03/01/2007
Right to Sex Change Upheld
By: ARTHUR S. LEONARD

Mariah Lopez, a transsexual youth whose efforts to have sexual reassignment surgery have been blocked by the city’s Administration for Children’s Services, has won a court order ordering the agency to arrange for the medical care.
A judge has ruled that the city's Administration for Children's Services (ACS) made "misdirected and unsubstantiated claims" that gender-reassignment surgery "is controversial, risky, and experimental" when it refused to provide such procedures for a male-to-female transsexual in its custody.

Finding, in a February 21 decision, that the procedure is "medically necessary" for the youth, city Housing Court Judge Sheldon Rand granted an application by the law guardian appointed to represent her interests to direct ACS to arrange for the surgery.

Rand characterized the agency's position as "irrational and unreasonable," reflecting "inadequate solicitude for this young woman's diagnosed condition, the treatment prescribed by her physicians, and the accumulated knowledge of the medical community."

Rand noted that it was "uncontested" that M.L., born biologically male, had self-identified as a heterosexual female from a young age.

"She reports a lifelong cross-gender identification which is intense, stable, and enduing," he wrote. "She is a transsexual child growing into a transsexual adult whose ability to fully interact in the world is impaired because she is biologically male. She is not capable of changing or controlling her feminine qualities. Her gender expression makes her vulnerable to prejudice and to violence. Like many transgendered adolescents, M.L. has postponed fundamental life activities that include working and pursuing a career until she can engage in them in her preferred gender. Sexual reassignment surgery would reduce the risks she currently faces in a society that genders bathrooms, locker rooms, dormitories, fitting rooms, and public benefit programs and services."

M.L. has been identified in press reports as Mariah Lopez, who as Gay City New reported in early 2003 won a lawsuit against ACS to dress in female clothing while a resident in foster care facilities run by the agency. At that time, Lopez indicated that she hoped to complete her transition in 2004.

"If M.L. undergoes surgery," continued Rand, "she can expect reduced anxiety and defensiveness at the fear of being 'found out,' increased comfort in social and sexual situations, increased acceptance by friends, employers, and sexual partners, increased personal comfort with her own body, and the right to change her name and gender on official documents to the extent allowed by law. We must also take into consideration that this surgery ('SRS') is a monumental decision made by the child; M.L. is ready both mentally and physically for this procedure which will require that she be monitored for the rest of her life."

Rand first ordered ACS to provide the procedure a year ago, when M.L. was 20. ACS appealed that ruling to the Appellate Division, claiming that Rand had not given it adequate opportunity to present its reasons for opposing the procedure, and case was returned to him.

The law guardian claimed that ACS had failed to provide "a factual basis for its position," instead merely continuing to claim that in its opinion the procedure was not medically necessary.

Relying on substantial expert medical testimony presented by the law guardian, Rand found ACS' continued insistence totally inadequate to counter Lopez's case.

Rand wrote that ACS "has not presented any medical or psychological expert to dispute these determinations that SRS is medically necessary for M.L. ... and has substituted [its] own forecast that after surgery M.L. will continue to behave 'in an indecisive, unstable, and self-defeating manner' for the medical opinions of experts."

"This error of nature need not go uncorrected in the 21st century when medical technology has taken giant steps from the previous, outdated opinions," the judge insisted, finding that recent federal cases have established Gender Identify Disorder as a serious medical condition, for which anybody in the custody of the state is entitled to appropriate treatment.

Statute makes clear, Rand wrote, that ACS must "provide necessary medical and surgical care for a child placed in foster care" and pay for it "from public funds if necessary," and that the court can compel the agency to do so.

ACS had argued that it should not be required to cover the procedure because of doubts that it would be reimbursed under Medicaid, but Rand rejected this argument, noting that "M.L.'s health coverage as a foster child is not limited to Medicaid."

ACS might again appeal this ruling given the costs of such care, but the court's opinion makes clear that they should be ashamed of prolonging this case any further - and probably should undertake an internal education program to educate agency officials, from the commissioner on down, about the current scientific information necessary for the care of transsexual children confided to their charge.
©GayCityNews 2007

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