Category Archives: Issues

Supplemental Evidence for Petition for Reconsideration: Office of Personnel Management and Trans-Exclusionary Health Insurance Contracts

On August 25, 2014, I submitted a succinct Petition for Reconsideration to the Office of Personnel Management, asking that the agency reconsider its decision not to address discrimination on the basis of gender identity in Federal employee health benefits (FEHB) in its July 2014 rulemaking updating its nondiscrimination provisions.  This discrimination was recently discussed during a BuzzFeed interview with the President.

While I was expecting a response in the coming weeks, I was concerned that my original Petition did not provide sufficient evidentiary support for OPM to do the right thing and end these discriminatory insurance provisions.  As such, today I filed a supplement to the Petition, including statements on the issue from the University of California, San Francisco, Center of Excellence for Transgender Health, the World Professional Association for Transgender Health, Lambda Legal, the American Medical Association, the American Psychiatric Association, the American Psychological Association, the American Academy of Family Physicians, the American College of Nurse Midwives, the National Association of Social Workers, the National Commission on Correctional Health Care, and the American College of Obstetricians and Gynecologists.  The supplement also makes clear the basis for potential litigation on the issue, including the President’s executive orders on discrimination on the basis of sex and gender identity, recent Equal Employment Opportunity Commission decisions, Federal statutes prohibiting discrimination on the basis of sex in health care activities, and the Fourteenth Amendment.

OPM has not yet provided a revised estimate of when it will be responding to the Petition.

UPDATE: OPM has acknowledged receipt of the supplement, but has declined to provide a revised estimate of when it will respond.

OPM no timeline on response to Petition

Question for President Obama on Trans-Exclusionary Health Insurance for Federal Employees

UPDATE: The full transcript of the interview is now available.  Here’s the relevant exchange:

BuzzFeed News: I want to move to the big LGBT news of yesterday, but first we had a very specific question from a reader who worked for you, a federal lawyer who’s transgender named Emily Prince. Federal policy bars discrimination against transgender people under health care plans covered under the ACA, but federal worker plans largely don’t cover gender reassignment surgery. Should they?

Obama: You know, I haven’t looked at that policy. My general view is that transgender persons, just like gays and lesbians, are deserving of equal treatment under the law. And that’s a basic principle. As you mentioned, my sense is that the Supreme Court is about to make a shift, one that I welcome, which is to recognize that — having hit a critical mass of states that have recognized same-sex marriage — it doesn’t make sense for us to now have this patchwork system and that it’s time to recognize that, under the equal protection clause of the United States, same-sex couples should have the same rights as anybody else.

I’m grateful that BuzzFeed asked the question, and I’m disappointed but not surprised by the President’s decision to pay lip-service to transgender equality and then move to “more comfortable” ground of marriage equality. The Administration has been dodging this question for approximately eight months now.  Hopefully the OPM response to my Petition for Reconsideration will be more substantive.

BuzzFeed is interviewing President Obama on Tuesday and soliciting comments from their readership.  Since they’ve been so solid on trans issues, I’m hoping this question that I submitted (or one like it) makes it through:

Mr. President, while the Justice Department is arguing that discrimination against transgender people is illegal, why does your Administration still choose to discriminate against transgender Federal employees in our health insurance?

95% of plans say they won’t cover anything related to being trans, and your Administration decided again just last June to let them do that. When will transgender Federal employees be able to choose these plans, confident that our care will be covered?

Follow-up:
You said in the State of the Union you wanted to advocate for transgender people on the world stage. How can the U.S. be a credible voice on these issues while continuing to directly discriminate against trans people in employment, in military service, in health care?

In June 2014, the Office of Personnel Management announced it would “remove the requirement” for transition-related care to be excluded from health insurance coverage.  This left the exclusion at the whim of insurance companies.  Ever since, I have been pressing the Office of Personnel Management quite hard to ask – why were insurance companies permitted to continue discriminating against transgender Federal employees?

In July 2014, I held a meeting with the White House Office of Information and Regulatory Affairs to ask that question.  They had no answer then.  When the rule was published I submitted a Petition for Reconsideration, formally asking OPM to reconsider its decision to not address this ongoing discrimination on the basis of gender identity within the Federal government.  I demanded the records that OPM held concerning the choices plans were making as to covering or not covering transition-related care.  I continued to press OPM for answers during a November 2014 town hall with Federal employees, and they continued to have none.  The records request was finally handled, with only a brief period between the response and the end of Federal open season, when Federal employees became locked into their health plans for another year.

In December 2014, associated with the Department of Labor rulemaking regarding Federal contractors, I sent a letter to OPM (alongside DOL) asking about this continued discrimination against transgender Federal employees.  That letter has yet to receive a response.

Just two weeks ago, during a civil rights symposium at my employing agency, I sent OPM a question about trans-exclusionary health insurance for their open question-and-answer session on employment topics.  OPM declined to respond, stating that a response would be provided in writing at a future date.

To date, OPM has yet to respond to my August 2014 Petition for Reconsideration, though they have suggested a response will be forthcoming this month.  To date, OPM has not responded to my many questions circling around this key point:

Why were insurance companies allowed to continue to discriminate against transgender Federal employees by excluding coverage for transition-related care?

When will it stop?

Comment to NY Department of Health – Access to Care for Transgender Minors Through Medicaid

In mid-December the New York Department of Health published proposed regulations expanding Medicaid to include transition-related care (full regulatory text available here).  Unfortunately, the proposed rule excludes payment for coverage for hormone replacement therapy or gender-affirming surgeries for those under the age of 18.  While there are other issues (such as the extensive list of procedures not covered), I felt the denial of coverage for transgender teens was the most important element to address.

The PDF of the comment is available here; the full text of the comment is below.

Continue reading →

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.

Questions for USOPM Director of Diversity and Inclusion Regarding Trans-Exclusionary Federal Insurance Policies

Today, the Department of Transportation Office of Civil Rights announced its 2015 DOT Civil Rights Virtual Symposium.  The Symposium includes the following program:

“Dear OPM: I have a problem, what do I do?”
Veronica Villalobos, Director, Office of Diversity and Inclusion, Office of Personnel Management
This “Dear OPM” session will feature a column style conversation addressing guidance on inclusion efforts in the Federal workplace such as transgender policies, religious accommodation, pregnancy, disability, among others.

I have attempted to correspond with Ms. Villalobos and her office several times in an effort to get an answer on the trans-exclusionary health insurance policies offered to Federal employees by OPM.  So far, OPM has steadfastly refused to say anything more.

As an attendee of the program I was given the opportunity to ask a question.

 

Veronica Villalobos
Director
Office of Diversity and Inclusion
U.S. Office of Personnel Management
veronica.villalobos@opm.gov

Dear Ms. Villalobos:

Before I ask my question, I’d like to thank your office for the 2011 guidance on gender identity issues that may arise in the workplace, particularly when an employee transitions at work. I know that the guidance has helped many trans people; I know it helped me when there were some individuals who didn’t understand that, as a woman, I would be using the women’s restroom at work. As the Department of Labor considers how to implement Executive Order 13672, prohibiting discrimination on the basis of sexual orientation and gender identity by Federal contractors, they should look to OPM’s leadership on the issue.

My question comes to that leadership, and where it has unfortunately been lacking. In June 2014, after many delays and a nontrivial amount of litigation, OPM finally made a minor update to its policy on gender identity with respect to health insurance. In FEHB Program Carrier Letter 2014-17, OPM claimed to “remove the requirement” that all FEHB brochures exclude “services, drugs, or supplies related to sex transformations” categorically, regardless of medical necessity. Instead, carriers would now have “one of two options” – covering this care without discriminating on the basis of gender identity, or maintaining the general exclusion and denying medically necessary care on the basis of gender identity.

If you’ll forgive a brief aside, it’s worth noting here that OPM later admitted in a FOIA response that there was no such requirement on record. One year prior, in plan year 2014, one health insurance carrier, Kaiser in California, offered trans-inclusive health insurance, despite the purported requirement, with full knowledge and consent of OPM. There was no requirement – there was a practice, a practice OPM’s carrier letter permitted to continue.

Digression aside: OPM’s minor update to its policy on gender identity and health insurance led to only a minor change. Of the 304 FEHB plans, 15 (or less than 5%) eliminated the discriminatory provision. Under current OPM policy, the other 289 health insurance carriers (including the single carrier insuring over 63% of Federal employees) 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. medical transition, described using grossly offensive language), a carrier may exclude it. Under FEHB regulations, OPM accepts legal responsibility for each of these health insurance plans.

The Department of Justice is filing briefs stating that discrimination on the basis of gender identity is discrimination on the basis of sex. Under the 2012 EEOC decision Macy v. Holder, such discrimination is illegal. Under Title VII, such discrimination is illegal. Under Executive Order 13672, such discrimination is illegal.

Here is my question:

Can we hope that the Office of Personnel Management will prohibit trans-exclusionary health insurance policies in plan year 2016?

Until then, why does the Office of Personnel Management continue to tolerate discrimination on the basis of gender identity within the express terms of the contracts it makes with health insurance plans?

When the Office of Personnel Management’s Office of Diversity and Inclusion updated its regulations on nondiscrimination provisions, why did it choose to ignore its FEHB contracts?

Why has your own office failed to respond to these issues when brought to your attention, such as the letter I sent your office on December 9 and January 15, or the work of any number of organizations advocating for transgender equality, or amidst a quiet but steady stream of litigation on this issue?

When will the Office of Personnel Management show leadership and ban trans-exclusionary health insurance policies, so that the Department of Labor and the Department of Health and Human Services can enforce the Affordable Care Act’s prohibition on discrimination on the basis of gender identity for all Americans?

Quite simply, the effort to ban health insurance contracts that discriminate on the basis of gender identity cannot succeed through Federal action until the Federal government ends its own discrimination against transgender Federal employees. Until your office acts, the Department of Labor and the Department of Health and Human Services are hamstrung in any efforts they may make to eliminate such discrimination – after all, the Federal government permits the discrimination for its own employees.

Sincerely,

— Emily T. Prince, Esq.

Response from Department of Education: Schools Must Treat Students Consistent with Gender Identity in Sex-Segregated Facilities

In response to a letter I wrote the Department of Education last month, the Department of Education’s Office of Civil Rights has now clearly stated that transgender students must be treated consistent with their gender identity in their use of sex-segregated facilities:

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.

The letter was signed by the Acting Deputy Assistant Secretary for Policy and the Office of Civil Rights, indicating that it is substantial guidance that may be relied upon by other entities in determining compliance with Title IX.

New Letter to OPM: Failure to Timely Respond to Petition for Trans-Inclusive Health Insurance for Federal Employees

UPDATE: Ms. Wong is, as of October 2014, on the Board of Governors for the Human Rights Campaign. That would seem to be a conflict, since HRC is theoretically opposed to Ms. Wong’s activities at OPM. At OPM, she is responsible for a recent nondiscrimination rule that failed to address ongoing and persistent illegal discrimination by OPM against transgender Federal employees.

Sharon Wong
Deputy Director for Coordination and Policy
Office of Diversity and Inclusion
Office of Personnel Management

Transmitted via email

Ms. Wong,

I’m not sure what cause there is for the delay in response to my Petition for Reconsideration, filed with your office on August 25, 2014. While I’ve been unable to find OPM’s rules of practice for Petitions for Reconsideration, I do know that my employing agency handles them much quicker by rule. 49 CFR §211.31 provides a period of four months for responses to Petitions for Reconsideration, and that is for an agency that regularly promulgates technically complicated rules with net societal benefits in the billions of dollars.

It has been over four months since my Petition was filed. OPM’s failure to respond to my Petition in a timely fashion is demonstrative of OPM’s general failure to treat transgender Federal employees with respect. This lack of respect is exemplified by the June 13, 2014 FEHBP carrier letter 2014-17 in which OPM acknowledged that transition-related care is medically necessary but nonetheless, in defiance of Macy v. Holder, continues to allow insurers to discriminate on the basis of transition in their offerings of health insurance coverage. This lack of respect was further demonstrated on November 24, 2014, when OPM answered a question about the matter during a Google Hangout on Federal benefits by simply reiterating the contents of the offending letter.

I continue to look forward to a substantive response from your office, as well as looking forward to the day when I am not discriminated on the basis of my gender identity as a Federal employee.

Sincerely,
— Emily T. Prince, Esq.

cc: Kamala Vasagam, General Counsel, Office of Personnel Management

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 →

Letter to Department of Education: Questions Concerning Transgender Students and Access to Restrooms

Ms. Massie Ritsch
Acting Assistant Secretary
Office of Communications and Outreach
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202

Transmitted via e-mail

Dear Ms. Ritsch*:

Last week, numerous reporters wrote stories regarding the actions of a school board in Gloucester County, Virginia. In response to the presence of a transgender student in the local high school, the school board passed the following proposal, establishing it as official policy for Gloucester County Public Schools:

Whereas the GCPS (Gloucester County Public Schools) recognizes that some students question their gender identities, and

Whereas the GCPS encourages such students to seek support and advice from parents, professionals and other trusted adults, and

Whereas the GCPS seeks to provide a safe learning environment for all students and to protect the privacy of all students, therefore

It shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with sincere gender identity issues shall be provided an alternative private facility.

The U.S. Department of Education has recently received praise from the transgender community for noting in several guidance documents that Title IX’s ban on discrimination on the basis of sex includes, consistent with the Equal Employment Opportunity Commission’s decision in Macy v. Holder, discrimination on the basis of gender identity. It is my sincere hope that the Department will continue to provide such guidance, particularly on this issue that so frequently erupts whenever states or localities consider prohibiting discrimination on the basis of gender identity.

While I understand that the Department is unable to comment on any matters that may be under investigation, this story does raise a question: does the Department have any guidance or rules for what is or is not acceptable for a school to do when establishing policies for transgender students to access restrooms and other similar sex-segregated facilities? Specifically, the articles lead the reader to a number of questions:

  • Does the Department have guidance or rules on whether a transgender student may be required to use a different restroom than other students, such as a restroom in a nurse’s office or a restroom designated for school employees?
  • Does the Department have guidance or rules on whether an organization such as a school, a school district, or a university may limit access to facilities to only those whose gender identity is consistent with their sex assigned at birth (i.e., cisgender individuals)?
  • Has the Department communicated any guidance or rules on these questions to organizations such as schools, school districts, or universities to eliminate unnecessary confusion over proper implementation of Title IX?

I have copied one of the writers, Ms. Barbara King, a contributor to NPR and Chancellor Professor of Anthropology at the College of William and Mary, who wrote about the topic in an NPR blog post on December 11, 2014. I will gladly share your response with the authors of the other news stories I have seen on this issue, such as Dominic Holden of BuzzFeed and John Riley of Metro Weekly.

I look forward to working with your office to answer these questions.

Sincerely,

Emily T. Prince, Esq.

cc: Barbara J. King, Chancellor Professor of Anthropology, College of William and Mary

* – Ms. Ritsch has recently left Federal service, and the message was therefore forwarded to her designee.

Letter to FDA: Decision of Blood Products Advisory Committee Regarding “MSM” Ban

UPDATE (December 23, 2014 4:00 pm): I contacted the FDA to inquire again about the policy, since I continue to see it referred to as a ban on “men who have sex with other men” and was told that the office was “reluctant” to issue a response prior to announcing today’s potential policy shift, even though my question doesn’t relate to the change from lifetime deferral to one-year celibacy period.

Lorrie H. McNeill
Director
Office of Communication, Outreach and Development
Center for Biologics Evaluation and Research
Food and Drug Administration
10903 New Hampshire Avenue
Building 71 Room 4120
Silver Spring, MD 20993-0002

Transmitted via e-mail

Re: Decision of Blood Products Advisory Committee Regarding “MSM” Ban

Dear Ms. McNeill,

I was disappointed to hear of the recent decision by the FDA’s Blood Products Advisory Committee to remain silent on the question of whether to eliminate the ban on blood donation from “men who have sex with other men at any time since 1977,” sometimes referred to as the “MSM” ban. However, when I contacted your office for more information I was horrified to hear confirmed that the FDA, to this very day, considers sex assignment at birth both immutable and internet, such that transgender women and other individuals assigned male at birth are perpetually considered “men” for the purposes of the ban.

This fact underscores the arbitrary and capricious nature of the “MSM” ban. Rather than looking at actual risk factors, the FDA has concluded that if a person born with (probably) a penis and assigned male at birth, the fact of that person’s sexual interaction with another person born with (probably) a penis and assigned male at birth renders both individuals categorically tainted and ineligible to donate blood. The set of people affected by the “MSM” ban includes the following pairs:

  • a cisgender heterosexual man who has a sexual relationship with a transgender heterosexual woman;
  • a transgender homosexual woman who has a sexual relationship with another transgender homosexual woman;
  • a transgender bisexual woman who has a sexual relationship with a genderqueer person assigned male at birth; and
  • a genderqueer person assigned male at birth who has a sexual relationship with a cisgender bisexual man.

This policy creates significant harm to transgender people and people with non-binary gender identities, for instance by reifying the false belief that transgender women are “actually men.” This incorrect understanding of what it means to be transgender underlies so much discrimination against transgender people. In a month where the Department of Labor has finally begun the hard work of eliminating discrimination on the basis of sexual orientation and gender identity among Federal contractors, the FDA’s Blood Products Advisory Committee’s decision is particularly frustrating.

When the full reach of the “MSM” ban is stated, the purported basis for the ban falls away. The policy can include cisgender men of any sexual orientation, transgender women of any sexual orientation, and anyone with a non-binary gender identity who was assigned male at birth who has sexual relationships with anyone else assigned male at birth. Yet the FDA, in defiance of its own acknowledged interpretations, continues to refer to it as a ban on donations by “men who have sex with men” and defends it against salient attacks by the American Red Cross, the American Association of Blood Banks, America’s Blood Centers, the American Medical Association, and patient groups such as the National Hemophilia Foundation. In response to the sound science presented by these organizations, the FDA responds with flawed statistics about “men who have sex with men” without even acknowledging the full set of people impacted by the ban.

Were the FDA to attempt to defend its actual policy, rather than the straw-man it has created, it would be forced to admit that sex assignment at birth does not meaningfully impact the risk of contracting HIV, and that there are too many confounding variables in the total population affected to justify categorically prohibiting all donations from that population for life.

I look forward to hearing from your office regarding how the FDA will improve its rules regarding blood donations in the future to eliminate this arbitrary and capricious ban.

Sincerely,

Emily T. Prince, Esq.

cc:
Jocelyn Samuels, Director, Office of Civil Rights, U.S. Department of Health and Human Services