It has often been said that a society is ultimately judged by how it treats its weakest and most vulnerable members. Connecticut has done much to promote equality and provide opportunities for all of our citizens – far more than many other states and nations – and has a well-deserved reputation for protecting our weakest and most vulnerable citizens from discrimination.
A case in point. Just two years ago, Connecticut enacted Public Act 11-55, “An Act Concerning Discrimination.” It was a groundbreaking step towards prohibiting employment discrimination based on a person’s “gender identity and expression.” However, passing PA 11-55 has not prevented Connecticut employers and insurers from ignoring the broader applications and implications of the law, specifically, as it relates to access to health care. While employers in Connecticut permit transgender employees to participate in their health care plans, ironically those plans typically contain a specific blanket exclusion for all gender identity-related medical treatments, thus related claims are almost always rejected.
Employment discrimination is not limited to issues of firing and hiring. The law also prohibits employers from discriminating “in compensation or in terms, conditions or privileges of employment…” (Connecticut General Statutes §46a-60(a)(1)). The ability to participate in an employer sponsored health care plan is a normal and typical benefit of employment. Blanket exclusions of gender identity-related health care denies to a specific, targeted group the care that is uniquely required by them; and failure to cover medically necessary procedures despite full knowledge of the law is intentional disparate treatment based on gender identity. These blanket exclusions have a unique and devastating (and disparate) impact on transgender employees, far more so than any other employee group, because they differentiate medical necessity solely based on an individual’s gender identity.
It has been well established by the professional medical community that gender identity-related treatment and procedures are medically necessary. Even the United States Tax Court has ruled that treatments and procedures for a transgender individual qualify as necessary medical care, and are deductible for federal income tax purposes under the provisions of the Internal Revenue Code.
Blanket exclusions frequently deny transgender employees treatments that would otherwise be available for their non-transgender co-workers. In Oregon, which has a non-discrimination law similar to Connecticut’s, a law clerk working for the Oregon Court of Appeals was denied coverage for medically necessary care (a hysterectomy and oophorectomy) because of such a blanket exclusion in the state’s employee health insurance plan. The civil rights complaint filed by that law clerk resulted in the elimination of the blanket exclusion from Oregon’s health insurance plans.
In January 2014, the non-discrimination provisions of another law, the Affordable Care Act (frequently referred to as Obamacare), are set to take effect. Section 1557 of the Affordable Care Act prohibits health care discrimination based on gender; and the U.S. Department of Health and Human Services, led by Secretary Kathleen Sebelius, has already acknowledged that this prohibition includes discrimination based on gender identity. A July 31, 2013 release entitled “HHS report on accomplishments, new efforts to improve LGBT health,” states: “HHS is continuing outreach to the LGBT community to ensure [that] they are aware of new consumer protections under the Affordable Care Act – including a ban on health insurance companies’ ability to deny or limit coverage, because of sexual orientation or gender identity – starting in 2014.”
While a small number of companies, law firms and governmental entities in Connecticut provide complete health care coverage for their transgender employees, the great majority do not. Will Connecticut employers and insurers ignore Section 1557 of the Affordable Care Act, and the clear guidance issued by HHS, just as they are ignoring PA 11-55? History suggests they might.
Connecticut has a unique opportunity. If we step up to meet the legal challenge presented by healthcare discrimination, we stand to play a critical role in ensuring healthcare equality for all. Make no mistake, history does repeat itself and the teachable moments we are offered, are either ours to embrace or ours to ignore. Either way, history will be the final judge.