Author Archives: emily

Justice for Jane – CTDCF Admits No Policy To Justify Turning Away Potential Adoptive Families

In response to a recent FOIA request for processes, eligibility criteria or other methods for determining no adoptive parents would be permitted to adopt a specific child, Connecticut’s Department of Children and Families admitted yesterday afternoon that it had no documents responsive to the question, meaning no such policy exists.  That raises the question: if there’s no policy allowing CTDCF to turn away all prospective adoptive parents, on what basis are they doing exactly that when it comes to Jane Doe?

This new response again demonstrates that CTDCF is ignoring the rights of Jane Doe and is acting outside of the law to keep her imprisoned in a facility for male juvenile delinquents despite the fact that she is neither accused of nor convicted of any crime.

Background:  http://justice4jane.tumblr.com/post/97677265739/update-this-morning-jane-escaped-police-custody

FOIA Response for CTDCF Records - Children Categorically Ineligible for Adoption

 

 

Justice for Jane – How does CTDCF Render a Child Ineligible for Adoption

Jane Doe has been imprisoned by CTDCF because they claim there is no home for her, while ignoring requests from families who would welcome her into their homes.  This FOIA request asks how CTDCF came to the conclusion that Jane wasn’t eligible for foster care or adoption, as it seems they do not see any family as fit for Jane.

Background:  http://justice4jane.tumblr.com/post/97677265739/update-this-morning-jane-escaped-police-custody

CTDCF FOIA3 - Eligibility for Adoption (redacted) CTDCF FOIA3 - Eligibility for Adoption (redacted) 2

Justice for Jane: Connecticut Admits No Policy to Justify Solitary Confinement

Jane Doe of Connecticut has been placed in solitary confinement at a facility for male juvenile delinquents on parole, despite neither being male nor adjudicated as a juvenile delinquent.  I contacted CTDCF and formally requested any records of policies or procedures to determine when a girl under their care should be placed in a male facility, how such a girl should be protected, and procedures on solitary confinement generally.

The official response from CTDCF was that the agency has “no responsive records.”  This constitutes a legal admission by CTDCF that no written policies or procedures exist.  As was widely suspected, CTDCF is inventing policy in order to warehouse Jane in a male facility.

It is important to remember that in response to a prior records request, CTDCF formally acknowledged that it has never housed a cisgender girl in a male facility.  The question thus remains:  why does CTDCF treat transgender children in a different and more punitive manner than cisgender children?  Why is the governor continuing to allow this violation of state and Federal laws banning government discrimination on the basis of gender identity?

Justice for Jane: Another FOIA to CTDCF

Today I filed another FOIA to the Connecticut Department of Children and Families, this time focusing on processes and procedures for determining when placing a girl in a male-designated facility is appropriate (the answer should be never, but CTDCF feels differently), what steps are taken to provide safety, and policies and procedures for placing a child under the care of CTDCF in solitary confinement.

Petition for Reconsideration to the Office of Personnel Management

While I consider my meeting with the White House Office of Information and Regulatory Affairs, discussing trans-inclusive healthcare in the context of an Office of Personnel Management rulemaking on “nondiscrimination provisions,” to be a success in raising the visibility of the issue, the fact remains that OPM ignored the issue entirely in its rule.  Thus, I filed this Petition for Reconsideration, which asks OPM to address its continuing discrimination against transgender Federal employees.

2014 08 25 – OPM Petition for Reconsideration

FOIA to OPM

Since OIRA decided not to meet with me today, I had time to do another small letter; this one to OPM, demanding the records establishing their purported “policy” of required exclusions for transition-related care.  Given that we know that the purported policy was ignored for some insurers (see, for instance, Kaiser Foundation’s California health insurance plan, available at http://www.opm.gov/healthcare-insurance/healthcare/plan-information/plan-codes/2014/brochures/73-003.pdf), I’m intensely curious where this alleged requirement existed (and how it was waived for Kaiser).

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.

Letters to Senate: TSA Cissexism

I felt it necessary to call some attention to the story published yesterday about TSA misconduct towards trans passengers, documented in a story for Al Jazeera America by Alissa Bohling (http://america.aljazeera.com/articles/2014/5/26/groin-anomalies-andpatdownstravelingwhiletrans.html – content warning for cissexism and references to misgendering and transphobic harassment).  Identical letters are going out tomorrow to Senators Carper and Rockefeller, along with my two Senators and Representative.  The whole package has been copied to the Secretary of the Department of Homeland Security and the Administrator of the Transportation Security Administration.

Am I expecting a miracle? No – but at least I can say that I tried, at the very least.

Language, Biology, and Gender Identity

Language like “Biologically born a male, Nicole identified as a girl as early as age 2,” (from a recent article about a positive court decision in Maine) routinely appears in discussions of trans identities, and it’s easy to see how writers fall into this type of discussion. The narrative around transgender identity is all about the transition, and so writers want to identify what they think of as trans person’s condition prior to the start of transition.

The problem is that, by using a trans person’s assigned sex as their origin, the writer makes the assumption (rooted in centering the experiences of people whose assigned sex at birth aligns with their gender identity – which is to say cisgender people) that everyone is cisgender until proven otherwise. In this case, it starts from the premise that Nicole was originally a boy in a “biological” sense before she began “identifying” as a girl. This undergirds an understanding of what it means to be trans that fundamentally undermines trans identities and fuels transphobic arguments against treating trans people equally with cisgender people. Rather than understanding that the gender a trans person was assigned at birth was incorrect, this type of language turns birth-assigned gender into what someone “is,” and reduces a trans person’s gender to something they “identify as.” It ultimately is another way of framing trans identity as “a trap”: a trick that trans people are attempting to play on the rest of society, or an idiosyncratic view of oneself that society graciously deigns to accept despite it not being what a person “is.”

Most people were probably taught in school about XX and XY chromosomes, and believe that sex is just that simple. However, there is nothing simple about it. In discussing the experience of being trans, Parker Molloy did an excellent job of discussing the science of sexual differentiation. She addresses most of the common arguments from biology (specifically in reference to trans women), starting with the most common: chromosomes. There’s the obvious example of women with Androgen Insensitivity Syndrome, where a cisgender woman has XY chromosomes due to her body’s non-reaction to androgens (the name really does say it all). Perhaps more interesting are recent studies finding neurons with Y chromosomes in 37 of 59 women (63%) and 56% of women investigated in a cancer study were found to have a Y chromosome in samples of their breast tissue. Molloy goes on to provide similar counterexamples for arguments that “you have to have a uterus to be a woman,” “you have to be *born* with a uterus to be a woman,” “you have to be ‘socialized as a woman’ to be a woman,” or “you have to be born with a vagina to be a woman.” The article is at http://www.bustle.com/articles/7727-im-a-transgender-woman-and-this-is-what-its-like and is absolutely worth an entire read.

Similar examples exist for men: men born with penile agenesis are still men, as was sadly demonstrated when doctors starting in the 1960s decided that, when genitalia was ambiguous, they’d make a best guess as to what sex the baby should be assigned and perform surgery to attempt to make their genitalia less ambiguous; in the case of penile agenesis, that meant assigning them as women. Not at all shockingly, the fact of being born without a penis didn’t render these men women, and many recipients of this “treatment” grew up with severe gender dysphoria as a result of their gender identity being inconsistent with their coercively-assigned sex (See generally the work of John Money). Despite the demonstrated failure of these methods, such reassignments still occur today, for reasons as allegedly compelling as “if the parent cannot tolerate” having a child with ambiguous genitalia and sex. (See, for instance, http://www.nytimes.com/2006/09/24/magazine/24intersexkids.html?pagewanted=all).

This is not to argue that assigned sex is meaningless construct; rather, it is to emphasize that the process of mapping an individual’s physical characteristics into a “sex” or “gender” is a heuristic one where loose rules apply and no single element is either necessary or sufficient to qualify an individual as a particular sex. The thrust of the argument that there is a “biological sex” that a person is born into, and that this “biological sex” is a hard scientific fact, is blunted by recognizing the way that the “biological sex” is merely a best guess of how to classify a person based on a series of elements, leaning most heavily on the appearance of external genitalia as an infant. Because, as noted above, no element of sex assignment is necessary or sufficient to qualify an individual as “male” or “female,” the lines of what constitutes “biological sex” are mutable and fuzzy, rather than the clear bright lines that many understand them to be.

By deploying such a best guess against transgender people, the argument from “biology” reeks of special pleading: each time assigned sex is defined in a way to exclude trans women, it would also exclude cis women, who are nonetheless included. It’s reminiscent of the arguments against marriage equality: each argument advanced to discriminate on the basis of sex would ban certain opposite-sex marriages, but those marriages are nonetheless non-controversial. One should be deeply suspicious when advocates advance such underinclusive arguments, because it raises a powerful inference that the true basis for the argument is just to support discrimination. In this particular case, it all comes down to an argument that cisgender is the only valid gender identity, even though there’s no basis for that conclusion. In its weaker form, sometimes even made by purported allies, trans people are told that they were “born a boy [or girl]” or are “biologically male [or female]” and “became” a trans man or trans woman, even over the strident objections of trans people.

These arguments from “biology” sometimes take relatively innocuous forms, such as the construction in the opening paragraph, where the author is attempting to discuss Nicole’s transition, but more frequently these arguments are used as a way to attack trans people in a cloak on objectivity. A school of feminist thought known as “radical feminism” has largely distinguished itself from others through deploying such arguments, and as such it and its adherents are frequently referred to as “TERF(s),” for “trans-exclusionary radical feminism.” Since the 1980s, TERFs have been arguing that transgender individuals are a construction of the patriarchy and a symptom of strict gender roles, rather than a failure of the assigned-sex heuristic to fit all individuals. The argument takes the form that trans individuals do not have an innate identity that is not consistent with their assigned sex, but rather that they have been culturally conditioned to sex roles to which they seek to escape. As such, TERFs can be found arguing against legal protections for trans individuals, in the false belief that any protections for transgender individuals (especially transgender women, who they consistently view as male solely on the basis of their assigned sex) will work to reinforce gender roles and harm “women-born-women” by allowing transgender women into women’s spaces. (See generally http://www.transadvocate.com/gender-orientation.htm; note that the author uses “gender orientation” to refer to one’s subjective sense of physical sex, disaggregating it from an individual’s self-identification). In seeking to fight the system of patriarchal oppression, TERFs raise assigned sex from a heuristic to a fundamental law of reality that is concrete and perfect, despite the mutable nature of the heuristic and despite the consequences for trans individuals.

Similar arguments can be found in the emphasis on surgical procedures to reify the identity of transgender individuals. Until 2013, the Federal government required proof of surgical procedures (generally surgery upon the genitals, though some trans men were able to meet the requirement with double mastectomies) in order to have one’s gender changed in official records. Many states still include such requirements, and some states refuse entirely to update records from assigned sex. This focus isn’t limited to government; one of the first questions many trans individuals are asked when coming out relates to their plans for surgery. Despite the fact that surgery is not universally desired and is out of reach for some who want it due to insurance discrimination against trans individuals, the emphasis on biology and physical bodies drives a narrative that reinforces surgery as the necessary and sufficient requirement to allow an individual to overcome the presumption of their assigned sex and “become” the sex consistent with their gender identity. This understanding does real harm, putting arbitrary blocks in front of social acceptance and, in some cases, even driving individuals to undergo surgery they do not wish to have merely to be socially recognized as themselves.

To someone who is unfamiliar with trans issues, it may seem that trans individuals are hyper-focused on language. However, when considering the way in which language is deployed to dehumanize trans people or ignore their identities, this focus is not only understandable but entirely justified. When trans people seek to eliminate phraseology such as “born a boy” from media discourse, it is not out of a desire to deny reality, but rather to correct an incorrect understanding of what assigned sex signifies and what it means to have a gender identity that is not consistent with one’s assigned sex. When trans people decry the language of “becoming a man” or “becoming a woman” being used to describe genital surgery, it is not out of an arbitrary desire to police the language of others, but rather to reinforce that trans men are men and trans women are women, regardless of what surgical procedures they have or have not undergone. Language shapes the narratives that we use to understand the world, and trans people are simply attempting to make space for their narratives through clarity of language.