Comment to Dept. of Labor – Sex / Gender Identity Discrimination and Trans-Exclusionary Health Insurance

This weekend I filed my comment to the Department of Labor’s Office of Federal Contract Compliance Programs, relating to their proposed rule updating the prohibition on discrimination on the basis of sex by Federal contractors.

Before the
Department of Labor
Office of Federal Contract Compliance Programs

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Discrimination on the Basis of Sex
80 Fed. Reg. 5245 (Jan. 30, 2015)

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Submitted by Emily T. Prince, Esq.

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The regulations proposed by the Office of Federal Contract Compliance Programs (OFCCP) are a positive first step in answering the many questions left unresolved by OFCCP in its December 2014 direct final rule implementing Executive Order 13672, prohibiting discrimination by Federal contractors on the basis of sexual orientation and gender identity. As OFCCP correctly notes, discrimination on the basis of sexual orientation and gender identity is also inherently discrimination on the basis of sex, and therefore such discrimination is within the scope of the proposed updates to regulations prohibiting discrimination on the basis of sex.[1] However, there are several areas where the rule requires improvement. Most importantly, § 60-20.6, “Other fringe benefits,” must be revised to clarify that offering insurance contracts that specifically exclude coverage for care related to the transition of the beneficiaries (“trans-exclusionary insurance contracts”) is an unlawful employment practice. Additionally, the text of the rule in § 60-20.2, “General prohibitions,” must be amended to clarify that transgender and non-binary employees must have access to appropriate changing facilities.

Many insurance contracts, including those offered by the Federal government to Federal employees, specifically exclude coverage for care related to the transition of beneficiaries from their sex assigned at birth through clauses that restrict coverage notwithstanding any other provision of the plan. As an illustrative example: since 1974[2] the Federal Employees Health Benefits Program (FEHB Program) has excluded from health insurance for Federal employees any “services, drugs, or supplies related to sex transformation.” Despite a FEHB Program Carrier Letter issued in June 2014,[3] which made clear that the exclusions were voluntary on the part of insurance carriers participating in the FEHB Program, over 95% of the plans available to Federal employees continue to exclude transition-related care.[4] Only 15 plans out of 304 FEHB Program plans available have voluntarily removed the clauses restricting access to medically necessary care on the basis that it is related to the gender identity of the beneficiary. This example makes clear the need for unequivocal action on the part of the Department of Labor to require Federal contractors to eliminate such sex-based discrimination.

It cannot be argued that trans-exclusionary health insurance contracts do not discriminate on the basis of gender identity and on the basis of sex. Whether in the blunt language of FEHB Program’s exclusion of care “related to sex transformation,” or as in examples from the private market, “any procedure or treatment, including hormone therapy, designed to change your physical characteristics from your biologically determined sex to those of the opposite sex” or “all services related to gender dysphoria or gender identity disorder,”[5] such clauses are facially discriminatory. The plain language of such clauses reveals their intent to deny services to individuals solely on the basis of the individual’s gender identity being inconsistent with the individual’s sex assigned at birth. That activity, “treating an employee or applicant for employment adversely because [they have] undergone, is undergoing, or is planning to undergo sex-reassignment surgery or other processes or procedures designed to facilitate the adoption of a sex or gender other than the individual’s designated sex at birth,” is explicitly prohibited in the context of employment actions by the proposed rule at § 60-20.2(b)(11). To allow that exact form of discrimination to go unchecked in one of the places it most frequently appears would be to abdicate the responsibility of OFCCP in prohibiting discrimination on the basis of sex by Federal contractors.

When addressing this issue in response to a Department of Health and Human Services (HHS) request for information on 42 U.S.C. § 18116, prohibiting discrimination on the basis of sex in health care services, numerous organizations spoke out against transition-related exclusions. In public comments, the American Public Health Association,[6] the Center for American Progress,[7] the National Center for Transgender Equality,[8] Lambda Legal,[9] Transgender Legal Defense and Education Fund,[10] the National LGBTQ Task Force,[11] the National Center for Lesbian Rights,[12] the National Women’s Law Center on behalf of 30 other organizations,[13] Human Rights Campaign,[14] and Whitman-Walker Health[15] all spoke out against trans-exclusionary health insurance contracts, and called upon HHS to interpret 42 U.S.C. § 18116 as prohibiting such clauses. HHS has yet to respond to the comments.

These comments draw upon the immense professional consensus that transition-related care is medically necessary and therefore that coverage for care should not be denied solely on the basis that it is related to transition.

The Center of Excellence for Transgender Health at the University of California, San Francisco (the Center) provides recommendations to health care professionals who treat transgender individuals using evidence-based transgender medicine. As the Center states, “Once [an insurance carrier] labels the patient as transgender or transsexual, many types of coverage may be routinely denied, where they would be covered for patients who are not identified as transgender or transsexual. Physicians or their support staff members may need to interact with insurance claims processors on behalf of their transgender or transsexual patients to insist that medically necessary treatments are covered.”[16]

The Center’s statements are consistent with the most recent statements of the foremost authority on transgender health, the World Professional Association for Transgender Health (WPATH). WPATH publishes the Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (SOC), currently in its seventh version.[17] The SOC state, with respect to insurance carriers denying medically necessary care, “In many places around the world, access to health care for transsexual, transgender, and gender-nonconforming people is also limited by a lack of health insurance or other means to pay for needed care. WPATH urges health insurance companies and other third-party payers to cover the medically necessary treatments to alleviate gender dysphoria.”[18]

In 2013, Lambda Legal compiled a list of professional organization statements supporting transgender people in health care, including support for WPATH’s Standards of Care.[19] These organizations include the American Medical Association,[20] the American Psychiatric Association,[21] the American Psychological Association,[22] the American Academy of Family Physicians,[23] the American College of Nurse Midwives,[24] the National Association of Social Workers,[25] the National Commission on Correctional Health Care,[26] and the American College of Obstetricians and Gynecologists.[27]

There is no serious question that the intent and impact of trans-exclusionary health insurance clauses was to discriminate against individuals on the basis of gender identity and against treatment for the diagnosis of “gender identity disorder” or “gender dysphoria.” Any denial of any claim on the basis of these exclusions necessarily constitutes discrimination on the basis of transition from one’s assigned sex at birth. The maintenance of such exclusions is discriminatory in both effect and, by its plain text, its intended application to deny medically necessary care to individuals solely on the basis that the care at issue is for the purpose of transition.

Such discrimination is illegal under Federal law, and Federal agencies and contractors are implicitly forbidden from engaging in such discrimination under the terms of the proposed rule. In Macy v. Holder,[28] the U.S. Equal Employment Opportunity Commission held that discrimination on the basis of gender identity was unlawful discrimination on the basis of sex under Title VII on three separate but equally controlling bases. One of these bases addressed transition. The Commission held that discriminating against the act of transition was discrimination “because of sex,” drawing the analogy that it would be similarly unlawful discrimination “because of religion” to discriminate against someone on the basis of religious conversion. [29] Discrimination against claims for “sex transformation” or other similar exclusion language is necessarily within the scope of the conduct prohibited by Macy.

Because the only possible reading of trans-exclusive health insurance clauses is that they discriminate on the basis of gender identity, the final rule must add a new paragraph to § 60-20.6, “Other fringe benefits,” reading:

(d) It shall be an unlawful employment practice for a contractor to offer health insurance that does not cover care related to gender identity or any process or procedure designed to facilitate the adoption of a sex or gender other than the beneficiary’s designated sex at birth.

While such conduct should also be covered by § 60-20.2(b)(11), an explicit prohibition is necessary to avoid confusion and promote compliance with Executive Orders 11246 and 13672.

Similarly, to avoid confusion, § 60-20.2(b)(9) and (b)(10) must be revised to avoid a drafting error that could be exploited to allow transgender employees to be denied access to changing rooms. Paragraphs (b)(9) and (b)(10) currently read that the following are unlawful employment practices:

(9) Making any facilities and employment-related activities available only to members of one sex, except that if the contractor provides restrooms or changing facilities, the contractor must provide separate or single-user restrooms or changing facilities to assure privacy between the sexes;

(10) Denying transgender employees access to the bathrooms used by the gender with which they identify;

The discrepancy in language between paragraphs (b)(9) and (b)(10) would likely require clarification to ensure that transgender and non-binary employees have access to changing facilities “used by the gender with which they identify,” to use the language of paragraph (b)(10). Changing facilities, along with restrooms, are frequently turned into battlegrounds by those who would deny transgender and non-binary people access.[30] It must be clear that access to such facilities may not be denied on the basis of gender identity. As such, the final rule must be revised to read:

(9) Making any facilities and employment-related activities available only to members of one sex, except that if the contractor provides restrooms or changing facilities, the contractor must provide separate or single-user restrooms or changing facilities to assure privacy between the sexes based on sex and gender identity;

(10) Denying transgender employees access to the bathrooms restrooms or changing facilities used by the gender with which they identify consistent with their gender identity;

This change will ensure that the final rule precludes discriminating against transgender or non-binary employees in access to restrooms or changing facilities.

 

Sincerely,

Emily T. Prince, Esq.

[1] See, e.g., Chris Geidner, “The Growing Effort to Protect LGBT People From Discrimination Under the Civil Rights Act of 1964,” Feb. 18, 2015, available at http://www.buzzfeed.com/chrisgeidner/the-growing-effort-to-protect-lgbt-people-from-discriminatio (citing a February 3, 2015 EEOC memo from the Office of Field Programs stating “(1) Complaints of discrimination on the basis of transgender status or gender-identity-related discrimination should be accepted under Title VII and investigated as claims of sex discrimination in light of Commission precedent; and (2) Individuals who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a charge with the EEOC, and their charges should be accepted under Title VII and investigated as claims of sex discrimination in light of Commission precedent.”)

[2] See United States Office of Personnel Management, FOIA Response FOIA/PA 2014-03980, Aug. 7, 2014, available at http://www.emily-esque.com/wp/wp-content/uploads/2015/03/2014-08-25-FOIA-Response-from-OPM-re-Transgender-Exclusions-redacted.pdf.

[3] United States Office of Personnel Management, FEHB Program Carrier Letter No. 2014-17, June 13, 2014, available at http://www.opm.gov/healthcare-insurance/healthcare/carriers/2014/2014-17.pdf.

[4] See United States Office of Personnel Management, FOIA Response 2015-00122, Nov. 24, 2014, available at http://www.emily-esque.com/wp/wp-content/uploads/2014/11/FY-2015-00122-Emily-T-Prince-Transgender-Final-11-24-14_Redacted.pdf. See also Emily Prince, “OPM Continues to Have Nothing New to Say About Anti-Trans Discrimination,” Nov. 26, 2014, available at http://www.emily-esque.com/wp/?p=464 (calculating the percentage of health carriers continuing to exclude transition-related care).

[5] Kellan Baker and Andrew Cray, Center for American Progress, “Ensuring Benefits Parity and Gender Identity Nondiscrimination in Essential Health Benefits,” Nov. 15, 2012, available at https://www.americanprogress.org/wp-content/uploads/2012/11/BakerHealthBenefits-2.pdf.

[6] American Public Health Association, “Comment on Department of Health and Human Services: Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities,” Sep. 30, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0117.

[7] Center for American Progress, “Comment on Department of Health and Human Services: Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities,” Sep. 30, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0084.

[8] National Center for Transgender Equality, “Comment on Department of Health and Human Services: Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities,” Sep. 30, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0155.

[9] Lambda Legal, “Comment on Department of Health and Human Services: Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities,” Sep. 30, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0161.

[10] Transgender Legal Defense and Education Fund, “Comment on Department of Health and Human Services: Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities,” Sep. 30, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0158.

[11] National LGBTQ Task Force, “Comment on Department of Health and Human Services: Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities,” Oct. 17, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0105.

[12] National Center for Lesbian Rights, “Comment on Department of Health and Human Services: Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities,” Sep. 30, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0145.

[13] National Women’s Law Center on Behalf of 30 Organizations, “Comment on Department of Health and Human Services: Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities,” Sep. 30, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0125.

[14] Human Rights Campaign, “Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities,” Sep. 30, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0039.

[15] Whitman-Walker Health, “Response of Whitman-Walker Health to Request for Information on Regulations to Implement the Nondiscrimination Requirements in Section 1557 of the Affordable Care Act,” Sep. 30, 2013, available at http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2013-0007-0063.

[16] Insurance Issues, Primary Care Protocol for Transgender Patient Care, Center of Excellence for Transgender Health, University of California, San Francisco, Department of Family and Community Medicine, April 2011, available at http://transhealth.ucsf.edu/trans?page=protocol-insurance.

[17] Standards of Care Version 7, World Professional Association for Transgender Health, 2011, available at http://admin.associationsonline.com/uploaded_files/140/files/Standards%20of%20Care,%20V7%20Full%20Book.pdf.

[18] Id. at 33.

[19] Lambda Legal, Professional Organization Statements Supporting Transgender People in Health Care, July 2, 2013, available at http://www.lambdalegal.org/sites/default/files/publications/downloads/fs_professional-org-statements-supporting-trans-health_4.pdf.

[20] American Medical Association, Resolution H-195.950, Removing Financial Barriers to Care for Transgender Patients, (Res. 122; A-08).

[21] American Psychiatric Association, Position Statement on Access to Care for Transgender and Gender Variant Individuals, 2012, available at http://www.psych.org/File%20Library/Advocacy%20and%20Newsroom/Position%20Statements/ps2012_TransgenderCare.pdf; American Psychiatric Association, Position Statement on Discrimination Against Transgender and Gender Variant Individuals, 2012, available at http://www.psychiatry.org/File%20Library/Advocacy%20and%20Newsroom/Position%20Statements/ps2012_TransgenderDiscrimination.pdf.

[22] American Psychological Association, Transgender, Gender Identity, & Gender Expression Non-Discrimination, 2008, available at http://www.apa.org/about/policy/transgender.aspx.

[23] American Academy of Family Physicians, Transgender Care, Resolution No. 1004, 2012, available at http://www.aafp.org/dam/AAFP/documents/about_us/special_constituencies/2012RCAR_Advocacy.pdf.

[24] American College of Nurse Midwives, Transgender / Transsexual / Gender Variant Health Care, 2012, available at http://www.midwife.org/ACNM/files/ACNMLibraryData/UPLOADFILENAME/000000000278/Transgender%20Gender%20Variant%20Position%20Statement%20December%202012.pdf.

[25] National Association of Social Workers, Transgender and Gender Identity Issues, 2008, available at https://www.socialworkers.org/da/da2008/finalvoting/documents/Transgender%202nd%20round%20-%20Clean.pdf.

[26] National Commission on Correctional Health Care, Transgender Health Care in Correctional Settings, 2009, available at http://www.ncchc.org/transgender-health-care-in-correctional-settings.

[27] American College of Obstetricians and Gynecologists, Health Care for Transgender Individuals, 2011, available at http://www.acog.org/Resources_And_Publications/Committee_Opinions/Committee_on_Health_Care_for_Underserved_Women/Health_Care_for_Transgender_Individuals.

[28] Macy v. Holder, U.S. Equal Employment Opportunity Commission Appeal No. 0120120821 (April 20, 2012).

[29] Id. at 13-14; see also Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008).

[30] See, e.g., Marianne Mollmann, International Gay and Lesbian Human Rights Commission, “Enough with the Bathrooms: Stigma, Stereotypes, and Barriers to Trans Equality,” May 28, 2014, available at http://www.huffingtonpost.com/marianne-mollmann/enough-with-the-bathrooms_b_5043042.html; Luke Brinker and Carlos Maza, “15 Experts Debunk Right-Wing Transgender Bathroom Myth,” Mar. 20, 2014, available at http://mediamatters.org/research/2014/03/20/15-experts-debunk-right-wing-transgender-bathro/198533; see also Mark Joseph Stern, “Florida’s Vicious Anti-Trans Bathroom Bill Easily Survives Its First Vote,” Mar. 5, 2015, available at http://www.slate.com/blogs/outward/2015/03/05/florida_trans_bathroom_bill_easily_survives_first_vote.html, Jack Brammer, “In Surprise Vote, Kentucky Senate Panel Approves Limits on Transgender Students’ Choices,” Feb. 23, 2015, available at http://www.kentucky.com/2015/02/23/3710823_in-surprise-vote-kentucky-senate.html, and Mitch Kellaway, “Texas Bill Would Jail Those Whose Chromosomes Don’t Match the Restroom They’re Using”, Feb. 24, 2015, available at http://www.advocate.com/politics/transgender/2015/02/24/texas-bill-would-jail-those-whose-chromosomes-dont-match-restroom-th (discussing state legislative attempts in Florida, Kentucky, and Texas to prevent transgender, non-binary, and intersex people from using restrooms consistent with their sex and gender identity in defiance of Federal law).