Category Archives: Freedom of Information Act

FOIA to HHS – Complaints for Denial of Coverage for Transition-Related Care

While the Department of Health and Human Services (HHS) finalizes its proposed rule prohibiting discrimination on the basis of gender identity in covered health programs, the question remains: what has HHS been doing since March 2010 to enforce the statute which prohibited such discrimination, 42 U.S.C. § 18116? To that end, I have FOIAed the following documents from HHS:

Any and all documents since March 23, 2010 establishing a complaint against a health insurance carrier for discrimination on the basis of gender identity, specifically by denying coverage for transition-related care such as mental health treatment, hormone replacement therapy, or gender affirming surgeries such as genital reconstructive surgery.
Any and all documents since March 23, 2010 closing a complaint against a health insurance carrier for discrimination on the basis of gender identity, specifically by denying coverage for transition-related care such as mental health treatment, hormone replacement therapy, or gender affirming surgeries such as genital reconstructive surgery.
Any and all documents establishing current guidance, rules, or similar content used by the Department of Health and Human Services to determine how to resolve complaints against a health insurance carrier for discrimination on the basis of gender identity, specifically by denying coverage for transition-related care such as mental health treatment, hormone replacement therapy, or gender affirming surgeries such as genital reconstructive surgery.

The focus on transition-related care is purposeful; while we know that HHS has been taking some action to address other forms of discrimination against transgender people, I am unaware of any action by HHS, outside of its pending rule, to address this endemic form of discrimination by health insurance companies. Complaints have been made (including one complaint I filed in response to particularly overt discrimination by CareFirst, filed in November 2014), but they don’t seem to ever get resolved.

The FOIA response should reveal how many complaints there are on this issue, how many have been closed (and what disposition), and how HHS formally considers them.

FOIA Request to Department of Education – Discrimination on the Basis of Gender Identity with Respect to Restrooms and Other Sex-Segregated Facilities

Given that school districts feel free to continue to discriminate against transgender students with respect to access to restrooms and other sex-segregated facilities, I have requested the following information from the Department of Education:

Any and all documents establishing current guidance, rules, or similar content for educational institutions how to comply with Title IX’s prohibition on discrimination on the basis of gender identity with respect to the use of restrooms and other similar sex-segregated facilities.
Any and all documents establishing current guidance, rules, or similar content used by the Department of Education to determine whether a particular educational institution’s policies on the use of restrooms and other similar sex-segregated facilities by transgender individuals violate the ban on discrimination on the basis of gender identity contained within Title IX.

The text of the full FOIA is below. Continue reading →

OPM Continues to Have Nothing New to Say about Anti-Trans Discrimination

Since June 13, 2014, it has been the explicit policy of the U.S. government to discriminate on the basis of gender identity with respect to health insurance.

I have attempted since that date to get the Administration to rectify this discrimination. It has failed to do so.

In a November 24 discussion of Federal benefits, the Office of Personnel Management chose to address the question squarely:

https://twitter.com/emily_esque/status/536863422621962240

Here’s the offending language:

You might notice that the woman called on to respond is reading the June 13 letter that was referenced in my question, which she clearly had at the ready to read, verbatim, as an answer to the question. This is what OPM considers “responsiveness.”

The gentleman hosting that call was Alan P. Spielman, Assistant Director for Federal Employee Insurance Operations in OPM’s Healthcare and Insurance Program Division. Sometime that same day, November 24, 2014, Mr. Spielman signed the response to my FOIA request of July 29, 2014. Again, this is what OPM considers “responsiveness.”

In that FOIA response, OPM provides a complete list of plans that do not discriminate on the basis of gender identity. There are 304 FEHB plans.

That’s 15. 15 plans out of 304, or less than 5%, do NOT discriminate on the basis of Gender Identity.

Under current OPM policy, the other 289 health insurance carriers may continue to exclude care solely because it is a “service, drug, or supply related to sex transformations.” That means that even if a service is covered, if it is related to a “sex transformation” (i.e. transition, described using the most offensive language possible), a carrier may exclude it. Under FEHB regulations, OPM accepts legal responsibility for each of these health insurance plans.

Under Macy v. Holder, such discrimination is illegal. Under Title VII, such discrimination is illegal. Under the President’s Executive Order of July 21, 2014 (EO 13,672) such discrimination is illegal.

The Office of Personnel Management clearly does not care.

Thanks to Amélie E. Koran for compiling information on the total number of plans and their general lack of trans-inclusiveness.

Response to Continued OPM Stonewalling

I don’t normally post every back-and-forth in my attempts to shake things loose from the bureaucracy (as there are many and they are generally boring). However, it has been 68 days since I submitted a FOIA request to OPM requesting the responses to Federal Employee Health Benefits (FEHB) Program Carrier Letter 2014-17 (which announced that OPM would continue to discriminate on the basis of gender identity at the behest of insurers) in order to get a sense of how many insurers would actually be offering trans-inclusive health insurance in plan year 2015. To date, OPM has failed to respond to the FOIA request, including not even acknowledging receipt.

Since they’ve decided to stonewall, I’ve decided to escalate. First, I’ve now included the Office of Civil Rights at my employing agency, since OPM is continuing to discriminate against all transgender Federal employees, myself included.

Second, in the coming days, I will be referring the matter to my Senator, Sen. Tim Kaine, because letters from the Hill tend to actually force responses loose from Federal agencies. The letter will also address the complete lack of response OPM has had to my Petition for Reconsideration, filed back in August, to their “nondiscrimination” rule that still allows discrimination against transgender Federal employees through FEHB.

By the time I receive a response, it may well be “open season,” the period of the year when insurers plans for the next year are posted online for anyone to review any plan. However, I nonetheless hope OPM responds, as manually culling through volume after volume of plan brochures to find which are discriminating and which are not is a heap of unnecessary work given that OPM requested (and presumably received) a simple list of which insurers are which.

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

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

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?

Emily Esque

Fighting for Justice through Bureaucratic Black Magic