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Two years later, Macy decision’s impact shown on LGBT rights

Mia Macy, gay news, Washington Blade

Mia Macy was the plaintiff in a case establishing transgender people are protected under civil rights law (Photo courtesy of Mia Macy).

For Mia Macy, being part of a landmark decision that said transgender workplace discrimination is illegal under existing civil rights law is “still amazing” on the day of its second anniversary.

“It’s weird; I have to set myself outside of it and look at it,” Macy said. “It’s a blessing and great thing on one side. Now that we’ve had a couple years it’s kind of disappointing the LGBT community hasn’t embraced the fact that lawyers and employment specialists around the country have known for the last couple years: We have LGBT workplace protection rights.”

The unanimous decision in Macy v. Holder, handed down by the U.S. Equal Employment Opportunity Commission on April 20, 2012, established for the first time that anti-trans bias in the workplace amounts to gender discrimination under the Title VII of the Civil Rights Act of 1964. From that time forward, it was clear the EEOC would represent trans victims in litigation.

After a California-based Bureau of Alcohol, Tobacco, Firearms and Explosives laboratory denied her a job as a ballistics technician when she announced she would transition, Macy filed the complaint. She said at the time she “had no clue” the litigation would result in such a landmark ruling.

“I thought it would just have an impact maybe over maybe ATF or the Justice Department,” Macy said. “In no way did I ever imagine that it would be a federal decision. There came a part closer to when the decision came out that we knew there might be some bigger ramifications with the decision, but until we saw the decision, we had no idea.”

Macy said prior to her filing to complaint, she and her wife were allowed to consider additional causes for seeking relief. Driving in their car, they decided to add “gender stereotyping” to the complaint, which Macy added with Sharpie marker by writing on the roof of her vehicle. That was the rationale by which the EEOC came to the conclusion the Macy experienced illegal discrimination when seeking a job.

“Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on… sex,’ and such discrimination therefore violates Title VII,” the decision states.

LGBT advocates say since the decision was handed down, the ruling has helped other trans victims of workplace discrimination. The EEOC didn’t respond on short notice to provide information on damages won or the number of LGBT victims, but pledged to provide the information in the coming days.

Tico Almeida, president of Freedom to Work, said the Macy decision was essential in reaching a settlement with a federal contractors for a Maryland trans victim of workplace discrimination represented by his organization and Lambda Legal.

“I was impressed with the EEOC staff for conducting such a thorough investigation and interviewing so many witnesses to the anti-transgender harassment,” Almeida said. “This case shows that the EEOC takes very seriously its role enforcing LGBT workplace protections and that the Macy decision is being implemented in a very real way.”

According to Freedom to Work, EEOC investigated the complaint under Title VII based on the victim’s complaint her co-workers regularly harassed her with slurs like “tranny,” “drag queen” and “faggot.” In September 2012, the agency issued a “cause determination letter” finding reasonable cause the company violated the law.

The name of the plaintiff, the company and the damages won remain under wraps as part of the settlement. It’s likely the first time in history that the EEOC has investigated allegations of anti-trans harassment and ruled for the trans employee after the Macy decision.

Mara Keisling, executive director of the National Center for Transgender Equality, said the Macy decision has formed the basis for “hundreds of cases” of trans discrimination filed since that time.

“Trans people really are standing up for themselves a lot, lot more with this tool,” Keisling said. “I don’t mean they didn’t have a spine before, I mean now they have a tool, and that’s empowered them to stand up for themselves with that tool.”

Keisling emphasized the Macy decision was the culmination of a “trend” started by courts ruling in favor of trans people in sex discrimination cases. That trend, Keisling said, continues with developments like the Department of Health & Human Services determining the sex discrimination provision in the Affordable Care Act covers gender identity.

Despite the nature historic of the decision that her lawsuit produced, Macy said she’s been unable to secure employment following the ruling and blames the Internet record of her case as the reason why companies are deterred from hiring her.

Although as part of settlement, Macy was supposed to be instated in the job at ATF, she said that ultimately didn’t happen, but refused to say why. She said she’s been unsuccessful in trying to find other work despite what she says are hundreds of attempts, and instead has returned to school on a pre-law track with the intent to go to law school to study employment law.

Further, Macy said the Transgender Law Center, which initiated the lawsuit on her behalf, “fired” her as a plaintiff and other attorneys handled the litigation going forward. Macy was reluctant to go into much detail, citing attorney-client privilege, but mentioned she “didn’t want to continue the promotion side with them.”

“I was terminated at the end of 2012,” Macy said. “They sent me a letter and said they would no longer be my attorneys and called me and said we’re no longer representing you.”

Ilona Turner, a spokesperson for the Transgender Law Center, said in response to Macy’s assertion she was terminated that the organization helped Macy find other representation following the initial stages of her lawsuit.

“We are very proud of the contribution we were able to make in Mia’s case,” Turner said. “After we represented her through her initial filing and appeal and won the historic EEOC decision establishing that Mia and all other transgender employees are protected under Title VII, we helped connect her with another firm to represent her through the next stage of the process.”

One issue that remains is whether Title VII also protects gay, lesbian and bisexual people from employment discrimination under the Macy just as the EEOC determined it affords protections to trans people.

The view that LGB people are protected is espoused by Chai Feldblum, a lesbian member of the EEOC, who said earlier this month during an interview with the Washington Blade that anti-gay discrimination “for the purposes of the law” is sex discrimination.

Just recently, a federal court in D.C. allowed a gay man, Peter TerVeer, to sue the Library of Congress on the basis of gender discrimination on the basis of his allegations of anti-gay bias on the job.

Sarah Warbelow, legal director for the Human Rights Campaign, noted that Macy doesn’t explicitly address sexual orientation, but looking at legal precedent, gay people should be covered under Title VII.

“We think are claims to be made by LGB people under Title VII,” Warbelow said. “It’s not as clear-cut based on the court decisions as this point as Macy’s case made it for trans people.”

But it’s the doubt on whether the Title VII protects against anti-gay discrimination — not to mention that lack of explicitly statutory language informing the courts that discrimination against trans people is unlawful — that makes LGBT advocates say additional action is necessary.

One is passage of the Employment Non-Discrimination Act, legislation that would bar many employers from firing or discriminating against LGBT people in the workplace. The other is an executive order for LGBT people along the lines of Executive Order 11246, which bars federal contractors doing $10,000 a year or more in business with the U.S. government on the basis of race, color, religion, sex, or national origin.

Despite the heavily sought-after nature of both these initiatives, neither have yet come to fruition. The Senate last year passed ENDA by a vote of 64-32 on a bipartisan basis, but it has stalled out in the House as Speaker John Boehner (R-Ohio) has continually said he opposes the legislation. And President Obama continues to withhold an executive order for LGBT people as the White House has said he prefers a legislative approach to the issue.

Warbelow said these added protections are necessary for trans people in addition to Macy — let alone to protect LGB people — in case courts don’t side with EEOC in the legal reasoning that sex discrimination occurred.

“While I’m hopeful that when a case reaches the U.S. Supreme Court, they will apply the same legal reasoning as Macy, there’s no guarantee when it comes to the Supreme Court,” Warbelow said. “Until that happens, we want to make sure that transgender people are explicitly protected.”

Additionally, Warbelow said more explicit non-discrimination protections for trans people would “put employers on notice” because posters would be updated in the workplace indicating gender-identity discrimination is just as illegal as discriminating on race, gender or religion.

But Macy said non-profit LGBT advocacy groups continue to say they need ENDA and the executive order to keep pushing for donations, even though the Macy decision already provides protections to LGBT people under the law.

“They don’t want somebody saying publicly they have something already,” Macy said.

Advocates are also pushing the Labor Department to interpret the existing sex discrimination provisions in Executive Order 11246 to enable to Office of Federal Contract Compliance to investigate and assign damages for cases of trans discrimination. In February, Labor Secretary Tom Perez told the Blade that potential move was under review, but the Labor Department has provided no updates since then.

Keisling said the Macy decision is “not the end” for what trans workers need for workplace non-discrimination protections in part because of the symbolic of nature of both ENDA and the executive order.

“It creates other enforcement mechanisms, other roads to educate employers,” Keisling said. “Ultimately, that’s what the LGBT movement is. It’s about educating people and educating them some more and winning them more and embracing them and then winning over more people until we can stop doing that hopefully some day in the future — maybe never.”


Open trans military service ‘inevitable,’ advocates say

Landon Wilson, gay news, Washington Blade

Landon Wilson was discharged from the Navy for being transgender. (Photo courtesy of Wilson)

Those seeking to overturn the U.S. military’s ban on open transgender service say it’s a question of when, not if, the change in policy is made.

That’s the view of Landon Wilson, a 24-year-old transgender former sailor whose story about being discharged from the Navy — despite having critical skills to intercept enemy communications — made the front page of The Washington Post last week.

Speaking with the Washington Blade this week, Wilson wouldn’t predict when the military’s ban on transgender service would be lifted, but said it’s just a matter of time.

“I think that it will be,” Wilson said. “Transgender service is inevitable at this point, it’s just the work to get there, making people understand that we’re not asking for special treatment. We’re not a community that’s asking to be an exception; we’re just asking to be able to have the same rights as everybody else.”

Following publication of the Post piece, which documents his decision to enlist as a sailor, his subsequent decision to transition and discharge from the Navy, Wilson said he received a lot of positive reaction, including from military leaders. He was discharged just two months ago on March 5.

“I had people from the military community in Hawaii actually reach out to me, people that I haven’t talked to before, who were very supportive,” Wilson said. “A lot of higher up leaders contacted me via email or Facebook and extended their sympathy to me, told me they valued the work that I had done. They were apologetic of the policy and that it had to come to this.”

Unlike “Don’t Ask, Don’t Tell,” which prevented until 2011 openly gay people from serving in the U.S. military, the ban on transgender service in the military is a medical regulation that could be lifted at any time. Under DoD Instruction 6130.03, which was put in place before 1980, disqualifying conditions for military service include change of sex and a “current or history of psychosexual conditions (302) including but not limited to transexualism…exhibitionism, transvestitism, voyeurism and other paraphilias.”

Allyson Robinson, a transgender advocate and policy director for the LGBT military group SPART*A, said in her meetings with Pentagon officials, the message conveyed to her was openly transgender service would happen at some point.

“People ask me what kind of resistance I’m facing,” Robinson said. “To be perfectly honest, I’ve encountered very little resistance. What I do encounter is this resignation: ‘Yes, we know that this has been coming. Yes we know that this needs to get done.’”

Robinson, a transgender veteran herself who transitioned after she left service, said she had the sense when working on “Don’t Ask, Don’t Tell” repeal that the ban on transgender service wouldn’t be lifted for another 15 years. Now, based on the success of the end to the military’s gay ban, she said she’s “very optimistic” the military can move to openly transgender service in between two and five years — starting under the leadership of Defense Secretary Chuck Hagel.

But you wouldn’t know that talking to public relations officials at the Pentagon, who say in response to media requests there are no plans to change the ban on transgender service. In fact, the Human Goals Charter recently signed by top military brass lacked any explicit mention of transgender people working at the Pentagon — either on the military or civilian side —  even though other groups, including gay service members, were included.

And the Pentagon has offered a new reason for why it cannot lift the ban: transgender service members often have to serve in “austere environments” where they don’t have access to treatments related to transition. That position has been disputed by bisexual scholar Nathaniel Frank, who wrote in an op-ed for Slate that other kinds of troops are allowed to serve even if they have to receive continual treatment.

That line of thinking also riled Wilson, who pointed out that the military deploys transgender contractors to the same “austere environments” all the time with the ability to obtain treatment free from any bias. Further, Wilson noted other countries have enacted openly transgender service without any problems.

“With that said, our allies who allow transgender service deploy to the same environments with no issues,” Wilson said. “The American military continues to be the odd one out here in holding onto an antiquated policy that weakens our military as an institution and hurts our people who have taken an oath to protect and defend.”

It’s hard to say how many transgender people have been discharged under this regulation. Lt. Cmdr. Nathan Christensen, a Pentagon spokesperson, said the Pentagon doesn’t track the number of discharges for service members who are transgender.

That’s different than the situation under “Don’t Ask, Don’t Tell.” The military was keeping tabs on the number of service members discharged for being gay and eventually found nearly 14,000 troops were expelled under the law.

Mara Keisling, executive director of the National Center for Transgender Equality, said ending the ban on transgender service is a priority because it’s one of the very few ways in which the federal government itself continues to discriminate against LGBT people.

“And that’s not OK, and those things have to go away,” Keisling added. “The two big ones we’re working on is trans military service and the arbitrary exclusions in the federal employee health benefits plans. Those are just the federal government acting immorally, and capriciously, and that’s a big reason why it’s on our plate.”

Still, even within the transgender community, Keisling said there hasn’t been significant clamor to move forward with ending the military ban compared to other issues.

“There’s a lot of support for us doing this work, but it’s not the kind of thing that’s coming from a groundswell of community interest,” Keisling said. “I think the community is interested and knows that it’s the right thing to do, but for people, it’s definitely not their top priority of things to accomplish.”

Since the time Wilson was discharged, he has relocated to New York City to help produce a documentary called “TransMilitary,” which is set to demonstrate the harms of the ban and compare U.S. policy to other countries, such as that of Great Britain, which Wilson said ended its ban on transgender service before ending its ban on gays in the military.

But if the military were to end its ban on transgender service, Wilson said he would re-enlist in the Navy “in a heartbeat.”

“The military gave me a lot of things on a personal level, and a lot of that general confidence to be able to be whom I am today,” Wilson said. “There’s never been a time in my life where I felt I belonged like I did in the military. The community and the overall family feeling of the military is something that you do not find anywhere else.”


Ban lifted on trans-related health care for fed’l employees

trans, transgender flag, gay news, Washington Blade

OPM will allow coverage of transition-related care for federal employees (Washington Blade file photo by Michael Key).

The Obama administration announced quietly on Friday it would lift the ban prohibiting health insurance carriers from covering transition-related care for transgender federal employees.

In a memo dated June 13, the U.S. Office of Personnel Management informs Federal Employee Health Benefits carriers that it would no prevent coverage of transgender-related care beginning with the 2015 plan year. The news was first reported by Buzzfeed.

“There is an evolving professional consensus that treatment is considered medically necessary for certain individuals who meet established Diagnostic and Statistical Manual (DSM) criteria for a diagnosis of Gender Identity Disorder/Gender Dysphoria,” writes Healthcare and Insurance Director John O’Brien.

The memo states OPM is “removing the requirement that FEHB brochures exclude ‘services, drugs, or supplies related to sex transformations’ in Section 6 of the FEHB plan brochure effective with the 2015 plan year.” These services include gender reassignment surgery for transgender federal employees, according to the National Center for Transgender Equality.

Mara Keisling, executive director for the National Center for Transgender Equality, commended OPM for “modernizing their policy” to provide coverage for transgender employees.

“There are a lot of trans federal employees who have their jobs protected, but who are getting discriminatory health care,” Keisling said. “I think OPM realized that. That’s equalizing that, and this is really great and important.”

But the change in policy doesn’t require carriers to provide transgender-related health care. Carriers are given one of two options by June 30, 2014: 1) Remove the General Exclusion language and provide to OPM the specific brochure text that describes the covered components and limitations of care for the diagnosis; or 2) Maintain the General Exclusion language for the 2015 plan year.

LGBT advocates had been pushing — publicly and privately — for the change for some time, saying it was one of the last remaining anti-LGBT discriminatory policies made by the U.S. government.

David Stacy, director of government affairs for the Human Rights Campaign, was among those hailing the change in policy from the Obama administration.

“Today’s welcome decision by the Office of Personnel Management to remove this discriminatory and harmful exclusion is an important step towards closing the gap in access to quality health care for transgender workers,” Stacy said. “HRC urges FEHB insurance carriers to include this essential coverage in their plans so that federal workers have access to medically necessary transition-related care.”

Although OPM says coverage is optional for carriers, Keisling said her organization believes they would be in violation of the law if they refused to offer transition-related care to transgender people.

“We think they’ll be in violation of the law if they don’t cover it, not because of what OPM did today, but because it’s a covered category in job discrimination,” Keisling said. “Trans people are protected by Title VII. We think it’s illegal sex discrimination if they exclude care for trans people that they allow other people to have.”

A White House official, speaking without attribution, also weighed in the policy change in response to an inquiry from the Washington Blade.

“The White House defers to OPM on how the FEHB program should be run, but we agree that access to appropriate medical care should be based on scientific and clinical evidence,” the official said.

The policy comes on the heels of a recent decision from an independent appeals board within the Department of Health & Human Services to allow Medicare to provide coverage for gender reassignment surgery. It also follows D.C. Mayor Vincent Gray’s decision to require health insurers to provide transgender-related care to D.C. residents.

Jeff Krehely, HRC’s vice president and chief foundation officer, said developments like these — as well as media attention to Laverne Cox, star of “Orange is the New Black” — is raising awareness for transgender issues.

“These victories are undoubtedly improving the lives of transgender people across the country — improving access to health care and providing critical protections on the job and beyond,” Krehely said. “However, the increased visibility of transgender people, like Laverne Cox, has an even more personal impact, most importantly on our youth.”

Rea Carey, executive director of the National Gay & Lesbian Task Force, also praised the change, calling it “yet another victory” in the struggle for full health coverage for transgender people.

“This affirms what the medical community has long stood behind; indeed every major medical association has gone on the record in support of fully-inclusive health insurance options for transgender people, because no health insurance company should get to decide whether a transgender person has access to the medical care their doctor prescribes,” Carey said. “We commend the Obama administration for standing on the right side of history, and look forward to the day when every health insurance plan in America is affirmatively required to offer the full range of medical care transgender people need.”


Amid ENDA controversy, trans activists take part in lobby day

Transgender Lobby Day, gay news, Washington Blade

Activists prepare for Transgender Lobby Day. (Washington Blade photo by Chris Johnson)

Controversy over the religious exemption in the Employment Non-Discrimination Act didn’t stop an estimated 200 supporters of transgender rights from across the country from descending on the nation’s capital this week to lobby lawmakers.

The Transgender Lobby Day, spearheaded by the National Center for Transgender Equality with five other other pro-trans groups, is a two-day event that started Monday with a welcome event and workshop sessions at Friends Meeting of Washington for Quaker Church. The second day was reserved for lobbying on Capitol Hill.

More than 200 people, a record for the annual event, were estimated to have taken part in the lobby day, which NCTE’s website says was intended to help with advocacy for ENDA and another bill, the Student Non-Discrimination Act.

Mara Keisling, executive director of the National Center for Transgender Equality, said the significance of citizen lobbyists coming to D.C. was twofold when asked what it meant for ENDA.

“First, trans people understand that passing employment protections is not an option for us; it is a desperately needed necessity,” Keisling said. “Second, trans people are increasingly willing to step up and give voice to that understanding.”

The lobby day kicked off just days after LGBT groups announced they were withdrawing support from ENDA due to concerns over its religious exemption, which is broader than the exemption for other categories of workers under Title VII of the Civil Rights Act of 1964.

Speaking before attendees during the welcome session, LGBT advocates didn’t speak about ENDA itself as much as about increased visibility, access to transition-related care and working to eradicate discrimination against transgender people.

During her remarks, Keisling said the advancements on care were crucial, but noted that bias-related hate crimes against transgender people are still too common. Recalling the deaths of transgender victims of hate violence, Keisling called for a moment a silence among attendees.

Also speaking to attendees was Kylar Broadus, the National Gay & Lesbian Task Force’s policy counsel on transgender civil rights. Broadus spoke at the Lobby Day even though his organization now opposes ENDA because of the religious exemption.

In an informational packet for attendees was a fact sheet explaining that ENDA is necessary because LGBT people face serious discrimination in employment.

Discrimination against transgender people is particularly acute, the fact sheet says, citing statistics that 90 percent of transgender workers say they’ve been mistreated on the job or hid their gender identity to avoid such treatment.

But the fact sheet doesn’t ignore the controversy over the religious exemption. A note at the bottom says ENDA would be better off without the provision that prompted many LGBT advocacy groups to abandon the bill.

“IMPORTANT: The religious exemption in the current draft on ENDA is unacceptable; some now oppose ENDA because the exemption is overly broad,” the note says. “There is a better alternative: a reasonable religious exemption like that found in Title VII of the Civil Rights Act of 1964.”

Also contained in the packet is a fact sheet on another piece of legislation — the Student Non-Discrimination Act, a bill that would prohibit public schools from discriminating against LGBT students.

At a breakout session following the welcome meeting, attendees were instructed on how to prepare for the upcoming day on Capitol Hill: Address lawmakers as representative, congressman and congresswoman, then their last name; make stories compelling, concise and clear; don’t make demands on what actions a lawmakers should take without backing it up with an explanation.

A number of participants spoke with the Washington Blade after the breakout session, saying they wanted to attend to advance transgender rights, but offering mixed feelings on ENDA’s religious exemption. Others opted to withhold their view altogether.

Kaitlyn Laine, a 43-year-old transgender high school English teacher from Jackson, Mich., said she wanted to participate in the lobby day so she and her students can live without fear of discrimination.

“I’m a teacher, and I want to be certain my students are cared for,” Laine said. “Many of them are going through transition as well…I have several students that are going through different aspects of transition, in addition to looking out for myself.”

Laine said she’s lobbying for ENDA, but doesn’t want the bill passed with the current religious exemption. Still, she said she’d rather have something passed now if the alternative was having to wait years for a better bill.

“I would have to say that we would have to fight for what we have right now,” Laine said. “We have to get something passed through. At this point, when I finish my transition I have no protection at all. When a student graduates, they have no protection whatsoever.”

Jette Espinosa, a 17-year-old transgender Chilean native who now resides in Little Rock, Ark., said he wanted to participate in lobby day to make a difference for LGBT immigrants.

“I don’t think the fight is over with just marriage equality, we need a united workplace, we need equal rights,” Espinosa said. “There is a necessity for people to come together and work on issues that are slowing us down, and for the country to become a better country.”

Espinosa declined to comment on the religious exemption issue, saying he needed to do more research before he could make public comment.

Expressing skepticism that ENDA would pass this year, Keisling said the record-breaking number of those who participated bodes well for the future.

“That over 200 people took the time and the expense to get to D.C. and use their voices and stories to educate Congress, I think is a pretty good measurement that they are very committed to passing a bill,” Keisling said. “I’m confident that when ENDA is in play again next year, trans people will continue to fight and educate to win employment protections.”

The Transgender Lobby Day is a joint project of National Center for Transgender Equality, Trans People of Color Coalition, Trans Latin@ Coalition, the Task Force, PFLAG National, Black Transmen, Inc., and Black Transwomen, Inc.


Court: Trans inmate must receive gender reassignment surgery

National LGBT Bar Association, Gay News, Washington Blade

The First Circuit Court of Appeals ruled a trans inmate must receive gender reassignment surgery. (Image via wikimedia)

A federal appeals court ruled on Friday that a transgender inmate incarcerated for murdering her spouse must receive taxpayer-funded gender reassignment surgery that was prescribed by her doctors.

In a 2-1 decision, a three-judge panel on the First Circuit Court of Appeals ruled that denying the procedure to Michelle Kosilek, who was sentenced to life in prison for murdering his spouse in 1990, amounts to cruel and unusual punishment under the Eight Amendment to the U.S. Constitution.

The 90-page ruling was written by U.S. Circuit Judge Ojetta Rogeriee Thompson, an Obama appointee, who asserted the Massachusetts Department of Corrections denied Kosilek essential medical care by withholding from her gender reassignment surgery.

“Those findings — that Kosilek has a serious medical need for the surgery, and that the DOC refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations — mean that the DOC has violated Kosilek’s Eighth Amendment rights,” Thompson writes.

The ruling upholds a decision from U.S. District Judge Mark Wolf in 2012 asserting Kosilek has a right to gender reassignment surgery. The decision was controversial — even among progressive leaders. Then-U.S. Senate candidate Elizabeth Warren (D-Mass.) said she didn’t think the surgery was a good use of taxpayer dollars.

Transgender rights groups lauded the decision from the First Circuit on the basis that prisoners — even those who are transgender — have a right to medical care during their incarceration.

Mara Keisling, executive director of the National Center for Transgender Rights, said the ruling “affirms the increasing consensus among the courts” that transgender-related health care is a right protected under the Constitution.

“Prisoner or not, people should have access to the healthcare they need,” Keisling said. “For some of us, that means sex reassignment surgery. While we celebrate today’s ruling, we know there’s more advocacy needed to ensure that all transgender people have access to basic and necessary healthcare.”

Ilona Turner, legal director for the Transgender Law Center, said the First Circuit ruling upholds a constitutional right to essential medical treatment in prison.

“It is well established that the failure to provide essential medical care to people in prison is unconstitutional and amounts to torture,” Turner said. “This decision affirms that we as a society do not allow people to be tortured when they are in government custody.”

Afflicted with drug and alcohol problems at an early age, Kosilek in 1992 was sentenced to life in prison after strangling her spouse Cheryl McCaul, a volunteer counselor at a drug rehabilitation facility. The incident took place after McCaul caught Kosilek wearing her clothing.

Kosilek is serving her sentence in MCI-Norfolk, a medium security male prison, where she legally changed her name from Robert to Michelle. She must receive gender reassignment surgery through taxpayer-provided funds because, as an inmate in prison, she lacks access to her own finances for the procedure.

The estimated cost for male-to-female reassignment is $7,000 to $24,000. A footnote in the First Circuit decision notes that figure “pales in comparison to the amount of money it seems the state will be expending to defend this lawsuit.”

U.S. Circuit Judge Juan Torruella, a Reagan appointee who wrote the dissent in the decision, said he doesn’t find any reason to require Massachusetts to provide gender reassignment surgery to Kosilek when other treatments are available.

“[G]iving due consideration to countervailing security concerns and based on a review of the record that shows the DOC’s proposed care was not outside the realm of professionalism, I cannot say that the DOC has failed to adequately care for Kosilek’s GID or callously ignored her pain,” Torruella writes.

The decision could be appealed to the full First Circuit or the U.S. Supreme Court. The office of Massachusetts Attorney General Martha Coakley declined to comment on the next steps in the lawsuit.

Cara Savelli, a spokesperson for the Massachusetts Department of Correction, said the court ruling is under review.

“We are closely reviewing the lengthy decision issued today by the First Circuit Court of Appeals on this matter to determine next steps,” Savelli said.


D.C. requires insurers to cover gender reassignment

Vincent Gray, transgender, gay news, Washington Blade, gender reassignment

‘Treatment of individuals diagnosed with gender dysphoria is a covered benefit in all individual and group insurance plans in the District of Columbia, including Medicaid,’ said Mayor Vincent Gray. (Washington Blade photo by Michael Key)

D.C. Mayor Vincent Gray announced on Thursday that health insurance companies doing business in the District must provide full coverage for medically recognized treatments to help transgender people change their gender, including gender reassignment surgery.

At a news conference in a meeting room outside his office, Gray said the city’s Department of Insurance, Securities, and Banking issued a bulletin directing insurers to recognize a condition known as gender dysphoria, or gender identity disorder, as a medical condition to be covered by insurance plans.

Transgender advocates note that the American Medical Association and the American Psychiatric Association recognize gender dysphoria as a diagnosable condition through which physicians and other health care professional provide a wide range of approved medical treatments to assist people in transitioning from one gender to another.

“Today, the District takes a major step toward leveling the playing field for individuals diagnosed with gender dysphoria,” Gray said. “These residents should not have to pay exorbitant out-of-pocket expenses for medically necessary treatment when those without gender dysphoria do not,” he said.

“I’m clarifying today that treatment of individuals diagnosed with gender dysphoria is a covered benefit in all individual and group insurance plans in the District of Columbia, including Medicaid,” Gray said.

Gray’s remark drew a prolonged, standing ovation from LGBT activists, including transgender advocates, who gathered in the mayor’s ceremonial bill-signing room where Gray held his news conference.

“Those who know me know how proud I am that the District continues to be on the cutting edge and on the forefront when it relates to equality and fairness for its LGBTQ residents,” Gray said.

The bulletin, which the city sent to insurance companies on the day of Gray’s announcement, cites the D.C. Human Rights Act as among the legal grounds being used to require insurers to cover transgender related treatments. The Human Rights Act, among other categories, bans discrimination based on gender identity and expression as well as sexual orientation.

The bulletin cites the D.C. Unfair Insurance Trade Practices Act of 2001 as further grounds for not allowing insurers to exclude coverage of trans-related treatments from their insurance plans.

Among those speaking at the news conference was Mara Keisling, executive director of the D.C.-based National Center for Transgender Equality, which worked with the mayor’s office and insurance department officials to help draft the four-page bulletin.

Keisling said Gray’s action places D.C. among just five states that have adopted similar policies requiring insurers to cover treatments such as gender reassignment surgery and hormone therapy to assist an individual’s transition to another gender.

Those states are California, Oregon, Colorado, Vermont and Connecticut.

“This is really significant,” Keisling told the Blade after the news conference. “It means that transgender people in D.C. now can make their health care decisions with their doctor rather than with their insurance companies,” she said.

Mara Keisling, NCTE, National Center for Transgender Equality, gay news, Washington Blade

Mara Keisling, executive director of the National Center for Transgender Equality. (Washington Blade photo by Michael Key)

Asked what treatments are involved in a gender transition, Keisling said experts with the World Professional Association for Transgender Health Standards of Care (WPATH) have developed a wide range of treatments that may vary from person to person depending on individual needs.

“It’s a whole range of transition-related care — everything from diagnostic visits to experts in the field,” Keisling said. “It can mean hormone treatments. It can mean lab tests to make sure your hormones are working correctly and not causing any harm. There are various kinds of surgeries that transgender people may need. So it covers a whole range of things.”

D.C. transgender activist Andy Bowen, who recently joined the staff of the NCTE as a policy associate, called the D.C. initiative announced by Gray the most comprehensive among the states that have adopted similar policies.

“If you look at some of the other states they say they’re not going to cover some treatments,” Bowen said. “D.C. has not done that. It just said that if it’s one of the WPATH treatments we’re going to cover it. And that’s amazing to hear a government be that unequivocal about it.”

Philip Barlow, the city’s Associate Commissioner of Insurance, said after the news conference that requiring health insurance companies to cover the medical treatments for transgender people would likely result in a small increase in premiums over a period of time.

“It will just be incorporated into the general cost and utilization that insurers use in coming up with future rate increases,” he said. “But we don’t really anticipate it to have a significant impact on the rates.”

Michael Silverman, executive director of the New York-based Transgender Legal Defense and Education Fund, praised Gray for taking action that he said would “end health care discrimination against transgender residents of Washington, D.C.”

The bulletin issued by the city’s Department of Insurance that directs insurers to provide full coverage for medically approved treatments to transgender individuals in D.C. can be obtained here.


Report critical of D.C. police response to hate crimes

Cathy Lanier, DC Metro Police, gay news, Washington Blade

D.C. Police Chief Cathy Lanier (Washington Blade photo by Strother Gaines)

The restructuring of the D.C. Metropolitan Police Department’s Gay and Lesbian Liaison Unit in 2009 “weakened its effectiveness in responding to hate crimes” and hindered its ability to reach out to the LGBT community, according to a newly released report.

The 41-page Hate Crimes Assessment Report was prepared by an independent task force created in 2012 by the Anti-Defamation League of Washington, a nationally recognized civil rights group, at the request of D.C. Police Chief Cathy Lanier.

In announcing the launching of the task force, Lanier said she asked the ADL to assist the MPD by conducting an impartial review of its programs directed toward the LGBT community, comparing them with other police departments and identifying areas that could be improved.

“MPD policies on the identification and handling of bias or hate crimes are strong and reflect many best practices of law enforcement agencies nationally,” the report concludes.

It also concludes that the “vast majority” of MPD leaders and rank and file officers have a deep commitment to “ensuring the safety and security of the LGBT community and to all of those who live, work, or visit the District of Columbia.”

But the report says a series of structural changes that the department put in place for the GLLU beginning in 2009, which were aimed at expanding the reach of the unit throughout the city, appear to have weakened its effectiveness and diminished its credibility within the LGBT community.

“MPD’s outreach to the LGBT community, which is a critical component of preventing and responding to hate crimes, is significantly less visible and effective than it was prior to the restructuring,” the report says.

“The restructuring of the GLLU reduced the size and limited the role of the central core of the GLLU, weakened its effectiveness in responding to hate crimes and engaging in outreach, and made it less accessible and visible to the LGBT community,” says the report.

“The GLLU’s reduced visibility and presence in the LGBT community has significantly impacted the level of trust the LGBT community has in MPD,” it says.

Former Police Chief Charles Ramsey created the GLLU along with separate liaison units working with the Latino, Asian, and deaf and hard of hearing communities in the late 1990s. Unlike police liaison units in other cities, whose responsibilities were limited mostly to public relations and educational duties, Ramsey arranged for the GLLU and the other units to investigate crimes and make arrests.

Under the leadership of its former commander, Sgt. Brett Parson, the GLLU developed strong ties to the LGBT community, assigning its officers to attend LGBT events and meetings and to patrol neighborhoods with high concentrations of LGBT residents. Although the officers were based in the GLLU headquarters in Dupont Circle, they responded to calls throughout the city and played an active role in investigating crimes targeting LGBT people, including hate crimes.

Harvard University’s Kennedy School of Government recognized the GLLU as a highly effective agent for community policing and awarded the unit a grant to expand its work and assist police departments in other cities set up similar units.

In 2009, two years after then Mayor Adrian Fenty appointed her, Lanier put in place a restructuring plan that, among other things, decentralized the GLLU and the other liaison units through the creation of an affiliate officers program that placed affiliate liaison unit members in each of the seven police districts. The restructuring included downsizing the central GLLU office.

LGBT activists, who said they had no objections to the creation of the affiliate program, expressed strong opposition to what they said was an initial plan by Lanier to close the GLLU’s headquarters office. Activists said at the time that the affiliate officers, who were to receive limited training on LGBT related issues, would not have the experience and depth of understanding of the LGBT community that the core GLLU officers, most of whom were gay or lesbian, had.

Lanier quickly backed down from her initial plan to disband the headquarters unit after opposition surfaced from members of the City Council. However, according to activists, she appeared to be gradually decreasing the core unit’s size.

A short time after the restructuring began, Parson requested and was given a transfer out of the unit to patrol duties. Citing budget constraints, the department replaced Parson with a sergeant who was assigned to supervise both the GLLU and the Latino Liaison Unit.

LGBT representatives said the lack of a full-time supervisor for the GLLU was a further indication that the chief was diminishing the ability of the GLLU to carry out its mission.

Other changes associated with the restructuring included restrictions on the types of events or meetings GLLU officers could attend and what appeared to critics as an increase in the frequency that GLLU officers were detailed to other assignments unrelated to the LGBT community.

Lanier has said that due to police personnel limitations, officers from various specialized units would be temporarily detailed to other, street patrol duties as needed.

In a series of recommendations, the Hate Crimes Assessment Report calls on the department to appoint a full-time supervisor of the GLLU and to ensure that the GLLU’s core unit is sufficiently staffed with officers.

In an 8-page response to the task force report, Lanier said she and the department’s leadership agree with most of the conclusions and recommendations of the report.

“Admittedly, some of this is difficult for me to read as it clearly details where the Department has fallen short in our goal to foster strong relationships with our great and diverse communities that enable us to jointly combat the scourge of crimes motivated by hate or bias,” Lanier said in a statement accompanying the report.

“Nonetheless, I strongly support the recommendations of the Task Force, and the Department will be working to implement them,” she said.

Among other things, Lanier said the department agrees with the report’s finding that neither the GLLU nor its affiliate officers “have the visibility in the community that is our goal, and we must improve that.”

She added, however, that it became clear from the report and meetings MPD officials had with the task force that some members of the LGBT community have “expectations” that the MPD cannot meet.

“While we value a strong relationship with the LGBT community, we are also responsible for being sound stewards of public resources,” she said in her response. “Members of the GLLU had attended events in the past that we have determined are inappropriate for police officers on-duty, including bar crawls, book clubs, and certain events in Leather Week,” according to Lanier.

“That said, we believe there are plenty of opportunities for MPD – GLLU as well as its affiliates – to strengthen outreach with the community,” she said.

In her response to the report, Lanier said Sgt. Matthew Mahl, who had been detailed to serve as the GLLU’s supervisor for over a year, “has been assigned to oversee GLLU exclusively since November 2013.” She added that Mahl “is a good fit for the GLLU and its next stage of development.”

In another finding, the report says there is a belief in the LGBT community that “homophobia and transphobia are widespread within MPD, with several describing it as rampant.”

Interviews with members of the community revealed that the hostility toward transgender people, especially transgender women of color, is common among many MPD officers, the report says.

“Virtually every transgender person who spoke to us at the four community meetings reported that they had been harassed or mistreated because of their gender identity or expression, ranging from acts of ignorance and insensitivity to outright hostility and overt expressions of bigotry and harassment,” the report says.

In citing hate crimes data released by the MPD, the report notes that hate crimes targeting the LGBT community make up the highest percentage of hate crimes compared to other categories of victims, such as race, ethnicity, religion, or disability. In 2012, the most recently year for which full data is available, there were 46 reported hate crimes based on sexual orientation, comprising 57 percent of a total of 81 hate crimes for all categories.

Police data show there were 9 hate crimes reported in 2012 based on gender identity or expression.

The report doesn’t say how many cases of anti-LGBT hate crimes resulted in an arrest by police or how many of the cases remain unsolved.

“It remains unclear whether the reported increase [in anti-LGBT hate crimes] reflects an actual higher level of hate violence directed against the LGBT community, better reporting by LGBT victims, or the lack of reporting by victims in other categories,” the report says.

The task force members who wrote the report are: David Friedman, Sophie Dornstreich, Michael Liberman – Anti-Defamation League; Sara Warbelow – Human Rights Campaign; Lisa Bornstein – Leadership Conference on Civil and Human Rights; Mara Keisling and Vincent Paolo Villano – National Center for Transgender Equality; Jack McDevitt, Associate Dean and Director of the Institute of Race and Justice, Northeastern University in Boston; and Jim Nolan, Associate Professor of Sociology and Criminology, West Virginia University in Morgantown.

“We welcome the recommendations in the ADL report,” said Hassan Naveed, co-chair of Gays and Lesbians Opposing Violence (GLOV). “GLOV and other LGBT organizations plan to issue a community response to the recommendations in the next two weeks.”

The full report along with Lanier’s response can be seen here:


Transgender advocates applaud new Social Security policy

Gay News, Washington Blade, Mara Keisling, Transgender

Mara Keisling, executive director of the National Center for Transgender Equality (Washington Blade file photo by Michael Key)

The U.S. Social Security Administration on Friday announced transgender people will be able to update their gender on agency records without having undergone sex-reassignment surgery.

Trans people under the new policy can either submit a passport or birth certificate that notes their gender or a letter from their doctor that confirms they have received transition-related treatment.

The National Center for Transgender Equality, which had sought the policy change for seven years, noted the State Department and the Veterans Health Administration are among the other federal agencies that have implemented similar policies. The Pentagon still requires trans servicemembers and veterans to prove they have undergone sex-reassignment surgery in order to change their gender for military pensions and other beneficiary programs.

“Most people may not see this as a big deal, but transgender people know that this seemingly small technical change will protect their privacy and give them more control over their own lives” NCTE Executive Director Mara Keisling said.

Rea Carey, executive director of the National Gay and Lesbian Task Force, described the new policy as a “big win for LGBT equality.”

“This new policy is in line with how transgender people live their lives and is in line with the medical community’s consensus on when a person’s gender should be recognized,” she said.

The National Center for Lesbian Rights and the Sylvia Rivera Law Project also worked with NCTE and the Task Force to secure the policy change.



Kerry: U.S. has obligation to defend LGBT rights abroad

Gay News, Washington Blade, John Kerry

Secretary of State John Kerry (photo public domain)

Secretary of State John Kerry on Wednesday said the United States has a “moral obligation” to defend LGBT rights abroad.

“We have a moral obligation to decry the marginalization and persecution of LGBT persons,” he said during Gays and Lesbians in Foreign Affairs Agencies (GLIFAA)’s annual Pride event at the State Department in Foggy Bottom. “We have a moral obligation to promote societies that are more just, more fair and tolerant.”

Kerry spoke hours after President Obama specifically referenced gays and lesbians in a speech he delivered at the Brandenburg Gate in Berlin.

The former Massachusetts senator’s comments also come against the backdrop of increased anti-LGBT violence and discrimination in Russia, Ukraine, Nigeria and other countries.

He referenced French advocates whom he said successfully stood up against a “very bitter” and “very divisive” opposition against the country’s same-sex marriage law in response to a question from GLIFAA member Doug Morrow who is on post in the Ukrainian capital of Kiev about how to respond to anti-gay legislation and homophobic rhetoric from government officials and religious leaders.

“We got to be out there showing up in places where progress on LGBT rights has been slower and harder to achieve,” Kerry said. “Using our tools of development and diplomacy actually leverage our efforts forward in this endeavor. And we remain focused on this and will, because American leadership requires promoting universal values.”

Then-Secretary of State Hillary Clinton in 2011 proclaimed “gay rights are human rights” during the landmark speech she gave in Geneva to commemorate International Human Rights Day. President Obama on the same day issued a presidential memorandum that directed government agencies that implement American foreign policy to promote LGBT rights in the countries in which they work.

Kerry pointed to the 2011 adoption of a United Nations resolution in support of LGBT rights, the President’s Emergency Plan for AIDS Relief (PEPFAR) and the nomination of three gay men to ambassadorships last week as examples of the administration’s ongoing commitment to gay issues abroad. Uzra Zeya, acting assistant secretary of the Bureau of Democracy, Human Rights and Labor, told the Washington Blade after Kerry’s speech the Global Partnership Initiative that includes public and private partners has spent more than $4 million in 25 countries to directly support activists and underrepresented groups since its 2011 inception.

“Your work is so important,” Mara Keisling, executive director of the National Center for Transgender Equality said during the GLIFAA event after Kerry’s speech. “It’s literally saving lives and building up real people around the world.”

The GLIFAA gathering also took place ahead of the expected U.S. Supreme Court rulings on the constitutionality of California’s Proposition 8 and the Defense of Marriage Act.

“I fought too long and too hard against discrimination based on race and color not to be against discrimination based on sexual orientation,” Georgia Congressman John Lewis said during the event. “No government — be it state or federal — should be able to tell a person who they can love and not love, who they can marry and not marry.”

Kerry, who was among the 14 U.S. senators who voted against DOMA in 1996, said he is hopeful the justices will strike down the law that then-President Bill Clinton signed.

He cited the repeal of “Don’t Ask, Don’t Tell” and Wisconsin Sen. Tammy Baldwin’s election to the U.S. Senate last fall as examples of the progress he said this country has seen on LGBT-specific issues. Kerry noted, however, the lack of immigration rights for bi-national couples is an example of the work he said that remains to be done.

“We have to say, as we gather here today, that we still do have a distance to travel,” he said. “Far too many women and men and families are still denied equality under our laws.”


San Antonio passes LGBT rights ordinance

The San Antonio City Council voted 8-3 on Thursday to add protections based on sexual orientation and gender identity to an existing city ordinance that bans discrimination in employment, housing, public accommodations, and city contracting.

The vote came after more than 700 people testified for and against the proposed expansion of the ordinance in a marathon hearing that lasted past midnight on Wednesday and continued Thursday morning before the vote.

Approval of the ordinance in the nation’s seventh largest city also followed a heated campaign by the state’s conservative Republican leaders and religious-right activists to oppose the bill. Much of the opposition targeted the bill’s provision to protect transgender people from discrimination.

Among the bill’s strongest supporters was San Antonio Mayor Julian Castro, a Democrat, who told the City Council minutes before the vote, “This is a city that belongs to everyone.”

Among the most vocal opponents of the bill was Texas Attorney General Greg Abbott, who is a Republican candidate for governor. Abbott argued that the expanded ordinance would trigger a flurry of lawsuits by people of faith and others who oppose homosexuality on religious grounds. He predicted opponents would challenge in the courts the bill’s provision preventing them from refusing to hire or refusing to sell goods such as wedding cakes to LGBT people.

Supporters of the measure noted that the cities of Dallas, Fort Worth, Austin, and El Paso passed similar legislation years earlier banning discrimination against gays and transgender people and predictions of problems such as multiple lawsuits never materialized.

“The right wing extremists really threw everything at this and really put on a major offensive and they lost,” said Mara Keisling, executive director of the National Center for Transgender Equality in Washington.

“And that is a big deal,” Keisling said. “Our side stood up. Our allies were just rock solid and we won.”

Chad Griffin, president of the D.C. based Human Rights Campaign, which was part of a coalition of LGBT and mainline civil rights groups pushing for the ordinance, said the City Council’s action reflects what he believes is the support by a majority of San Antonio residents for equality under the law.

“Today’s vote is a victory, but the attacks we saw from our opposition in the run-up to this – particularly the trans phobic messaging – remind us of the ruthless tactics they use to promote discrimination against LGBT people,” Griffin said.