Jennifer Fletcher – Photo: Lambda Legal.
Lawyers for an Alaska transgender state employee will appear in court on Wednesday to argue that a provision in the state’s employee health insurance plan that does not provide coverage for gender confirmation surgery violates her civil rights under Title VII of the Civil Rights Act.
Jennifer Fletcher, a 37-year-old Juneau resident who works as a legislative librarian for the state, was diagnosed with gender dysphoria in 2014. Her doctors recommended that, as part of her treatment, she receive both hormone therapy and undergo gender confirmation surgery.
But Fletcher’s employer-sponsored health insurance plan, also known as AlaskaCare, would not cover her expenses, requiring her to pay more than $25,000 in out-of-pocket costs to move forward with the surgery, and related recuperative care, in 2017.
Beginning in 2018, AlaskaCare began covering transition-related hormone therapy on the grounds that it was medically necessary, but the plan continues, to this day, to categorically prohibit coverage for transition-related surgical treatment, even if it is deemed medically necessary.
Incensed at the exclusion, Fletcher filed a complaint with the U.S. Equal Employment Opportunity Commission, which found that there was reasonable cause to believe that the state had violated her rights under Title VII of the Civil Rights Act, which prohibits discrimination based on sex.
Enlisting the help of Lambda Legal, Fletcher then sued the state for discrimination, claiming she suffered emotional distress, humiliation, and a loss of dignity because she — and other transgender people — are barred from receiving certain medical procedures or treatments that would otherwise have been covered by AlaskaCare if they had been recommended for a cisgender person. She is seeking an unspecified amount of damages, as well as attorney’s fees, should the court rule in her favor.
Tara Borelli, an attorney with Lambda Legal who is representing Fletcher, told Metro Weekly in an interview that a similar case filed in Arizona, involving a transgender state university employee seeking coverage for gender-affirming care, recently survived a motion by the state seeking to have the lawsuit dismissed.
“We’re not aware of any case anywhere in the 9th Circuit that has adopted the arguments that the defendant is making here,” Borelli says.
Those arguments largely revolve around legal arguments — such as whether the authors of Title VII intended for it to protect transgender individuals, or that the discrimination that occurred is on the basis of medical condition, not civil rights — and do not dispute any of the facts alleged in Fletcher’s lawsuit.
“I think they have an insurmountable hill to climb,” says Borelli.
The James M. Fitzgerald Federal Building and Courthouse in Anchorage, home to the U.S. District Court for the District of Alaska – Photo: Wonderlane, via Wikimedia.
She points to the fact that AlaskaCare has already changed its policy to provide coverage for medically necessary hormone treatments, but not surgery, to argue that the state’s position is “untenable.”
“They’ve conceded that gender dysphoria is a recognized medical condition, that it can be treated, that the treatment can be medically necessary, and there’s certainly no support anywhere in the scientific or medical literature for providing every form of treatment except surgery,” Borelli says. “I think they may realize that, because they didn’t even attempt to introduce any expert testimony on this subject. So all the testimony in the record shows that surgery is widely accepted under the medical consensus as medically necessary.”
Among the arguments that Lambda Legal has employed on Fletcher’s behalf are that the wording of the exclusion outright discriminates against a specific type of medical care; that discrimination based on transgender status is inherently a form of sex discrimination; and that the exclusion discriminates against transgender individuals on the basis of sex stereotyping.
“These kinds of exclusions entrench stereotypes that transgender people have to retain aspects of their body that match their birth-assigned sex, no matter how significant their medical need is, and no matter how well-documented the recommendations from their medical providers are,” says Borelli. “The same surgical procedures are available to cisgender people in Alaska, as long as they affirm your birth-assigned sex. And if you’re obtaining a procedure that is not in line with your birth-assigned sex, [the assumption is] ‘that’s not how a proper man or woman should behave.’
“The bottom line is, both under prior decisions of the 9th Circuit, which has already rejected the kinds of arguments the defendant is making here, and under any number of theories, there’s simply no way to find that this is somehow completely unrelated to sex. That’s what they would have to show to prevail.”
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