Inter* in statutory health insurance

By Dr Oliver Tolmein (lawyer, Hamburg)

Any rights in place for people covered by statutory health insurance comply with the German Social Security Code V (SGB V).

An important right is the “freedom to choose a doctor”[1]. However, there are two important restrictions:

1. You are only permitted to select a doctor who has entered into a contract with the health insurance scheme[2]. However, this restriction does not apply in emergency cases.

2. Doctors cannot be forced to accept someone as a patient. If they have too many patients to deal with and can only offer an appointment far ahead in the future, there are not many efficient ways to refuse to accept this offer.

It sometimes can be the case that if intersex children and adults have to undergo medical treatment, the health insurance scheme will call in the Health Insurance Medical Service (MDK) which will then prepare a statement which either approves or rejects the planned procedure. In many cases, the MDK decides whether the patient is entitled to the planned procedure, based on the “Assessment guide on gender reassignment procedures for transexuality”. This is usually negative because certain requirements (for example, a course of psychotherapy lasting several months) would not be provided. 

In legal terms, statutory health insurance should be regarded in the same way as a public authority. Its decisions are basically decrees. Every citizen has the right to appeal against the health insurance fund. If the appeal is not upheld, it is possible to lodge an appeal before the Sozialgericht (Social Welfare Court) against the appeal decision. If the appeal is rejected, it is possible to lodge a further appeal. If this is rejected, it is also possible to lodge an appeal before the Bundessozialgericht (Federal Social Welfare Court).

If the health insurance fund turns down an application to provide medical rehabilitation or a type of treatment, you can either accept the decision or refuse to accept it. You can choose to work with a lawyer, to seek advice and support from one of the large charities or you can also represent yourself in court. It is necessary to use a solicitor if you lodge an appeal before the Bundessozialgericht. You will not be charged by the court for the costs of the proceedings, i.e. the legal proceedings are exempt from charges. If you are on a low income, it is possible to apply for legal aid (PKH) to cover the costs of legal representation.

Health insurance benefits are generally granted irrespective of gender. This also applies to medical services which relate to gender, for example, cancer screening for breast or prostate cancer. However, there are exceptions, such as § 24i which governs the payment of maternity benefits which are only for “female members”. The SGB V (German Social Security Code) accords with the BGB (German Civil Code) which only recognises “the woman who gave birth to the child” as the mother of a child. Intersex people can therefore only receive maternity pay if their civil status is specified as “female”. However, in the author’s opinion, this interpretation of the regulation infringes a person’s right to equal treatment as stated in article 3, para. 3, clause 1 of the German Basic Law (GG). In addition, since its last reform, § 1 para. 4 of the Maternity Protection Act (Mutterschutzgesetz) clearly states: “This law applies to every person who is pregnant, has borne a child or who is breastfeeding.” This legal clarification also correlates with provisions stated in § 24i of the SGB V (German Social Security Code). It is also not possible to interpret and apply other provisions stipulated in health insurance law in such a way that they disadvantage intersex people due to their gender.

Judgements on claims submitted by inter* people are very rarely given against statutory health insurance funds. In 2014, the Federal Social Welfare Court decided that inter* people who apply for breast augmentation surgery in order to achieve what is commonly perceived to be a more female appearance, cannot pursue a claim to cover these costs with the health insurance company if this person’s breasts have already developed to at least a size A cup.[3]

[1]  § 76 SGB 5 (German Social Security Code).

[2] For example, there are also doctors who only accept private patients. However, in the case of private clinics which have an excellent reputation for carrying out plastic surgery and which do not have a service agreement with statutory health insurance schemes, it is rarely possible for patients with statutory health insurance to receive treatment that is funded by a statutory health insurance scheme. The health insurance schemes are governed by the efficiency rule stipulated in § 12 of the SGB 5 and are only required to provide services which are “acceptable, which serve a purpose and are cost-effective”.

[3] BSG 1. Senate, 04/03/2014, file reference: B 1 KR 69/12 R.