Emails to TN Legislators Regarding New Bathroom Bill

Tennessee is moving forward with its bathroom bill, worse than South Dakota’s.  To help fight the bill, I sent emails to each of the legislators on the relevant subcommittee.  My email is below; please feel free to modify it however you see fit and contact the legislators yourself.


Dear Rep. [Name],

I write to encourage you to vote not to move HB2414 forward.  The bill doesn’t address a real problem, is discriminatory, and violates Federal law putting Title IX funding at risk.

You heard from the Alliance Defending Freedom that allowing transgender girls to use the girl’s restroom is “a threat to student safety.”  We know from experience, however, that’s just not true.  Media Matters contacted the largest school districts in 12 states that protect the rights of transgender students, and not one reported the problems that Alliance Defending Freedom alleges will occur.  http://mediamatters.org/research/2015/06/03/17-school-districts-debunk-right-wing-lies-abou/203867  Indeed, trans people are the individuals most at risk in bathrooms, as a 2013 study from the Williams Institute shows. http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Gendered-Restrooms-and-Minority-Stress-June-2013.pdf at 72 – 74.

The reason Alliance Defending Freedom is going across the country promoting these bills isn’t because they’re worried about some “threat”: it’s because they want states to discriminate against transgender people because they don’t believe that we are real.  They want to force us to live as our birth-assigned gender even though that isn’t who we are.  Plenty of studies confirm that transition benefits transgender people; one just this month shows that transgender children who are allowed to socially transition (including the bathroom usage that would be prohibited by this bill) have markedly better mental health outcomes than transgender children forced to live as their birth-assigned gender. http://pediatrics.aappublications.org/content/early/2016/02/24/peds.2015-3223  The Williams Institute study referenced above also describes the harms visited upon transgender children when discriminatory bathroom policies are in place.  This bill isn’t about protecting anyone; it’s about attacking a vulnerable minority, and children at that, in service to an ideology that does’t care about facts.

Those facts include a simple one: the U.S. Department of Education has correctly interpreted Title IX to protect transgender students from discrimination on the basis of their gender identity.  In the attached letter, the Department explains that

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity.

The Department has been enforcing this interpretation across the country, and would surely take action against school districts for violating Federal law.  Meanwhile, transgender students would have a cause of action to sue school districts, diverting valuable taxpayer dollars from education to defending against lawsuits the school districts will never win.  The state of Tennessee would also likely be mired in litigation.  Republican Governor Daugaard of South Dakota recently vetoed similar legislation for these reasons.  http://www.argusleader.com/story/news/politics/2016/03/01/gov-daugaards-statement-vetoing-transgender-bill/81176266/

To put it bluntly, this bill won’t address a real problem, will hurt children through its illegal discrimination, and will ultimately cost the state substantial money in litigation costs.  Your choice is clear.  Do not vote to move HB2414 forward.

Sincerely,
— Emily T. Prince, Esq.

Email to Gov. Daugaard of South Dakota re “Bathroom” Bill

South Dakota is considering a bill requiring students to use restrooms, locker rooms, and similar facilities as the gender they were assigned at birth, regardless of their gender identity.  The bill is currently with the governor to be signed or vetoed.  I wrote a short email encouraging the governor to veto the bill.

Dear Governor Daugaard:

I write to strongly encourage you to veto HB1008, which would be a first-in-the-nation attack on transgender people. Specifically, it would attack the some of the most vulnerable of transgender people, transgender students.

As you have no doubt heard in recent days, being transgender is about an incongruence between a person’s gender they were assigned at birth (i.e. what is listed on their birth certificate, if it has not been amended) and their own deeply felt sense of their own gender (i.e. their gender identity). HB1008 tells transgender children that, no matter their gender identity, no matter who they truly are, they must use the facilities associated with their gender assigned at birth. Contrary to the bill’s stated intent, HB1008 will guarantee that (transgender) boys will be required to use girl’s facilities, and (transgender) girls will be required to use boy’s facilities. If you truly want to keep boys with boys and girls with girls, you must veto HB1008.

Signing HB1008 would paint a target on the back of every transgender student in South Dakota. Forced to use the wrong restrooms, they would suffering abuse at the hands of the state on a daily basis, and would be at much higher risk of verbal, emotional, and physical abuse at the hands of their peers. Contrary to what the bill’s sponsors have told you, it is *transgender* students who have something to fear from restrooms, not cisgender (i.e. not transgender) students.

Ultimately, this is a simple call. Please do the right thing and veto this bill. Don’t let South Dakota be the first in the nation to enact this horrible legislation.

Sincerely,
— Emily T. Prince, Esq.

FOIA to HHS – Complaints for Denial of Coverage for Transition-Related Care

While the Department of Health and Human Services (HHS) finalizes its proposed rule prohibiting discrimination on the basis of gender identity in covered health programs, the question remains: what has HHS been doing since March 2010 to enforce the statute which prohibited such discrimination, 42 U.S.C. § 18116?  To that end, I have FOIAed the following documents from HHS:

  • Any and all documents since March 23, 2010 establishing a complaint against a health insurance carrier for discrimination on the basis of gender identity, specifically by denying coverage for transition-related care such as mental health treatment, hormone replacement therapy, or gender affirming surgeries such as genital reconstructive surgery.
  • Any and all documents since March 23, 2010 closing a complaint against a health insurance carrier for discrimination on the basis of gender identity, specifically by denying coverage for transition-related care such as mental health treatment, hormone replacement therapy, or gender affirming surgeries such as genital reconstructive surgery.
  • Any and all documents establishing current guidance, rules, or similar content used by the Department of Health and Human Services to determine how to resolve complaints against a health insurance carrier for discrimination on the basis of gender identity, specifically by denying coverage for transition-related care such as mental health treatment, hormone replacement therapy, or gender affirming surgeries such as genital reconstructive surgery.

The focus on transition-related care is purposeful; while we know that HHS has been taking some action to address other forms of discrimination against transgender people, I am unaware of any action by HHS, outside of its pending rule, to address this endemic form of discrimination by health insurance companies.  Complaints have been made (including one complaint I filed in response to particularly overt discrimination by CareFirst, filed in November 2014), but they don’t seem to ever get resolved.

The FOIA response should reveal how many complaints there are on this issue, how many have been closed (and what disposition), and how HHS formally considers them.

OIRA Meeting with TSA on Scanners

Today I met with the Office of Information and Regulatory Affairs, a small but important office within the Executive Office of the President, to discuss an upcoming TSA regulation concerning the policies used for the advanced body-imaging scanners.  The problem with the scanners is that they are cissexist, starting from their pink and blue button user interface through to their assumptions that everyone’s anatomy is cis.

I emphasized that TSA’s agents are terrible, and ran through some examples of TSA mistreatment I’ve collected informally over the past few weeks.  I recited back to them their training statistics, and how poor they actually are (the last numbers I saw, fewer than 10% of TSA agents have received training on gender identity).  They cannot train their way out of the problems their scanners create: the best solution is to reprogram the scanners so that they no longer create more problems for transgender travelers.

I closed the meeting with a warning:  if this issue is not adequately addressed in the final rule, I will be filing a Petition for Reconsideration on this issue.  That seemed to get their attention.

Comment on Proposed National Coverage Determination – Gender Dysphoria and Gender Reassignment Surgery

The Centers for Medicare and Medicaid Services announced on December 3, 2015 that the agency was, at the behest of an outside petitioner, considering a new National Coverage Determination (NCD) for gender dysphoria and gender reassignment surgery.  This NCD would replace the previous NCD from 1989, which categorically excluded coverage for “transsexual surgery” because it was “experimental” and “controversial,” based in part on Janice Raymond’s attack on transgender women, Transsexual EmpireThis prior NCD was found to be invalid by the Department of Health and Human Service’s Departmental Appeals Board in May 2014.

This left a vacuum; transition-related care was no longer categorically excluded, but could be excluded by local coverage determinations.  A new NCD would fill this void and hopefully ensure that regardless of where they live, Medicare and Medicaid beneficiaries will have access to any and all medically necessary transition-related care.  To that end, I filed a comment clearly showing the weight of scientific support for transition-related care and reminding CMS that applicable statutes require such a NCD be issued.  The scientific research list was developed from http://www.cakeworld.info/transsexualism/what-helps/hormones and http://www.cakeworld.info/transsexualism/what-helps/srs, which includes the abstracts from each of the papers.


On December 3, 2015, CMS initiated a review to determine whether health outcomes are improved from treatment for gender dysphoria and “gender reassignment surgery.” The overwhelming weight of scientific evidence indicate that treatments for gender dysphoria, up to and including gender affirming surgeries, improve health outcomes for transgender patients. More fundamentally, CMS does not have a choice in whether or not to cover treatments for gender dysphoria; prior coverage exclusions were based upon unlawful discrimination on the basis of sex, which the Affordable Care Act has reiterated is illegal.

The scientific evidence is easy to find, with studies routinely concluding that interventions such as hormone replacement therapy and gender affirming surgeries have benefits to transgender patients.

See, e.g.:

http://www.ncbi.nlm.nih.gov/pubmed/26237928
http://www.psycontent.com/content/y4016k965241600p/
http://link.springer.com/article/10.1007/s10508-014-0453-5
http://www.sciencedirect.com/science/article/pii/S1471015315000446
http://www.researchgate.net/publication/274833229_Psychosocial_outcome_and_quality_of_sexual_life_after_sex_reassignment_surgery_An_Italian_multicentric_study
http://link.springer.com/article/10.1007/s10508-014-0300-8
http://www.hindawi.com/journals/tswj/2014/281326/
http://europepmc.org/abstract/MED/24433562
http://www.europsy-journal.com/article/S0924-9338(14)77643-6/abstract
http://www.tandfonline.com/doi/full/10.1080/15532739.2014.890558#.U5HxsE2KAUE
http://www.ncbi.nlm.nih.gov/pubmed/24697986
http://europepmc.org/abstract/MED/24755998
http://downloads.hindawi.com/journals/tswj/2014/960745.pdf
http://www.osaka-med.ac.jp/deps/b-omc/articles/601/601hori.pdf
http://www.aerzteblatt.de/pdf/111/47/m795.pdf
http://www.jourpsyc.com/2014/703.pdf
http://www.emeraldinsight.com/doi/abs/10.1108/MHRJ-05-2014-0015
http://www.hindawi.com/journals/tswj/2014/437378/
http://link.springer.com/article/10.1007/s00129-013-3207-x
http://apps.who.int/iris/bitstream/10665/128119/1/WHO_HIV_2014.21_eng.pdf?ua=1
http://pediatrics.aappublications.org/content/early/2014/09/02/peds.2013-2958.abstract
http://www.ncbi.nlm.nih.gov/pubmed/23347389
https://www.thieme-connect.de/DOI/DOI?10.1055/s-0033-1343427
http://vts.uni-ulm.de/docs/2014/8926/vts_8926_13380.pdf
http://www.teni.ie/attachments/5bdd0cd5-16b6-4ab6-9ee6-a693b37fdbcf.PDF
http://europepmc.org/abstract/MED/23830266
http://www.ncbi.nlm.nih.gov/pubmed/22703571
http://www.ncbi.nlm.nih.gov/pubmed/21699661
http://www.ncbi.nlm.nih.gov/pubmed/21995738
http://www.tandfonline.com/doi/full/10.1080/15532739.2011.618399#.UsfaSU2A1hF
http://www.ncbi.nlm.nih.gov/pubmed/22051006
http://www.ncbi.nlm.nih.gov/pubmed/19816764
http://dare.ubvu.vu.nl/handle/1871/16287
http://onlinelibrary.wiley.com/doi/10.1111/j.1365-2265.2009.03625.x/abstract
https://www.thieme-connect.com/ejournals/abstract/10.1055/s-0030-1262718
http://link.springer.com/article/10.1007/s11136-010-9668-7
http://www.sciencedirect.com/science/article/pii/S1158136009000796
http://europepmc.org/abstract/MED/19619147/
http://www.ncbi.nlm.nih.gov/pubmed/19330439
http://edoc.ub.uni-muenchen.de/9984/
http://www.ncbi.nlm.nih.gov/pubmed/19473463
http://europepmc.org/abstract/MED/20092545
http://www.ncbi.nlm.nih.gov/pubmed/18033979
http://www.ncbi.nlm.nih.gov/pubmed/19062760
http://www.ncbi.nlm.nih.gov/pubmed/17669144
http://www.tandfonline.com/doi/abs/10.1080/10532528.2007.10559851#.UsCcs02A1EY
http://link.springer.com/article/10.1007/s10508-006-9074-y
http://www.sciencedirect.com/science/article/pii/S1158136006000491
http://www.ncbi.nlm.nih.gov/pubmed/16645675
http://www.ncbi.nlm.nih.gov/pubmed/16437228
http://onlinelibrary.wiley.com/doi/10.1046/j.1365-2265.2003.01821.x/pdf
http://link.springer.com/article/10.1023/A:1024086814364
http://www.publish.csiro.au/?paper=PY02039
http://dspace.library.uu.nl/handle/1874/429
http://www.europsy-journal.com/article/S0924-9338(02)00703-4/abstract
http://www.ncbi.nlm.nih.gov/pubmed/11521334
http://onlinelibrary.wiley.com/doi/10.1046/j.1464-410X.2001.02323.x/full
http://www.ncbi.nlm.nih.gov/pubmed/11758101
http://connection.ebscohost.com/c/articles/24616146/outcomes-treatment-gender-dysphoria
http://europepmc.org/abstract/MED/9453923
http://www.psy-journal.com/article/S0165-1781(15)00005-0/abstract
http://journals.lww.com/co-psychiatry/Citation/2015/11000/Gender_dysphoria_in_children_and_adolescents___a.6.aspx
http://www.ncbi.nlm.nih.gov/pubmed/24972423
http://europepmc.org/abstract/MED/24330520
http://europepmc.org/abstract/MED/24493653
http://onlinelibrary.wiley.com/doi/10.1111/jsm.12363/abstract
http://www.tandfonline.com/doi/abs/10.1080/.U2unFvldV8F#.U521Lk2KAUE
http://onlinelibrary.wiley.com/doi/10.1111/jsm.12698/abstract
http://www.ncbi.nlm.nih.gov/pubmed/24972388
http://onlinelibrary.wiley.com/doi/10.1002/phar.1487/abstract
http://link.springer.com/article/10.1007/s40618-014-0077-6
http://www.tandfonline.com/doi/abs/10.1080/15532739.2014.899174#.U-9OYU0cQUF
https://endo.confex.com/endo/2014endo/webprogram/Paper14354.html
http://www.ncbi.nlm.nih.gov/pubmed/25401972
http://www.ncbi.nlm.nih.gov/pubmed/25111431
http://www.ncbi.nlm.nih.gov/pubmed/24972421
http://www.tandfonline.com/doi/abs/10.1080/19359705.2014.960990#.VF8-QU10wUE
http://www.ncbi.nlm.nih.gov/pubmed/24275005/
http://www.ncbi.nlm.nih.gov/pubmed/23470169
http://link.springer.com/article/10.1007/s11136-013-0497-3
http://europepmc.org/abstract/MED/23512380
http://www.ncbi.nlm.nih.gov/pubmed/24177489/
http://www.ncbi.nlm.nih.gov/pubmed/23574768/
http://www.ncbi.nlm.nih.gov/pubmed/22455322
http://www.psyneuen-journal.com/article/S0306-4530(11)00262-9/abstract
http://onlinelibrary.wiley.com/doi/10.1111/j.1743-6109.2011.02564.x/abstract
http://www.ncbi.nlm.nih.gov/pubmed/20646177/
http://www.tandfonline.com/doi/abs/10.1080/19359705.2011.581195#.UsCbyU2A1hE
http://sex.sagepub.com/content/10/1/101.short

Frankly, in light of the weight of scientific evidence, failing to issue a national coverage determination for treatments of gender dysphoria would be an arbitrary and capricious abuse of agency discretion.

Failing to issue a national coverage determination would also violate 42 U.S.C. § 18116 (§1557 of the Affordable Care Act). The section covers CMS activities as an Executive Branch agency, and prohibits discrimination on the basis of sex in health programs or activities such as a national coverage determination. This prohibition has correctly been construed as including discrimination on the basis of gender identity. Rumble v. Fairview Health Services, 2015 WL 1197415 (D. Minn. Mar. 16, 2015), available at https://www.gpo.gov/fdsys/pkg/USCOURTS-mnd-0_14-cv-02037/pdf/USCOURTS-mnd-0_14-cv-02037-0.pdf.

CMS’s previous denial of coverage for gender dysphoria was based upon animus towards transgender people and bigoted views towards treatment options for gender dysphoria, deciding against coverage in part because treatment for transgender people was “controversial.” The 1981 memorandum justifying the prior national coverage determination, now rescinded as invalid by the Departmental Appeals Board, relied heavily upon the book Transsexual Empire: The Making of the She-Male by Janice Raymond. The book is well known as an anti-transgender screed (for instance, Ms. Raymond describes the mere existence of transgender women as a rape of cisgender women’s bodies).

CMS has an obligation to correct its past bigotry. Failing to remedy CMS’s history of discrimination towards transgender people with a new national coverage determination would continue unlawful discrimination against transgender people on the basis of their gender identity. Accordingly, CMS must issue a new national coverage determination, including coverage for all medically necessary transition-related care.

TSA AIT Scanners – Meeting Request to OIRA

This afternoon I submitted a meeting request to the Office of Information and Regulatory Affairs in the Executive Office of the President to discuss TSA’s unconstitutional program of singling out transgender travelers for extra scrutiny and abuse based on cissexist assumptions about anatomy. PDF available.


The Honorable Howard Shelanski
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
Washington, D.C. 20503

Re:       RIN 1652-AA67 – Passenger Screening Using Advanced Imaging Technology

Dear Administrator Shelanski:

As a transgender woman who occasionally flies for work and personal affairs, I have grave concerns with the draft final rule submitted to the Office of Information and Regulatory Affairs from the Transportation Security Administration on November 19, 2015. Put succinctly, the Advanced Imaging Technology (AIT) scanners unconstitutionally place undue scrutiny on transgender travelers because of cissexist assumptions about anatomy. Rather than being an occasional flaw in the system, the harassment of transgender travelers by TSA is designed into the system from the bottom up.

As you may be aware, the scanner is designed with a simple interface. An example, provided by the Department of Homeland Security,[1] appears below.TSA AIT scanner interface

The scanner requires that a TSA employee press a pink or blue button, corresponding to the perceived gender expression of the traveler to be scanned. The traveler has no opportunity to ensure that they have been “read” correctly in a manner consistent with their gender identity and anatomy; they must hope that the TSA agent correctly discerns these things. This process is arbitrary, mistake-prone, and places an unconstitutional burden on transgender travelers to dress in a manner most likely to elicit a correct button press by government agents.

Once the button has been pressed, the AIT scanner is calibrated for certain anatomical assumptions. These assumptions are cissexist and fail to account for the existence of transgender bodies. If the agent presses the blue button, the AIT scanner assumes that the traveler will have a penis and no breasts. If the agent presses the pink button, the AIT scanner assumes the traveler will not have a penis but will have breasts. These assumptions are based in the cissexist logic that all men have penises and no women do, and similarly that no men have breasts and all women do. This logic is factually incorrect and places an unconstitutional burden on transgender travelers to explain their anatomy to uncaring government agents.

To solve this problem, TSA has proposed changing the word used for when the scanner detects something it was not programmed for from “anomaly” to “alarm.”

Meanwhile, TSA has also implemented a new policy for AIT scanner use. Under prior policy, any person had the ability to opt-out of the AIT scanner and be scanned physically. Many transgender travelers did so, rightly anticipating problems if they were to use the AIT scanner; while Ms. Shadi Petosky’s experience may be the most well-publicized,[2] she is far from alone in experiencing hellacious treatment by government agents for simply attempting to travel while transgender. Under the new policy announced on December 18, 2015, “TSA may direct mandatory AIT screening for some passengers.”[3] Now, not only is AIT screening the default, but it is mandatory for “some” passengers, with no indication of how this new authority will be used. Given TSA’s history of harassing transgender travelers, we are justified in being concerned.

If TSA wishes to maintain its AIT screening program, it must update the screening software and hardware so that is no longer based on government agents guessing the gender of travelers and so that it no longer assumes that all bodies are cisgender. Furthermore, while the AIT scanners continue to impose these unconstitutional burdens on transgender travelers, all travelers must have an unquestioned right to opt-out of the AIT scanner in favor of a physical screening.

I look forward to discussing this issue with your staff.

Sincerely,

Emily T. Prince, Esq.


 

[1] Department of Homeland Security, “Privacy Impact Assessment Update for TSA Advanced Imaging Technology,” DHS/TSA/PIA-032(d), Dec. 18, 2015, http://www.dhs.gov/sites/default/files/publications/privacy-tsa-pia-32-d-ait.pdf.

[2] See http://www.advocate.com/transgender/2015/9/22/one-trans-womans-tsa-horror-story, http://www.salon.com/2015/09/22/shadi_petosky_was_detained_by_tsa_for_traveling_while_trans_the_police_at_the_tsa_gate_were_awful_one_was_laughing_at_me/, http://www.nbcnews.com/news/us-news/transgender-woman-says-she-was-delayed-tsa-anatomical-anomaly-n431326, http://www.newsweek.com/shadi-petosky-transgender-woman-alleges-unfair-screening-tsa-orlando-airport-375220, http://www.nytimes.com/2015/09/23/us/shadi-petosky-tsa-transgender.html?_r=0.

[3] “Privacy Impact Assessment Update for TSA Advanced Imaging Technology”, supra note 1.

TSA Creates New Mandatory Screening Process “For Some Passengers”

On December 18, 2015, TSA issued a Privacy Impact Assessment relating to a change in TSA policy regarding the Advanced Imaging Technology (AIT) scanners, which have TSA agents identify passengers as male or female (“blue” or “pink”) and then flag any “anomalies” on their bodies, including body parts.  These scanners are programmed to discriminate against transgender passengers, as they do not account for transgender anatomy.  Some passengers have chosen to bypass the AIT scanner in favor of a physical screening, but under the new policy, “TSA may direct mandatory AIT screening for some passengers.”

Concerned about the impact of this policy on transgender passengers, I wrote TSA.


 

Dear Ms. Vaughan,

On December 18, 2015, your office issued the above-referenced Privacy Impact Assessment (PIA) Update for TSA Advanced Imaging Technology (AIT)  (DHS/TSA/PIA-032(d)).  That document revealed “a change to the operating protocol regarding the ability of individuals to opt-out of AIT screening in favor of physical screening.”  Pursuant to this change, “TSA may direct mandatory AIT screening for some passengers.”

This is a sweeping change, and the PIA fails to explain its potential impact.  I am particularly concerned with how TSA’s new authority will be used against transgender passengers, who already suffer rampant discrimination at the hands of TSA officials. The AIT screening process is demonstrably discriminatory against transgender passengers; the scanners use a blue button and a pink button which is selected by TSA officials.  The buttons calibrate the machine for cisgender anatomy and often flag “anomalies” when presented with the anatomy of transgender passengers, such as a woman (pink button) who has a penis, or a man (blue button) who has breasts.  Because which button is pressed is at the discretion of the TSA agent, “anomalies” may also be flagged if the agent incorrectly genders an individual, such as pressing the blue button for a woman.  Previously, some transgender passengers chose to avoid this discriminatory screening process by opting for the physical screening, but under the new procedure, they may no longer have that opportunity.

Accordingly, I have the following question: what assurances do transgender travelers have that this new authority will not be used to harass them, especially in light of TSA’s woeful record of discrimination against transgender people?

Sincerely,
— Emily T. Prince, Esq.

OPM Still Allowing Discrimination Against Trans Surgeries

The Office of Personnel Management has decided to continue to discriminate against transgender Federal employees and dependents, by allowing insurance plans to specifically exclude coverage for transition-related surgeries.

During the final years of the Obama Administration, OPM’s policy on Federal employee insurance coverage for transition-related care has been fraught. In June 2014 OPM issued a Federal Employee Health Benefits (FEHB) Program Carrier Letter on the subject, acknowledging that transition-related care is medically necessary and lifting a ban that had been present on “services, drugs, or supplies related to sex transformation.” Importantly, the carrier letter allowed carriers to maintain the exclusion, and over 95% of them did. This year, there was some initial hope of change when OPM issued its call letter (essentially the request for insurers to submit proposals for insurance plans), and specifically requested that insurers reconsider their coverage of transgender services. However, those hopes were quickly dashed, as OPM responded to questions about those requests by stating that there was no requirement that transition-related care be covered. OPM then quickly seemed to reverse course, in a June 2015 FEHB Program Carrier letter stating, “no carrier participating in the [FEHB] Program may have a general exclusion of services, drugs or supplies related to gender transition or ‘sex transformations.’” Since June, it has been a matter of waiting until plans were released to see how they responded.

Since then, at least two plans have released their official brochures on their websites. The Government Employees Health Association Benefit Plan and the Blue Cross and Blue Shield Service Benefit Plan (which in 2013 covered approximately 63% of Federal employees on its own and, to the best of my knowledge, remains the single insurer covering the majority of Federal employees and dependants) both specifically exclude “surgeries related to sex transformation.”

Now that it is confirmed that OPM is permitting such discrimination, it is reasonable to expect that many more insurance plans will similarly exclude transition-related surgeries, just as they continued to exclude coverage for all transition-related care for plan year 2015. This is a clear violation of 42 USC 18116 (also known as Section 1557 of the Affordable Care Act), in its discrimination against medical procedures solely on the basis of their relationship to gender transition.

Letter to OIRA Requesting Immediate Clearance of HHS Nondiscrimination Rule

On April 29, 2015 the White House received for review and clearance the Department of Health and Human Service’s regulation implementing 42 U.S.C. 18116, the Affordable Care Act’s nondiscrimination provision. The provision was subject to a request for comments in 2013, but the Department has consistently delayed the actual implementation of the provision.  Prior guidance on the language told insurers that discrimination against transition-related care was legal.  New regulations are necessary to undo this damage, and those regulations are currently stalled for White House review.  Full text is below.

Continue reading

The Wait for Promised Nondiscrimination Under the Affordable Care Act

Section 1557 of the Affordable Care Act, codified at 42 USC 18116, prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in “any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under” the Affordable Care Act (ACA).  This means covered health programs and activities should include Medicare, Medicaid, insurance for Federal employees (administered by the Office of Personnel Management), insurance through the exchanges (which are established under the ACA), and insurance through employers (which receive Federal tax subsidies through the exclusion of premiums from taxation; this is admittedly a stretch, but one I think is justified).  Which is to say, largely the entire universe of health insurance.  Even if employer-based health insurance is excluded, the set of covered programs is still quite broad.

The Department of Justice (after losing in litigation on the question, Macy v. Holder) has determined that discrimination on the basis of sex includes discrimination on the basis of gender identity, as was widely reported in December.

This raises the question: why is it still legal for covered programs to discriminate on the basis of gender identity by excluding coverage for transition-related care (that is to say, care related to one’s gender identity)?

The answer, sadly, is that it is nominally legal for insurers to exclude coverage because the Obama Administration told them so. In an undated “Q&A” published in 2012 by the Department of Health and Human Services (HHS) likely triggered by the EEOC decision in Macy v. Holder, HHS states that discrimination on the basis of “sex stereotypes” is unlawful discrimination, before going on to state: “Does this mean that transition related surgery is required to be covered by health insurers? No.”

With one word, the Obama Administration signed off on widespread anti-trans discrimination in covered health programs.

Perhaps recognizing that its analysis was weak, in 2013 HHS rescinded the Q&A and submitted a request for comments.  Comments were plentiful, including many LGBT organizations advocating on behalf of transgender people affected by the rampant discrimination in access to healthcare. HHS promised a new rule, but 2014 came and went without new action.  Finally, on April 29, 2015, HHS finally sent the proposed rule to the White House for review prior to publication.  There it currently sits; the most recent estimate of publication is that it will be published this month, in time for Pride.

The original HHS analysis was shoddy; a fair reading of the statute compels the interpretation that it is illegal under 42 USC 18116 to discriminate against transition-related care.  However, there’s not yet any court presented with the question, and LGBT organizations are understandably loathe to bring a case while the Federal government continues to discriminate against its own employees.  HHS’s last word on the topic was one word authorizing discrimination.

So we wait, and hope for better news.