On a Friday in June 2015, Rachel Dovel woke up to the good news that the Supreme Court had made same-sex marriage legal nationwide and went to work at the Public Library of Cincinnati and Hamilton County in Ohio with a spring in her step.
But that afternoon, Dovel says, the library’s human resources department informed her that the employee health care plan would not cover her sex reassignment surgery.
“That was a very exciting Pride but also a depressing Pride,” the transgender library employee recalled in an interview with The Daily Beast. “It was a very bittersweet weekend.”
ADVERTISEMENT
Dovel waited months to see if the library’s board of trustees could be persuaded to purchase a rider for their current plan that would add the surgical coverage she needed.
But when that didn’t happen in as timely a manner as she hoped, she filed a lawsuit against the library in September of last year and took out a loan to pay for her surgery.
And this Monday, Dovel’s attorneys announced that she had reached a settlement with the library that they say should send a message to employers in Ohio and beyond: Whatever happens to Affordable Care Act regulations during the Trump era, the constitutional argument against anti-transgender discrimination in health care can get results.
The settlement terms, as the Cincinnati Enquirer reported, include the library changing its health care plan to be transgender-inclusive effective Jan. 1 and offering employee training on LGBT issues.
Whether or not there has been a monetary settlement is unknown—neither the Enquirer, other local outlets, nor The Daily Beast could determine an amount—but Dovel told The Daily Beast that “the settlement was to my satisfaction,” focusing on the impact the agreement would have on current and future employees.
“I do know other people who it will affect,” she said. “I’m happy for them to have more options than they had before.”
The National Center for Lesbian Rights, which represented Dovel along with a local office, believes the case sends a message that reaches far beyond Cincinnati—or even Ohio.
“Employers across the country should take note that denying medically necessary care for transgender employees is unlawful,” said NCLR staff attorney Asaf Orr in a statement.
The NCLR’s legal argument relied on both Title VII of the Civil Rights Act of 1964, which banned sex discrimination, and on the equal protection clause of the 14th Amendment—a line of reasoning similar to one that has been used with varying levels of success in at least 21 federal court cases, according to an Equal Employment Opportunity Commission fact sheet on LGBT-related uses of Title VII.
Under this line of reasoning, discrimination against a transgender person is seen as discrimination on the basis of sex—the same interpretation currently held by the EEOC.
According to a joint press release from the NCLR and the Public Library of Cincinnati and Hamilton County, the library initially maintained that the decision not to purchase a rider was not a form of sex discrimination.
But the library’s insurer added the coverage anyway “shortly after the lawsuit was filed,” as the release noted, and the library “immediately moved up its re-enrollment date by eight months.”
“We were within our rights to consider the impact of adding coverage on the health insurance premiums of all our employees when looking at adding coverage that would have benefited only one,” said Andrea Kaufman, human resources director at the Public Library of Cincinnati and Hamilton County, in a statement. “We are glad Anthem ultimately added this coverage to our base plan, and glad to have reached a happy resolution with our employee Ms. Dovel.”plan, and glad to have reached a happy resolution with our employee Ms. Dovel.”
Orr believes that other employers are learning from cases like these—looking for ways to avoid their own discrimination lawsuits.
“This really speaks to the reality that employers are recognizing and need to recognize—that they can’t discriminate on the basis of sex when it comes to transgender people and specifically coverage for transition-related care,” he told The Daily Beast.
Indeed, in reporting on the settlement, human resources industry news site HR Dive noted: “Dovel’s victory is one for transgender workers. Not every lawsuit over gender confirmation surgery might have had the same outcome, but insurers may be more watchful of healthcare coverage for transgender employees following such claims.”
The use of Title VII in Dovel’s case, Orr believes, should give privately-insured transgender people some degree of hope, even as Obamacare regulations protecting transgender people head to a potential chopping block in the Republican-controlled Senate.
“This settlement relied on Title VII and the Constitution so I think, as a result of that, transgender people who are getting their health insurance through their employer will be largely insulated from a repeal of [the Affordable Care Act’s] Section 1557 or some change in the regulation,” Orr said.
The Obama administration notably interpreted Section 1557 of the Affordable Care Act as banning the exclusion of transition-related medical care—including hormone therapy and surgeries that are widely seen as medically necessary by major professional organizations—from health insurance plans. That rule interpreting Section 1557 was seen as a victory for transgender advocates.
But on Dec. 31, 2016, a federal judge in Texas issued a preliminary injunction against the Department of Health and Human Services rule upholding that regulation.
The Jeff Sessions-led Department of Justice has since declined to appeal that injunction, the Washington Blade reported. President Trump has made HHS appointments with anti-LGBT—and particularly anti-transgender—records. (Still, the HHS website notes that “categorical coverage exclusions or limitations for all health services related to gender transition are discriminatory”—at least according to the rule that is still under injunction.)
All of these developments have transgender advocates fearing for the future of transgender health care, as The Daily Beast previously reported. Indeed, the University of Arkansas system and the state of Wisconsin have already retracted transition-related medical care from employee health insurance plans in the first few months of 2017, following last year’s injunction against the Section 1557 rule.
But Dovel’s case is not the only transgender health care battle that could add momentum to Title VII and equal protection arguments. In April, the American Civil Liberties Union announced that it was filing a lawsuit against the Wisconsin state university system for denying transition-related care to employees.
“The state continues to deny our clients coverage for medically necessary treatment simply because they are transgender, in violation of Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment,” announced ACLU attorney John Knight, in a press release about the lawsuit.
But although these legal challenges may be necessary in some cases, Orr notes that many private employers are adding transgender-inclusive coverage to their plans anyway, whether to avoid lawsuits or to improve their employee’s lives.
The 2017 Human Rights Campaign’s Corporate Equality Index, an annual report that examines LGBT-related policies at major American businesses, found “the largest jump ever in businesses offering transgender-inclusive health care coverage—from 511 last year to 647 this year.”
Deena Fidas, head of the HRC Foundation’s Workplace Equality Program, has previously told The Daily Beast that adding this coverage “makes good business sense” because it helps companies recruit talent and avoid turnover.
Indeed, Dovel told The Daily Beast that she has always liked working for the library but she’s an even better employee now that the plan has become inclusive. As part of the settlement, she will help expand the library’s LGBT-related material. Two years after that bittersweet Pride, she seems to have found her own happy ending.
“I’m glad to be able to be more completely happy working for the library,” she told The Daily Beast. “I was still happy working for the library except for this one thing, so now I don’t have to separate that part off anymore.”
The future of transgender health care coverage is still uncertain for others—as is the fate of the Affordable Care Act.
According to the latest U.S. Trans Survey, 53 percent of transgender respondents rely on an employer health plan and 86 percent were insured—both figures that are lower than but still directly comparable to rates among the general population.
But over half of respondents who tried to get coverage for transition-related surgery were turned down, as were one quarter of those who wanted coverage for hormone therapy.
So although Dovel is satisfied with her settlement, she is also keenly aware that others are still struggling to secure their own coverage.
“I like to hope that there aren’t too many people who have to fight for this but the cynical part of me knows that there are,” she said. “I hope that they hang in there and keep fighting for it.”
If Orr’s optimism is correct, time will prove to be on their side.
