Category Archives: Documents

Comment to NY Department of Health – Access to Care for Transgender Minors Through Medicaid

In mid-December the New York Department of Health published proposed regulations expanding Medicaid to include transition-related care (full regulatory text available here).  Unfortunately, the proposed rule excludes payment for coverage for hormone replacement therapy or gender-affirming surgeries for those under the age of 18.  While there are other issues (such as the extensive list of procedures not covered), I felt the denial of coverage for transgender teens was the most important element to address.

The PDF of the comment is available here; the full text of the comment is below.

Continue reading

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
Director
Office of Diversity and Inclusion
U.S. Office of Personnel Management
veronica.villalobos@opm.gov

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.

Sincerely,

— 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.

Sincerely,
— Emily T. Prince, Esq.

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

FOIA Request to Department of Education – Discrimination on the Basis of Gender Identity with Respect to Restrooms and Other Sex-Segregated Facilities

Given that school districts feel free to continue to discriminate against transgender students with respect to access to restrooms and other sex-segregated facilities, I have requested the following information from the Department of Education:

  • Any and all documents establishing current guidance, rules, or similar content for educational institutions how to comply with Title IX’s prohibition on discrimination on the basis of gender identity with respect to the use of restrooms and other similar sex-segregated facilities.
  • Any and all documents establishing current guidance, rules, or similar content used by the Department of Education to determine whether a particular educational institution’s policies on the use of restrooms and other similar sex-segregated facilities by transgender individuals violate the ban on discrimination on the basis of gender identity contained within Title IX.

The text of the full FOIA is below. Continue reading

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.

Sincerely,

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.

Despite Delay, in New Antidiscrimination Rule Labor Leaves Much “Under Review.”

On Friday, the Department of Labor formally published rules implementing this summer’s Executive Order prohibiting Federal contractors from discrimination on the basis of gender identity and sexual orientation. The rule is cause for some measure of celebration: as the Obama Administration moves into its seventh year in office, it is starting to take steps to fight the endemic levels of employment discrimination faced by the LGBT community. However, for transgender and non-binary people, the actual impact of the rule remains to be seen. Despite years of waiting for the Department of Labor to enforce existing protections against discrimination on the basis of gender identity, the Department still lacks answers to fundamental questions of how the rules will be applied. Obvious issues the Department failed to address include:

  • how employers should handle transition of employees;
  • the interaction with the existing prohibition on discrimination on the basis of sex (including gender identity); and
  • conditions of employment such as employer-provided trans-exclusionary health insurance and gender-specific dress codes.

According to the Williams Institute, 42% of lesbian, gay, and bisexual people have been discriminated against in the workplace on the basis of their sexual orientation. Even this high number is dwarfed by the 78% of transgender people who have experienced harassment, mistreatment and discrimination in the workplace on the basis of gender identity. A 2012 estimate calculated that the rules would provide additional protection to approximately 11 million people on the basis of sexual orientation and 16.5 million more people on the basis of gender identity.

No guidance has been provided on how to avoid discriminatory actions when an employee transitions at work, despite the fact that the Department could have relied upon the “gender identity guidance” published by the Office of Personnel Management in 2011.   Adverse employment actions, such as firing, demotion, or a failure to hire, solely on the basis of gender identity are clearly prohibited by the new rules, though the Equal Employment Opportunity Commission held such discrimination was discrimination on the basis of sex over two years ago in Macy v. Holder. The Department lacks an explanation of how the new rules interact with its much-delayed guidance from August 19, 2014 on Macy’s application to existing Federal contracts.

Unfortunately, the rules also do not provide any clarity on discrimination in conditions of employment, despite well-known problems to be addressed. Perhaps most pervasively, many employers (including the Federal government itself) exclude claims related to being transgender or non-binary from their insurance policies. When asked if the Department had an opinion on the legality of such exclusions, the Department’s Office of Federal Contract Compliance Programs Division of Policy stated they had no opinion on the matter, despite having plenty of warning that advocates were going to want an answer. Given that the Federal government still, with few exceptions, has these exclusions in the health plans available to its own employees, the Department’s reticence is perhaps understandable. It is nonetheless disappointing, given that inability to access medically necessary care related to transition is associated with a 10 to 15 percentage point increase in the likelihood of lifetime suicide attempts by transgender and non-binary people, already plagued by a horrific lifetime suicide attempt rate of 41%.

The importance of increasing access to transition-related care should not detract from the host of other important issues that the rules fail to address. Due to what may be a drafting error by the Department, the existing prohibition on sex-segregated facilities except with respect to “restrooms and necessary dressing or sleeping areas” has been rendered ambiguous. Unfortunately, advocates against nondiscrimination rules for gender identity often turn restrooms into battlegrounds. Because the Department failed to provide an explanation of how contractors are expected to “assure privacy between the sexes” without discriminating on the basis of gender identity, advocates against the rule may decide to file a lawsuit on the matter, claiming that the rule actually prohibits people from using restrooms consistent with their sex and gender identity.

The rule similarly fails to address workplace dress codes. This is likely to create problems for businesses with gender-specific dress codes, as people whose gender identity is not congruent with either “male” or “female” will not fit neatly into such categories, and the rule prohibits discrimination on the basis of gender identity, including non-binary gender identity. Guidance here would be particularly useful, but because the rule fails to address it, it will fall to the people the rule is intended to protect to educate both the Department and Federal contractors. Previous attempts asking the Administration to allow for non-binary official documentation have failed to even generate a response acknowledging the existence of non-binary people, let alone policy outcomes that take non-binary people into account.

With a scope reaching tens of millions of employees of Federal contractors, it is possible that Friday’s rule signifies a marked change in the protections available to LGBT people in the workplace. However, until the Department of Labor is ready to explain how the rule applies to the many varied ways employers have developed to discriminate on the basis of gender identity, transgender and non-binary people are once again left waiting for answers that may never come.

Update:  in July of 2013, Department of Labor published its own guidance on avoiding discrimination on the basis of gender identity (as a type of discrimination on the basis of sex) in the workplace, consistent with OPM’s guidance.  It is unclear why they could not provide this same guidance to Federal contractors.  The guidance has substantial flaws, but it would nonetheless be better than no answer at all.

New Department of Labor “LGBT” Rule Published; Labor Lacks Answers on Transgender Exclusions in Health Insurance

Today, the Department of Labor announced publication of its final rule implementing Executive Order 13,672 of July 21, 2014, which required the Department to publish rules prohibiting Federal contractors from discriminating on the basis of sexual orientation or gender identity (an additional press release is available).  The rule further reinforces existing law and supplements the EEOC’s decision in Macy v. Holder:  discrimination on the basis of sexual orientation and gender identity is illegal.

Since the rule failed to address health insurance, I called the Department of Labor’s Office of Federal Contract Compliance Programs.  After a transfer, I wanted to make sure I was speaking with the right people.

Emily:  I’m not actually sure which department I’m speaking with.

OFCCP: I’m in the national office at OFCCP, in the policy division.  We’re pretty much it.

I asked the OFCCP compliance officer:

Emily:  If a insurance provider is, or rather, if an employer is providing insurance that discriminates on one of the protected bases, would that be prohibited by this regulation.

[some conversation ensues about who the proper person to answer that question would be; the OFCCP compliance officer eventually puts me on hold to see if there is a prepared answer]:

OFCCP:  Emily?

Emily:  Yes.

OFCCP:  OK, I’m so sorry to keep you on hold for so long.

Emily:  Totally understandable.

OFCCP:  But I wanted to clarify, you know, to make sure, and basically the only thing we can say at the moment that it applies the same way our other rules apply in terms of how, essentially, terms and conditions of employment apply.

Emily:  Right.

OFCCP:  And that includes benefits such as health insurance.

Emily:  Right.  But the Department of Labor is not willing at this time to state that it is legal, or… let me back up, state that it is discriminatory or not discriminatory to deny a claim solely on the basis that a person is transgender?

OFCCP:  As I say, if it’s the same benefit, it ties to the same sort of benefit with health insurance.

Emily:  Right, but Department of Labor does not have a definitive legal opinion on that question.

OFCCP: No.

[additional conversation occurs about how to obtain an agency statement of policy on that question]:

Emily:  I absolutely understand if it’s the case that you don’t have an opinion yet.

OFCCP:  Exactly.  The rule hasn’t even been published yet; it won’t be published until Friday.

[more conversation occurs about contacting the individual named in the rule, when the compliance officer states]:

OFCCP:  Unfortunately, at the moment all we can say is just basics of-

Emily: Yup.

OFCCP:  If it’s an employment benefit and it’s offered to everybody else and applies to everybody else it has to apply the same way here.  That’s the short answer.

Here’s a fact pattern: what would Department of Labor say about CareFirst (a Federal contractor) and its insurance policies (including the policies for Federal employees)?

CareFirst:  Commonwealth of Virginia, OK: for transgender surgery, it’s not going to be covered.

[discussion of hormone replacement therapy, leading to time on hold]

CareFirst:  Hormone replacement therapy?

Emily:  Yes ma’am.

CareFirst:  It’s not going to be… hormone replacement therapy, it doesn’t look like that’s going to be covered either. Anything that’s related to that transgender, it’s not going to be covered.

I plan to ask the Department of Labor that very question.  It will be interesting to hear their response.

OPM Continues to Have Nothing New to Say about Anti-Trans Discrimination

Since June 13, 2014, it has been the explicit policy of the U.S. government to discriminate on the basis of gender identity with respect to health insurance.

I have attempted since that date to get the Administration to rectify this discrimination.  It has failed to do so.

In a November 24 discussion of Federal benefits, the Office of Personnel Management chose to address the question squarely:

Here’s the offending language:

OPM CL 2014-17 Excerpt

You might notice that the woman called on to respond is reading the June 13 letter that was referenced in my question, which she clearly had at the ready to read, verbatim, as an answer to the question.  This is what OPM considers “responsiveness.”

The gentleman hosting that call was Alan P. Spielman, Assistant Director for Federal Employee Insurance Operations in OPM’s Healthcare and Insurance Program Division.  Sometime that same day, November 24, 2014, Mr. Spielman signed the response to my FOIA request of July 29, 2014.  Again, this is what OPM considers “responsiveness.”

In that FOIA response, OPM provides a complete list of plans that do not discriminate on the basis of gender identity.  There are 304 FEHB plans.

Screen Shot 2014-11-25 at 7.43.46 PM

That’s 15.  15 plans out of 304, or less than 5%, do NOT discriminate on the basis of Gender Identity.

Under current OPM policy, the other 289 health insurance carriers 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. transition, described using the most offensive language possible), a carrier may exclude it.  Under FEHB regulations, OPM accepts legal responsibility for each of these health insurance plans.

Under Macy v. Holder, such discrimination is illegal.  Under Title VII, such discrimination is illegal.  Under the President’s Executive Order of July 21, 2014 (EO 13,672) such discrimination is illegal.

The Office of Personnel Management clearly does not care.

Thanks to Amélie E. Koran for compiling information on the total number of plans and their general lack of trans-inclusiveness.