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HHS affirms trans protections in health care reform

Sex discrimination prohibition said to apply to gender identity

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Discrimination against transgender people in federal health programs or health programs that receive federal funds is prohibited under the health care reform law, the Department of Health & Human Services affirmed in a letter to LGBT advocates made public on Monday.

The letter, dated July 12 and signed by Leon Rodriguez, director of the Office of Civil Rights for HHS, says the Obama administration has interpreted existing non-discrimination law — including Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 — to mean that the sex-discrimination protections under the Affordable Care Act apply to transgender people, and, in some cases, individuals who are lesbian, gay and bisexual.

“We agree that Section 1577’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and will accept such complaints for investigation,” Rodriguez writes. “Section 1557 also prohibits sexual harassment and discrimination regardless of actual or perceived sexual orientation or gender identity of the individuals involved.”

The letter states that the Office of Civil Rights for HHS intends to issue future guidance on this section. In the meantime, Rodriguez says HHS is “currently accepting and investigating complaints” and is making determinations on whether discrimination has happened on a case-by-case basis.

Health programs that receive federal funds include hospitals, clinics and mental health facilities that receive Medicare and Medicaid funding. According to a National Transgender Discrimination Survey published by the National Gay & Lesbian Task Force, one in five transgender people have been denied care by a medical provider.

The HHS interpretation that sex discrimination statues apply to transgender people under the health care reform law follows a recent trend of reading such laws to cover transgender people. Most notably, the U.S. Equal Employment Opportunity Commission ruled that existing employment non-discrimination law on sex discrimination extends to transgender people, as well as the U.S. Eleventh Circuit Court of Appeals in the case of Glenn v. Brumby and the Department of Housing & Urban Development in federally funded housing programs.

Mara Keisling, executive director of the National Center for Transgender Equality, said transgender people could previously file complaints if they felt they faced discrimination in health programs, but the clarification from HHS streamlines the process.

“You can always file a complaint, but now HHS is saying they interpret sex discrimination laws to cover gender identity discrimination,” Keisling said. “You don’t have to claim sex stereotyping, and then prove sex stereotyping because gender identity discrimination is sex discrimination.”

Keisling maintained that the clarification from HHS doesn’t mean that health care providers have to provide aid for gender transitioning, saying “nothing in federal law says any insurance plan — public and private — has to cover transition-related care.”

Kellan Baker, a health policy analyst for the Center for American Progress’ LGBT research and communications project, said this policy affirmed in the letter isn’t new — having already been openly discussed by Obama administration officials — and HHS’s response simply provides clarification of the issue.

“This is something that has been in the Affordable Care Act the entire time,” Baker said. “This is just a clarification that the department is aware of the fact that making sure that transgender people have access to the same services, the same health care, that non-transgender people do is an essential principle of health care reform, is an essential principle of the Affordable Care Act.”

The main addressee on the letter is Maya Rupert, federal policy director for the National Center for Lesbian Rights, which was among the 12 LGBT groups that co-sigend a letter to HHS requesting the information. HHS’s response carbon copies the other groups.

The advocates’ letter, dated June 5, calls for clarification on the issue, saying groups have previously submitted memoranda detailing the problem and calling for implementing regulations to prohibit discrimination in health care to LGBT individuals. Advocates make the case that recent determinations that sex discrimination protections apply to transgender people should make it easy for HHS to conclude such non-discrimination is possible in health care.

“While the need for regulations for section 1557 remain, we believe recent developments have it made it necessary for HHS to issue clarifying guidance on the application of the law in this area in advance of formal rulemaking,” the letter states.

In a statement, Rupert expressed gratitude to HHS for clarifying existing law protects transgender people from discrimination in health care, saying they “face several discrimination in healthcare settings and are often denied care completely.”

“This announcement affirms that all patients in federally funded health care settings must be treated equally and may not be denied care simply because of who they are,” Rupert said. “We are grateful to HHS for clarifying this important policy and providing transgender people with the security of knowing they are included in the administration’s commitment to the health and well-being of all Americans.”

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Federal Government

Veterans can now identify as transgender, nonbinary on their VA medical records

About 80 percent of trans veterans have encountered a hurtful or rejecting experience in the military because of their gender identity

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Graphic via U.S. Department of Veterans Affairs

Veterans Affairs Secretary Denis McDonough announced Wednesday that his department added the options of transgender male, transgender female, nonbinary and other, when veterans select their gender, in medical records and healthcare documentation.

“All veterans, all people, have a basic right to be identified as they define themselves,” VA Secretary Denis McDonough said in a statement. “This is essential for their general well-being and overall health. Knowing the gender identity of transgender and gender-diverse veterans helps us better serve them.”

The statement also noted that the change allows health-care providers to better understand and meet the medical needs of their patients. The information also could help providers identify any stigma or discrimination that a veteran has faced that might be affecting their health.

McDonough speaking at a Pride Month event last June at the Orlando VA Healthcare System, emphasized his support for Trans and LGBQ+ vets.

McDonough said that he pledged to overcome a “dark history” of discrimination and take steps to expand access to care for transgender veterans.

With this commitment McDonough said he seeks to allow “transgender vets to go through the full gender confirmation process with VA by their side,” McDonough said. “We’re making these changes not only because they are the right thing to do, but because they can save lives,” he added.

In a survey of transgender veterans and transgender active-duty service members, transgender veterans reported several mental health diagnoses, including depression (65%), anxiety (41%), PTSD (31%), and substance abuse (16%).  In a study examining VHA patient records from 2000 to 2011 (before the 2011 VHA directive), the rate of suicide-related events among veterans with a gender identity disorder (GID) diagnoses was found to be 20 times higher than that of the general VHA patient population.

McDonough acknowledged the VA research pointing out that in addition to psychological distress, trans veterans also may experience prejudice and stigma. About 80 percent of trans veterans have encountered a hurtful or rejecting experience in the military because of their gender identity.

“LGBTQ+ veterans experience mental illness and suicidal thoughts at far higher rates than those outside their community,” McDonough said. “But they are significantly less likely to seek routine care, largely because they fear discrimination.

“At VA, we’re doing everything in our power to show veterans of all sexual orientations and gender identities that they can talk openly, honestly and comfortably with their health care providers about any issues they may be experiencing,” he added.

All VA facilities have had a local LGBTQ Veteran Care Coordinator responsible for helping those veterans connect to available services since 2016.

“We’re making these changes not only because they are the right thing to do but because they can save lives,” McDonough said. He added that the VA would also change the name of the Veterans Health Administration’s LGBT health program to the LGBTQ+ Health Program to reflect greater inclusiveness.

Much of the push for better access to healthcare and for recognition of the trans community is a result of the polices of President Joe Biden, who reversed the ban on Trans military enacted under former President Trump, expanding protections for transgender students and revived anti-bias safeguards in health care for transgender Americans.

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Florida

Prominent LGBTQ+ activist found dead in Florida landfill

Diaz-Johnston was the brother of former Miami mayor and Florida Democratic Party Chair Manny Diaz & he led the fight for marriage equality

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Photo courtesy of Don Diaz Johnston

Police in Florida’s capital city confirmed that the body of Jorge Diaz-Johnston, 54, who had been reported missing was found in a Jackson County landfill Saturday morning.

Diaz-Johnston was last seen alive Jan. 3 in Tallahassee, more than an hour from where his body was found, according to a missing person notice released by police. Detectives are investigating his death as a homicide, a police spokesperson said.

Diaz-Johnston, was the brother of former Miami mayor and Florida Democratic Party Chair Manny Diaz. As an LGBTQ advocate he led the fight for marriage equality, he and his husband were plaintiffs in an historic 2014 lawsuit that led to the legalization of same-sex marriage in Miami-Dade County.

ABC News reported at the time that a South Florida circuit court judge sided with Diaz-Johnston and five couples suing the Miami-Dade County Clerk’s Office for refusing to issue marriage licenses to same-sex couples. Florida dropped its ban on same-sex marriage in 2015.

His husband wrote in a poignant Facebook post; “There are just no words for the loss of my beloved husband Jorge Isaias Diaz-Johnston. I can’t stop crying as I try and write this. But he meant so much to all of you as he did to me. So I am fighting through the tears to share with you our loss of him.”

“We are heartbroken to learn of the death of Jorge. He and his husband Don were two of the brave plaintiffs who took on Florida’s anti-gay marriage ban and helped win marriage equality for all Floridians,” Equality Florida said adding, “Our deepest condolences to Don and Jorge’s extended family.”

Detectives urge anyone who may have information to call 850-891-4200, or make an anonymous tip to Big Bend Crime Stoppers at 850-574-TIPS.

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National

Bill prohibiting ‘gay panic defense’ clears New Hampshire House

New Hampshire could soon join over a dozen other states which ban the use of ‘gay panic’ as a defense

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New Hampshire State House (Blade file photo by Michael Key)

Legislation prohibiting defendants accused of manslaughter from using the victim’s gender, gender identity or sexual orientation as a defense, which had died in committee during the 2021 regular session of the New Hampshire House of Representatives, was reintroduced this session and passed with a 223-118 vote last week.

House Bill 238, stirred up controversary from opponents who claimed that state statues already covered murder and manslaughter. During a Criminal Justice committee hearing last Spring, Rep. Dick Marston, a Manchester Republican, voiced opposition, saying that the laws already cover murder and manslaughter and that “there’s no way in heck that you’re going to be able to say ‘Well because he or she was some deviant sexuality that I’m not–‘”

Marston was cut off by committee chairman Daryl Abbas, a Salem Republican, who gaveled him down and rebuked him for the derogatory language the Concord-Monitor reported

Later, the committee Republicans blocked an effort to move the bill out of committee alleging it needed more work and was not necessary because a jury could already strike down a similar attempted defense. The bill was then stalled in the committee, effectively killing it from being pushed further in last year’s session.

As the measure now heads to the state Senate, New Hampshire could soon join over a dozen other states which ban the use of the ‘gay panic’ as a defense.

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