Monthly Archives: January 2015

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.

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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