It's been an exciting week for trans* folks here in the US. Let's recap the events so far:
The Obama Administration started its full court press to protect transgender rights across the board.
Monday, May 9, 2016: Loretta Lynch and Vanita Gupta stand against North Carolina's HB-2.
Attorney General Loretta Lynch and AAG Vanita Gupta validated our identities and our politics with the long arm of the law in filing a federal civil rights lawsuit against North Carolina's transphobic HB-2.
Friday, May 13, 2016: Department of Education and Department of Justice defend trans* access to public facilities.
Then, the DOJ and the Department of Education issued guidance to schools across the country that transgender students must be afforded equal access to public facilities in accordance with their gender identity, such as bathrooms and locker rooms.
...they also finalized a rule Friday on the Affordable Care Act's Section 1557 -- extending insurance protections to trans* folks by tying insurance requirements to existing interpretations of sex discrimination.
I know, I know. Gender transition services are notoriously expensive. Many of us resign ourselves to not being able to afford surgical intervention, for example, until much later in life due to its prohibitively high price.
But it's true. It's a complicated question, for sure, but the flexibility of the DHHS ruling is actually better for trans* patients for the future. I thought it would be a good idea to look at some of the commentary to explain what people mean when they say the federal government requires insurance coverage.
In short, there are a few key provisions in the full DHHS commentary that provide transgender and gender some sense of security when it comes to their ability to access gender-affirming care.
- DHHS used existing interpretations of sex discrimination that include gender identity.
- They extended protection to transgender, genderqueer, and gender non-conforming individuals alike.
- They also established a 'fair play' standard when it comes to claims of discrimination in transgender insurance coverage.
- DHHS also explicitly refused to require insurance providers include any particular treatment or procedures in transition-related coverage.
Let's look at a couple of their comments (all emphasis mine):
1. DHHS deployed existing interpretations of sex discrimination that include gender identity, instead of creating new policies.
Comment: A significant number of commenters commended our inclusion of gender identity and sex stereotyping in the definition of “on the basis of sex” and noted that the inclusion is consistent with a growing body of legal precedent. Some commenters suggested OCR add transgender status and gender expression in the definition of “on the basis of sex” in order to make explicit our intention to protect individuals on these bases, consistent with previous court and Federal agency interpretations.
The DHHS notes that they received a 'significant' amount of commentary from the public that affirmed their intent to include gender identity under existing interpretations of sex discrimination or sex stereotyping. They specifically note that some commenters pointed to some of these already-existing legal interpretations in their comments.
Better yet, the DHHS directly addressed commentary from anti-trans* protesters, who commented that simply including transgender or "non-biological" people infringed on employees' right to privacy:
Conversely, a few commenters opined that the inclusion of gender identity discrimination as a form of discrimination on the basis of sex was based on erroneous interpretations of Title IX legislative history because Congressional intent to ban sex discrimination was based only on the biological classifications of males and females, not gender identity. A few commenters thought that OCR’s reliance on previously adopted Federal agencies’ interpretations was weak and unpersuasive and that the reliance on cases arising under Federal civil rights laws other than Title IX was misplaced, further pointing to a few recent court decisions under Title IX that rejected claims that discrimination on the basis of sex includes discrimination on the basis of gender identity. A few commenters also suggested that the inclusion of “gender identity” as a prohibited basis of discrimination on the basis of sex may infringe upon individual patients’ constitutional right to privacy by requiring those patients to participate in sex-specific programs or activities with a “non-biological” male or female and additionally contravenes employees’ and faith-based organizations’ religious beliefs by forcing them to participate in services affirming gender identity in violation of their religious convictions.
The DHHS responded by stating that this interpretation is merely a clarification of existing federal court and agency precedents for the purposes of bringing the enforcement of the Affordable Care Act into accordance with other agency rulings.
Furthermore, because they defined 'gender identity' as an inherent part of 'sex' and the DHHS found the further specification of 'transgender' or 'gender expression' superfluous to their definitions, we can rightly conclude that they're acknowledging gender as more of a spectrum than a binary.
Response: The definition of “on the basis of sex” established by this rule is based upon existing regulation and previous Federal agencies’ and courts’ interpretations that discrimination on the basis of sex includes discrimination on the basis of gender identity and sex stereotyping. While OCR appreciates the commenters’ request that we add transgender status and gender expression to the definition of “on the basis of sex,” we do not believe that it is necessary to add these terms to the definition. As previously stated, we encompass these bases in the definition of “gender identity”; thus, references to “gender identity” include “gender expression” and “transgender status.” Because the definition of “on the basis of sex” includes gender identity, further reference to transgender status or gender expression here is superfluous.
Specifically, DHHS points to Price Waterhouse v. Hopkins, which clarified that sex stereotypes in general, including those based in pretense about gender, are the target of the court's interest in sex discrimination cases.
This aligns with Title IX guidance issued by the Department of Education as well as the Fourth Circuit's decision that federal agencies are generally entitled to the interpretation of the policies they issue. In this case, they specified that access to bathrooms for transgender students was not only correct, but that an agency's interpretations of its own policy generally hold weight over new challenges.
OCR also believes that its inclusion of gender identity is well grounded in the law and disagrees with those commenters who argued to the contrary. As the Supreme Court made clear in Price Waterhouse v. Hopkins, in prohibiting sex discrimination, Congress intended to strike at the entire spectrum of discrimination against men and women resulting from sex stereotypes. Courts after Price Waterhouse interpret Title VII’s protections against discrimination on the basis of sex as encompassing not only “sex,” or biological differences between the sexes, but also “gender” and its manifestations.
OCR’s approach accords with well-accepted legal interpretations adopted by other Federal agencies and courts. For example, Title IX Guidance issued by the U.S. Department of Education generally requires recipients of federal financial assistance to treat transgender students consistent with their gender identity. The Fourth Circuit reversed a lower court decision dismissing the Title IX sex discrimination claim of a transgender student prohibited from using the school bathroom consistent with his gender identity, holding that the Department of Education’s interpretation of its regulation was not plainly erroneous, and thus was entitled to controlling weight.
2. Tying gender identity to sex discrimination extended protections to transgender, genderqueer, and gender non-conforming individuals alike.
As we alluded in the prior note, DHHS found the specification of 'transgender' or 'gender expression' superfluous to their interpretation that sex discrimination inherently includes gender identity as a protected characteristic.
Here, though, the DHHS specifically addresses commentary on non-binary identities to clarify its own language on the question specifically for the purpose of including non-binary gender identity.
Comment: Several commenters suggested that we revise the definition of “gender identity” to reference non-binary identities in order to avoid ambiguity regarding application of the rule to individuals with non-binary gender identities. Some commenters noted that explicitly referencing non-binary identities in this definition would be important to avoid any doubt or misinterpretation given that gender has often been assumed to be binary, thus ignoring or marginalizing individuals with non-binary gender identities.
Response: OCR has made a slight change to the definition of “gender identity” to insert the clause “which may be male, female, neither, or a combination of male and female.” The insertion of this clause helps clarify that those individuals with non-binary gender identities are protected under the rule.
Even the DHHS can see looming battles over binary identities. That's what makes this section so cool, though, because it feels like healthcare was the last stronghold of total binary division. In one sweeping clarification, they validated both that gender is more fluid than a rigid binary structure and the notion that these binary divisions are important material divisions that unnecessarily divide society.
By changing their definition to include non-binary identities, DHHS also roped 'gender expression' concerns into their declaration of intent. They seemed to make absolutely clear that the intent of Section 1557 as written was to extend healthcare provisions to people without regard to gender altogether.
Comment: Some commenters suggested that, consistent with previous court and Federal agencies’ interpretations, OCR add “gender expression” to the definition of “gender identity” in order to make explicit our intention to protect individuals on this basis.
Response: In the proposed and final rules’ definition of gender identity, we explain that the way an individual expresses gender identity is frequently called “gender expression.” OCR is clarifying that throughout this final rule, we interpret references to the term “gender identity” as encompassing “gender expression” and “transgender status.” This position is consistent with the position taken by courts and Federal agencies. These bases of discrimination are protected under the rule.
3. DHHS relies on a more flexible definition of 'medically necessary' treatment and procedures.
I was disappointed when I saw that their final ruling did not explicitly outline sets of treatments they considered 'medically necessary' for gender identity. It seemed like a really clear way to enumerate an inclusive list that provided a standard set of procedures that would generally indicate the nature of medical necessity in their own interpretation.
But refusing to define 'medical necessity' means they can actually be more flexible in not only their current definitions, but also their future definitions of transition-related care. This is awesome because it future proofs their approach to transition services by acknowledging that as science and medicine continue to make significant progress, the types and general availability of these services is likely to change.
Happily, though, they do include general prescriptions: surgical treatments, hormone therapy, and psychotherapy.
Comment: Some commenters requested that the final rule define “health services related to gender transition.”
Response: We decline to include a definition of “health services related to gender transition.” OCR intends to interpret these services broadly and recognizes that health services related to gender transition may change as standards of medical care continue to evolve. The range of transition-related services, which includes treatment for gender dysphoria, is not limited to surgical treatments and may include, but is not limited to, services such as hormone therapy and psychotherapy, which may occur over the lifetime of the individual. We believe the flexibility of the general language in the final rule best serves transgender individuals and covered entities.
4. DHHS established a 'fair play' standard for evaluating claims of sex discrimination in coverage.
Here's one of the more interesting points of Section 1557. DHHS requires that insurance providers provide equal access to insurance coverage for transition-related care.
First, this mechanism dovetails nicely with the above provision that refuses to specify exactly which procedures are considered part of gender transition care. Assuming there were a list of procedures, insurance companies would likely point at that list to make sure individual services were covered. Refusing to have a list allows them more flexibility in dealing with insurance companies' propensity to exclude treatments more than they include them.
Second, if an insurance provides coverage for any procedure, it cannot deny coverage for transition-related claims based on a gender identity different from the one the individual was assigned at birth. Trans* men, for example, have been denied coverage for pap smears or hysterectomies under current guidelines. After July 18, the rules change and insurance companies will have to provide equitable coverage for these services to anyone for whom they are necessary, regardless of their gender identity.
Moreover, we proposed in § 92.207(b)(5) to bar a covered entity from denying or limiting coverage, or denying a claim for coverage, for specific health services related to gender transition where such a denial or limitation results in discrimination against a transgender individual. In evaluating whether it is discriminatory to deny or limit a request for coverage for a particular service for an individual seeking the service as part of transition-related care, we provided that OCR will start by inquiring whether and to what extent coverage is available when the same service is not related to gender transition. If, for example, an issuer or State Medicaid agency denies a claim for coverage for a hysterectomy that a patient’s provider says is medically necessary to treat gender dysphoria, OCR will evaluate the extent of the covered entity’s coverage policy for hysterectomies under other circumstances. We noted that OCR will also carefully scrutinize whether the covered entity’s explanation for the denial or limitation of coverage for transition-related care is legitimate and not a pretext for discrimination.
This week was fabulous for trans* people, but making progress in these legal areas is just the start.
Legal battles are still unfolding between the Department of Justice and North Carolina, for example, over our right to pee in peace. The good news is that those battles are likely to conclude in our favor.
Ten women have been murdered in the United States this year, though, and that's still an incredibly tragic problem. There is concern in our community, even, that progress on our social agenda will not stop the violence we face every day just walking down the street. Some people refuse to understand us because they do not know our stories, have never heard our voices, and likely don't know a single transgender person they can call a friend.
We're making progress, but we've still got a long, hard road to walk ahead of us.