SLUG
Trans Group Unveils “Know Your Rights” in COVID
Local and national guides offer important information for navigating the uncertainty
BY MATT TRACY
The Transgender Legal Defense & Education
Fund (TLDEF) has released
a pair of guides — one national and
one New York-based — for transgender
folks navigating the coronavirus crisis,
including information on the status of genderaffi
rming medical care, tenants’ rights, and labor
laws.
The guides were created in the midst of drastic
changes that are poised to disproportionately
impact marginalized communities, including
folks who are non-binary or transgender.
The New York Transgender Advocacy Group
(NYTAG) and the Translatina Network (Trans-
Latinx Network) partnered with TLDEF to create
the New York-based guide.
First and foremost, the guide addresses a
handful of medical questions that could arise
should someone seek healthcare treatment.
The guide reminds trans individuals that medical
➤ TRANSITION COSTS, from p.28
procedures are covered.
Holland’s decision has potentially wide application
because Title VII applies to all employers
of 15 or more, including both private businesses
and government agencies at the federal, state
and local levels. A trial court ruling does not
establish a precedent binding on other courts,
but Holland’s analysis may provide a persuasive
signpost both for courts confronting similar
claims and for employers deciding how to
respond to workers seeking such coverage.
Lambda Legal fi led suit on behalf of Jennifer
Fletcher, who works as a legislative librarian
for the State of Alaska. Fletcher is enrolled in
AlaskaCare, a self-funded employee healthcare
plan administered by Aetna Life Insurance. The
plan provides for “medically necessary” services
“not otherwise excluded.”
The state conceded that for “some” transgender
individuals, surgical procedures for gender
transition may be “medically necessary,”
but the plan formally excludes the procedures
Fletcher sought, even though they are available
for medical issues other than gender transition.
That disparity was at the heart of Holland’s
conclusion that the exclusion is discriminatory
on its face.
Fletcher was diagnosed with gender dysphoria
in 2014 and began the process of social, legal,
and medical transition under professional care,
starting hormone therapy that year. By 2016,
she and her healthcare provider agreed that
surgery was necessary, and Fletcher’s claim
providers and facilities are barred by federal
law from discriminating against people on the
basis of gender identity in healthcare settings,
even as the Trump administration has sought
ways to curtail those rights. Individuals have
the right to be addressed by their name and
with their pronoun, to use facilities consistent
with their gender identity, and to be treated
regardless of their gender identity. The New
York-specifi c guide notes that additional nondiscrimination
laws further protect individuals
in this state.
But the strain on hospitals as a result of an
infl ux of coronavirus cases means that procedures
that are not deemed essential, such as
transition-related surgery, could be postponed.
“Each surgery is evaluated on a case-by-case
basis, so make sure to communicate with your
surgeon about whether your surgery will be
postponed,” the guide states. “While it can be
extremely diffi cult to wait, remember it is postponed,
not cancelled.”
asserted the treatment was “essential” for her
“well-being.” Aetna told her, however, that the
plan did not cover it in that year and would not
in 2017 either. Though the plan has since been
modifi ed to allow coverage for some aspects of
gender transition, hormones and counseling,
the express exclusion of surgery continues.
Fletcher’s request for coverage spurred the
state to study the cost of eliminating this exclusion,
and a consultant advised that the annual
increase in claims on the plan would be
$60,000. The state took no further action beyond
obtaining this estimate.
Given the lack of coverage, Fletcher obtained
her surgery in Thailand, where it was less expensive
for her. She then fi led a discrimination
complaint with the federal Equal Employment
Opportunity Commission (EEOC), alleging that
the plan’s exclusion violates Title VII’s ban on
employment discrimination because of an individual’s
sex.
The state’s simplistic response was that because
the plan excludes coverage for any surgical
procedure for purposes of gender transition,
whether the employee was identifi ed as male
or female at birth, there was no discrimination
“because of sex.”
The EEOC rejected this argument, and issued
a fi nding that the state’s policy violates Title
VII. In May of last, the federal agency notifi ed
Fletcher that its attempt to resolve the mater
through conciliation with the state was unsuccessful
and authorized her to fi le a lawsuit.
Fletcher’s sex discrimination complaint alleged
that Title VII protections covered “discrimination
Those seeking to change their name could
also run into roadblocks for the time being.
Courts are closed for “non-essential” business,
so individuals are advised to check with their
attorneys or visit the court’s home page. There
could also be delays in obtaining a change in a
person’s gender marker, also due to the halting
of non-essential services.
Advocates have pressed government offi cials
to provide more relief for renters who will soon
face their April 1 due date. Evictions and foreclosures
have been suspended in New York until
June 18 and mortgage payments can be suspended
for 90 days.
The nationwide guide states that folks are
“most likely not” liable to lose their home for now.
Those who rent or have a mortgage through the
federal government cannot be evicted through
at least late May 2020.
To read the New York-based guide, visit tinyurl.
com/vkmfknr. The national guide can be
found at tinyurl.com/sf5l9vh.
on the basis of gender nonconformity,
gender identity, transgender status, and
gender transition” — all of the bases of theories
federal courts have employed to evaluate such
claims by trans plaintiffs.
After discovery, both sides moved for summary
judgment by the court.
As it turned out, Fletcher’s itemization of alternative
theories in support of her complaint
was unnecessary, because Holland concluded
the exclusion from coverage was, on its face,
discrimination “because of sex.” His conclusion
was based on the state’s concession that all the
surgical procedures involved in Fletcher’s transition
would be covered if they were performed
for medical reasons other than gender transition.
So, had Fletcher been identifi ed as female at
birth but needed a vaginoplasty procedure for
some other reason, she would be covered — and
indeed that procedure is employed to deal with
medical conditions experienced by some cisgender
women. But the procedure was denied
an individual identifi ed at birth as male for no
reason other than it was aimed at addressing
gender transition. To Holland, this was clearly
an exclusion specifi cally based on the sex of the
employee.
Under Title VII, any “disparate treatment” between
men and women regarding employment
is illegal unless it is justifi ed as a “bona fi de occupational
qualifi cation... reasonably necessary
to the normal operation of an employer’s business.”
In the absence of the state making this
argument, Fletcher won summary judgment.
March 25 – April 08, 2 30 020 | GayCityNews.com
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