Dr. Jillian T. Weiss

Oregon Trans Health Benefits Lawsuit Points To Prejudice

Filed By Dr. Jillian T. Weiss | June 22, 2011 10:00 AM | comments

Filed in: The Movement, Transgender & Intersex
Tags: CEI, Corporate Equality Index, Dru Levasseur, health care benefits, Lambda Legal, transgender health

doctorhand.jpgAlec Esquivel is suing because, according to his attorney, Dru Levasseur of Lambda Legal, the law of the State of Oregon prohibits private insurers from excluding transgender people from health benefits, but the State itself excluded Mr. Esquivel, a state employee, from health benefits because of his gender identity.

Why would the State of Oregon do that, given the irrationality of the position it is in here, where it prohibits others from doing exactly what it is doing?

Let me answer that question with another question: what is prejudice?

According to Merriam Webster's Dictionary, the definition includes an "irrational attitude of hostility." I'm not saying the State of Oregon is hostile to all trans health benefits, because it clearly is not, given its leadership position with private insurers on trans health benefits. But some administrator in the State of Oregon hierarchy clearly didn't get the memo. Otherwise, a lawsuit wouldn't be necessary.

"Irrational" defines the State's position here. Unfortunately, exclusion of trans people from access to health care is so widespread, so entrenched, and so unquestioned that most people just shrug their shoulders. I could tell you some interesting stories of my own, from the gynecologist who refused to treat me because she thought I would get cancer from my ultra-low dose of hormones, to the urologist that my HMO sent me to who couldn't figure out where anything was (that was painful), and the non-profit NYC health clinic, so widely revered now, that wouldn't give me my medical records so I could change my drivers license sex designation (late 90s -- I hear they're better now).

According to a press release from Lambda Legal,

"Alec Esquivel was denied coverage for a medically necessary procedure specifically because he is transgender. This type of discrimination is unlawful and risks the health of hardworking, productive citizens of Oregon," said Dru Levasseur, Transgender Rights Attorney at Lambda Legal. "By not covering this procedure, the state is refusing to provide him with the same health care coverage as his co-workers."

"Alec Esquivel is a 41-year-old law school graduate who is clerking for the Oregon Court of Appeals. Assigned female sex at birth, he was diagnosed with Gender Identity Disorder (GID) in 2001 and began to take steps to have his body match his male gender identity. In 2010, as part of his transition-related health plan, Esquivel's doctor recommended that he undergo a hysterectomy as part of his GID treatment and because he was at heightened risk for uterine and ovarian cancer."

The American Medical Association, the American Psychological Association, the American Academy of Family Physicians, and the National Association of Social Workers have all called for an end to trans health exclusions.

As reported this morning by the Oregon Statesman-Journal, "Esquivel's lawsuit contends the state covers hysterectomies and oophorectomies for a host of other reasons, but unfairly excludes coverage of the procedure for transgender people." Interestingly, the story includes the fact that PEBB has covered testosterone treatments for Esquivel during his time working for the state, according to his attorneys.

Why did they draw the line here? I suppose that it's because "surgery" creates an public relations problem.

"Lambda Legal attorney M. Dru Levasseur argued during a press conference Tuesday that by not covering physician-recommended treatment, the state is "effectively paying transgender employees less than non-transgender employees. Health care coverage is part of compensation. 'He's only asking for what other state employees receive,' Levasseur said."

Here is Lambda Legal's timeline

Here is the complaint

This type of thing goes on all the time, and kudos to Mr. Esquivel and Lambda Legal for saying "enough." I think we will begin to see a more litigation-orientation approach to the issue of trans health benefits, in addition to the corporate policy-level approach that has proved effective (up to a point) through the efforts of HRC and its Corporate Equality Index. While the corporate approach has produced benefits far beyond my expectations, insurers are giving serious push-back. As a former insurance coverage attorney, I know that insurance people are extremely conservative and they're not going to give up on this one without a fight. But, as with everything, a multi-pronged approach of carrots and sticks will move this along best.


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Another good reason to have single-payer medicine is that you don't have to fight these fights in fifty states and fifty more loophole fights after that.

Amen, Valerie.

They should cover a medical procedure. Period. That's just basic humanity.

How are you going to get States on board to comply that these are medically necessary procedures. Hell you can't even get the Federal Government to understand that.