Category Archives: Uncategorized

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.  Indeed, trans people are the individuals most at risk in bathrooms, as a 2013 study from the Williams Institute shows. 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.  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.

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.

— 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.

— Emily T. Prince, Esq.

Petition to Dept. of Education – Formal Interpretation of Title IX to Protect Trans and Non-Binary Students

Given the rash of anti-trans legislation and school board actions in recent months, the Department of Education’s January 7, 2015 letter on trans students and restroom access is proving insufficient to encourage compliance with Federal law on this point, which is 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. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.

As such, today I filed a formal Petition for Interpretation under the Administrative Procedure Act with the Department of Education’s Office of Civil Rights.  The Petition does not call for a new interpretation of Title IX, but rather asks the Department of Education to reissue its existing interpretation in a more formal way to put the regulated community of school districts, as well as state legislatures, on notice of what is expected of them with respect to transgender and non-binary students.

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Op-Ed at the Advocate: Bathrooms as the Next LGBT Battleground

I recently wrote an op-ed for the Advocate, discussing the rash of anti-trans legislation focused on bathrooms.

With the Supreme Court poised to strike down bans on same-sex marriage nationwide this summer, focus is likely to shift to issues that have been sidelined in favor of fighting for marriage rights. If conservatives have anything to say about it, that focus will be on sex-segregated public facilities such as restrooms, locker rooms, and the like.

Unanswered Questions in Today’s Department of Labor Proposed Rule

Today’s Department of Labor proposed rule answers some, but not most, of the important questions left by the Department’s December regulation prohibiting discrimination by Federal contractors on the basis of sexual orientation and gender identity. Importantly, the proposed rule implements Macy v. Holder and makes clear that transgender employees must have access to restroom and other sex-segregated facilities consistent with their gender identity, and explicitly prohibits adverse actions against employees based on the fact of their transition from their sex designated at birth.

However, many questions remain. Perhaps the most important relates to employer-provided health insurance. While the proposed rule explicitly discusses several prohibited employment practices with respect to gender identity, the section concerning “other fringe benefits” such as health insurance is comparatively sparse. The proposed rule provides only that “it shall be an unlawful employment practice for a contractor to discriminate on the basis of sex with regard to fringe benefits.” The preamble is clear; discrimination on the basis of sex includes discrimination on the basis of gender identity. That would presumably mean that insurance contracts with clauses categorically excluding “services, drugs, or supplies related to sex transformation” would be unlawful employment practices under the proposed rule. The snag, of course, is that the above example language is present in over 95% of contracts for health insurance for Federal employees, including the single health insurance plan covering approximately 63% of Federal employees.

While it is difficult to imagine the Department of Labor declaring that the U.S. Office of Personnel Management is engaged in an unlawful employment practice, that is nonetheless the conclusion compelled by the proposed rule. It remains to be seen whether the Department of Labor will address this issue directly or will simply chose to quietly delay action in order to give OPM yet more time to come into compliance with its obligation to no longer discriminate on the basis of sex in its insurance contracts.

FOIA Requests Filed with Department of Justice – Post-Macy Assertions Regarding Gender Identity

This evening I filed FOIA requests with several components of the Department of Justice, relating to the Attorney General Eric Holder’s recent statement that it “will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).”

The obvious question raised by this statement: where has the Department of Justice made such assertions after the date Macy v. Holder, in which the Department was found by the Equal Employment Opportunity Commission to have violated Title VII because the prohibition against discrimination based on sex does encompass gender identity, including discrimination against transgender individuals?  These FOIA requests seek to answer that question.  Text of one of the FOIA requests is below.

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Timing of Federal Regulations

To follow-up on my intuition that the Labor LGBT rule was unusual in how it was to be cleared the same day it was already at the Federal register to be published, I checked all of the Federal regulations since 2009 to see how often that’s happened in this Administration.

Answer: it doesn’t that often.  This year the average delay from completion to publication has been an astonishingly-high 108 days.  For rules associated with the Affordable Care Act or the Dodd Frank Act (where the rules have been published), the delays trend lower, but rarely less than three, and generally not on what would be considered “major” rulemakings.

The “short delay” alerts flag rules with less than 3 days between clearance and publication, as was going to be the case with the Labor rule (it has now been delayed due to technical issues at the Federal Register).  Mostly minutiae of the bureaucracy, with a glaring exception:

Short Delay! RIN 0938-AQ74: Preventive Services Under the Affordable Care Act (CMS-9992-F) – Cleared 2011-08-01, Published 2011-08-03

That would be the second “compromise” on the contraception mandate, when HHS was scrambling.

Thus I remain curious about why this rule was timed for publication so quickly.  Certainly worth asking about, in my opinion.

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Will Any Journalist Hold HHS Accountable?

Today, the Department of Health and Human Services held an open Q&A with Chris Hayes. I was ecstatic to see that Chris was interested in the transgender exclusions and was going to ask a question about it.  Here’s what happened:

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Is *any journalist* out there willing to stay on HHS about this? We know that pre-existing conditions are banned.  That isn’t the question.  The question is why insurance providers are still allowed to issue things like this, an excerpt from this year’s Blue Cross Federal Employee Program, which covers 63% of Federal employees:

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Please.  Someone cover this story.  We need your help.

Federal Government Largely Continues to Discriminate Against Transgender Employees in Insurance Plans

OPM has uploaded the plan brochures for the Federal Employee Health Benefits Program for plan year 2015.  Prior research had already determined that none of the nationwide open-to-all plans would be removing the exclusion of coverage for transition-related care, but regional information was not yet available.  I lack the time to do a thorough 50-state survey, though OPM should be responding to my FOIA request seeking that information in the near future.

In the meantime, here are the insurance plans available in the DC Metro area (focused on HMOs and not HDHP, as HDHP is not a worthwhile insurance structure for individuals with regular expected health costs, such as regular hormone treatments).

National Fee-for-Service Open to All
Blue Cross and Blue Shield Service Benefit Plan (FEPBlue) – – Maintains exclusion
National Fee-for-Service Plans Open Only to Specific Groups
Who may enroll in this Plan: Only eligible active and retired rural letter carriers of the U.S. Postal Service may enroll in this Plan. To enroll you must already be, or must immediately become, a member of the National Rural Letter Carriers’ Association
Who may enroll in this Plan: Annuitants (retirees and/or survivors) who are eligible for coverage under the Federal Employees Health  Benefits Program, who reside in Panama and who become a member of the Association.
Who may enroll in this Plan: You must be, or become, a member of the American Foreign Service Protective Association
Who may enroll in this Plan: Civilian Active and Retired employees of the following organizations: Central Intelligence Agency (CIA), Defense Intelligence Agency (DIA), Department of Defense/ Civilian and Civilian Retirees (DOD), Department of Energy, Office of Intelligence and Counterintelligence, Department of Homeland Security, Office of Intelligence and Analysis, Department of State, Department of Treasury, Office of Intelligence and Analysis, Drug Enforcement Administration, Intelligence Division, Federal Bureau of Investigation (FBI), National Geospatial-Intelligence Agency (NGA), National Reconnaissance Office (NRO), National Security Agency (NSA), Office of DNI (ODNI) and Affiliated Centers, Office of Naval Intelligence, United States Agency for International Development (USAID)
United Healthcare DC Metro – Plan doc not available due to file corruption; plan docs for non-DC regions indicate exclusion maintained (see, for instance (CA UnitedHealthcare)).