STATE MUST PAY FOR GENDER ATTRIBUTE ADD-ONS
A state legislative librarian who has undergone sex-change operations must be compensated by the State of Alaska’s health insurance plan, a district court judge ruled today in Juneau.
U.S. District Court Judge H. Russel Holland said that a surgery such as vaginoplasty would be covered for some health care plan members, if medically necessary, so it must be covered for men who wish to surgically transform their bodies to appear like women.
The AlaskaCare plan currently does not cover transgender surgery.
Jennifer Fletcher, the librarian, went overseas for the surgery and paid for it from Fletcher’s personal funds. Fletcher had been diagnosed with gender dysphoria in 2014 and began living as a woman shortly thereafter.
Holland said to refuse the surgery is discriminatory based on gender.
“That is discrimination because of sex and makes defendant’s formal policy, as expressed in the provisions of AlaskaCare, facially discriminatory,” he wrote.
“Contrary to defendant’s [State of Alaska’s] contention, such a conclusion does not result in preferential treatment for transgender individuals. Rather, it results in all AlaskaCare participants being treated equally regardless of their sex. Also contrary to defendant’s contention, the court is not comparing how transgender women are treated under AlaskaCare to how non-transgender women are treated. Rather, the court is comparing how natal females are treated under AlaskaCare to how natal males are treated. Such a comparison shows that natal males are treated differently than natal females when it comes to providing coverage for certain medically necessary surgeries. As the Seventh Circuit has explained, “the tried-and-true comparative method” for determining sex discrimination is “to isolate the significance of the plaintiff’s sex to the employer’s decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way?” Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 345 (7th Cir. 2017). Here, plaintiff would not have been treated the same way if her natal sex were female, rather than male.”
“In sum, defendant’s policy of excluding coverage for medically necessary surgery such as vaginoplasty and mammoplasty for employees, such a plaintiff, whose natal sex is male while providing coverage for such medically necessary surgery for employees whose natal sex is female is discriminatory on its face and is direct evidence of sex discrimination. Such “[d]isparate treatment is permissible under Title VII only if justified as a bona fide occupational qualification (‘BFOQ’). A BFOQ is a qualification that is reasonably necessary to the normal operation or essence of an employer’s business.” Frank v. United Airlines, Inc., 216 F.3d 845, 853 (9th Cir. 2000). Defendant has not argued, nor could it, that there is any BFOQ for the disparate treatment at issue here. As such, plaintiff is entitled to summary judgment that defendant violated her rights under Title VII.”
In the logic used in Holland’s ruling, men who simply want breast implants for any reason, including sex altering procedures, are entitled to that coverage in the AlaskaCare plan. Likewise, women who simply want to add a penis must also be covered, since these are gender attributes and gender is protected against discrimination.