Category Archives: Other Documents

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 and, 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.:

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

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 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?

— Emily T. Prince, Esq.

Is OPM Requiring Coverage for Transition-Related Care under FEHB in Plan Year 2016?

UPDATE:  Reporting by BuzzFeed News indicates that OPM has decided to wait and see what insurance plans propose before deciding whether or not to permit plans to maintain the general exclusion.  Mara Keisling of the National Center for Transgender Equality responded:

“It’s not OK for an employer to say to insurance companies, ‘We don’t care if you discriminate against our employees,’” Keisling told BuzzFeed News. “It is just straight-up discrimination, and they can fix it any time they want.”

On March 13, 2015, the U.S. Office of Personnel Management (OPM) Healthcare and Insurance Division issued Federal Employee Health Benefits (FEHB) Program Carrier Letter No. 2015-02, its “annual call for benefit and rate proposals from FEHB Program carriers.”  The letter establishes what OPM expects for FEHB Program participants in contracting with the Federal government to provide health insurance to Federal employees.  In the call letter, OPM states:

OPM strongly encourages plans to reassess their benefit offerings as the needs of our population evolve.  In recent years, FEHB has welcomed young adults up to the age of 26 and same sex spouses as covered family members.  To further ensure that members can access appropriate care, we provide the following guidance:

Transgender Services – In June 2014, OPM recognized the evolving professional consensus that treatment may be medically necessary for gender dysphoria, and removed the FEHB requirement to exclude services, drugs, or supplies directly related to transition. Due to the short timeframe for network development and benefit design, OPM permitted plans to retain the general exclusion of these services for the 2015 plan year. For 2016, plans may propose services for members with gender dysphoria as they do for all other medical conditions. Plans offering surgical services must include details of preauthorization or case management requirements to facilitate referrals to qualified providers of this specialized care.

Emphasis added.  Given the context of a call letter (essentially a request for contract proposals from Federal contractors), this language may mean that OPM will no longer accept contract proposals which categorically “services, drugs, or supplies related to sex transformation,” as it accepted in years past.  This interpretation is bolstered by the publication on March 17, 2015 of FEHB Program Carrier Letter No. 2015-03(a), “2016 Technical Guidance and Instructions for Preparing HMO Benefit and Service Area Proposals.”  Again related to expanding access to care in the section labeled “Call Letter Initiatives,” the guidance states:

Transgender Services:  Beginning with 2016 brochures, Plans should describe their covered benefits for gender transition along with any excluded services, and list any applicable prior authorization requirements or age limits.

While this is weaker than the commanding language usually used in Federal regulations, it is important to remember the context that OPM is technically soliciting contracts rather than writing rules, and thus does not need to use command words such as “shall” in place of “should.”  Update: in response to questions, the use of “along with any excluded services” does not necessarily imply that categorical exclusions are still permitted; it could reference exclusions such as excluding all self-injectable medication.

Given the above, it’s worth asking:  what is OPM’s policy on exclusions for transition-related care in plan year 2016?  When I reached out for comment from OPM’s Office of Diversity and Inclusion, I received an immediate response from the Director, Veronica Villalobos, indicating they were looking into my inquiry.

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.

Continue reading

Supplemental Evidence for Petition for Reconsideration: Office of Personnel Management and Trans-Exclusionary Health Insurance Contracts

On August 25, 2014, I submitted a succinct Petition for Reconsideration to the Office of Personnel Management, asking that the agency reconsider its decision not to address discrimination on the basis of gender identity in Federal employee health benefits (FEHB) in its July 2014 rulemaking updating its nondiscrimination provisions.  This discrimination was recently discussed during a BuzzFeed interview with the President.

While I was expecting a response in the coming weeks, I was concerned that my original Petition did not provide sufficient evidentiary support for OPM to do the right thing and end these discriminatory insurance provisions.  As such, today I filed a supplement to the Petition, including statements on the issue from the University of California, San Francisco, Center of Excellence for Transgender Health, the World Professional Association for Transgender Health, Lambda Legal, the American Medical Association, the American Psychiatric Association, the American Psychological Association, the American Academy of Family Physicians, the American College of Nurse Midwives, the National Association of Social Workers, the National Commission on Correctional Health Care, and the American College of Obstetricians and Gynecologists.  The supplement also makes clear the basis for potential litigation on the issue, including the President’s executive orders on discrimination on the basis of sex and gender identity, recent Equal Employment Opportunity Commission decisions, Federal statutes prohibiting discrimination on the basis of sex in health care activities, and the Fourteenth Amendment.

OPM has not yet provided a revised estimate of when it will be responding to the Petition.

UPDATE: OPM has acknowledged receipt of the supplement, but has declined to provide a revised estimate of when it will respond.

OPM no timeline on response to Petition

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.

Questions for USOPM Director of Diversity and Inclusion Regarding Trans-Exclusionary Federal Insurance Policies

Today, the Department of Transportation Office of Civil Rights announced its 2015 DOT Civil Rights Virtual Symposium.  The Symposium includes the following program:

“Dear OPM: I have a problem, what do I do?”
Veronica Villalobos, Director, Office of Diversity and Inclusion, Office of Personnel Management
This “Dear OPM” session will feature a column style conversation addressing guidance on inclusion efforts in the Federal workplace such as transgender policies, religious accommodation, pregnancy, disability, among others.

I have attempted to correspond with Ms. Villalobos and her office several times in an effort to get an answer on the trans-exclusionary health insurance policies offered to Federal employees by OPM.  So far, OPM has steadfastly refused to say anything more.

As an attendee of the program I was given the opportunity to ask a question.


Veronica Villalobos
Office of Diversity and Inclusion
U.S. Office of Personnel Management

Dear Ms. Villalobos:

Before I ask my question, I’d like to thank your office for the 2011 guidance on gender identity issues that may arise in the workplace, particularly when an employee transitions at work. I know that the guidance has helped many trans people; I know it helped me when there were some individuals who didn’t understand that, as a woman, I would be using the women’s restroom at work. As the Department of Labor considers how to implement Executive Order 13672, prohibiting discrimination on the basis of sexual orientation and gender identity by Federal contractors, they should look to OPM’s leadership on the issue.

My question comes to that leadership, and where it has unfortunately been lacking. In June 2014, after many delays and a nontrivial amount of litigation, OPM finally made a minor update to its policy on gender identity with respect to health insurance. In FEHB Program Carrier Letter 2014-17, OPM claimed to “remove the requirement” that all FEHB brochures exclude “services, drugs, or supplies related to sex transformations” categorically, regardless of medical necessity. Instead, carriers would now have “one of two options” – covering this care without discriminating on the basis of gender identity, or maintaining the general exclusion and denying medically necessary care on the basis of gender identity.

If you’ll forgive a brief aside, it’s worth noting here that OPM later admitted in a FOIA response that there was no such requirement on record. One year prior, in plan year 2014, one health insurance carrier, Kaiser in California, offered trans-inclusive health insurance, despite the purported requirement, with full knowledge and consent of OPM. There was no requirement – there was a practice, a practice OPM’s carrier letter permitted to continue.

Digression aside: OPM’s minor update to its policy on gender identity and health insurance led to only a minor change. Of the 304 FEHB plans, 15 (or less than 5%) eliminated the discriminatory provision. Under current OPM policy, the other 289 health insurance carriers (including the single carrier insuring over 63% of Federal employees) may continue to exclude care solely because it is a “service, drug, or supply related to sex transformations.” That means that even if a service is covered, if it is related to a “sex transformation” (i.e. medical transition, described using grossly offensive language), a carrier may exclude it. Under FEHB regulations, OPM accepts legal responsibility for each of these health insurance plans.

The Department of Justice is filing briefs stating that discrimination on the basis of gender identity is discrimination on the basis of sex. Under the 2012 EEOC decision Macy v. Holder, such discrimination is illegal. Under Title VII, such discrimination is illegal. Under Executive Order 13672, such discrimination is illegal.

Here is my question:

Can we hope that the Office of Personnel Management will prohibit trans-exclusionary health insurance policies in plan year 2016?

Until then, why does the Office of Personnel Management continue to tolerate discrimination on the basis of gender identity within the express terms of the contracts it makes with health insurance plans?

When the Office of Personnel Management’s Office of Diversity and Inclusion updated its regulations on nondiscrimination provisions, why did it choose to ignore its FEHB contracts?

Why has your own office failed to respond to these issues when brought to your attention, such as the letter I sent your office on December 9 and January 15, or the work of any number of organizations advocating for transgender equality, or amidst a quiet but steady stream of litigation on this issue?

When will the Office of Personnel Management show leadership and ban trans-exclusionary health insurance policies, so that the Department of Labor and the Department of Health and Human Services can enforce the Affordable Care Act’s prohibition on discrimination on the basis of gender identity for all Americans?

Quite simply, the effort to ban health insurance contracts that discriminate on the basis of gender identity cannot succeed through Federal action until the Federal government ends its own discrimination against transgender Federal employees. Until your office acts, the Department of Labor and the Department of Health and Human Services are hamstrung in any efforts they may make to eliminate such discrimination – after all, the Federal government permits the discrimination for its own employees.


— Emily T. Prince, Esq.

Response from Department of Education: Schools Must Treat Students Consistent with Gender Identity in Sex-Segregated Facilities

In response to a letter I wrote the Department of Education last month, the Department of Education’s Office of Civil Rights has now clearly stated that transgender students must be treated consistent with their gender identity in their use of sex-segregated facilities:

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.

The letter was signed by the Acting Deputy Assistant Secretary for Policy and the Office of Civil Rights, indicating that it is substantial guidance that may be relied upon by other entities in determining compliance with Title IX.

New Letter to OPM: Failure to Timely Respond to Petition for Trans-Inclusive Health Insurance for Federal Employees

UPDATE: Ms. Wong is, as of October 2014, on the Board of Governors for the Human Rights Campaign. That would seem to be a conflict, since HRC is theoretically opposed to Ms. Wong’s activities at OPM. At OPM, she is responsible for a recent nondiscrimination rule that failed to address ongoing and persistent illegal discrimination by OPM against transgender Federal employees.

Sharon Wong
Deputy Director for Coordination and Policy
Office of Diversity and Inclusion
Office of Personnel Management

Transmitted via email

Ms. Wong,

I’m not sure what cause there is for the delay in response to my Petition for Reconsideration, filed with your office on August 25, 2014. While I’ve been unable to find OPM’s rules of practice for Petitions for Reconsideration, I do know that my employing agency handles them much quicker by rule. 49 CFR §211.31 provides a period of four months for responses to Petitions for Reconsideration, and that is for an agency that regularly promulgates technically complicated rules with net societal benefits in the billions of dollars.

It has been over four months since my Petition was filed. OPM’s failure to respond to my Petition in a timely fashion is demonstrative of OPM’s general failure to treat transgender Federal employees with respect. This lack of respect is exemplified by the June 13, 2014 FEHBP carrier letter 2014-17 in which OPM acknowledged that transition-related care is medically necessary but nonetheless, in defiance of Macy v. Holder, continues to allow insurers to discriminate on the basis of transition in their offerings of health insurance coverage. This lack of respect was further demonstrated on November 24, 2014, when OPM answered a question about the matter during a Google Hangout on Federal benefits by simply reiterating the contents of the offending letter.

I continue to look forward to a substantive response from your office, as well as looking forward to the day when I am not discriminated on the basis of my gender identity as a Federal employee.

— Emily T. Prince, Esq.

cc: Kamala Vasagam, General Counsel, Office of Personnel Management

Letter to Department of Education: Questions Concerning Transgender Students and Access to Restrooms

Ms. Massie Ritsch
Acting Assistant Secretary
Office of Communications and Outreach
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202

Transmitted via e-mail

Dear Ms. Ritsch*:

Last week, numerous reporters wrote stories regarding the actions of a school board in Gloucester County, Virginia. In response to the presence of a transgender student in the local high school, the school board passed the following proposal, establishing it as official policy for Gloucester County Public Schools:

Whereas the GCPS (Gloucester County Public Schools) recognizes that some students question their gender identities, and

Whereas the GCPS encourages such students to seek support and advice from parents, professionals and other trusted adults, and

Whereas the GCPS seeks to provide a safe learning environment for all students and to protect the privacy of all students, therefore

It shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with sincere gender identity issues shall be provided an alternative private facility.

The U.S. Department of Education has recently received praise from the transgender community for noting in several guidance documents that Title IX’s ban on discrimination on the basis of sex includes, consistent with the Equal Employment Opportunity Commission’s decision in Macy v. Holder, discrimination on the basis of gender identity. It is my sincere hope that the Department will continue to provide such guidance, particularly on this issue that so frequently erupts whenever states or localities consider prohibiting discrimination on the basis of gender identity.

While I understand that the Department is unable to comment on any matters that may be under investigation, this story does raise a question: does the Department have any guidance or rules for what is or is not acceptable for a school to do when establishing policies for transgender students to access restrooms and other similar sex-segregated facilities? Specifically, the articles lead the reader to a number of questions:

  • Does the Department have guidance or rules on whether a transgender student may be required to use a different restroom than other students, such as a restroom in a nurse’s office or a restroom designated for school employees?
  • Does the Department have guidance or rules on whether an organization such as a school, a school district, or a university may limit access to facilities to only those whose gender identity is consistent with their sex assigned at birth (i.e., cisgender individuals)?
  • Has the Department communicated any guidance or rules on these questions to organizations such as schools, school districts, or universities to eliminate unnecessary confusion over proper implementation of Title IX?

I have copied one of the writers, Ms. Barbara King, a contributor to NPR and Chancellor Professor of Anthropology at the College of William and Mary, who wrote about the topic in an NPR blog post on December 11, 2014. I will gladly share your response with the authors of the other news stories I have seen on this issue, such as Dominic Holden of BuzzFeed and John Riley of Metro Weekly.

I look forward to working with your office to answer these questions.


Emily T. Prince, Esq.

cc: Barbara J. King, Chancellor Professor of Anthropology, College of William and Mary

* – Ms. Ritsch has recently left Federal service, and the message was therefore forwarded to her designee.