How to Make Self-Funded Health Care Plans Inclusive of Trans Individuals
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Many college and school districts through the United States offer health care plans to their employees, and sometimes also offer plans to students. Because they are generally subject to fewer local restrictions and state and federal legal non-discrimination requirements, many self-funded health care plans deny gender affirming services to trans people while providing the same services to cisgender people for the treatment of other health conditions. While these plans may be currently taking advantage of the tentative legal loophole this the lack of explicit non-discrimination laws create, we advocates and trans people are not without methods of overcoming this hurtle.
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What You Can Do
Step 1
Verify the Existence of the Exclusion​
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Before going through all the below-mentioned work, you may want to contact your organization's Human Resources department to request a copy of the plan's complete coverage and exclusions document to confirm that the exclusion against the treatment of Gender Dysphoria does indeed currently exist in the plan.
Step 2
Find Out Who the Plan Administrator Is​
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Find out who the Plan Administrator of the self-funded health care plan is by asking the employee benefits contact person within your organization's Human Resources department, or by asking a representative of the health care plan itself via the contact information for the plan as listed in the plan documents, usually at the beginning or end of the document. Ask for the Plan Administrator's contact information (phone, email, mailing address, fax number), their email address and mailing address, in particular.
Step 3
Request Removal of the Exclusion​
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Draft a specific, detailed, researched official request that the plan remove the exclusion against Gender Dysphoria. Here is a fantastically helpful template provided by The National Center for Transgender Equality but this template does not do all the work for you. You will need to personalize it to your situation and location for it to have serious impact on the plan administrator, who will generally need to confer with their legal counsel and/or convince an entire board of voting members before any actionable progress can be made to approve or deny the exclusion request. Below is how I personalized mine to a college district located in the Central Valley of California.
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Personalized Request - Example
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Hello [Plan Administrator],
My name is Arien Alana Reed and I am an employee at the State Center Community College District. I am attempting to enroll in the self-funded EdCare Group health plan “The Modern Care Plan” administered by Delta Health Systems. The EdCare Group health plan currently has an exclusion for treatment for gender dysphoria (also known as transition-related care), a serious medical condition that affects many transgender people. According to the plan booklet, the plan excludes “Sex-Related Disorders - Transsexualism, gender dysphoria, sexual reassignment or change, or other sexual dysfunctions or inadequacies which are not related to organic disease. Excluded services and supplies include, but are not limited to: therapy or counseling, medications, implants, hormone therapy, surgery, and other medical or psychiatric treatment.”
I respectfully ask that this exclusion of coverage for gender dysphoria treatment be removed from the health plan. Over the past few years, similar exclusions have been largely eliminated in public programs and private insurance, as medical experts, state and federal agencies, and the business community developed a greater understanding of the medical benefit and cost effectiveness of providing this treatment. Courts have also found that these types of exclusions are discriminatory and violate both federal law and state regulation.
It is the overwhelming consensus among major medical organizations that transition-related treatments, including counseling, hormone therapy, and surgical treatments, are safe, effective, and medically necessary when clinically indicated to treat gender dysphoria. Major medical organizations such as the American Medical Association, the American College of Physicians, the American Psychological Association, the American Psychiatric Association, the American Academy of Family Physicians, the Endocrine Society, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists, have issued policy statements to this effect,[1] and numerous studies have demonstrated the significant benefits of medical treatments for gender dysphoria.[2] Major medical organizations such as those named above support coverage of medically necessary transition-related care in accordance with the World Professional Association for Transgender Health’s (WPATH) most recent Standards of Care (available at https://www.wpath.org/publications/soc). Recently, WPATH specifically spoke to the medical necessity of this type of treatment and the need for private and public health coverage for it in the United States.[3]
This exclusion also violates federal nondiscrimination law and state nondiscrimination regulation. Federal courts have determined that Title VII and Title IX’s sex discrimination provisions protect transgender people from discrimination in employment and schools, including in receiving and accessing health care benefits (see, e.g., EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016); Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034 (7th Cir. 2017)). Federal courts and the Equal Employment Opportunity Commission have specifically found that exclusions for medically necessary treatment for gender dysphoria in self-funded health plans are discriminatory, in violation of federal protections (see, e.g., Boyden v. Conlin, No. 17-cv-264-WMC, 2018 (W.D. Wis. September 18, 2018); Amicus Brief of the Equal Employment Opportunity Commission in Support of Plaintiff and in Opposition to Defendant’s Motion to Dismiss, Robinson v. Dignity Health, No. 4:16-cv-03035-YGR (N.D. Cal., filed August 22, 2018)). Pursuant to Article 15.1 on Gender Nondiscrimination in Health Insurance in the Barclays California Code of Regulations, Section 2561.2, Subsection 4, The California Department of Insurance, since 2012, has upheld that “health insurance policies are prohibited from arbitrarily excluding coverage for gender affirmation services including (but not limited to) hormone therapy, mental health services and surgical services” all of which the EdCare Bronze Plan and Modern Care Plan specifically exclude.[4] The authority for this regulation stems from Sections 10140 and 10140.2, Insurance Code; Ca/Farm Ins. Co. v. Deulanejian, 48 Cal.3d 805 (1989); 20th CenlWJ' Ins. Co. v. Garamendi, 8 Cal. 4th 216 (1994 ). Reference: Sections 10140 and 10 J40.2, Insurance Code.
Courts have similarly found that exclusions of transition-related care can violate Section 1557 of the Affordable Care Act and the Equal Protection Clause of the U.S. Constitution, and that insurers acting as third party administrators can be held liable for enforcing discriminatory exclusions in self-funded plans (see, e.g., Tovar v. Essentia Health, No. 16-cv-00100-DWF-LIB (D. Minn. September 20, 2018); Flack v. Wis. Dep’t of Health Servs., No. 3:18-cv-00309-wmc (W.D. Wis. July 25, 2018); Cruz v. Zucker, 195 F.Supp.3d 554 (S.D.N.Y. 2016); Prescott v. Rady Children’s Hosp.-San Diego, 265 F.Supp.3d 1090 (S.D. Cal. 2017). Illegal practices under federal law include blanket exclusions of all care related to gender dysphoria; automatic exclusions of specific treatments for gender dysphoria regardless of medical necessity (such as classifying certain treatments as always cosmetic or refusing to cover a treatment for gender dysphoria when a similar treatment is covered for other conditions); and the use of arbitrary and excessive standards for determining medical necessity or eligibility when those standards are not based on accepted medical guidelines.
The evolution of the medical consensus on the necessity and effectiveness of treatment of gender dysphoria and legal and constitutional protections led federal- and state-regulated health programs, including Medicare,[5] the Office of Personal Management, which oversees Federal Employee Health Benefits (FEHB),[6] to remove their prior exclusions of transition-related care and the overwhelming majority of Medicaid programs have removed or do not have such exclusions.[7] Private health insurance carriers have also overwhelmingly eliminated exclusions and adopted coverage policies in their health plans. A study by Out2Enroll of over 500 plans being sold in the individual marketplace in 2018 across 18 states found that 90% of marketplace plans did not have an exclusion on transition-related care. Nearly one third of all plans (28%) had affirmative coverage protocols for treatment of gender dysphoria, up from 18.5% in 2017.[8]
Over the past few years, major companies offering self-funded or large group insurance plans have likewise moved to remove exclusions and provide comprehensive care for gender dysphoria. Employers reported minimal economic impact from providing equal coverage for transgender employees. For example, the Human Rights Campaign’s Corporate Equality Index reports that for the 750 major employers in the index who did so, eliminating exclusions “comes at an overall negligible cost to the employers’ overall health insurance plans. This holds true across industries.”[9] The index also reported that 58% of Fortune 500 businesses provide coverage for transition-related care. A survey of employers by the Williams Institute at the UCLA School of Law found that transition-related health care benefits have “zero or very low costs” and low utilization rates estimated at 1 per 10,000 to 20,000 employees.[10] Other private and public employers that have covered transition-related care for their employees have similarly found it to be highly cost-effective.[11] More than 86 leading universities and colleges, including state universities in at least 28 states, have similarly found that it is cost-effective to provide this coverage in their student health plans.[12]
According the Trevor Project’s National Survey, 40% of transgender and non-binary youth (age 24 and under) reported being physically threatened or harmed in their lifetime due to their gender identity, and those who experienced this attempted suicide three times as much as those who did not. Transgender and non-binary youth without access to gender affirmation resources attempted suicide at almost twice the rate of those who did. Over 60% of transgender and non-binary youth engaged in self-harm, seriously considered suicide, and reported symptoms of both major depressive disorder and generalized anxiety disorder, compared to only 17% of the total youth population, as according to the Center for Disease Control and Prevention. [13] About 1 out of every 2 LGBTQ respondents reported that they wanted psychological or emotional counseling from a mental health professional but were unable to receive it, with 50% reporting this was because they could not afford it, establishing affordability of care as the strongest barrier to receiving mental health care.[14] In 2015, according to the U.S. Transgender Survey, 23% of respondents (all age groups) did not see a medical doctor when they needed to because of the cost of care and almost 40% reported currently experiencing serious psychological distress (versus only 5% of the U.S. population).[15] In an article discussing the disproportionately high rates of fatal violence against the trans community, the Human Rights Campaign stated, “…the intersections of racism, sexism, homophobia, biphobia, transphobia […] conspire to deprive them of employment, housing, healthcare and other necessities.”[16] I am a 28-year-old transgender man myself and when deprived of access to my gender affirming hormones, surgery, and mental health therapy, have found myself in severe states of anxiety and depression, which have culminated in moments of suicide ideation and serious consideration of engaging in other unhealthy coping mechanisms to ease the psychological pain and daily discomfort, which my therapist has diagnosed as symptoms of untreated gender dysphoria. During such times, I have had to miss multiple days of work due to the severity of untreated psychological distress and have noticed significant declines in my participation in healthy habits, and thus significant related declines in my overall health. Living in a constant state of psychological distress is not only negatively impactful on my overall health, but also reduces my effectiveness as an otherwise devoted and earnest college professional to an educational institution I care deeply about, as evidenced by a history of me performing many volunteer leadership roles on campus, some of which I will discuss in the section below. Myself, and other transgender and non-binary employees, are best able to take care of ourselves, maintain good health habits (and therefore experience improved overall states of health now and in the future), and dedicate ourselves more fully to our place of employment when our health insurance plans do not discriminatorily create financial barriers between us and the health care services necessary for the treatment of our gender dysphoria.
In addition to my full time employment with the district, I am also the Classified Professionals Representative on the California Community Colleges LGBT+ Advisory Committee, and the cofounder—and current elected president of—the Allied Staff and Faculty Association at Fresno City College, a campus of the State Center Community College District, an Equal Employment Opportunity employer and one which has only ever expressed heartfelt interest in, and public support for, the equitable treatment of their LGBTQ students and employees. In February of 2019, Fresno City College President, Carole Goldsmith, donated personal funds to establish our annual LGBTQ scholarships, and marched with our association in Fresno’s Pride Parade in June of 2019 in open support of our LGBTQ community. In a public statement published to Youtube on January 29, 2020, Eloy Ortiz Oakley, Chancellor of the California Community Colleges, spoke to the disproportionate socioeconomic impact anti-LGBTQ discrimination has had statewide on LGBTQ people, particularly LGBTQ people of color, and called for statewide college affirmation and support of LGBTQ individuals.[17] The California Community College Chancellor’s Office is also requesting that all colleges, ours included, close the educational achievement gaps of LGBTQ students, disabled students, and racially diverse students by the 2026-2027 fiscal year, including increasing completion rates by 20% and transfer rates by 35% by the 2021-2022 fiscal year. In wake of the recent personal and political threats to the equitable treatment of diverse communities, and even before these recent events, our district, among many other colleges and districts across California, have been devoting efforts and resources to the goal of eliminating all forms of discrimination from our campuses by providing implicit bias and cultural sensitivity education, providing public diversity celebrations, and investigating any and all claims of apparent racism and other forms of perceived discrimination. Therefore, to blatantly discriminate against LGBTQ students or employees in any way, such as arbitrarily excluding all medical and psychological services related to the treatment of gender dysphoria—which is by definition a condition unique to the transgender and non-binary community—while not excluding the same, or similar, services for the treatment of other medical conditions, is in direct conflict with the widely and firmly publicized interests of the local and statewide leadership of our district and state chancellor’s office.
For all of the above reasons, I respectfully ask that the current exclusion on treatment for gender dysphoria be removed. Removing this discriminatory exclusion will ensure that transgender employees receive equitable benefits, and are valued in their place of employment. Removing the exclusion will not result in onerous costs, and will bring our health care plan in line with the overwhelming majority of private and public health plans, in congruence with the nondiscrimination values of the State Center Community College District and the California Community Colleges Chancellor’s Office, and in compliance with federal law and state regulation.
Sincerely,
Arien Alana Reed, CPA, MFA (pronounce my name)
My pronouns: he/him/his (why pronouns are important)
Budget Technician
Fresno City College
Disabled Students Programs and Services
1101 E. University Ave.
Fresno, CA 93741
(559) 442-8200 ext. 8937
[1] For a compilation of statements from major medical associations on this issue, see https://www.lambdalegal.org/publications/fs_professional-org-statements-supporting-trans-health
2 For example, in a literature review of all peer-reviewed articles published in English between 1991 and 2017 on the effects of transition-related care on the wellbeing of transgender people, a Cornell University research team concluded that surgical and other transition-related treatment is highly effective. See https://whatweknow.inequality.cornell.edu/topics/lgbt-equality/what-does-the-scholarly-research-say-about-the-well-being-of-transgender-people/
3 WPATH, Position Statement on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A. (December 2016), https://www.wpath.org/media/cms/Documents/Web%20Transfer/Policies/WPATH-Position-on-Medical-Necessity-12-21-2016.pdf
California Department of Insurance, Equal Access to Health Insurance: Coverage for Transgender Californians, (2020), http://www.insurance.ca.gov/01-consumers/110-health/60-resources/TransHealthCoverage.cfm
4 Dep’t of Health and Human Services, NCD 140.3, Transsexual Surgery, 12 (2014); HHS Department Appeals Board, Decision of Medicare Appeals Council, Docket Number M-15-1069, United Healthcare/AARP (January 21, 2016)
5 FEHB Program Carrier Letter No. 2015-12, Covered Benefits for Gender Transition Services, (June 24, 2015).
6 Thirty-nine states and the District of Columbia have either eliminated or never adopted exclusions of transition-related care in their Medicaid programs. Of the only 11 states that still maintain exclusions in their Medicaid programs, at least two are currently subject to legal challenges. Seventeen states and the District of Columbia have proactively adopted policies to help ensure that their Medicaid programs do not discriminate against transgender beneficiaries and provide coverage for transition-related care. For more information, see www.lgbtmap.org/equality-maps/healthcare_laws_and_policies.
7 Out2Enroll, Summary of Findings: 2018 Marketplace Plan Compliance with Section 1557 (2017), out2enroll.org/out2enroll/wp-content/uploads/2017/11/Overview-of-Trans-Exclusions-in-2018-Marketplace-Plans-1.pdf.
8 Human Rights Campaign, Corporate Equality Index 2018: Rating Workplaces on Lesbian, Gay,
Bisexual, Transgender, and Queer Equality 28 (2018).
9 Jody L. Herman, Costs and Benefits of Providing Transition-Related Health Care Coverage in Employee Health Benefit Plans: Findings from a Survey of Employers, (2013), available at: http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Cost-Benefit-of-Trans-Health-Benefits-Sept-2013.pdf.
10 See, e.g., S.F. Human Rights Comm’n, San Francisco City and County Transgender Health Benefit (2007), http://www.hrc.org/files/assets/resources/San_Francisco_City_and_County_Transgender_Health_Benefit_-_2007-08-10.pdf; Cal. Dep’t of Ins., Economic Impact Assessment: Gender Nondiscrimination in Health Insurance (2012), http://transgenderlawcenter.org/wp-content/uploads/2013/04/Economic-Impact-Assessment-Gender-Nondiscrimination-In-Health-Insurance.pdf; William V. Padula et al., “Societal Implications of Health Insurance Coverage for Medically Necessary Services in the U.S. Transgender Population: A Cost-Effectiveness Analysis,” 31 Journal of General Internal Medicine 394 (2015); Wis. Dep’t of Employee Trust Funds, Correspondence Memorandum (August 14, 2018), http://etf.wi.gov/boards/agenda-items-2018/gib0822/item6a1.pdf; Wis. Dep’t of Employee Trust Funds, Correspondence Memorandum (January 30, 2017), http://etf.wi.gov/boards/agenda-items-2017/gib0208/item4.pdf.
[1]1 Campus Pride, Trans Policy Clearinghouse: Colleges and Universities that Cover Transition-Related Medical Expenses under Student Health Insurance (2018), www.campuspride.org/tpc-student-health-insurance.
[1]2 The Trevor Project, National Survey on LGBTQ Youth Mental Health, (2020), https://www.thetrevorproject.org/survey-2020/?section=Introduction
[1]3 Center for Disease Control and Prevention, Suicide: Facts at a Glance, (2015), https://www.cdc.gov/violenceprevention/pdf/suicide-datasheet-a.pdf
[1]4 National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey, (2016), https://www.transequality.org/sites/default/files/docs/usts/USTS%20Full%20Report%20-%20FINAL%201.6.17.pdf
[1]5 Human Rights Campaign, Violence Against the Transgender and Gender Non-conforming Community in 2020, (2020), https://www.youtube.com/watch?v=qW3Ur5rzTTg&feature=youtu.be
16 California Community Colleges, California Community Colleges Chancellor Addresses Needs of LGBTQ+ Community, (2020), https://www.youtube.com/watch?v=qW3Ur5rzTTg&feature=youtu.be
[1] For a compilation of statements from major medical associations on this issue, see https://www.lambdalegal.org/publications/fs_professional-org-statements-supporting-trans-health
[2] For example, in a literature review of all peer-reviewed articles published in English between 1991 and 2017 on the effects of transition-related care on the wellbeing of transgender people, a Cornell University research team concluded that surgical and other transition-related treatment is highly effective. See https://whatweknow.inequality.cornell.edu/topics/lgbt-equality/what-does-the-scholarly-research-say-about-the-well-being-of-transgender-people/
[3] WPATH, Position Statement on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A. (December 2016), https://www.wpath.org/media/cms/Documents/Web%20Transfer/Policies/WPATH-Position-on-Medical-Necessity-12-21-2016.pdf
[4] WPATH, Position Statement on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A. (December 2016), https://www.wpath.org/media/cms/Documents/Web%20Transfer/Policies/WPATH-Position-on-Medical-Necessity-12-21-2016.pdf
[5] Dep’t of Health and Human Services, NCD 140.3, Transsexual Surgery, 12 (2014); HHS Department Appeals Board, Decision of Medicare Appeals Council, Docket Number M-15-1069, United Healthcare/AARP (January 21, 2016)
[6] FEHB Program Carrier Letter No. 2015-12, Covered Benefits for Gender Transition Services, (June 24, 2015).
[7] Thirty-nine states and the District of Columbia have either eliminated or never adopted exclusions of transition-related care in their Medicaid programs. Of the only 11 states that still maintain exclusions in their Medicaid programs, at least two are currently subject to legal challenges. Seventeen states and the District of Columbia have proactively adopted policies to help ensure that their Medicaid programs do not discriminate against transgender beneficiaries and provide coverage for transition-related care. For more information, see www.lgbtmap.org/equality-maps/healthcare_laws_and_policies.
[8] Out2Enroll, Summary of Findings: 2018 Marketplace Plan Compliance with Section 1557 (2017), out2enroll.org/out2enroll/wp-content/uploads/2017/11/Overview-of-Trans-Exclusions-in-2018-Marketplace-Plans-1.pdf.
[9] Human Rights Campaign, Corporate Equality Index 2018: Rating Workplaces on Lesbian, Gay,
Bisexual, Transgender, and Queer Equality 28 (2018).
[10] Jody L. Herman, Costs and Benefits of Providing Transition-Related Health Care Coverage in Employee Health Benefit Plans: Findings from a Survey of Employers, (2013), available at: http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Cost-Benefit-of-Trans-Health-Benefits-Sept-2013.pdf.
[11] See, e.g., S.F. Human Rights Comm’n, San Francisco City and County Transgender Health Benefit (2007), http://www.hrc.org/files/assets/resources/San_Francisco_City_and_County_Transgender_Health_Benefit_-_2007-08-10.pdf; Cal. Dep’t of Ins., Economic Impact Assessment: Gender Nondiscrimination in Health Insurance (2012), http://transgenderlawcenter.org/wp-content/uploads/2013/04/Economic-Impact-Assessment-Gender-Nondiscrimination-In-Health-Insurance.pdf; William V. Padula et al., “Societal Implications of Health Insurance Coverage for Medically Necessary Services in the U.S. Transgender Population: A Cost-Effectiveness Analysis,” 31 Journal of General Internal Medicine 394 (2015); Wis. Dep’t of Employee Trust Funds, Correspondence Memorandum (August 14, 2018), http://etf.wi.gov/boards/agenda-items-2018/gib0822/item6a1.pdf; Wis. Dep’t of Employee Trust Funds, Correspondence Memorandum (January 30, 2017), http://etf.wi.gov/boards/agenda-items-2017/gib0208/item4.pdf.
[12] Campus Pride, Trans Policy Clearinghouse: Colleges and Universities that Cover Transition-Related Medical Expenses under Student Health Insurance (2018), www.campuspride.org/tpc-student-health-insurance.
[13] Campus Pride, Trans Policy Clearinghouse: Colleges and Universities that Cover Transition-Related Medical Expenses under Student Health Insurance (2018), www.campuspride.org/tpc-student-health-insurance.
[14] Campus Pride, Trans Policy Clearinghouse: Colleges and Universities that Cover Transition-Related Medical Expenses under Student Health Insurance (2018), www.campuspride.org/tpc-student-health-insurance.
[15] Campus Pride, Trans Policy Clearinghouse: Colleges and Universities that Cover Transition-Related Medical Expenses under Student Health Insurance (2018), www.campuspride.org/tpc-student-health-insurance.
[16] Campus Pride, Trans Policy Clearinghouse: Colleges and Universities that Cover Transition-Related Medical Expenses under Student Health Insurance (2018), www.campuspride.org/tpc-student-health-insurance.
[17] Campus Pride, Trans Policy Clearinghouse: Colleges and Universities that Cover Transition-Related Medical Expenses under Student Health Insurance (2018), www.campuspride.org/tpc-student-health-insurance.
Step 4: How to Send the Request
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If emailing your request, make sure to mark, or flag, the email as "important" to decrease the chances of it ending up in the recipient's trash, or overlooked among the many, many other emails they may be receiving on a daily basis. In the spirit of transparency and open communication, it can also be a good idea to CC interested parties who you feel should be aware of such a communication (your organization's Human Resources Administrator, for instance). Before sending the email, make sure you have activated requests for "delivery receipts" and "read receipts" so you have proof that the recipient received, and read, your email. If sending this request by mail, make sure to send via a method that requires signature upon delivery and which delivers to you a copy of such verification.
After sending, you may also want to forward a copy of the email to your college president and/or vice chancellor.
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Example:
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Dear [College President] and [District Chancellor]:
When I recently requested to switch my employee benefit plan from the Kaiser “Low Plan” to the EdCare Group’s “Modern Care Plan,” I was horribly disturbed to be informed by HR that the EdCare Group’s Plans (both the Modern Care Plan and the Bronze Care Plan) exclude any and all medical and mental health care related to the treatment of gender dysphoria—a health condition which, by definition, is inherently unique to, and heavily prevalent within, the transgender community. Meanwhile, the very same health services when prescribed for any and all conditions other than gender dysphoria, are not excluded. Such arbitrary exclusions clearly target transgender individuals, in this case, transgender employees like myself. Such discrimination of gender transition health care services are against federal nondiscrimination laws, California insurance nondiscrimination regulations, and the recommendations of national and international medical and mental health organizations. However, I was informed by HR that the reason the discriminatory exclusions have been maintained in our district’s insurance plans is because the EdCare Group plans are self-funded and the administrator of the plan believes they are therefore subject to a legal loophole in which discrimination is both legal and apparently welcomed. (Thorough details regarding much of this are contained in the email below and my conversation with HR are attached).
As the leaders of Fresno City College and State Center Community College District, I wanted to bring this concerning matter to your attention and also to share with you the request I made in the email below. Writing a request such as this and submitting it to the insurance group’s plan administrator, identified by [HR Administrator] to be [Plan Administrator] of [Organization Owning the Plan], was a first-step action recommended by the National Center for Transgender Equality.
While SCCCD’s Kaiser insurance plans do not explicitly discriminate against LGBTQ individuals, allowing SCCCD to maintain that only 50% of its health benefit plans are discriminatory, I find it concerning that I, as a transgender individual, clearly have little choice regarding which insurance plans to receive my benefits through, while my cisgender colleagues are not similarly limited. I personally believe that no amount of discrimination of any kind (sex, gender, race, age, ability, size, religion, immigration status, etc.) should be welcomed or tolerated by our district in any way, and that this should apply to how we view and treat our employees as much as our students. I understand also that I have worked here for over 4 years and only in the last year have I begun to encounter other trans employees, all of which were only recently hired, possibly making me one of the first (or, at least, one of very few) openly transgender employees to be employed at SCCCD and eligible to enroll in the benefit plans our 100+ year-old educational institution so graciously offers. For this reason, I understand our allowance of such discriminatory treatment might be only because our college and district leadership may have been unaware of it. Therefore, as our state chancellor’s office, district, colleges, and both of you, have never been shy to express heartfelt understanding and unequivocal support for our diverse students, I thought it necessary to bring to your attention the health care discrimination that I, a diverse employee, am currently encountering on the basis of my biological sex and gender identity.
In unity,
Arien Reed, CPA, MFA (pronounce my name)
My pronouns: he/him/his (why pronouns are important)
Budget Technician
Fresno City College
Disabled Students Programs and Services
(559) 442-8200 ext. 8937
Step 5: Follow-Up​
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Follow-up on the status of your request by email and/or phone. Retain all emails and phone transcripts of all correspondence in relation to the request. Ask for specific updates by asking what action has been taken, by whom, what the planned next steps are, and what the timeline for the completion of such steps are. As such dates grow closer, you can check in to ask if there is anything you can do to assist the completion of the tasks they previously named. Shortly after the dates pass, you can follow up to ask how what progress was made. Be sure not to bombard the Plan Administrator or your other contacts, and to be considerate and respectful of their busy schedules, and appreciative of their willingness to make progress on this issue, even if it is not necessarily taking the direction or meeting the timeline you hoped for.
In some cases, you may be invited to attend one or more regularly scheduled meetings to serve as an in-person voice on behalf of all trans individuals covered by the health insurance plan, or to give an optional public comment. If you feel comfortable doing so, your presence in the room may help humanize the request and increase its chances of success. However, if you are not comfortable doing this, you may respond by pointing out that you are only a single person and that it is a cultural microaggression to expect a single person from a marginalized community to represent the needs, concerns, viewpoints, or opinions of the entire community.
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Public Comment Example:
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Gender Dysphoria is a health condition which, by definition, affects only transgender people. Though self-funded plans may be protected by a current legal loophole in which exclusions that are discriminatory against transgender people are allowed, I believe discrimination of any kind is always wrong, regardless of whether it is legal. Transgender people possess some of the fewest civil rights and protections at every level, from local to national laws, policies, and regulations. College districts and their associates should not neglect or take advantage of their marginalized and under-protected employees and students, but rather support and empower them all the more so that they can succeed just as well as their privileged counterparts. After all, what is the purpose of education if not to empower others with the equitable means by which to succeed and reach their fullest potential? I believe that even if it is currently legally permissible for EdCare to maintain the exclusion against the treatment of gender dysphoria in transgender and non-binary individuals, referred to in these plans by the outdated term “transsexualism,” such a legal circumstance is no excuse for choosing to retain them. This exclusion rejects the coverage of hormones, surgery, and mental health services when they are in relation to the treatment of gender dysphoria while simultaneously allowing coverage of the same health services when they are prescribed for other health conditions. This exclusion clearly targets transgender people, and those who knowingly allow such discrimination to continue existing are thereby complicit in it. Studies, such as the Human Rights Campaign’s Corporate Equality Index reports that for the 750 major employers, removing the exclusion for treatment of gender dysphoria came at negligible, if any, cost to the insurance plans and experienced a very low utilization rate (1 per every 10,000 to 20,000 employees). Major medical organizations such as the American Medical Association, have all issued statements and policies supporting the treatment of gender dysphoria. Federal courts have determined that Title VII and Title IX’s sex discrimination provisions protect transgender people from discrimination in employment and schools, including in receiving and accessing health care benefits. Federal courts and the Equal Employment Opportunity Commission have specifically found that exclusions for medically necessary treatment for gender dysphoria in self-funded health plans are discriminatory, in violation of federal protections. Pursuant to Article 15.1 on Gender Nondiscrimination in Health Insurance in the Barclays California Code of Regulations, The California Department of Insurance, upholds that “health insurance policies are prohibited from arbitrarily excluding coverage for gender affirmation services including (but not limited to) hormone therapy, mental health services and surgical services.” Courts have similarly found that exclusions of transition-related care can violate Section 1557 of the Affordable Care Act and the Equal Protection Clause of the U.S. Constitution, and that insurers acting as third party administrators can be held liable for enforcing discriminatory exclusions in self-funded plans. Discrimination also potentially degrades an organization’s reputation, counteracts the goals and values common to education, and makes our diverse employees and students question the cultural safety and integrity of their college. I believe discrimination has no place in the educational setting, and I encourage all of you to consider the many various impacts it would have on your colleges if you choose to maintain it.
Step 6​
Responding to a Denial
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If your efforts are successful, congratulations!
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If your efforts are unsuccessful, do not give up. Request an in-person meeting with your college president or, if your college is part of a district, your district's chancellor to discuss the importance of them taking on a visible role as a demonstrated ally to their LGBTQ students and employees by advocating for the exclusion's removal themself, by officially and vocally standing by you as you resubmit your request, or by withdrawing their organization's participation in the self-funded plan, and seeking other, more inclusive plans to partner with instead.
Also keep an eye on current events local to your state. When other organizations are sued for discriminating against transgender employees in their own health care plans, other organizations will reassess their level of risk and grow more receptive to the suggestion of being non-discriminatory.
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As a last resort, you might also consider making a public statement of your organization's lack of support for diverse individuals, or of its complicity in oppression by being affiliated with, and utilizing, health care plans that discriminate against diverse and already heavily oppressed individuals. I would suggest letting your college president know your intention to do this before doing so, as a public image--once tarnished--can be difficult to reverse and may bring negative official or unofficial repercussions on you, and place you in a vulnerable situation socially and professionally.
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If you are a federal employee, you can dispute the claim with the Office of Personnel Management, in addition to the plan carrier
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Also, consider a pursuing a lawsuit. Here are organizations dedicated to supporting trans individuals and providing legal representation for gender-based discrimination claims:
Sylvia Rivera Law Project
Legal support and resources for people who are transgender, intersex, or gender nonconforming
http://srlp.org/
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Transgender Law Center
Advocacy and legal support for the transgender community
http://transgenderlawcenter.org/
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TLDEF (Transgender Legal Defense and Education Fund)
Advocacy and legal support for the transgender community
http://tldef.org/
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Transcend Legal
Transcend Legal helps people get transgender-related health care covered under insurance.
https://transcendlegal.org/
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Transgender Legal Services Network (National Center for Transgender Equality)
Over 60 organizations across the country serving trans communities belong to the Network
http://www.transequality.org/iddocumentscenter/transgenderlegalservicesnetwork