Tag Archives: Office of Information and Regulatory Affairs

OIRA Meeting with TSA on Scanners

Today I met with the Office of Information and Regulatory Affairs, a small but important office within the Executive Office of the President, to discuss an upcoming TSA regulation concerning the policies used for the advanced body-imaging scanners.  The problem with the scanners is that they are cissexist, starting from their pink and blue button user interface through to their assumptions that everyone’s anatomy is cis.

I emphasized that TSA’s agents are terrible, and ran through some examples of TSA mistreatment I’ve collected informally over the past few weeks.  I recited back to them their training statistics, and how poor they actually are (the last numbers I saw, fewer than 10% of TSA agents have received training on gender identity).  They cannot train their way out of the problems their scanners create: the best solution is to reprogram the scanners so that they no longer create more problems for transgender travelers.

I closed the meeting with a warning:  if this issue is not adequately addressed in the final rule, I will be filing a Petition for Reconsideration on this issue.  That seemed to get their attention.

TSA AIT Scanners – Meeting Request to OIRA

This afternoon I submitted a meeting request to the Office of Information and Regulatory Affairs in the Executive Office of the President to discuss TSA’s unconstitutional program of singling out transgender travelers for extra scrutiny and abuse based on cissexist assumptions about anatomy. PDF available.


The Honorable Howard Shelanski
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
Washington, D.C. 20503

Re:       RIN 1652-AA67 – Passenger Screening Using Advanced Imaging Technology

Dear Administrator Shelanski:

As a transgender woman who occasionally flies for work and personal affairs, I have grave concerns with the draft final rule submitted to the Office of Information and Regulatory Affairs from the Transportation Security Administration on November 19, 2015. Put succinctly, the Advanced Imaging Technology (AIT) scanners unconstitutionally place undue scrutiny on transgender travelers because of cissexist assumptions about anatomy. Rather than being an occasional flaw in the system, the harassment of transgender travelers by TSA is designed into the system from the bottom up.

As you may be aware, the scanner is designed with a simple interface. An example, provided by the Department of Homeland Security,[1] appears below.TSA AIT scanner interface

The scanner requires that a TSA employee press a pink or blue button, corresponding to the perceived gender expression of the traveler to be scanned. The traveler has no opportunity to ensure that they have been “read” correctly in a manner consistent with their gender identity and anatomy; they must hope that the TSA agent correctly discerns these things. This process is arbitrary, mistake-prone, and places an unconstitutional burden on transgender travelers to dress in a manner most likely to elicit a correct button press by government agents.

Once the button has been pressed, the AIT scanner is calibrated for certain anatomical assumptions. These assumptions are cissexist and fail to account for the existence of transgender bodies. If the agent presses the blue button, the AIT scanner assumes that the traveler will have a penis and no breasts. If the agent presses the pink button, the AIT scanner assumes the traveler will not have a penis but will have breasts. These assumptions are based in the cissexist logic that all men have penises and no women do, and similarly that no men have breasts and all women do. This logic is factually incorrect and places an unconstitutional burden on transgender travelers to explain their anatomy to uncaring government agents.

To solve this problem, TSA has proposed changing the word used for when the scanner detects something it was not programmed for from “anomaly” to “alarm.”

Meanwhile, TSA has also implemented a new policy for AIT scanner use. Under prior policy, any person had the ability to opt-out of the AIT scanner and be scanned physically. Many transgender travelers did so, rightly anticipating problems if they were to use the AIT scanner; while Ms. Shadi Petosky’s experience may be the most well-publicized,[2] she is far from alone in experiencing hellacious treatment by government agents for simply attempting to travel while transgender. Under the new policy announced on December 18, 2015, “TSA may direct mandatory AIT screening for some passengers.”[3] Now, not only is AIT screening the default, but it is mandatory for “some” passengers, with no indication of how this new authority will be used. Given TSA’s history of harassing transgender travelers, we are justified in being concerned.

If TSA wishes to maintain its AIT screening program, it must update the screening software and hardware so that is no longer based on government agents guessing the gender of travelers and so that it no longer assumes that all bodies are cisgender. Furthermore, while the AIT scanners continue to impose these unconstitutional burdens on transgender travelers, all travelers must have an unquestioned right to opt-out of the AIT scanner in favor of a physical screening.

I look forward to discussing this issue with your staff.

Sincerely,

Emily T. Prince, Esq.


 

[1] Department of Homeland Security, “Privacy Impact Assessment Update for TSA Advanced Imaging Technology,” DHS/TSA/PIA-032(d), Dec. 18, 2015, http://www.dhs.gov/sites/default/files/publications/privacy-tsa-pia-32-d-ait.pdf.

[2] See http://www.advocate.com/transgender/2015/9/22/one-trans-womans-tsa-horror-story, http://www.salon.com/2015/09/22/shadi_petosky_was_detained_by_tsa_for_traveling_while_trans_the_police_at_the_tsa_gate_were_awful_one_was_laughing_at_me/, http://www.nbcnews.com/news/us-news/transgender-woman-says-she-was-delayed-tsa-anatomical-anomaly-n431326, http://www.newsweek.com/shadi-petosky-transgender-woman-alleges-unfair-screening-tsa-orlando-airport-375220, http://www.nytimes.com/2015/09/23/us/shadi-petosky-tsa-transgender.html?_r=0.

[3] “Privacy Impact Assessment Update for TSA Advanced Imaging Technology”, supra note 1.

Letter to OIRA Requesting Immediate Clearance of HHS Nondiscrimination Rule

On April 29, 2015 the White House received for review and clearance the Department of Health and Human Service’s regulation implementing 42 U.S.C. 18116, the Affordable Care Act’s nondiscrimination provision. The provision was subject to a request for comments in 2013, but the Department has consistently delayed the actual implementation of the provision.  Prior guidance on the language told insurers that discrimination against transition-related care was legal.  New regulations are necessary to undo this damage, and those regulations are currently stalled for White House review.  Full text is below.

Continue reading

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?

Sincerely,
— Emily T. Prince, Esq
http://www.emily-esque.com

cc:
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

Attachment:

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.

Meeting with OIRA – Resources Supporting Trans-Inclusive Healthcare

Catching up on some old business:  on July 15, 2014 I spoke to the Office of Information and Regulatory Affairs (OIRA, the portion of the Executive Office of the President that oversees the Federal regulatory process) about a then-pending Office of Personnel Management rulemaking updating the government’s employment nondiscrimination policies.  This update was to, among other things, include “gender identity” as an explicitly protected class.  However, the update did not address the Federal Employee Health Benefits Program (FEHB), the system that delivers health insurance to millions of Federal employees.

Both the OIRA meeting record and my meeting handout are publicly available.  For those advocating for trans-inclusive healthcare to your private employees, the handout may prove useful.  As my argument was not only based on the legal necessity of trans-inclusive healthcare, but also on the costs and benefits of providing such insurance, the studies and discussions will be powerful evidence to support your case to management. (This isn’t legal advice).

The final rule at issue was published July 29, 2014, and also did not include reference to FEHB.  However, I don’t view this as a loss.  The rulemaking was a vehicle to present these concerns directly to the White House, and in that light I succeeded beyond my expectations; I was surprised to even be able to speak with OIRA directly.

Several rulemakings remain, including the most significant, a Department of Health and Human Services rulemaking or interpretation addressing Section 1557 of the Affordable Care Act, which bans (among other things) discrimination on the basis of sex.  The Department has previously said that this section does not require insurers to provide trans-inclusive health coverage, but that language disappeared at the same time the Department requested comments from the public on interpreting the section.  The docket was replete with comments from individuals and organizations demanding trans-inclusive health insurance (including a comment I wrote anonymously, not yet being fully out at the time).  Some of these, particularly the comments of Whitman-Walker Health, made a compelling case that trans-inclusive health insurance is legally required by present statutes and not something to be decided on a state-by-state or insurer-by-insurer basis.

Hopefully my presentation to OIRA helped to raise visibility on these issues, so that when the Department rulemaking is under White House review, it will be done with the knowledge that their actions are being watched closely and critically to ensure that transgender people are not again denied equal protection of the laws.

OIRA: Meeting Request regarding OPM Nondiscrimination Rule

Fired off another letter today, this one to OIRA to get some visibility on the OPM actions to explicitly approve discriminatory health insurance plans for Federal employees.

Some Notes on OPM “Lifting a Ban” on Transition-Related Care

UPDATE: On August 25, 2014 OPM responded to my FOIA request and formally acknowledged that no “requirement to exclude” transition-related care existed.

Yesterday the Office of Personnel Management (OPM) – succinctly described as the head human resources department for the Federal government at large – issued a “carrier letter” (the Carrier Letter)[1] to health insurance providers participating in the Federal Employees Health Benefits Program (FEHBP).  The letter indicated that OPM was lifting a requirement[2] that transition-related care (or, in their terms “services, drugs or supplies related to sex transformation”) be excluded from FEHBP plans, but stopped short of mandating that transition-related care affirmatively be included.  Prominent LGBT organizations such as the Human Rights Campaign (HRC) and the National Center for Transgender Equality (NCTE) praised the move[3] as a step forward.  I remain skeptical however, and posted a host of concerns about the action to Twitter; some of these concerns were republished in the Advocate.[4]  However, because Twitter is not an ideal platform for legal analysis, and because as a lawyer I find it difficult to use one word where I could use ten, I am taking a moment to recompile my argument and concerns into a more coherent form.

One important thing to remember in the context of trans-inclusive healthcare is that there are a number of balls in the air right now, mostly being juggled by the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB).  OIRA’s role in the rulemaking process focuses on ensuring consistency in regulations government-wide as well as reducing regulatory burdens.  As implementation of the Affordable Care Act (ACA or “Obamacare”)[5] continues, there are a number of healthcare nondiscrimination rules in various stages of the rulemaking process.  On May 27, after receiving clearance from OIRA,[6] the Department of Health and Human Services (HHS) published a final rule[7] which, among a great many other things, prohibited discrimination on the basis of gender identity as a variety of discrimination on the basis of sex, consistent with the Equal Employment Opportunity Commission’s (EEOC) ruling in Macy v. Holder.[8]  However, neither the rule itself nor the preamble to the rule published in the Federal Register define what constitutes such discrimination, leaving a substantial question to be answered.

Meanwhile, as of May 8, 2014, OPM has had its own general nondiscrimination final rule under review by OIRA.[9]  The proposed regulation, published on September 4, 2013,[10] prohibits employment practices discrimination on the basis of gender identity, again as a variety of discrimination on the basis of sex.  The proposed rule did not specify what impact, if any, this would have on OPM review of FEHBP plans.  The final rule is scheduled to be published this month, according to the Unified Agenda of Federal Regulatory and Deregulatory Actions, published May 23, 2014.[11]

Finally, and most importantly, HHS is currently drafting an interpretation or regulation implementing 42 USC 18116,[12] the provision of the ACA that bans discrimination on the basis of sex (and therefore also on the basis of gender identity).  That document was, as of the May 23, 2014 publication of the Unified Agenda, slated for publication by August 2014.  Because 42 USC 18116 reaches Medicare, Medicaid (as expanded in many states by the ACA), the exchanges, FEHBP, other government health insurance programs such as SCHIP, and possibly more, it is easy to see why the rule is important.[13]  Unfortunately, the HHS decision-making process is opaque, and outside advocates are left only with small clues as to how the Administration may be leaning on transition-related care.[14]  Until recently (at least as late as August 2013), HHS stated on its website that transition-related care was not required as a result of the nondiscrimination statute.[15]  The Q&A within which that statement appeared has since been removed from the HHS website.  Contemporaneous with the removal, HHS published a formal Request for Information in the Federal Register on August 1, 2013, seeking information on “experiences with discrimination in health programs or activities,” including discrimination on the basis of gender identity as a variety of discrimination on the basis of sex.  The request for information, combined with the removal of the Q&A, gave cause for hope that HHS would prohibit exclusions for transition-related care as discriminatory, especially when combined with the May 30, 2014 ruling by an HHS administrative adjudicatory body that Medicare’s categorical ban on coverage for “transsexual surgery” was invalid.[16]

Given the context of one recently-published HHS regulation on nondiscrimination, one OPM regulation on nondiscrimination currently review at OIRA, and the critical HHS rule interpreting what “nondiscrimination” means in the context of health insurance and transgender patients, the important question is:  what did we learn from the OPM carrier letter about how the Administration views the exclusion of transition-related care and nondiscrimination provisions?  Here is where my disagreement with HRC and NCTE lies.  Viewed in isolation, OPM making clear that transition-related care is medically necessary and explicitly authorizing plans to cover such care would be a small but unequivocally positive step towards trans-inclusive health insurance for all.  However, when viewed as a policy decision made by agencies with internal preferences that are revealed through actions such as these, the decision to lift a purported ban[17] but nonetheless permitting trans-exclusive policies generates quite a bit of concern.  That policy decision suggests that OPM, and possibly OIRA and HHS, may be ready to take the public position that plan language explicitly excluding coverage for “sex transformation” is somehow not discriminating on the basis of sex or gender identity.  Other hypotheses have been raised to explain the decision, such as the idea that OPM does view the exclusion language to be discriminatory but is exercising enforcement discretion on behalf of insurers who feel incapable of removing the exclusion for plan year 2015.  This sort of hypothesis is consistent with the evidence available, but raises new questions, such as why OPM would not admit that position directly.

It is possible that yesterday’s announcement was a step forward and that the HHS interpretation of the ACA’s nondiscrimination language will finally bring trans-inclusive health insurance to a large set of people who need the coverage.  However, with the evidence we have, it seems far too early for celebration.  Yes, the carrier letter issued yesterday suggests some number of trans Federal employees will have access to trans-inclusive health insurance, but that may have been a harbinger of coming disappointments in the fight for everyone to have access to affordable transition-related care.  That war continues, and it’s important to be able to distinguish a tactical retreat by the opposition from an actual victory.


[1] John O’Brien, Director – Healthcare and Insurance, Office of Personnel Management, “Gender Identity Disorder / Gender Dysphoria,” Carrier Letter No. 2014-17, issued June 13, 2014.  http://www.opm.gov/healthcare-insurance/healthcare/carriers/2014/2014-17.pdf

[2] Note that the Carrier Letter referenced in Note 1 does not specify what “requirement” it is lifting.  No regulatory provision is cited, nor does OPM reference a prior carrier letter requiring such exclusions.  A search of publicly-available records indicates no such requirement exists.  While OPM did include such exclusions within plan brochure templates for use by insurance carriers, those brochures were informal guidance and not a statement of agency policy as to what benefits were or were not required in order to participate in FEHBP.  Unless and until OPM produces records indicating that such a requirement actually existed, there is no basis to believe that the Carrier Letter actually lifted an OPM requirement that insurers exclude transition-related care.

[3] Chris Geidner, “Exclusive: Feds to Lift Ban on Federal Employee Insurance Coverage of Sex-Reassignment Surgery,” published June 13, 2014, available at http://www.buzzfeed.com/chrisgeidner/feds-to-lift-ban-on-federal-employee-insurance-coverage-of-s (“In a statement, Human Rights Campaign Government Affairs Director David Stacy said, ‘Today’s welcome decision by the Office of Personnel Management to remove this discriminatory and harmful exclusion is an important step towards closing the gap in access to quality health care for transgender workers. HRC urges FEHB insurance carriers to include this essential coverage in their plans so that federal workers have access to medically necessary transition-related care.’”); National Center for Transgender Equality, “Victory! Federal Government Modernizes Health Insurance,” published June 13, 2014, http://transgenderequality.wordpress.com/2014/06/13/victory-federal-government-modernizes-health-insurance/.

[4] Parker Marie Molloy, “Federal Employee Health Plans Can Now Include Transition-Related Health Care,” June 13, 2014, http://www.advocate.com/politics/transgender/2014/06/13/federal-employee-health-plans-can-now-include-transition-related.

[5] Public Law 111-148, “Patient Protection and Affordable Care Act” and Public Law 111-152, “Health Care and Education Reconciliation Act of 2010,” available at http://housedocs.house.gov/energycommerce/ppacacon.pdf.

[7] Department of Health and Human Services, “Patient Protection and Affordable Care Act; Exchange and Insurance Market Standards for 2015 and Beyond,” 79 Fed. Reg. 30239 (May 27, 2014), available at https://www.federalregister.gov/articles/2014/05/27/2014-11657/patient-protection-and-affordable-care-act-exchange-and-insurance-market-standards-for-2015-and.

[8] Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012), available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.

[10] Office of Personnel Management, “Nondiscrimination Provisions,” 78 Fed. Reg. 54434 (Sept. 4, 2013), available at https://www.federalregister.gov/articles/2013/09/04/2013-21486/nondiscrimination-provisions.

[12] 42 USC §18116, “Nondiscrimination,” (also referred to as Pub. L. 111-148, Title I, §1557), available at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title42/html/USCODE-2010-title42-chap157-subchapVI-sec18116.htm.

[13] See, for example, Department of Health and Human Services, “Section 1557 of the Patient Protection and Affordable Care Act,” available at http://www.hhs.gov/ocr/civilrights/understanding/section1557/.

[14] For an example of such attempts to interpret what little information we have, see for instance Andy Medici, “Is the Administration Moving to Include Transgender Care in Federal Health Insurance Coverage?” Dec. 9, 2013, http://blogs.federaltimes.com/federal-times-blog/2013/12/09/is-the-administration-moving-to-include-transgender-care-in-federal-health-insurance-coverage/.

[16] Department of Health and Human Services Departmental Appeals Board, Docket No. A-13-87, Decision No. 2576, May 30, 2014, available at http://www.hhs.gov/dab/decisions/dabdecisions/dab2576.pdf.

[17] See note 2, above, on why it should not be taken as given that such a ban existed.