The Good News.

In a post here at the Bilerico Project, HRC Workplace Project Research Coordinator Samir Luther announced that the announced "3.0" criteria, "will take the CEI and its participants to a more holistic level of LGBT workplace inclusion in the U.S."[1] Specifically, the new criterion for Health Insurance for Transgender Employees and Dependents states:

Benefits-eligible employees and dependents firm-wide must have access to at least one health insurance plan that:

1. Covers transgender-specific treatment (mitigating "transgender" or similar exclusions for care) and
2. Affirmatively recognizes the WPATH Standards of Care in determining treatment coverage eligibility (mitigating "medically necessary" and "cosmetic" exclusions).[2]

The first item does not specify what hormonal or surgical transition procedures must be covered to qualify for a 100% CEI rating, however it does imply that some kind of "transgender-specific treament" must be covered. It further states that transgender-specific exclusions to care must be "mitigated." As I noted last week,[3] health policy exclusions targeting trans-people are often very broadly worded, with phrases such as:

All expenses related to gender reassignment, including those related to complications arising from such services.

And:

[treatment] not appropriate based on the gender of the patient.

These exclusions extend well beyond transition-related treatments to implicate any medical condition that might be construed as a "complication" of transition or related to anatomy or physical sex characteristics that are atypical. Examples of the latter might include denial of cervical cancer screening for a transman or prostate cancer screening for a transwoman. The HRC is correct to address exclusions that specifically target trans employees and dependents, however the criterion fails to explain how they should be "mitigated" or why they should not be eliminated completely.

The second line item requires that health benefit policies must reference the Standards of Care (SOC) published by the World Profession Association for Transgender Health (WPATH).[4] The current SOC remain controversial to many in the trans-community, with issues of inflexibility, fixation on binary gender stereotypes, and reliance on misleading psychiatric diagnostic nomenclature.

Nevertheless, they are the most widely recognized global guidelines for medical and surgical transition treatment and eligibility. Although the current sixth version of the SOC is footnoted on the HRC site,[2] the criterion itself does not specify a particular version.
This is beneficial in accommodating upcoming revision to the Standards of Care without invalidating the CEI criterion.

The second item notes that tying treatment coverage to the WPATH SOC would play a role in mitigating "medically necessary" and "cosmetic" exclusions in health benefit policies. This is an important point, because hormonal and surgical transition treatments are often falsely stereotyped as "cosmetic," "experimental" or "elective" by employers and excluded on that basis. In fact, the current SOC unequivocally affirm the medical necessity and efficacy of these procedures:

... sex reassignment surgery, along with hormone therapy and real-life experience, is a treatment that has proven to be effective. Such a therapeutic regimen, when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary. Sex reassignment is not "experimental," "investigational," "elective,"
"cosmetic," or optional in any meaningful sense. [5]

As Samir Luther noted in his post, the American Medical Association has also asserted the medical necessity of transition procedures, stating that health experts have "rejected the myth that such

treatments are 'cosmetic' or 'experimental' and have recognized that these treatments can provide safe and effective treatment for a serious health condition."[6]

Luther also noted another positive development in the present 2009 CEI survey. Employers who claimed to provide coverage for transition health benefits were required to provide documentation.

While there is room for better clarity, I feel that the proposed changes in CEI 3.0 would bring significant improvement to a process that has marginalized trans health care in the past. I especially thank Meghan Stabler of the HRC Business Council, Dr. Dana Beyer of the Board of Governors, and former Business Council members Jamison Green, Donna Rose and Diego Sanchez, for their long efforts to advocate trans health benefit equity in the CEI.

The Really Bad News.

In my view, the greatest problem with the announced CEI criteria is years of delay before their implementation. While Mr. Luther stated that the new criteria "will be effective beginning June 2011,"[1] an HRC document explains that "The new criteria will go into effect for the Corporate Equality Index 2012 Survey and Report issued in calendar year 2011."[7]

A time-line in this document further clarifies that,

Because benefits typically operate on an annual cycle, all benefits changes must be effective by Jan. 1, 2012.

June 30, 2011 is listed as the deadline for surveys to be submitted to the HRC; and participants are given another month, until July 29, 2011, to "demonstrate that all new non-benefits criteria have been met and that all new benefits criteria will be met by Jan. 1, 2012."

Therefore, employers receiving a perfect 100% score on the HRC Corporate Equality Index may continue to exclude health care benefits for medical and surgical transition care, as well as non-transition care for trans individuals with atypical physiology, until January 1, 2012. Until then, exclusion of potentially lifesaving access to hormonal and surgical care is not only endorsed by the HRC for nearly three more years, it is held as a model of perfection -- of the very "Best Places to Work,"[8] for GLB and Trans employees. This is a travesty.

As Monica Helms, co-founder of the Transgender American Veterans Association, commented on the Bilerico Project last week,

...in the meantime, my 100% company will continue to deny me a medically-necessary procedure that would reduce my chances of breast cancer, bone density loss, heart attack and stroke. This is a procedure that others with the same body parts can get with far less proof [than] I need."[3]

Gender transcendent people, transitioning and post-transition individuals in particular, deserve better than this. As Mr. Luther himself commented, "No one should have medically necessary treatment denied."[1]

The HRC has defended its delay in requiring trans health benefit coverage to the 2012 CEI Survey, stating,

Because benefits plans typically change only once per year, because many employers currently work with insurance providers that do not provide inclusive insurance to any of their employers, and because the CEI must be achievable in order to motivate employers to participate in the first place, these changes will not be required until June 2011, when the 2012 Corporate Equality Index Survey is due.[9]

However, based on my experience of thirty years in the corporate world, as an employee, a manager, a consultant, and a policy advocate, I disagree. There is an old saying in the business world that I first learned from the co-founder of my own employer, Dave Packard:

What gets measured, gets done.

By excluding the measure of health benefits for transition procedures from the Corporate Equalty Index, the HRC has rewarded discriminatory policies and enabled further delay in equity for far too many years. In the current 2009 CEI Survey, the HRC passed out 193 perfect 100% awards to corporations that specifically excluded surgical transition procedures from coverage.[3] In my view, these scores were fraudulent and should have never been awarded in the first place. These corporations had already enacted equal opportunity (EEO) policies inclusive of gender identity or expression. Their executives were already aware that their health benefits exclusions violated their own EEO policies.

There is little doubt that it was "achievable" for these 100% CEI employers to enact inclusive trans health benefits before now. The HRC simply removed any motivation for them to do so. For exemplary employers, such as Cisco, IBM and Wells Fargo who genuinely earned their 100% scores by providing transition benefits coverage, the HRC offered no recognition in the CEI score.

Corrective Action Now.

I suggest that the HRC's commitments to its survey participants/corporate donors are subordinate to its commitment to LGBT equality, especially when the lives and health of human beings are at stake.

The HRC is correct in measuring a distinction between companies who fail to cover transition treatments/procedures but do not specifically exclude them, and those who specifically target these treatments/procedures for for exclusion. The latter pose a more urgent problem. These exclusions not only preclude any consideration on a case-by-case basis, they are often so broadly worded that they exclude ordinary medical care for post-transition people or individuals with atypical anatomy.

I believe that the practice of awarding 100% scores to companies with trans-targeted health benefit exclusions is unconscionable and always has been. I ask that the HRC, starting today, never again award a fraudulent 100% CEI score to an employer with policies that specifically exclude coverage for hormonal or surgical transition care.

For the 2010 CEI, I suggest that one point be subtracted for benefits policies that exclude hormone treatment and another for the exclusion of surgeries. This would apply to policies effective January 1, 2010 and would have a very minimal impact on scoring.

An award of 98 or 99% to corporations with discriminatory trans health benefit exclusions would send a modest message that trans lives matter. It would provide at least some incentive for change and provide an incremental transition to the more comprehensive CEI 3.0 criteria. Surely the health and lives of transitioning employees and dependents are worth one or two meager points on the Corporate Equality Index scale until the new 3.0 criteria are enacted.

To this old Irish engineer, an equal sign means equal; no excuses.

[1] S. Luther, "HRC: Corporate Equality 3.0," The Bilerico Project, March 3, 2009, http://www.bilerico.com/2009/03/hrc_corporate_equality_30.php

[2] Corporate Equality Index: Criteria 3.0 - Health Insurance for Transgender Employees and Dependents, http://www.hrc.org/issues/workplace/benefits/12207.htm

[3] K. Winters, "HRC Throws Trans Health Equity Under the Bus - Again, " The Bilerico Project, Feb 15, 2009, http://www.bilerico.com/2009/02/hrc_throws_trans_health_equity_under_the.php

[4] World Profession Association for Transgender Health (formerly the Harry Benjamin International Gender Dysphoria Association), "Standards Of Care For Gender Identity Disorders, Sixth Version," http://wpath.org/Documents2/socv6.pdf

[5] WPATH SOC v.6, p. 18.

[6] American Medical Association, Resolution 122, "Removing Financial Barriers to Care for Transgender Patients," 2008, http://www.ama-assn.org/ama1/pub/upload/mm/16/a08_hod_resolutions.pdf

[7] Human Rights Campaign Foundation, "Corporate Equality Index 3.0: Understanding the New Criteria," 2009, http://www.hrc.org/documents/HRC_Foundation_-_CEI_3_0_Criteria_-_2009.pdf

The same time-line schedule for the CEI3.0 survey criteria is repeated at:

Human Rights Campaign Foundation, "Corporate Equality Index: Rating Criteria 3.0 (2011-)," 2009, http://www.hrc.org/issues/workplace/cei_criteria_new.html

Both clarify that the 2012 survey, taken between March and June 2011, will require that employment benefit policies are compliant with the 3.0 survey criteria effective January 1, 2012, rather than at the time the survey is taken in 2011.

I have asked the HRC for confirmation of the accuracy of this time-line, published twice on the HRC web site. As of 03-09-2009, I have not yet received a response.

Here are some important excerpts from the CEI 3.0 time-line:

2011

• Mar.31: 2012 CEI Survey released to participants (includes clearly marked questions that will count toward the new criteria only).
• Participants will receive preliminary rating evaluations using new criteria only.
• Jun. 30: 2012 CEI Survey must be submitted to HRC Foundation by the end of June.
• Jul. 29: Participants must demonstrate that all new non-benefits criteria have been met and that all new benefits criteria will be met by Jan. 1, 2012.
• Sep. 1: 2012 CEI Report released to public with new criteria only.

2012

• Jan. 1: Because benefits typically operate on an annual cycle, all benefits changes must be effective by Jan. 1, 2012.

[8] Human Rights Campaign Foundation, "Best Places to Work 2009," http://www.hrc.org/issues/workplace/11832.htm

[9] Human Rights Campaign Foundation, "How are transgender-inclusive benefits included in the Corporate Equality Index?" 2009, http://www.hrc.org/issues/workplace/benefits/12215.htm