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