Judge hints at support for sex-change coverage
A Bay Area federal judge is suggesting she intends to rule that a transgender employee can sue his employer under sex-discrimination law for denying insurance coverage for sexreassignment surgery.
“This is a sex-based procedure. It couldn’t be more sex-based,” U.S. District Judge Yvonne Gonzalez Rogers of Oakland said Tuesday to a lawyer defending the refusal of Dignity Health of San Francisco and one of its out-of-state hospitals to cover the employee’s operation.
The lawyer, Barry Landsberg, replied that the hospital’s policy was gender-neutral because “it applies equally to men and women.” Federal law, he argued, prohibits discrimination against males or females, “but there is not a third sex.”
The exchange took place during a hearing over the employee’s lawsuit against the health care chain. Dignity Health contends the suit should be dismissed because federal law does not require equal treatment of transgender employees. Gonzalez Rogers will decide later whether the suit can proceed.
Federal courts have granted some workplace protections to transgender workers, ruling that they cannot be punished for failing to conform to sex stereotypes. But the courts have not resolved the question of whether the 1964 law forbidding employment discrimination based on race and sex also applies to gender identity.
The Obama administration has relied on sex-discrimination laws to adopt regulations requiring health care providers to offer equal treatment to transgender patients — and to their employees — and directing schools to let students use restrooms that correspond with their gender identity.
Republican-led states have challenged both sets of regulations in a Texas federal court, and a judge has blocked the restroom rule from taking effect. The administration’s regulations on employee health coverage, which would apply to suits like the one against Dignity Health, have not yet taken effect.
The U.S. Equal Employment Opportunity Commission contends antitransgender job discrimination is illegal and has filed arguments supporting the employee in the case before Gonzales Rogers. California law — which expressly prohibits discrimination based on gender identity in employment, education, health care and housing — does not apply to the case because the employee and the hospital are in Arizona.
Dignity Health is the largest private hospital chain in California and the fifth largest in the United States. Founded as Catholic Healthcare West and originally an arm of the Catholic Church, it owns 39 hospitals, 24 of them church-affiliated.
A separate suit in California courts is challenging the refusal of one of Dignity’s Catholic hospitals to allow a woman to undergo tubal ligation surgery because of the church’s opposition to sterilization procedures.
Tuesday’s case involves a non-church hospital, Chandler Regional Medical Center, where Josef Robinson, 51, has worked as a nurse since January 2014. Born female, he identifies as male and has sought medical treatment but has been denied insurance coverage because the hospital’s insurance plan excludes coverage related to “sex transformation surgery.”
Robinson has paid for hormone therapy and $7,450 for a double mastectomy he underwent in August 2015, his lawyers said. They said his doctors recommended sexreassignment surgery, which was scheduled for March 2016, but Robinson had to cancel the operation because he couldn’t afford it, and forfeited his cash deposit.
His fiancee, also a hospital employee, wrote to Dignity Health last year asking for a change in the policy. After a meeting of company human resources staff and other personnel in San Francisco, a company official told the woman by email that they had considered the exclusion “through the lens of our values, our internal policy and our ethical & religious directives” and concluded it was not discriminatory.
Later, Dignity Health told the Equal Employment Opportunity Commission that it did not provide health benefits for “personality disorders.” Robinson’s lawyer, Joshua Block of the American Civil Liberties Union, argued that he was covered by wellestablished rulings protecting employees who fail to conform to sex stereotypes.
“Discrimination based on transgender status is inherently discrimination based on gender nonconformity,” he told Gonzalez Rogers.
But Landsberg said the hospital never mistreated Robinson in the workplace. The suit seeks to sidestep Congress and grant to transgender status a type of protection that “does not exist under the law,” he said.
“Gender is protected,” Gonzalez Rogers replied. “Isn’t this really a gender issue?”