Know the rights of trans people in health

On ‘National Trans Visibility Day’ it is important to talk about health and the rights involved in this resource.

According to the National Association of Transvestites and Transsexuals (ANTRA), in the first half of 2021, 89 transgender people were killed in Brazil, 80 of them by murder and 9 by suicide, in addition to 33 attempted murders and 27 human rights violations.

The National Policy for the Comprehensive Health of Lesbians, Gays, Bisexuals, Transvestites and Transsexuals, established in 2011, is a step forward in guaranteeing access and implementing public policies for this population, said Dr. Tatiana Viola de Queiroza lawyer specializing in the right to health.

Some measures have been taken so that the health rights of people in this group are increasingly attended to and respected. The Bill of Rights of Users of SUS, for example, recognizes the diversity of gender identities and guarantees respect for the social name — the name by which some people want to be called in everyday life, regardless of civil registration.

“In this way, the social name of trans and transvestites must be respected when filling out medical records in waiting rooms, in interpersonal relationships in health services and also in printing the National SUS Card. This is a way of guaranteeing access to health services without prejudice and discrimination, helping to promote the health of this population”, reinforced the lawyer.

Sex reassignment in the SUS

In Brazil, access to procedures for sex reassignment surgery through the Unified Health System (SUS) has been provided for since 2008 and in 2013, the law expanded services for transgender men and women. The document brings together a series of guidelines for carrying out the process in the context of public health.

From primary care services, users who wish to undergo sex reassignment surgery must be referred to specialized services, still within the context of the SUS, in outpatient and hospital modalities, in order to proceed with the process.

Since August 2008, SUS has performed sex reassignment surgery for trans women. In June 2019, the law began to allow the procedure for trans men as well. However, accessing this right is still a challenge.

Currently, there are only five health centers accredited by the SUS that perform this type of surgery in Brazil, located in the cities of São Paulo, Rio de Janeiro, Porto Alegre, Goiânia and Recife. For outpatient procedures, which include multidisciplinary monitoring and hormone therapy, there are 12 referenced hospitals across the country. According to the Ministry of Health.

Tatiana reinforces “even though they are not qualified, which would imply additional federal funding, there are other health services in the country that can perform procedures such as mastectomy (complete breast removal surgery) and plastic surgery”.

New CFM rule on service to transgender people

The Federal Council of Medicine (CFM) published a rule in 2019 that updates the rules for medical care for transgender people. Among the main changes is the change in age for surgery, which was reduced from 21 to 18 years. Hormonal therapies, on the other hand, are released from the age of 16.

The new norm also contemplates issues such as pubertal blockade, (interruption of the production of sex hormones), and crossed hormone therapy, (a form of hormone replacement in which sex hormones and other hormonal medications are administered to the transgender for feminization or masculinization), and regulates surgical procedures.

About this resolution, the Ministry of Health said, in a note, that it will evaluate and discuss with other government bodies, based on existing norms, the application to the SUS, which is not automatic.

Some SUS protocols are still not adapted for transgender people, such as certain types of treatment related to reproductive health that are denied in appointment scheduling systems.

“For example, a trans woman who has rectified the document still needs to undergo prostate exams. The same occurs with trans men who have not undergone surgery and need to undergo gynecological exams, but cannot make an appointment”, reinforced Dr. Tatiana.

Sex reassignment surgery by health plans

The transgender person undergoes psychological, psychiatric and medical follow-up and undergoes hormonal treatment, even sex reassignment surgery to modify the appearance according to the gender with which he identifies.

“It is not a purely aesthetic procedure, but a restorative procedure for a condition that brings intense psychological suffering”added the lawyer.

Sex reassignment surgery, which can also be known by other names, such as transsexualization process, reassignment and sex change surgery, encompasses a series of clinical and surgical procedures with the aim of changing the individual’s physiological sexual characteristics.

In addition to hormone therapy, surgery may include removal of the penis, placement of breast implants, removal of the uterus, ovaries and breasts, and construction of a new genital organ.

What does the ANS say about surgery coverage?

Some of these procedures, such as total limb amputation and neovagina surgery, are included in the List of Procedures and Health Events of the ANS (National Agency for Supplementary Health). Others, such as clitoroplasty, do not. For this reason, many health plans refuse to pay for sexual reassignment, claiming that the prescribed procedure is not part of the mandatory coverage list or that the patient does not comply with the ANS Guidelines for Technical Use.

For Dr Tatiana, thanks to the current decision of the STJ, in order to claim the cost of the surgery by the health plan, it is necessary to show that it fits the exceptions, among them, to prove that in the list of the ANS there is no procedure that meets the objective claimed in the prescription doctor.

About Dr. Tatiana Viola de Queiroz – Founding partner of Viola & Queiroz Advogados Associados, with more than 20 years of experience as a lawyer. She is a Postgraduate and specialist in Medical and Health Law, Consumer Law, Autistic Spectrum Disorder, Banking Law and Business Law. She is an effective member of the Right to Health Commission of the OAB / SP. She worked for eight years as a lawyer for PROTESTE, the largest consumer protection association in Latin America.