redesignação sexual

Health insurance is required to cover sex change surgery

An acronym in the movement LBGTQIA + | Credit: Sharon McCutchen/Unsplash

The judge summoned from the 11th Civil Chamber of the Court of Justice of Minas Gerais (TJMG), Narciso Alvarenga Monteiro de Castro, has decided that Sul América Companhia de Seguros e Saúde is offering gender reassignment surgery to a transgender woman., under the penalty of a daily fine of R$500, limited to R$20,000. The plan rejected the procedure on the grounds that the procedure was not on the National Agency for Complementary Health (ANS) coverage list.

The beneficiary has applied for an injunction so that the plan covers sex change procedures. The first instance judge postponed the decision until the company itself appears in the records, which caused the woman to file a preliminary appeal to the Court of Justice, questioning this decision.

to meIntraoperative at TJMG, all procedures required for sex reassignment surgery, such as complete amputation, orchiectomy, perineal reconstruction using a dermal intramuscular flap, new vagina (small colon, skin tube), and video endoscopic enterectomy are part of the ANS coverage list . Thus, for Castro, the health plan’s refusal to have the surgery is illegal.

“In fact, it was stated that all the necessary procedures for
The surgical procedure you need is listed in Appendix I of the List of Procedures and Health Events (RN 465/2021, effective as of 01/04/2021) of the ANS,” Montero de Castro wrote.

The judge considered that the woman had proven by medical and psychological reports that her gender was female, even though she was born in a male body.

“Regardless of the surgical procedure to change the sex, it is not indispensable condition In order for the appellant to be recognized as a trans woman (because according to her gender she already is), the suitability of her biological sex (genital organs) to her female sex will ensure respect for the fundamental rights of a person, his health and human dignity, even allowing him to suffer because he is alien to his body ”, concluded the judge.

Taxes × craftsmanship for the role

Vitor Boaventura, a lawyer specializing in insurance and consumer law, Ernesto Tzirulnik Advocacia’s partner, explains that the decision in question showed that in addition to the comprehensive list, health plans want to defend the literalism of the list.

“As stated in the decision, gender reassignment is a set of procedures that lead to a change of sex and the judge understood that each of these procedures considered separately is on the list. This means that although it is not written verbatim in the list of gender reassignment surgery, The medical procedures that together result in a reset are,” he explains.

For Bonaventure, if The procedures applicable to the treatment are covered by the list, the insurance company must provide coverage.

“This refusal of plans is wrong, because sex reassignment is a medical treatment. Individuals who undergo sex change do so for a health condition and not for something intentional. A person has a sexual orientation that differs from his biological sex. We, as a society, need to provide the means to make this happen, and if If he had a contracted health plan and a prescription to carry out the procedure, there is no need for insurance companies to refuse this coverage,” the specialist confirms..

Mérces Nunes, an attorney specializing in medical law with master’s and doctoral degrees from the Pontifical Catholic Church of São Paulo (PUC-SP), comments that The surgery is the last sex change operation and before that there is a whole part of hormonal therapy and medical and treatment follow-up. According to her, it is inconsistent for the patient to start treatment and partly interrupt it “because the turn is comprehensive and the surgery is unplanned.”

“Hey The procedure as a whole involves much more than just the physical part of the person. It is a group, in fact, a person needs to have an integrated psychological and physical identity. It is a surgical procedure to adapt a person to his identity. If you don’t accept the health plan [fazer o procedimento]A person can file a lawsuit and has a great potential to win in court,” says Nunes

According to the lawyer, the chance of winning the case in court is due to the fact that our constitution aims to protect human dignity. “Staying in the literal sense of the rule does not mean looking at the legal context we have.”. The context begins with the protection and recognition of human dignity.”

Divided case law

Leo Rosenbaum, a health attorney at Rosenbaum Advogados Associados, says there are A difference in jurisprudence, since the procedure for making a sex change is provided for in the list, but the specific name is not.

There are judges who grant it and there are courts that realize that if it isn’t on the list, it shouldn’t be covered by the plan. This issue is discussed process by process and there is no truth about it. Rosenbaum explains that the matter goes from judge to judge, they are not obligated to follow the government’s own court ruling for truth and justice, and also because it is not a decision made in an appeal with public repercussions.

Boaventura also highlights that the list of procedures goes through successive cycles of modernization and can incorporate new technologies and health treatments. It concludes, “Civil society entities should apply pressure on gender reassignment procedures to be included in the list, precisely to avoid this literalism, since all gender reassignment treatments are on the list.”

In a note, the Brazilian Association of Health Plans (ACPHS) warned of the importance of legal certainty in contracts and respect for laws and regulations. “In a continental country like Brazil, different judicial claims may have differing decisions according to the assessment of the judge and the court. Hence the importance of decisions in higher courts to standardize understandings and bring greater legal certainty to the judiciary and the system as a whole.”

In order to reach more consistent and technical decisions, programs continue to “Extend Services Provided by the Judicial Technical Support Centers (NAT-JUS), whereby judges can request support from a technical staff trained in health-related matters” is “essential”. Sul America has also been contacted by jotabut decided not to comment.

ANS . role

In June, STJ decided that the Afghan National Army’s role is inclusive, with some exceptions. Which means that health plans are obligated to offer the procedures and treatments prescribed in the list prepared by the ANS for their clients. Anything off the list does not guarantee coverage.

However, the House of Representatives approved a bill (PL 2033/2022) addressing coverage of actions not provided for in the list. According to the text, health plans must cover treatments that fall off the list as long as there is evidence of their effectiveness, based on one of these criteria: the recommendation of the National Committee to Integrate Technologies (Conitec) into a Unified Health System (SUS); An authorization from the National Health Surveillance Agency (Anvisa), or a recommendation from at least an internationally known health technology assessment body, such as the US Food and Drug Administration. The bill will now be considered in the Senate.

Nunes explains that the difference between what was determined in the TJC and what was approved in the chamber is that in order to approve an exceptional measure it would not be necessary to cumulatively fulfill the list of requirements, corresponding to only one of the requirements. Enough. “With the enactment of this law, health plans would not be justified in refusing to have sex reassignment surgery, for example,” the attorney comments.

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