Tough Transitions

A local win for trans-inclusive health coverage comes as new battles loom under the Trump administration

click to enlarge Tough Transitions
Photo: Hailey Bollinger
Last month, a Cincinnati resident prevailed in efforts to get her high-profile public employer to cover transgender-inclusive medical care. But other battles loom.

While employees of the Public Library of Cincinnati and Hamilton County won’t have to fight as Rachel Dovel did for such care, legal confrontations over employer-provided health care for transgender individuals are brewing elsewhere in the country as President Donald Trump’s administration looks to be markedly less LGBTQ-friendly than his predecessor’s.

Dovel’s victory was hard-won. It dragged on for more than a year, and in the meantime, she paid for an expensive gender confirmation procedure she says was medically necessary. 

In 2014, her doctor diagnosed her with gender dysphoria, or psychological distress caused by a person’s sex as assigned at birth. She changed her name, came out to coworkers in early 2016 and began planning to undergo gender confirmation surgery. But she learned her employer-provided Anthem Blue Cross and Blue Shield health plan did not cover that procedure or other trans-specific medical care. 

The library didn’t yield after Dovel made some inquires, and in April 2016, she held a news conference outside the library’s downtown location to go public with her complaints. The Library Board of Trustees voted in June 2016 not to purchase the coverage, citing the cost to taxpayers. 

That September, Dovel and her attorneys filed a federal lawsuit claiming that the library was violating Dovel’s 14th Amendment right to equal protection, federal employment laws barring sex-based discrimination and provisions in the Affordable Care Act prohibiting such discrimination by insurers receiving federal funds, as Anthem does.

In the suit, Dovel asked for monetary damages, a jury trial and court orders to prohibit the library from buying and Anthem from selling coverage that excludes trans-specific healthcare. Two months after filing the suit, Dovel took out a loan to get the surgery she needed.

“My doctors, my therapist and honestly the whole of the reputable medical community all agree that gender-confirmation surgery is a necessary thing for some people, and that it leads to good health outcomes for those people,” Dovel says. “It was a big risk, taking on that much debt, but if I was going to have a normal healthy life any time soon, I had to get it done.”

The library on May 15 announced it had settled with Dovel. 

“We are glad Anthem ultimately added this coverage to our base plan,” library human resources director Andrea Kaufman said, “and glad to have reached a happy resolution with our employee Ms. Dovel.”

Neither Dovel nor the library will comment on any financial dimensions of that settlement, but it does require the library to extend trans benefits and provide training on transgender issues to employees.

“Employers across the country should take note that denying medically necessary care for transgender employees is unlawful,” said the National Center for Lesbian Rights in a statement on Dovel’s settlement after it was filed. NCLR helped represent Dovel in court.

Despite Dovel’s victory, the larger battle over transgender access to health benefits has become increasingly murky with the election of President Donald Trump. 

Just a month before the library announced its settlement with Dovel, for example, the American Civil Liberties Union filed a lawsuit against the state of Wisconsin, which changed its policy on Feb. 1 to exclude transgender-specific procedures and treatments from the health benefits it offers its 300,000 employees. 

The state’s Department of Employee Trust Funds (ETF) passed the policy including trans benefits in July 2016 after U.S. Department of Health and Human Services regulations associated with the Affordable Care Act were interpreted by the Obama administration as requiring employers to offer trans-inclusive care. Those were the same regulations cited by Dovel’s lawyers in their legal filings around her lawsuit. 

Wisconsin Gov. Scott Walker, a Republican who has been a staunch opponent of LGBTQ+ rights, opposed ETF’s move to include benefits for trans people. Walker would eventually get his way.

In December 2016, a federal judge in Texas placed a preliminary injunction on those Affordable Care Act regulations. The Department of Justice could challenge that decision, but Attorney General Jeff Sessions, appointed by Trump, shows no sign of doing so. 

With Affordable Care Act protections for trans-inclusive health care hamstrung, Wisconsin’s ETF department promptly reinstated its trans benefits exclusions.

Dovel’s attorney Jennifer Branch, as well as national groups like the ACLU, argue that this violates federal discrimination laws, like Title VII of the Civil Rights Act, which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion, as well as the U.S. Constitution.

“Public employers, like the library and other government entities, are prohibited by the Equal Protection Clause of the U.S. Constitution from discriminating against employees based on sex; this constitutional protection cannot be changed by the Trump administration or Congress,” Branch says.

The situation in Wisconsin is especially hard, trans activists say, because the state will also require a new, more onerous process in order for employees to change their listed gender. 

Previously, individuals transitioning from one gender to another merely had to present a letter signed by a licensed physician to get their correct gender listed on driver’s licenses and other documentation. Now, however, individuals must provide proof of gender confirmation treatment, including the date that treatment began and details about the nature of that treatment. Ironically, those are the same treatments no longer covered by the state for its employees.

The DOJ’s unwillingness under Sessions to enforce Affordable Care Act regulations against transgender discrimination makes the outlook hazy for more victories like Dovel’s. 

Meanwhile, Dovel hopes her struggle with her employer will help others locally. The decade-plus library veteran has said she knows others there who will benefit from her case. 

“It’s good to feel that my well-being is valued by my employer, and that any library employees or their family members who need this kind of health care in the future will have an easier time accessing it,” Dovel says. “There is still lots of work to be done, especially given the animosity of Trump and Congress toward marginalized people.” ©

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