to Sex Change Upheld
ARTHUR S. LEONARD
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.
||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.
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
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
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.