Monthly Archives: December 2014

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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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.


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.

Letter to FDA: Decision of Blood Products Advisory Committee Regarding “MSM” Ban

UPDATE (December 23, 2014 4:00 pm): I contacted the FDA to inquire again about the policy, since I continue to see it referred to as a ban on “men who have sex with other men” and was told that the office was “reluctant” to issue a response prior to announcing today’s potential policy shift, even though my question doesn’t relate to the change from lifetime deferral to one-year celibacy period.

Lorrie H. McNeill
Office of Communication, Outreach and Development
Center for Biologics Evaluation and Research
Food and Drug Administration
10903 New Hampshire Avenue
Building 71 Room 4120
Silver Spring, MD 20993-0002

Transmitted via e-mail

Re: Decision of Blood Products Advisory Committee Regarding “MSM” Ban

Dear Ms. McNeill,

I was disappointed to hear of the recent decision by the FDA’s Blood Products Advisory Committee to remain silent on the question of whether to eliminate the ban on blood donation from “men who have sex with other men at any time since 1977,” sometimes referred to as the “MSM” ban. However, when I contacted your office for more information I was horrified to hear confirmed that the FDA, to this very day, considers sex assignment at birth both immutable and internet, such that transgender women and other individuals assigned male at birth are perpetually considered “men” for the purposes of the ban.

This fact underscores the arbitrary and capricious nature of the “MSM” ban. Rather than looking at actual risk factors, the FDA has concluded that if a person born with (probably) a penis and assigned male at birth, the fact of that person’s sexual interaction with another person born with (probably) a penis and assigned male at birth renders both individuals categorically tainted and ineligible to donate blood. The set of people affected by the “MSM” ban includes the following pairs:

  • a cisgender heterosexual man who has a sexual relationship with a transgender heterosexual woman;
  • a transgender homosexual woman who has a sexual relationship with another transgender homosexual woman;
  • a transgender bisexual woman who has a sexual relationship with a genderqueer person assigned male at birth; and
  • a genderqueer person assigned male at birth who has a sexual relationship with a cisgender bisexual man.

This policy creates significant harm to transgender people and people with non-binary gender identities, for instance by reifying the false belief that transgender women are “actually men.” This incorrect understanding of what it means to be transgender underlies so much discrimination against transgender people. In a month where the Department of Labor has finally begun the hard work of eliminating discrimination on the basis of sexual orientation and gender identity among Federal contractors, the FDA’s Blood Products Advisory Committee’s decision is particularly frustrating.

When the full reach of the “MSM” ban is stated, the purported basis for the ban falls away. The policy can include cisgender men of any sexual orientation, transgender women of any sexual orientation, and anyone with a non-binary gender identity who was assigned male at birth who has sexual relationships with anyone else assigned male at birth. Yet the FDA, in defiance of its own acknowledged interpretations, continues to refer to it as a ban on donations by “men who have sex with men” and defends it against salient attacks by the American Red Cross, the American Association of Blood Banks, America’s Blood Centers, the American Medical Association, and patient groups such as the National Hemophilia Foundation. In response to the sound science presented by these organizations, the FDA responds with flawed statistics about “men who have sex with men” without even acknowledging the full set of people impacted by the ban.

Were the FDA to attempt to defend its actual policy, rather than the straw-man it has created, it would be forced to admit that sex assignment at birth does not meaningfully impact the risk of contracting HIV, and that there are too many confounding variables in the total population affected to justify categorically prohibiting all donations from that population for life.

I look forward to hearing from your office regarding how the FDA will improve its rules regarding blood donations in the future to eliminate this arbitrary and capricious ban.


Emily T. Prince, Esq.

Jocelyn Samuels, Director, Office of Civil Rights, U.S. Department of Health and Human Services

Letter to Department of Labor: Request for Administration Position on Trans-Exclusionary Insurance Contracts

Ms. Debra A. Carr
Director, Division of Policy and Program Development
Office of Federal Contract Compliance Programs
Department of Labor

Transmitted via e-mail

Dear Ms. Carr:

Thank you for your hard work to complete the regulations required by Executive Order 13,672, prohibiting discrimination on the basis of sexual orientation and gender identity by Federal contractors. However, in the Department’s haste to publish the regulation after years of review, many unanswered questions remain. I would welcome the opportunity to work with your office to address these questions. This letter pertains to a particularly pervasive and toxic form of discrimination on the basis of gender identity: insurance contracts that, despite generally applicable coverage, deny coverage for claims that relate to being transgender.

In the attached audio file, CareFirst BlueCross BlueShield, a Federal contractor, admits that their policies deny coverage on the basis of gender identity. Presumably, discrimination of such a direct and overt form must be prohibited by the new rules, but when I contacted your office for an opinion on a similar fact pattern, I was told that the Office of Federal Contact Compliance Programs had no legal opinion on the matter. This was somewhat surprising, since the matter was discussed with OFCCP several weeks prior through the Office of Information and Regulatory Affairs.

While the recorded conversation pertained to plans available under the Federal health insurance exchanges, CareFirst Blue Cross, like 95% of FEHB insurance carriers providing insurance services under contract with the Federal government, states in their plan language that they categorically exclude “services, drugs, or supplies related to sex transformation.”  According to the Office of Personnel Management in its FEHB Program Carrier Letter 2014-17, issued June 13, 2014, such exclusions are entirely legal, even when performed by the Federal government itself.

Similarly, the Department of Health and Human Services Office of Civil Rights previously stated for over a year and as recently as August 2, 2013 that such discrimination was permissible under 42 USC §18116, though declined to provide the basis upon which it reached that determination. The statement was subsequently removed from the Department of Health and Human Services website before the end of August 2013 without comment. While a Request for Information was published in August 1, 2013 and many commenters addressed the insidiousness of this form of discrimination, the Department of Health and Human Services has yet to react to the information submitted. In the Fall 2014 Unified Agenda, the Department of Health and Human Services announced that it would not be publishing even a proposed rule on the topic until April 2015, over 5 years after the passage of the statute to be interpreted.

This dramatic discrepancy between the rhetoric of the Administration and the implementation of policy raises the question: will the Administration continue to tolerate discrimination on the basis of gender identity in the context of health insurance?  If so, upon what basis does the Department of Labor conclude that a Federal contractor stating directly that they are intentionally discriminating on the basis of gender identity is not a violation of Executive Order 13,672, Title VII of the Civil Rights Act, and other prohibitions against discrimination on the basis of sex, including discrimination on the basis of gender identity?  If the Administration does not intend to tolerate this discrimination, how much longer must the transgender community wait for action?

Similarly, does the Office of Diversity and Inclusion in the Office of Personnel Management or the Office of Civil Rights in the Department of Health and Human Services have any response?

— Emily T. Prince, Esq

Jocelyn Samuels, Director, Office of Civil Rights, Department of Health and Human Services
Veronica Villalobos, Director, Office of Diversity and Inclusion, Office of Personnel Management


Accepting the Unacceptable: A Paradox of Marginalization

I realized something today, when I was ruminating about being called “t****y” for the first time yesterday.

Maybe this is something everyone else already figured out. I suspect it’s generally applicable to all marginalization.

Here it is: A central tragedy of marginalization is that you have to accept that sometimes you’ll be forced into a position of accepting the unacceptable.

While it shouldn’t be your responsibility, you’re forced to face a set of choices and choose the least terrible among them.

Sometimes the least-terrible choice available to you will be to tolerate something you find odious and ridiculous to have to tolerate.

Sometimes the only solace is to remember that by picking the best decision you’re not letting your oppression decide your destiny.

Sometimes the choice that feels like fighting is the choice that makes you worse off.

I suppose it’s a bit like a tactical retreat in that way; tolerate the incursion to fight another day on another field.

Today, dealing with the program where I was called “t****y,” I am retreating and tolerating the poor response from staff.

I don’t like the decision, but that doesn’t mean it’s not the least-terrible decision available.

It’s not a fair outcome. It’s not a just outcome. But it’s the outcome that’s best for me, notwithstanding the injustice and unfairness.

Life as a trans person: learning to accept the unacceptable because the alternative is worse.

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.

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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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.


[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.