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LGBT Policy Update- June 2014

June 26, 2014

Author: Julia Saenz

There have been momentous advances in LGBT rights in recent weeks, both in New York and nationally, particularly for the transgender communities.  We’re excited to share these updates with you and we also encourage you to keep an eye on the policy issues that still need your help to become law in case there is an opportunity to take action before the end of the year!

Employment Protections

Federal Advances in LGBT Protections

On June 16, 2014, the Obama Administration committed to sign the Federal Contractors Executive Order barring anti-LGBT discrimination by federal contractors.  This will have wide-reaching effects, as federal contractors employ 22% of the American civilian workforce—about 28 million people. [1]

Though this development is a big step in the right direction, there is still no federal law that explicitly protects all workers—the other 78% of the workforce—from anti-LGBT discrimination.  What’s more, 29 states still have no state law banning anti-LGB discrimination. [2]  New York and 32 other states have no such protection for transgender people. [3]  This means that the 90% of transgender employees and 15% - 43% of LGB employees nationally who report experiencing harassment, mistreatment, or discrimination at work often have no access to justice. [4]

The Employment Non-Discrimination Act H.R. 1755 (Polis)/S. 815 (Merkley) is a federal bill that would help close that gap by banning discrimination against employees based on actual or perceived sexual orientation or gender identity in workplaces with more than 15 employees.  The U.S. Senate took a historic stand for workplace equality and passed ENDA for the first time last November.  Unfortunately, that version of the bill contains a religious exemption that is much broader than the one under existing antidiscrimination law, Title VII of the Civil Rights Act of 1964.  Under ENDA’s current religious exemption, religious institutions could still legally discriminate against LGBT workers in even non-ministerial positions.  Title VII’s religious exemption is  much more narrow and allows certain religious organizations to prefer employees who share the same religious faith—preferring employees of a certain sex, national origin, race or color is illegal. [5]  

Now it’s time to tell House of Representatives that we can’t wait even one more day for basic human rights. Visit the Human Rights Campaign’s action center to tell members of Congress we need the House to pass ENDA without the overly broad religious exemption now!

Click here to join the National Center for Transgender Equality for their Transgender Lobby Day in July 2014.
 
Health Coverage & Identification

NYS Birth Certificate Policy for Gender Marker Change

The New York State Department of Health (DOH) has changed its policy on updating the gender marker on birth certificates!  Effective June 5, 2014, DOH will now issue a corrected birth certificate after receiving an affidavit from a licensed medical provider stating that a transgender individual has received appropriate clinical treatment.  This replaces the previous policy in New York which required proof of surgery.

Many transgender New Yorkers do not ever undergo sexual reassignment surgery, a procedure that is expensive and not reflective or affirming of every transgender person’s gender identity and expression.  Under the old policy, these New Yorkers would have never been able to update their birth certificate to conform with how they express their gender.  This mismatch between their appearance and the gender marker on their birth certificates puts them at a higher risk of being targeted with violence, discrimination and harassment. [6]  DOH’s new policy expands access to this corrective process and to a safer reality for transgender people in our state.

New York joins the Federal Government, Social Security Administration, NYS Department of Motor Vehicles, U.S. Department of State (which issues passports), California, Iowa, Oregon, Vermont, Washington, and the District of Columbia in no longer requiring proof of surgery for gender marker changes.  The American Medical Association also recently issued a report supporting such policies that do not require transgender individuals to “undergo surgery or accept sterilization as a condition of obtaining an accurate birth certificate.” [7]

Since DOH’s policy change does not apply to those born in New York City, several advocacy organizations have also sued the City of New York and the New York City Department of Health and Mental Hygiene to change the city’s practice of requiring proof of surgery to issue birth certificates with corrected gender markers.

For detailed information on the new process for applying to change your gender marker, click here.

*Stay tuned for a compilation of resources we are putting together on some of the most common ways that gender marker change on legal identification documents can impact other areas of life, including in marriage/divorce, child custody and visitation, insurance coverage, and tax and inheritance.

Medicare Coverage for Transition Related Care

On May 30, 2014, the U.S. Department of Health and Human Services (HHS) Departmental Appeals Board overturned an outdated Medicare policy that categorically excluded coverage for sexual reassignment surgery.  The ruling applies to this surgical exclusion and does not address non-surgical procedures like hormones, which were not excluded and should continue to be covered in appropriate cases.

Once the ruling goes into effect, decisions about sexual reassignment surgery will be based on individualized assessments of each patient’s medical need—which is how determinations for any other type of treatment are made.  The Appeals Board’s ruling means that transgender people seeking Medicare coverage will no longer be singled out for unfair treatment because of their gender identity and expression.

The old exclusion had remained in place for 33 years despite overwhelming evidence that sexual reassignment surgery is a safe treatment that is recommended for many people living with gender dysphoria.  The American Medical Association, American Psychological Association, American Academy of Family Physicians, and many other major medical organizations have supported this type of quality care and insurance coverage for transgender patients for years. [8]

Coverage for transgender people who are over 65 is absolutely vital.  This population faces high rates of poverty and unemployment due to a lifetime of discrimination and often has no other source of health coverage than Medicare and Medicaid. [9]  In fact, transgender people are the least likely of the LGBT communities to have health insurance coverage. [10]  This lack of access to health insurance - and, therefore, to health care - often leads to high rates of severe and chronic health conditions and increased economic security. [11]

Empire Justice wants to celebrate the hard work of Denee Mallon and her advocates, American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, National Center for Lesbian Rights, and attorney Mary Lou Boelcke, who filed an administrative challenge on her behalf after she was denied Medicare coverage for sexual reassignment surgery.

We are hopeful that this ruling will lead to a similar return to New York State Medicaid’s previous policy, which did not exclude coverage of medically necessary transition-related treatment until 1998.  The Sylvia Rivera Law Project recently filed a lawsuit against the New York State Department of Health challenging the exclusionary regulation.  When advocates’ efforts are successful, New York will join other states - including Vermont, California, Massachusetts [12] - and the District of Columbia that provide such coverage through Medicaid. [13]  A growing number of municipalities, such as Rochester, NY, [14] Miami Beach, FL, [15] Boston, MA, [16] and San Francisco, CA, [17] provide insurance coverage for gender-affirming treatment for city employees and dependents.  Moreover, California, Colorado, Connecticut, Oregon, Vermont, Washington, [18] Massachusetts, [19] and the District of Columbia now require private insurance companies to cover transition related treatment. [20]  At least 340 private employers in the United States offer transgender-inclusive health care coverage. [21]  Inclusive Medicaid coverage would provide low-income transgender New Yorkers, most of whom do not have employer-based health insurance, with access to crucial medical treatment. 

See the National Center for Transgender Equality’s factsheet for more information about Medicare coverage for transition related services.

Federal Employee Health Benefits Program

On June 13, 2014, the federal Office of Personnel Management (OPM) sent a letter to Federal Employee Health Benefits Program (FEHB) insurers stating that the agency is no longer requiring that insurance carriers offering health insurance to federal employees under the FEHB program exclude coverage for transition-related care in the 2015 plan year.

More information on this development will be available in the coming months.  To read a summary by Andrew Cray, Policy Analyst with the LGBT Progress at the Center for American Progress, click here.

Work Still to Be Done

NY GENDA: A.4226-b (Gottfried)/S.195-b (Squadron)

On June 10, 2014, the Gender Expression Non-Discrimination Act (GENDA) passed the NYS Assembly.  GENDA would add “gender identity or expression” to the list of other bases protected against discrimination and would also expand New York’s hate crimes provisions to address the pervasive violence perpetrated against transgender people. 

This is the seventh time the bill has passed the Assembly and we thank Assembly sponsor Assemblymember Gottfried and all the members who have voted in favor of this crucial legislation for their continued support.

The Senate once again did not vote on this bill before the legislative session ended.  This is unacceptable!  We urge you to keep an eye out for future action alerts, should the Senate return to Albany for a Summer or Fall Session before the end of the year.  For more information about this important piece of legislation, read our memo of support.

Bill to Protect LGBT Youth from Conversion Efforts: A.6983-a (Glick)/S.4917-a (Hoylman)

On June 16, 2014, the NYS Assembly passed this bill, which would prohibit mental health providers from attempting to change the sexual orientation or gender identity/expression of patients under 18 years of age.  The negative effects of this so-called “conversion therapy”, including increased risk of suicide, are well documented. [22]

As with GENDA, the Senate did not vote on this bill before session ended.  Again, we urge you to keep an eye out for action alerts that direct you to contact your Senators and urge them to protect our LGBT youth from this psychological abuse. 


End Notes:
 [1] Office of Federal Contract Compliance Programs, Facts on Executive Order 11246 — Affirmative Action, available at http://www.dol.gov/ofccp/regs/compliance/aa.htm (revised Jan., 2002).
 [2] Lambda Legal, In Your State, available at http://www.lambdalegal.org/states-regions (last visited June 17, 2014) [hereinafter “In Your State”].
 [3] In Your State, supra note 2.
 [4] See Jaime M. Grant, ET AL., National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 3 (2011), available at http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf [hereinafter “Injustice”].
 [5] U.S. Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964, available at http://www.eeoc.gov/laws/statutes/titlevii.cfm (last visited June 18, 2014).
 [6] See Injustice, supra note 4, at 5 (In a national study, “Forty percent (40%) of those who presented ID (when it was required in the ordinary course of life) that did not match their gender identity/expression reported being harassed, 3% reported being attacked or assaulted, and 15% reported being asked to leave”).
 [7] Gay & Lesbian Advocates & Defenders, AMA Issues New Transgender Policies, (June 10, 2014), available at http://www.glad.org/current/item/ama-issues-new-transgender-policies.
 [8] Lambda Legal, Professional Organization Statements Supporting Transgender People In Health Care, (2013) available at http://www.lambdalegal.org/sites/default/files/publications/downloads/fs_professional-org-statements-supporting-trans-health_4.pdf.
 [9] Erin Fitzgerald, The National Gay and Lesbian Task Force, No Golden Years at the End of the Rainbow: How a Lifetime of Discrimination Compounds Economic and Health Disparities for LGBT Older Adults, 4-15 (Aug. 2013), available at http://www.thetaskforce.org/downloads/reports/reports/no_golden_years.pdf [hereinafter “Disparities”].
 [10] Injustice, supra note 4, at 72-7.
 [11] Disparities, supra note  9, at 12.
 [12] Jeremy C. Fox, Mass. to Cover Range of Transgender Medical Care, BOSTON GLOBE, June 20, 2014, http://www.bostonglobe.com/metro/2014/06/20/state-cover-gender-reassignment-surgery-and-hormone-treatment-for-transgender-patients/a9OPrvqdUPmRoiAQugVwEO/story.html.
 [13] Transgender Law Center, Medi-Cal and Gender Reassignment Procedures, (2002), available at http://transgenderlawcenter.org/issues/health/medical-fact-sheet [hereinafter “Medi-Cal”]; Dean Spade, Medicaid Policy & Gender-Confirming Healthcare for Trans People, 8 TRANSGENDER ISSUES &L. 497, 504 (2010), available at http://www.law.seattleu.edu/Documents/sjsj/2010spring/Spade_Advocates.pdf.
 [14] Parker Marie Molloy, The Next Fight for Transgender Insurance Equality, NY TIMES, June 12, 2014, http://www.nytimes.com/2014/06/13/opinion/the-next-fight-for-transgender-insurance-equality.html [hereinafter “Transgender Insurance Equality”].
 [15] Steve Rothaus, Transgender Miami Beach City Employees Granted Trans Healthcare Insurance, a First in Florida, MIAMI HERALD, June 11, 2014, http://miamiherald.typepad.com/gaysouthflorida/2014/06/transgender-miami-beach-city-employees-granted-trans-healthcare-insurance-a-first-in-florida.html.
 [16] MassEquality, Boston City Council Votes Unanimously in Support of Gender Therapy Access Ordinance for Transgender Municipal Workers, (June 11, 2014), available at http://www.massequality.org/content/boston-city-council-votes-unanimously-support-gender-therapy-access-ordinance-transgender-mu.
 [17] Medi-Cal, supra note 13.
 [18] State of Washington Insurance Commissioner, To Health Insurance Carriers in Washington State, (June 25, 2014), available at http://www.insurance.wa.gov/about-oic/news-media/news-releases/2014/documents/gender-identity-discrimination-letter.pdf.
 [19] Commonwealth of Massachusetts Office of Consumer Affairs and Business Regulation Division of Insurance, Bulletin 2014-03, (June 20, 2014), available at http://www.masstpc.org/pubs/3party/DOI%20Bulletin%202014-03.pdf.
 [20] Transgender Insurance Equality, supra note 13.
 [21] Human Rights Campaign, Corporate Equality Index: List of Businesses with Transgender-Inclusive Health Insurance Benefits, (2014), available at http://www.hrc.org/resources/entry/corporate-equality-index-list-of-businesses-with-transgender-inclusive-heal.
 [22] E.g. Caitlin Ryan ET AL., Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults, Pediatrics January 2009; 123:1 346-352; doi:10.1542/peds.2007-3524, available at http://pediatrics.aappublications.org/content/123/1/346.full.

 





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