Photo Credit: Ted Eytan (Flickr CC)
When the U.S. Supreme Court legalized same-sex marriages in June 2015, the political focus of the LGBTQ community shifted to other issues including the struggle for equality for transgender people. Under President Obama’s administration, federal support of transgender rights gained momentum. It seemed, despite opposition in certain states, that this neglected group would finally enjoy the same rights as everyone else. Events such North Carolina’s passage of its transphobic HB2 (known as the “Bathroom Bill”) brought widespread condemnation. Boycotts by sports teams, corporations and tourism forced a partial repeal. Even popular reality shows entered into the debate. There, transgender bashing incidents resulted in widespread audience condemnation of the offender.
Then came the 2016 presidential election. Despite polls indicating a growing positive shift in the national attitude toward transgender issues, Republican control of all three branches of government has begun to roll back advances.
One reason is the re-invigorated conservative support for states’ rights, backed by U.S. Attorney General Jeff Sessions, giving states more power to legislate in private lives. A Republican Party platform also addresses Title IX. Originally intended to create equal opportunities for women, under Obama Title IX protections broadened the interpretation of gender. The GOP platform specifically attacks that expanded interpretation because it includes sexual orientation and “other categories”—including transgender people. Claiming, “They [the Democratic Party] are determined to reshape our schools—and our entire society—to fit the mold of an ideology alien to America’s history and traditions,” the platform does not veil the GOP intent to undo the progress towards universal equality for LGBTs.
November’s Republican victory instantly impacted transgender rights. Missouri Congresswoman Vicky Hartzler went so far as to paint transgender people in the military as a threat to America comparable to “North Korea and Putin and ISIS.” Meanwhile, the Pentagon agreed to a six-month delay in transgender enlistments.
Kenosha Lawsuit Goes to Supreme Court
Wisconsin has already jumped into the new wave of anti-transgender sentiment. Kenosha trans high school student Ash Whitaker had already won a historic lawsuit against his school board to allow him access to the men’s bathroom. In a unanimous decision announced May 30, the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court ruling against the Kenosha Unified School District (KUSD). However, the celebration would be short lived. Just weeks later, supported by KUSD board member Gary J. Kunich who had ardently argued against Whitaker’s case, KUSD appealed again, this time to the U.S. Supreme Court. In online social media posting in March, when the Whitaker debate and his campaign for reelection to the school board were at their peaks, Kunich used the “privacy and safety” refrain to underscore his opposition. KUSD’s attorney, Ronald Stadler of Milwaukee, said in a Kenosha News statement, “I think it is very important for the Supreme Court to weigh in on the issue because it is affecting schools all across the nation.”
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In response, Kenosha County Supervisor Dayvin Hallmon immediately published a seven-point argument against the appeal. His Point 6 clearly cites the clinical realities facing trans individuals and rises beyond the emotional reactions that often come with the politicization of issues or framing them in the context of a religion-based morality. Hallmon cited a 2008 resolution by the American Psychological Association that “encourages legal and social recognition of transgender individuals consistent with their gender identity and expression” and “supports efforts to provide safe and secure educational environments…that promote an understanding and acceptance of self and in which all youths, including youth of all gender identities and expressions, may be free from discrimination, harassment, violence, and abuse.” He also noted a 2017 statement from the American Academy of Pediatrics on protecting transgender youth, which reads, “Transgender children should be supported, nurtured and cared for, whether in their homes, in their schools or through policies enacted at the state and federal levels.” Hallmon added, “The decision of the KUSD school board to appeal this case to the SCOTUS is in violation of the scholarship of our medical professionals.”
Hallmon also noted the pragmatic and financially responsible argument, arguing KUSD can’t afford enough school supplies for its students, let alone pursue a Supreme Court case requiring a private lawyer. He was quick to point to the “coincidence” that Republican White House Chief of Staff Reince Priebus resides in the Kenosha and that Kenosha is in House Speaker Paul Ryan’s congressional district.
State Employees Fight for Insurance
Transgender state employees have waged their own battle for years over health insurance. Medical needs resulting from their transgender identity were not covered. But in 2016, the U.S. Department of Health and Human Services issued the “Rule to Improve Health Equity under the Affordable Care Act,” banning health insurance providers from excluding clients on the basis of gender identity or expression.
To comply, the Wisconsin Department of Employee Trust Funds (ETF), the agency that administers health insurance and other benefit programs, required insurers to provide trans related services effective Jan. 1, 2017. Cary Costello, a sociology professor at University of Wisconsin-Milwaukee, received a letter to that effect. Both he and his wife are trangender. In his blog, TransFusion, he recounted their relief that they would finally be covered. Then came the November election. According to Costello, private conversations between the ETF and insurers followed. “Soon, Governor Scott Walker and our anti-LGBT activist state attorney general, Brad Schimmel, were voicing their opinions that the federal bullies who had forced the state to offer trans medical care had no more influence, and the state should reassert its noble, sovereign right to discriminate.”
The ETF then requested the Group Insurance Board (GIF) for a ruling on whether a “rescission of coverage” would amount to “breach of duty” to Wisconsin’s state employees. As Costello puts it, “the GIB basically ruled ‘No, go for it, once Trump is inaugurated.’”
The state responded quickly. On Feb. 1, the ETF reinstated “the exclusion of services related to gender reassignment.” Also in February, transgender state employees received an email from the ETF. According to Costello: “I came across an email from my university human resource specialist, opening with a cheerful ‘Hello!’ it informed me the ETF had changed their policy on gender transitioning … It stated that in order to ‘maintain a gender change,’ I had to provide additional documentation for myself and for my wife.
“We were being detransitioned by the state, though I’d legally transitioned nearly a decade ago, and my wife started her transition in the 1990s. And we did not have the additional documentation demanded. Reading this email caused an immediate feeling of shock at the attack on our identities. But let me note that reverting our gender markers to what they were years ago does more than emotional or psychological damage.”
Shortly thereafter, the American Civil Liberties Union (ACLU) filed its claim against the State of Wisconsin on behalf of two transgender University of Wisconsin-Madison employees, Alina Boyden and co-plaintiff Shannon Andrews. Both have been denied medical coverage for treatment of gender dysphoria. Based on the 2016 ruling, Boyden presumed she would be covered as of Jan. 1 and scheduled medical treatments the next business day. A federal judge granted an injunction Dec. 31, 2016. Andrews transitioned in 2015 but has since had her insurance claims rejected.
The ACLU bases its suit on the 14th Amendment’s Equal Protection Clause, interpreted as barring discrimination on the basis of transgender status unless there is a an important government objective. The suit also cites Title VII prohibition of “sex discrimination with respect to an employee’s ‘compensation, terms, conditions, or privileges of employment, including discrimination in the terms of an employer-sponsored health care plan.” Finally, it refers to Section 1557 of the Affordable Care Act, which bars sex discrimination in any health program or activity that receives federal financial assistance or is administered by a federal agency.
The complaint further accuses the ETF and GIF of discrimination by “unequal treatment by categorically depriving them of all medical care for gender dysphoria,” a medical condition codified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
If the denial of services were based on the high cost of medical care for those with extraordinary health issues, the state’s exclusion would naturally extend to the obese, diabetics, those who are HIV positive or who suffer from congenital or other pre-existing conditions. But, in both cases, the focus is solely on transgender employees.
Democrats are fighting back. On June 1 the State Assembly’s Mark Spreitzer and JoCasta Zamarripa along with State Sen. Tim Carpenter introduced a measure to prohibit discrimination based on gender identity or gender expression. Given Republican control of the state government, the effort will probably not succeed.
