10 - Commentary on Smith v. Rasmussen

Summary

In Smith v. Rasmussen, an Eighth Circuit case from 2001, the original opinion upheld Iowa’s Medicaid ban on coverage for gender confirming surgery, finding it was reasonable and consistent with the federal Medicaid Act. Craig Konnoth’s feminist rewrite finds that the ban on gender confirming surgery is discriminatory on its face and impermissibly relies on gender stereotypes because it permits coverage of particular procedures for individuals perceived as sufficiently cisgender—such as those who are intersex but have conformed to expectations associated with their sex assigned at birth—but not for others. Konnoth draws on empirical research showing that enforcing gender roles in this context seeks to prevent men from debasing themselves as women and to prevent women from claiming the privileges of men. Heather Walter McCabe’s commentary highlights how litigation related to transgender issues reveals the socially constructed nature of gender and provides useful insight into how gender and sex relate to each other and to theories of antidiscrimination.