on the patient’s ability to determine his or her own transitioning journey and stage of readiness. Transgender persons are not homogenous; some patients might be ready for surgical intervention sooner than others.

Additionally, because of the societal stigma, some transgender persons might have underlying mental health problems which might need intervention prior to hormonal treatment. Should the treating physician not be aware of the complexities which might be present, they might end up pushing or hindering a transgender patient’s progress.
Second, an alternative to the physician-centred model is a graduated determination of whether SRS for a particular patient is a medical necessity. This would require the determination of ‘medical necessity’ through a definition of medical necessity being a gradient-of-need existing between those medical procedures which are urgent (i.e. life or death procedures) and those that are cosmetic (i.e. superficial and serves to alter appearance). An example of how this would work would be in the context of breast reconstruction in cancer patients. Whereas non-cancer patients seeking breast augmentation would be categorised as cosmetic, patients who are cancer patients seeking breast reconstruction – in whatever form – would fall under the medical necessity spectrum; similarly with transgender patients.

This model has the potential to be pathologising to transgender patients as it can morph into something similar to the European approach where, in order for a patient to qualify for hormonal and/or surgical treatment, they would have to produce a diagnosis. The presence and severity of a person’s GID should not be used as a yardstick to measure the necessity of medical intervention and necessity of treatment as transgender persons’ medical needs are different. Some might be satisfied with hormonal treatment alone and others might want to take it further and undergo surgical intervention.

Through either of these understandings of ‘medical necessity’, it is clear that SRS is necessary, although non-emergent – timing of the procedure can be controlled and it is not an ‘elective’ procedure like cosmetic surgeries are.

CONCLUSION – A SOUTH AFRICAN APPROACH TO MEDICAL NECESSITY

The right to health contained in the South African Constitution is informed by the rights to equality and non-discrimination42. From this view, the right to health care and the concomitant legislation and policies giving operational effect to the right must do so in a manner that provides appropriate and equitable access to health care for everyone.

Section 27(1)(a) gives effect to the right to access to health care and provides: ‘[e]veryone has the right to have access to health care services, including reproductive health care.’

The section contains a clear equality threshold43 contained in the determination that ‘everyone’ is entitled to access health care services and reproductive health care. ‘In this sense, section 27(1)(a) supplements the right to equality, by embodying an entitlement against arbitrary or unfair exclusion from the ambit of policies, laws and programmes which confer health-related benefits and by forbidding the inequitable provision of health care services.’44

The equality dimension of the right to access health care is equally enforceable against private health care service providers and institutions. Within the context of GRS, it means that private health care providers cannot refuse to provide GRS on a discriminatory basis in terms of section 9(3) read together with 9(4). Thus the determination of what is ‘cosmetic’ surgery versus ‘medically necessary’ should not have an unfair discriminatory impact on transgender persons.

By designating transgender-related surgery as cosmetic, medical aid schemes have created an irrefutable presumption that such surgery could never be medically necessary. This results in a practice which discriminates unfairly against transgender persons on the basis of their gender or sex.

Further, the designation is not supported by the medical developments in relation to the provision of transgender health care. Both the ICD-10 and the DMV-5 manual recognise GID and provide diagnostic criteria, with the DMV-5 prescribing surgery as a treatment option.

Thus the determination of what is ‘medically necessary’, in the absence of clear guidelines or criteria, must be informed by the equality and non-discrimination threshold which is inherent in the right to access health care.
Two potential models emerge from a reading of the available case law on the issue. First, the determination must be done by the treating physician (as per the American Medicaid model). Thus, only the treating physician can make a competent determination. Where there is disagreement, an assessment must be done by an equally qualified specialist physician after review of all necessary medical documentation.

However, contestations must be limited only to fiscal and qualitative grounds, i.e. where there is a cheaper and/or more effective alternative treatment. However, accessing the alternative cannot impose an undue burden on the patient or require the patient to expand themselves financially to their detriment.

The second manner to determine ‘medical necessity’ would be through a definition of medical necessity being a gradient of need which exists between those medical procedures which are urgent (i.e. life or death procedures) and those that are cosmetic (i.e. superficial and serves to alter appearance).

Through either of these understandings of ‘medical necessity’, it is clear that SRS, must be understood as a necessary part of the treatment of GID and, therefore, should be provided for within the PMBs or through the self-regulated provision of medical aids.

The determination of ‘medical necessity’ must be reasonable and must promote and respect the rights to equitable access to the right to health care. The current determination goes against the objectives of the Medical Schemes Act45.
An understanding of ‘medical necessity’ can be gleaned from the Medical Schemes Act which, although not defining the terms, does define ‘relevant health service’ as:
‘… any health care treatment of any person by a person registered in terms of any law, which treatment has as its object –

(a) the physical or mental examination of that person;
(b) the diagnosis, treatment or prevention of any physical or mental defect, illness or deficiency;
(c) the giving of advice in relation to any defect, illness or deficiency;
(d) the giving of advice relating to, or treatment of, any condition arising out of a pregnancy, including the termination thereof;
(e) the prescribing or supplying of any medicine, appliance or apparatus in relation to any defect, illness or deficiency or pregnancy, including the termination thereof; or
(f) nursing or midwifery.

Read together with section 24(2)(e) of the Act, which stipulates that ‘No medical scheme shall be registered under this section unless the Council is satisfied that…the medical scheme does not or will not unfairly discriminate directly or indirectly against any person on one or more arbitrary grounds including race, age, gender, marital status, ethnic or social origin, sexual orientation, pregnancy, disability and state of health….’ The Act emphasises equality in the provision of services by medical aid schemes.

The Act continues the equality threshold present in section 27(1)(a) of the Constitution and further underpins this through a direct stipulation that the administration and the rules of a medical aid scheme may not directly or indirectly discriminate on any person on the basis of analogous grounds. It can, therefore, be argued that, where a medical aid scheme creates procedures and processes in attempts to expand access to health care services to their members – such as ex gratia application processes – these must give effect to a parity of benefits. Categorical exclusions are inimical to the value of equality. The current definition designation of SRS as ‘cosmetic’ is not only arbitrary, and not based on any coherent medical evidence, but also has a disproportionately unfair discriminatory impact on transgender persons.


 

  1. Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005), available at http://www.saflii.org/za/cases/ZACC/2005/19.html, accessed June 2016
  2. Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006; 2003 (2) SA 198 (CC) (10 September 2002), available at http://www.saflii.org/za/cases/ZACC/2002/20.html, accessed June 2016
  3. Satchwell v President of Republic of South Africa and Another (CCT45/01) [2002] ZACC 18; 2002 (6) SA 1; 2002 (9) BCLR 986 (25 July 2002), available at http://www.saflii.org/za/cases/ZACC/2002/18.html, accessed on June 2016
  4. National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998), available at http://www.saflii.org/za/cases/ZACC/1998/15.html, accessed June 2016
  5. See Pierre de Vos ‘The “inevitability” of same-sex marriage in South Africa’s Post-Apartheid state’ (2007) South African Journal on Human Rights 23 432
  6. Ibid
  7. See Legal Resources Centre and Gender DynamiX ‘Briefing Paper: Alteration of Sex Description and Sex Status Act No.49 of 2003’ (2015), available at http://genderdynamix.org.za/wp-content/uploads/LRC-act49-2015-web.pdf, accessed June 2016
  8. D Wilson, A Marais, A de Villiers, R Addinall, MM Campbell, The Transgender Unit ‘Transgender issues in South Africa, with particular reference to the Groote Schuur Hospital Transgender Unit’, transgender patients at this unit face a 15–20 year waiting list for surgical reassignment surgery. Available at http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0256-95742014000600030, accessed April 2016
  9. Ibid
  10. Friedemann Pfafflin, Astrid Junge Sex Reassignment. Thirty Years of International Follow-up Studies After Sex Reassignment Surgery: A Comprehensive Review, 1961–1991 (Translated from German into American English by Roberta B Jacobson and Alf B Meier) (1997) Symposium publishing Dusseldorf, available at http://web.archive.org/web/20061213210356/http://www.symposion.com/ijt/ijtright.htm, accessed April 2016
  11. American Psychiatric Association ‘Gender Dysphoria’ American Psychiatric Publishing, available at http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf, accessed June 2016
  12. World Health Organization ‘International Classification of Disease (ICD)’, available at http://www.who.int/classifications/icd/en/, accessed June 2016
  13. American Psychiatric Association ‘Gender Dysphoria’, available at http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf, accessed April 2016
  14. Ibid
  15. TGEU Transgender Europe ‘Depathologisation’, available at http://tgeu.org/issues/health_and_depathologisation/depathologisation-health_and_depathologisation/, accessed April 2016
  16. WPATH ‘ WPATH Clarification on Medical necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A.’, available at http://www.wpath.org/uploaded_files/140/files/Med%20Nec%20on%202008%20Letterhead.pdf , accessed April 2016
  17. SOC-7 2012, available at http://www.wpath.org/site_page.cfm?pk_association_webpage_menu=1351&pk_association_webpage=3926, accessed April 2016
  18. Ibid page 33
  19. In order to protect the identity of our clients and their privacy, names have been changed
  20. See Shannon Weber ‘What’s wrong with be(com)ing queer? Biological determinism as discursive queer hegemony’ (2012) Sexualities
  21. ‘A term used for people who are born with external genitalia, chromosomes, or internal reproductive systems that are not traditionally associated with either a “standard” male or female.’, available at http://genderdynamix.org.za/documents/terminology/, accessed June 2016
  22. W v W 1976 (2) SA 308 (WLD)
  23. Ibid
  24. Developed in Corbett v Corbett (otherwise known as Ashley)
  25. Amanda Swarr Sex in Transition: Remaking Gender & Race in South Africa (2012) SUNY Press, page 62
  26. See European Court cases L v Lithuania, Goodwin v United Kingdom, Van Kuck v Germany and Schlumpf v Switzerland
  27. Enacted through the Social Security Act 42 U.S.C §§1396
  28. See Kellan Baker and Andrew Cray ‘Ensuring Benefits Parity and Gender identity Nondiscrimination in Essential Health Benefits’ Center For American Progress (2012)
  29. Ibid
  30. Ibid
  31. Meyers v Reagan, 776 F.2d 241 (8th Cir.1985), see also Beal v Doe, 432 U.S. 438 (1977)
  32. Ibid
  33. Ibid Beal v Doe
  34. Ibid
  35. Doe v State of Minesota 257N.W.2d 816 (1977)
  36. Ibid
  37. Doe v State of Minnesota op cite note 35 above, see also Pinneke v Priesser 623 F.2d 548 n.2 (8th Cir.1980)
  38. Josef v Ontario Factum para 51
  39. Ibid, para 54
  40. Ibid
  41. SOC 7 op cite note 17 above
  42. M Pietrese ‘Indirect Horizontal Application Of The Right To Have Access To Health Care Services’ (2007) 23 SAJHR, 165, and 172
  43. Ibid
  44. M Pietrese Can Rights Cure? The impact of human rights litigation on South Africa’s health system (2014) PULP, page 20
  45. Medical Schemes Act 131 of 1998