Tag Archives: Department of Labor

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.

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


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.

Meeting Notes: OIRA Discussion on Federal Contractor Nondiscrimination Rule

The OIRA meeting record and handout are now available.

On Thursday, Kristin Beck, Mia Macy, and I met with officials from the Office of Information and Regulatory Affairs (OIRA), the White House Counsel’s office, the Domestic Policy Counsel, the Department of Health and Human Services (HHS), and the Department of Labor (Labor). The meeting concerned the implementation of the much-heralded July 21, 2014 Executive Order prohibiting discrimination on the basis of gender identity in Federal employment and prohibiting Federal contractors from discriminating on the basis of sexual orientation or gender identity. On October 20, 2014, Labor submitted their draft regulations implementing the Executive Order to the White House for approval prior to publication as a “final rule,” meaning there would be no opportunity for the public to comment. Kristin, Mia, and I took the opportunity to explain to the Administration that trans-exclusionary health plans are illegal, their elimination would be substantially beneficial for society, and would accomplish one of the Administration’s key policy aims. There is literally no legitimate basis for the Administration to fail to act to prohibit trans-exclusionary insurance policies offered by Federal contractors.

Unfortunately, the Administration has given transgender advocates plenty of cause for concern with the new regulation. In June of 2014, the Office of Personnel Management issued a letter to insurers participating in the Federal Employees Health Benefit Program, noting that transition-related care is medically necessary but nonetheless allowing insurers to discriminate against such care simply because it is for the benefit of trans people. Similarly, HHS’s first attempt to interpret the nondiscrimination provisions within the Affordable Care Act (ACA) rejected out of hand the idea that it required coverage of transition related care. The timing of the Executive Order itself also gave rise to concerns. For two years, reporters had been asking Labor for information on how it was enforcing an Equal Employment Opportunity Commission (EEOC) decision holding that discrimination on the basis of transition was discrimination on the basis of sex; the Administration response was to prohibit the most dogged reporter from public events in order to dodge questions.

Because there will likely not be an opportunity for public comment on the draft regulation, it was all the more important to make the case to the Administration through OIRA that it should prohibit transition-related care exclusions in Federal contractor health insurance plans. The arguments we presented ran along three themes: prohibiting trans-exclusionary health insurance plans is legally required; such a prohibition would deliver massive net societal benefits; and it’s in the publicly-articulated interests of the Administration.  While I focused largely on the technocratic details, both Kristin and Mia did an absolutely phenomenal job in emphasizing the human element at play with these exclusions.

The legal case is blessedly simple. There is no real debate that transition-related care is medically necessary; the Administration has already admitted as much in the June 2014 OPM Carrier Letter, stating “there is an evolving professional consensus that treatment is considered medically necessary for certain individuals who meet established Diagnostic and Statistical Manual criteria for a diagnosis of Gender Identity Disorder / Gender Dysphoria.” The professional consensus is further demonstrated by the host of professional medical organizations issuing resolutions to that effect. In Macy v. Holder, the aforementioned EEOC decision (in which Mia Macy was the plaintiff), the EEOC clearly stated that discrimination against the act of transitioning was itself discrimination on the basis of sex. The trans-exclusionary language of health insurance plans clearly falls into this category. The language from Federal employee health insurance contracts is styled as prohibiting coverage for “services, drugs, or supplies related to sex transformations.” Other insurance plans are even more obvious, and have exclusions for “all services related to gender dysphoria or gender identity disorder.” Such exclusions are de jure discrimination against transition-related care; regardless of what other coverage is available, if the procedure to be covered is for the purpose of transition, the insurer refuses coverage. In addition to the Macy decision, there is also the nondiscrimination language of the Administration’s hallmark achievement, the ACA.   42 U.S.C. §18116, also referred to as §1557 of the ACA, prohibits discrimination on the basis of sex (including gender identity) in health programs or activities, including health insurance. As trans-exclusionary clauses in health insurance are discrimination on the basis of gender identity and therefore also discrimination on the basis of sex, they are illegal and the Administration should have no qualms about requiring Federal contractors to get rid of such clauses.

There are two sides to the economic case for removing trans-exclusionary insurance clauses. First, the actual costs of removing the clauses are negligible; second, the benefits of removing the clauses are high, due to the significant benefits that accrue to trans people becoming able to receive health insurance.

There is quite a bit of data to support the fact that removing exclusions for transition-related care poses no significant costs. When San Francisco broke new ground in implementing its coverage for transition-related care, the deal was struck in such a fashion that insurers were permitted to charge additional costs on top of general premiums in order to account for the benefit. While the additional costs charged initially were on the order of $1.70 per enrollee, insurers quickly discovered that this was a vast miscalculation. Despite having every interest in demonstrating high costs of covering transition-related care in order to justify maintaining the additional premium costs, insurers were unable to do so. Within several years of San Francisco’s removal of transgender exclusions, insurers could no longer justify any additional cost for covering transition-related care. When California evaluated its statewide mandate for trans-inclusionary health insurance policies, the state’s Department of Insurance issued an Economic Impact Assessment finding that “the aggregate cost to the state population as a whole will be very insignificant.” The Williams Institute found similar results when analyzing 34 employers who had implemented trans-inclusive health insurance policies. 85% of the sample reported no costs associated with the change in policy (such as an increase in premiums).

While the costs of providing trans-inclusive health insurance is low, due in large part to the low number of trans people in the general population, the costs of denying such coverage are high on an individual basis. The American Medical Association resolved that delays in treatment from financial barriers “can cause and/or aggravate additional serious and expensive health problems, such as stress-related physical illnesses, depression, and substance abuse problems.” Lack of access to transition-related care, combined with other economic discrimination against transgender people, pushes transgender people towards survival sex work to fund medically necessary care. Furthermore, the Williams Institute and the American Foundation for Suicide Prevention found an astounding prevalence of suicide attempts among the transgender community, 41%, vastly exceeding the national average of 4.6%. Inability to access medical care increased the likelihood of a suicide attempt by between 10 and 15 percentage points. If one must, as OIRA does, assign a numeric value to human life, the dramatic consequences for inability to access care lead one to the conclusion that the benefits far exceed the negligible costs. In terms of Federal benefit/cost analysis, the net societal benefits for such a policy will easily exceed $100 million, if not $1 billion. Numbers on that order of magnitude would normally all but compel the White House to act to achieve such benefits.

The White House has also made clear that inclusion of transgender people is a policy goal about which it would at least like to speak. The Administration frequently declares that discrimination on the basis of gender identity should be illegal, arguing that one shouldn’t be discriminated against at work because of “who you are.” Trans-exclusionary health policies are a particularly pernicious form of that kind of discrimination; it effectively bars transgender people from certain jobs or certain employers, or significantly reduces the amount they are paid purely because they are transgender.

Furthermore, the White House has declared that it will act where it has the power to do so and where Congress refuses to do so; that declaration led to the issuance of Executive Order 13,672, which required these regulations. Requiring Federal contractors to eliminate transition-related exclusions from their health insurance policies is entirely within the power of the Executive Branch, and Congress has refused time and again to pass the Employment Non-Discrimination Act as a way to deal with the issue.

Finally: the Administration is justifiably proud of the Affordable Care Act and how it has extended access to health insurance to millions of Americans. President Obama has been heard to proudly boast of eliminating discrimination based on gender and pre-existing conditions, and former Speaker Pelosi has often been heard to say that “being a woman is no longer a pre-existing condition.” Sadly, for transgender women, that’s simply not the case.

It is well past time for the Department of Labor to prohibit Federal Contractors from offering trans-exclusionary health insurance policies. If this regulation fails to do so, the Administration will discover that trans people will not be ignored.

Update: Also worth noting: the Human Resources Policy Association, an organization of “over 350 large and influential corporations” met with OIRA several days prior alongside IBM and Proctor & Gamble, both companies that HRC designates as having trans-inclusive health insurance, to discuss the rule.  Their concerns appear to relate to potential affirmative action requirements in the Executive Order.

Meeting request to OIRA – Regulations Implementing Prohibition of Discrimination Based on Sexual Orientation and Gender Identity by Federal Contractors

Today, I filed a meeting request with the Office of Information and Regulatory Affairs concerning the direct final rule the Department of Labor sent to the White House to implement President Obama’s Executive Order 13,672 (July 21, 2014), which prohibits Federal contractors and subcontractors from discriminating on the basis of sexual orientation or gender identity.

The reason for the meeting is simple:  present Obama Administration policy suggests that the Department of Labor may attempt to issue regulations which claim to prohibit such discrimination, but allow Federal contractors and subcontractors to discriminate against employees with respect to health insurance benefits through maintaining exclusions for transition-related care.  As noted previously, all of the nationwide insurance plans open to all Federal employees maintain discriminatory clauses excluding transition-related care from coverage.  This creates cause for concern that the Department of Labor will similarly allow such exclusions.

The draft regulations have been provided to the White House in the form of a “direct final rule,” meaning there is no opportunity for public comment prior to the regulations being published in final form.  While there remain administrative remedies available after publication, it would be best if the White House gets the regulations correct in the first place and prohibits all Federal contractors and subcontractors from offering health insurance benefits that discriminate on the basis of gender identity.