I dissent, for the reasons set out in my dissenting opinion in G. B. v. Lackner, ante, page 64 [145 Cal.Rptr. 555]. The case at bench, like G. B. v. Lackner, involves a person who is physically a normal male, but who feels that he is a woman. Although appellant does not have a deep voice or facial hair, and appellant testified that he had never experienced an erection or had sexual relations with a woman, substantial evidence was presented that appellant is, physically, a normal male. Appellant presented a letter dated September 10, 1976, at his fair hearing, in which Dr. David Feldman, assistant professor of medicine at Stanford University, stated that appellant’s “genitals appear to be that of a normal male with questionably slight testicular atrophy. Our impression was that the patient was a genetic male and that there was no endocrinologic abnormality present.” After making several hormone measurements, Dr. Feldman concluded, “At this point there does not seem to be an endocrinologic abnormality except for the elevated *96estrogen which I feel is most likely due to ingestion of estrogen.” Consequently, I would uphold the decision of Dr. Lackner to refuse Medi-Cal benefits for an operation meant to remove appellant’s normal genitals and to create artificial female genitals by plastic surgery, which will conform appellant’s appearance to his conception of himself.
The majority states that no evidence was produced in G. B. v. Lackner or in the instant case, except that the surgery is medically reasonable and necessary. The majority concludes that it is bound to rule on these two cases on the basis of that evidence. However, the determination whether the proposed surgery is medically reasonable and necessary is not itself an evidentiary fact; rather, it is a conclusion drawn from the facts. The details of appellant’s physical and mental condition, and of the operation proposed as “treatment,” constitute the relevant evidentiary facts. The issue here is not whether appellant is a true transsexual, but whether the state must finance transsexual surgery for a physically normal male. Dr. Lackner, as a medical doctor and in his capacity as Director of the Department of Health, has determined that transsexual surgery is not a medically necessary treatment for a person with appellant’s symptoms. The Director of the Department of Health is charged by statute with making policy for the administration of the Medi-Cal program. (Welf. & Inst. Code, § 14105.) The majority’s characterization of Dr. Lackner’s determination as “whimsical” is at best most unfortunate and inaccurate. Dr. Lackner was given a statutory duty which he discharged. The majority usurps the Director’s role.
Under the majority’s analysis, the Department of Health will be compelled to hire an expert witness to appear and testify at every hearing where the department seeks to deny benefits to the applicant. Otherwise, as was done in the instant case, the applicant will be able to contend that no substantial evidence supports the denial of his claim. If the substantial evidence test is applied only to evidentiary facts, and not to conclusions drawn therefrom, this needless expenditure of public funds can be avoided.
Under the applicable law as set forth in my dissent in G. B. v. Lackner, sufficient evidence of appellant’s condition and the proposed treatment was presented at appellant’s fair hearing to support the Director’s decision. I would affirm the judgment.
A petition for a rehearing was denied May 19, 1978. Scott, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied June 29, 1978. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.