National
What’s next for health care reform?
After court ruling, focus turns to state plans for Medicaid
Now that the Supreme Court has upheld the constitutionality of President Obama’s health care reform law, advocates are pushing for additional efforts to extend coverage of the law to LGBT people and people with HIV/AIDS to the fullest extent possible.
For the most part, the next step in the process involves looking to the states to determine whether they will adopt health policies afforded to them under the law — foremost among them is the Medicaid expansion to cover all people with incomes up to 133 percent of the federal poverty level.
Although the Supreme Court ruled the majority of the health care law is constitutional, it prevented the federal government from withholding all Medicaid funds from states if they decline to take part in the Medicaid expansion. As a result, states can decide whether or not to enter the expansion without fear of losing money.
Patrick Paschall, a policy advocate at the National Gay & Lesbian Task Force, said the Medicaid expansion is particularly important for LGBT people because they disproportionately live below the poverty level.
“The Medicaid expansions are going to end up being hugely important for LGBT people because it expands coverage to low-income people, and LGBT people are disproportionately low-income,” Paschall said. “We know this because of rampant employment discrimination and housing discrimination.”
A report on transgender people published earlier this year by the Task Force and the National Center for Transgender Equality, titled “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,” found that transgender people experience unemployment at rates twice that of the national population, and black transgender people experience it at a rate of four times as much.
Carl Schmid, deputy executive director of the AIDS Institute, said the Medicaid expansion is particularly important for people with HIV/AIDS because of 50 percent of those in care rely on that program for support and those numbers will “grow substantially” if states decide to participate.
“Those who are really poor, they’re going to be covered under Medicaid,” Schmid said. “The question is what are we expecting from the states.”
But a number of states may not take part. According to a report in The Hill newspaper, at least 15 governors have signaled they won’t participate in the Medicaid expansion now that the Supreme Court has enabled them to wiggle out of participation.
Florida Gov. Rick Scott, a Republican elected to office during the Tea Party wave in 2010, was among those saying his state wouldn’t take part in the Medicaid expansion — or other parts of the health care law that are optional to the states.
“We’re not going to implement Obamacare in Florida,” Scott said last week on Fox News. “We’re not going to expand Medicaid because we’re going to do the right thing. We’re not going to do the exchange.”
Under the health care reform law, the federal government will pay for the Medicaid expansion for the first few years. Expenses for states come up in 2017, when the federal government will pay 95 percent; That’s reduced to 94 percent in 2018 and in 2019 it goes down to 93 percent. Starting in 2010 and then on out, the federal government will pay 90 percent of the total amount.
Schmid said the bargain that was set up for states under the health care law makes the governors’ decision not to participate in the law questionable.
“Here their taxpayers are going to be paying their taxes to pay for this; this is federal funds,” Schmid said. “Their state is not going to take responsibility for covering. The hospitals? Don’t they want people to be covered? They’re going to have unconstituted care if they don’t.”
For the states that don’t participate in the Medicaid expansion, Schmid said people living there with HIV/AIDS will have to continue relying on the Ryan White Care Program, which provides funds for AIDS medications for low-income people with HIV. The program will be up for reauthorization in 2013.
As advocates push for states to adopt the Medicaid expansion, the law has several key components that already offer protections and benefits for LGBT people and people with HIV/AIDS. State and federal health insurance will be set up in the law starting in 2014.
For the first time, the law extends federal non-discrimination protection in the health care system on the basis of gender.
Paschall noted that provision is key as courts and agencies have determined that discrimination against transgender people amounts to gender discrimination.
“We know that federal agencies like the Equal Employment Opportunity Commission, the Department of Housing & Urban Development as well as federal courts have interpreted sex-based discrimination to include protections on the basis of gender identity and sex stereotypes,” Paschall said. “What this means is that in the context of health care, LGBT people, especially transgender people have now for the first time protections in that setting, which is hugely important.”
Earlier this year, the Department of Health & Human Services issued rules saying that no program activity in an exchange, nor a health plan, can discriminate on the basis of sexual orientation and gender identity. The rule takes effect when exchanges open in 2014.
The administration has taken additional efforts to help the LGBT community when it comes to accessing health care. Same-sex couples can now search for health plans that cover domestic partners through the health care finder tool at healthfinder.gov. HHS has also undertaken data collection efforts to include questions about sexual orientation and gender identity in surveys like the National Health Interview Survey.
Still, advocates are looking for additional efforts from the administration — in addition to the adoption of the Medicaid expansion by the states — to ensure LGBT people are included in health care reform to the greatest extent possible.
Paschall said the Task Force wants to see data collection efforts expanded beyond the federal surveys already designated by the administration.
“Generally speaking, we would like to see sexual orientation and gender identity questions added to all federal surveys where demographic data is collected,” he said. “Our priorities include a number of federal surveys, maybe most notably the American Community Survey, which is an annual survey that collects demographic data and is considered one of the largest annual data sources on the American population.”
For people living with HIV/AIDS, Schmid said he is awaiting from the administration regulatory guidance in the next couple months on essential health benefits to cover people in the Medicaid program and federal exchanges.
“We’ll see if the coverage will be strong enough for medications and for all different other services,” Schmid said.
National
Supreme Court deals blow to trans student privacy protections
Under this ruling, parents are entitled to be informed about their children’s gender identity at school, regardless of state protections for student privacy.
The Supreme Court on Monday blocked a California policy that allowed teachers to withhold information about a student’s gender identity from their parents.
The policy had permitted California students to explore their gender identity at school without that information automatically being disclosed to their parents. Now, educators in the state will be required to inform parents about developments related to a student’s gender identity, depending on how the case proceeds in lower courts.
The case involves two sets of parents — identified in court filings as John and Jane Poe and John and Jane Doe — both of which say their daughters began identifying as boys at school without their knowledge, citing religious objections to gender transitioning.
The Poes say they only learned about their daughter’s gender dysphoria after she attempted suicide in eighth grade and was hospitalized. After treatment for the attempt and after being returned to school the following year, teachers continued using a male name and pronouns despite the parents’ objections, citing California law. The Poes have since placed their daughter in therapy and psychiatric care.
Similarly, the Does say their daughter has intermittently identified as a boy since fifth grade, but while their daughter was in seventh grade, they confronted school administrators over concerns that staff were using a male name and pronouns without informing them. The principal told them state law barred disclosure without the child’s consent.
Both sets of parents filed lawsuits in the U.S. District Court for the Southern District of California challenging the state policy that protects students’ gender identity and limits when schools can disclose that information to parents.
The justices voted along ideological lines, with the court’s six conservative members in the majority and the three liberal justices dissenting.
“We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim,” the court said in an unsigned order. “The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California’s policies violate those beliefs.”
In dissent, the three liberal justices argued that the case is still working its way through the lower courts and that there was no need for the high court to intervene at this stage. Justice Elena Kagan wrote, “If nothing else, this Court owes it to a sovereign State to avoid throwing over its policies in a slapdash way, if the Court can provide normal procedures. And throwing over a State’s policy is what the Court does today.”
Conservative Justices Samuel Alito and Clarence Thomas indicated they would have gone further and granted broader relief to the parents and teachers challenging the policy.
The emergency appeal from a group of teachers and parents in California followed a decision from the United States Court of Appeals for the Ninth Circuit that allowed the state’s policy to remain in effect. The appeals court had paused an order from U.S. District Judge Roger Benitez — who was nominated by George W. Bush — that sided with the parents and teachers and put the policy on hold.
The legal challenge was backed by the Thomas More Society, which relied heavily on a decision last year in which the court’s conservative majority sided with a group of religious parents seeking to opt their elementary school children out of engaging with LGBTQ-themed books in the classroom.
California Attorney General Rob Bonta expressed disappointment with the ruling. “We remain committed to ensuring a safe, welcoming school environment for all students while respecting the crucial role parents play in students’ lives,” his office said in a statement.
The decision comes as the Trump administration has taken a hardline approach to transgender rights. During his State of the Union address last week, President Donald Trump referenced Sage Blair, who previously identified as transgender and later detransitioned, describing Blair’s experience transitioning in a public school. According to the president, school employees supported Blair’s chosen gender identity and did not initially inform Blair’s parents.

Last year, the court upheld Tennessee’s ban on gender-affirming medical care for transgender minors and has allowed enforcement of a policy barring transgender people from serving in the military to continue during Trump’s second term.
The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected].
Congratulations to Gil Pontes III on his recent appointment to the Financial Advisory Board for the City of Wilton Manors, Fla. Upon being appointed he said, “I’m honored to join the Financial Advisory Board for the City of Wilton Manors at such an important moment for our community. In my role as Executive Director of the NextGen Chamber of Commerce, I spend much of my time focused on economic growth, fiscal sustainability, and the long-term competitiveness of emerging business leaders. I look forward to bringing that perspective to Wilton Manors — helping ensure responsible stewardship of public resources while supporting a vibrant, inclusive local economy.”
Pontes is a nonprofit executive with years of development, operations, budget, management, and strategic planning experience in 501(c)(3), 501(c)(4), and political organizations. Pontes is currently executive director of NextGen, Chamber of Commerce. NextGen Chamber’s mission is to “empower emerging business leaders by generating insights, encouraging engagement, and nurturing leadership development to shape the future economy.” Prior to that he served as managing director of The Nora Project, and director of development also at The Nora Project. He has held a number of other positions including Major Gifts Officer, Thundermist Health Center, and has worked in both real estate and banking including as Business Solutions Adviser, Ironwood Financial. For three years he was a Selectman, Town of Berkley, Mass. In that role, he managed HR and general governance for town government. There were 200+ staff and 6,500 constituents. He balanced a $20,000,000 budget annually, established an Economic Development Committee, and hired the first town administrator.
Pontes earned his bachelor’s degree in political science from the University of Massachusetts, Dartmouth.
Kansas
ACLU sues Kansas over law invalidating trans residents’ IDs
A new Kansas bill requires transgender residents to have their driver’s licenses reflect their sex assigned at birth, invalidating current licenses.
Transgender people across Kansas received letters in the mail on Wednesday demanding the immediate surrender of their driver’s licenses following passage of one of the harshest transgender bathroom bans in the nation. Now the American Civil Liberties Union is filing a lawsuit to block the ban and protect transgender residents from what advocates describe as “sweeping” and “punitive” consequences.
Independent journalist Erin Reed broke the story Wednesday after lawmakers approved House Substitute for Senate Bill 244. In her reporting, Reed included a photo of the letter sent to transgender Kansans, requiring them to obtain a driver’s license that reflects their sex assigned at birth rather than the gender with which they identify.
According to the reporting, transgender Kansans must surrender their driver’s licenses and that their current credentials — regardless of expiration date — will be considered invalid upon the law’s publication. The move effectively nullifies previously issued identification documents, creating immediate uncertainty for those impacted.
House Substitute for Senate Bill 244 also stipulates that any transgender person caught driving without a valid license could face a class B misdemeanor, punishable by up to six months in jail and a $1,000 fine. That potential penalty adds a criminal dimension to what began as an administrative action. It also compounds the legal risks for transgender Kansans, as the state already requires county jails to house inmates according to sex assigned at birth — a policy that advocates say can place transgender detainees at heightened risk.
Beyond identification issues, SB 244 not only bans transgender people from using restrooms that match their gender identity in government buildings — including libraries, courthouses, state parks, hospitals, and interstate rest stops — with the possibility for criminal penalties, but also allows for what critics have described as a “bathroom bounty hunter” provision. The measure permits anyone who encounters a transgender person in a restroom — including potentially in private businesses — to sue them for large sums of money, dramatically expanding the scope of enforcement beyond government authorities.
The lawsuit challenging SB 244 was filed today in the District Court of Douglas County on behalf of anonymous plaintiffs Daniel Doe and Matthew Moe by the American Civil Liberties Union, the ACLU of Kansas, and Ballard Spahr LLP. The complaint argues that SB 244 violates the Kansas Constitution’s protections for personal autonomy, privacy, equality under the law, due process, and freedom of speech.
Additionally, the American Civil Liberties Union filed a temporary restraining order on behalf of the anonymous plaintiffs, arguing that the order — followed by a temporary injunction — is necessary to prevent the “irreparable harm” that would result from SB 244.
State Rep. Abi Boatman, a Wichita Democrat and the only transgender member of the Kansas Legislature, told the Kansas City Star on Wednesday that “persecution is the point.”
“This legislation is a direct attack on the dignity and humanity of transgender Kansans,” said Monica Bennett, legal director of the ACLU of Kansas. “It undermines our state’s strong constitutional protections against government overreach and persecution.”
“SB 244 is a cruel and craven threat to public safety all in the name of fostering fear, division, and paranoia,” said Harper Seldin, senior staff attorney for the ACLU’s LGBTQ & HIV Rights Project. “The invalidation of state-issued IDs threatens to out transgender people against their will every time they apply for a job, rent an apartment, or interact with police. Taken as a whole, SB 244 is a transparent attempt to deny transgender people autonomy over their own identities and push them out of public life altogether.”
“SB 244 presents a state-sanctioned attack on transgender people aimed at silencing, dehumanizing, and alienating Kansans whose gender identity does not conform to the state legislature’s preferences,” said Heather St. Clair, a Ballard Spahr litigator working on the case. “Ballard Spahr is committed to standing with the ACLU and the plaintiffs in fighting on behalf of transgender Kansans for a remedy against the injustices presented by SB 244, and is dedicated to protecting the constitutional rights jeopardized by this new law.”
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