Tag: sex change

Sandra Fluke, Gender Reassignment, and Health Insurance

Sandra Fluke is being sold by the left as something she’s not. Namely a random co-ed from Georgetown law who found herself mixed up in the latest front of the culture war who was simply looking to make sure needy women had access to birth control. That, of course, is not the case.

As many have already uncovered Sandra Fluke she is, in reality, a 30 year old long time liberal activist who enrolled at Georgetown with the express purpose of fighting for the school to pay for students’ birth control. She has been pushing for mandated coverage of contraceptives at Georgetown for at least three years according to the Washington Post.

However, as I discovered today, birth control is not all that Ms. Fluke believes private health insurance must cover. She also, apparently, believes that it is discrimination deserving of legal action if “gender reassignment” surgeries are not covered by employer provided health insurance. She makes these views clear in an article she co-edited with Karen Hu in the Georgetown Journal of Gender and the Law.

The title of the article, which can be purchased in full here, is Employment Discrimination Against LGBTQ Persons and was published in the Journal’s 2011 Annual Review. I have posted a transcript of the section I will be quoting from here. In a subsection of the article entitled “Employment Discrimination in Provision of Employment Benefits” starting on page 635 of the review Sandra Fluke and her co-editor describe two forms of discrimination in benefits they believe LGBTQ individuals face in the work place:

Discrimination typically takes two forms: first, direct discrimination limiting access to benefits specifically needed by LGBTQ persons, and secondly, the unavailability of family-related benefits to LGBTQ families.

Their “prime example” of the first form of discrimination? Not covering sex change operations:

A prime example of direct discrimination is denying insurance coverage for medical needs of transgender persons physically transitioning to the other gender.

This so called “prime example” of discrimination is expounded on in a subsection titled “Gender Reassignment Medical Services” starting on page 636:

Transgender persons wishing to undergo the gender reassignment process frequently face heterosexist employer health insurance policies that label the surgery as cosmetic or medically unnecessary and therefore uncovered.

To be clear, the argument here is that employers are engaging in discrimination against their employees who want them to pay for their sex changes because their “heterosexist” health insurance policies don’t believe sex changes are medically necessary.

Additionally Sandra Fluke and her co-editor have an answer for why exactly these “heterosexist” insurance policies, and the courts that side with them, deem sex changes as medically unnecessary:

In Mario v. P & C Food Markets, Inc., an employee who was denied such coverage brought claims under the federal Employee Retirement Income Security (ERISA) and Title VII. The court rejected the ERISA claim, finding the plaintiff’s mastectomy and hormone therapy were not medically necessary. The court’s ruling was based upon controversy within the medical community regarding that treatment plan. Much of that controversy has been linked to ignorance and bias against transgender persons, and the American Medical Association has declared the lack of coverage to be discrimination.

You see, all opposition to the determination that sex changes are medically necessary, and therefor must be covered by private employer provided health insurance, is based on “ignorance and bias against transgender persons”.

The section on discrimination against those seeking  gender reassignment ends with Sandra Fluke and her co-editor wondering why more lawsuits aren’t filed against private employers on these grounds. Especially in comparison to the frequency with which these types of cases are filed against Medicare, Medicaid, and even the prison system:

The reason for this lack of cases is unclear. Private employee insurance plans do not more frequently cover this need, so it may be a sign that transgender employees do not see the courts as likely to provide any assistance against private employers.

The argument made in this article edited by Sandra Fluke and Karen Hu is quite clear. “Gender reassignment” is a medically necessary set of procedures that must be covered under employee provided health insurance policies. If it is not covered by those policies that is tantamount to discrimination and legal action should be taken against the employer.

So, as you can see, Sandra Fluke is not what she is being sold as. Instead she is a liberal activist pushing some rather radical ideas. Keep that in mind as the left holds her up in the spotlight.

Sandra Fluke, Gender Reassignment, and Health Insurance – Transcript

Here is an excerpt of Employment Discrimination Against LGBTQ Persons appearing in the Georgetown Journal of Gender and the Law’s Annual Review 2001 between pages 635 and 637 edited by Sandra Fluke and Karen Hu:

III. Employment Discrimination In Provision Of Employment Benefits

Many LGBTQ individuals face discrimination in the provision of employment benefits. Discrimination typically takes two forms: first, direct discrimination limiting access to benefits specifically needed by LGBTQ persons, and secondly, the unavailability of family-related benefits to LGBTQ families. A prime example of direct discrimination is denying insurance coverage for medical needs of transgender persons physically transitioning to the other gender. Denial of family-based employment benefits (including family health insurance, survivor benefits, and time off for family illnesses) is often predicated on a lack of recognition of civil unions, domestic partnerships or co-habitation. Only 33% of all organizations offering spousal benefits include benefits to same-sex partners, and LGBTQ employees in lower paying industries are less likely to be granted suck benefits.

A. Gender Reassignment Medical Services

Transgender persons wishing to undergo the gender reassignment process frequently face heterosexist employer health insurance policies that label the surgery as cosmetic or medically unnecessary and therefore uncovered. In Mario v. P & C Food Markets, Inc., an employee who was denied such coverage brought claims under the federal Employee Retirement Income Security (ERISA) and Title VII. The court rejected the ERISA claim, finding the plaintiff’s mastectomy and hormone therapy were not medically necessary. The court’s ruling was based upon controversy within the medical community regarding that treatment plan. Much of that controversy has been linked to ignorance and bias against transgender persons, and the American Medical Association has declared the lack of coverage to be discrimination. Mario’s rule that gender reassignment treatment is normally not medically necessary forces any individual claiming otherwise to show why his or her case is exceptional. This presumption is the reverse of the prevailing one for Medicaid and Medicare beneficiaries; those plans may not have a blanket denial, but can deny coverage on a case-by-case basis.

There is a relative lack of case law addressing coverage denials under private plans, as well as the difficulty of accessing FMLA leave for recovery from gender reassignment surgeries. By contrast, there are many cases adjudicating claims for Medicaid and Medicare denials of these services, as well as many cases relating to the government’s responsibility to provide prisoners with access to such services. The reason for this lack of cases is unclear. Private employee insurance plans do not more frequently cover this need, so it may be a sign that transgender employees do not see the courts as likely to provide any assistance against private employers.

(This transcript does not contain the citations originally included in the article but they are available in the full copy of the article which can be purchased at the link above)