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Last week, a federal court found that the state of Alaska unlawfully discriminated against a transgender state worker when it denied her insurance coverage for transition-related surgery due to an exclusion in her employee health care plan.
Jennifer Fletcher, 37, a legislative librarian, sued the state after her employer-sponsored plan, known as AlaskaCare, denied her coverage in 2017 for gender confirmation surgery due to the exclusion.
As a result, Fletcher was required to pay more than $25,000 in out-of-pocket costs to pay for the surgery and related recuperative care, even though the state of Alaska’s consultant had estimated in 2016 that the cost of coverage for the surgery would be negligible in terms of the burden shouldered by the state.
In 2018, the AlaskaCare plan began covering transition-related hormone therapy, categorizing it as medically necessary, but has kept in place its policy — which dates back to 1979 — refusing to cover the cost of gender confirmation surgery.
Fletcher filed a complaint with the U.S. Equal Employment Opportunity Commission, which found in March 2018 that there was reasonable cause to believe the state had violated Title VII of the Civil Rights Act.
Enlisting the help of Lambda Legal, Fletcher sued the state in June 2018, alleging that she had been discriminated against her based on her sex. The state responded, arguing that the denial of care was not motivated by Fletcher’s sex.
In his opinion, District Judge H. Russel Holland of the U.S. District Court of Alaska found that the state had “adopted and relied upon a formal, facially discriminatory policy,” noting that the material facts of the case were not disputed by either party.
“[Fletcher] was treated differently because of her natal sex. Under the provisions of AlaskaCare, ‘a natal female born without a vagina qualifies for coverage of a vaginoplasty, but not the plaintiff here because [her] natal sex is male,'” Holland wrote. “If plaintiff’s natal sex were female and it was medically necessary for her to have a vaginoplasty to correct a congenital defect, coverage would have been available under AlaskaCare. But, because plaintiff’s natal sex is male and she was seeking to transition to a female, coverage was not available.
“Plainly, defendant treated plaintiff differently in terms of health coverage because of her sex, irrespective of whether ‘sex’ includes gender identity,” Holland added. “AlaskaCare covers vaginoplasty and mammoplasty surgery if it reaffirms an individual’s natal sex, but denies coverage for the same surgery if it diverges from an individual’s natal sex. That is discrimination because of sex and makes defendant’s formal policy, as expressed in the provisions of AlaskaCare, facially discriminatory.”
Tara Borelli, an attorney with Lambda Legal who is representing Fletcher, praised the court’s decision in a statement.
“”Transgender employees should never be forced to endure what Jennifer endured, to be denied potentially life-saving treatment simply because of who they are,” Borelli said. “Jennifer was denied coverage for medically necessary treatment while her co-workers received full coverage for all their health care needs, all because of a discriminatory policy. The court rightly saw that as wrong and found that Alaska broke federal law, which prohibits sex-based discrimination in employment.”
All mainstream medical associations, including the American Medical Association and the American Psychological Association, recognize transition-related surgical treatment is considered medically necessary for transgender people struggling with gender dysphoria.
For that reason, the AMA and other medical organizations have called for an end to exclusions on surgical care in private and public health insurance plans.
“It was stigmatizing and traumatic to have my colleagues receive coverage for their medical needs while I was denied,” Fletcher said in a statement. “I am grateful that the court saw that treatment for what it was — unlawful discrimination — and I hope that this ruling means that no one else will have to go through being targeted for discrimination by their employer. We should all be able to count on our employers to treat us equally, especially for something as important as our health care.”
Late last month, New York Gov. Andrew Cuomo (D) signed the Gender Recognition Act, a comprehensive pro-LGBTQ law that, among other things, makes it easier for transgender people to obtain accurate identity documents, including a gender-neutral "X" option on licenses and IDs.
The law, sponsored by Assemblymember Danny O'Donnell (D-Manhattan), not only grants the option of a third gender marker on state IDs, but streamlines the process for changing state IDs or birth certificates by allowing people to update their gender markers through self-attestation, rather than submitting a doctor's note attesting that they've undergone a gender transition, or providing proof of gender confirmation surgery.
A federal judge has blocked a West Virginia law barring transgender student-athletes in K-12 schools and state colleges and universities from competing on sports teams that align with their gender identity.
On Wednesday, U.S. Circuit Judge Joseph Goodwin, of the Southern District of West Virginia, issued a preliminary injunction blocking state and local officials, including the West Virginia State Board of Education, the Harrison County Board of Education, the West Virginia Secondary School Activities Commission, and Attorney General Patrick Morrissey, from attempting to enforce the law by restricting transgender students to playing on teams matching their assigned sex at birth.
On Saturday, Veterans Affairs Secretary Denis McDonough announce that the VA will be pushing for a rule change to allow transgender veterans to access gender-affirming health care, including gender confirmation surgery, that is deemed medically necessary.
Speaking at a Pride Month event for transgender veterans at the Orlando VA Healthcare System in Florida, McDonough promised to overcome the "dark history" of discrimination against the transgender community and take steps to ensure they can access the care they need.
McDonough's announcement marks a reversal from the Trump administration, which adopted a ban that resulted in the majority of transgender people being declared ineligible to serve in the military, a policy that was reversed by President Joe Biden soon after taking office earlier this year.
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