San Francisco Chronicle

Judge hints at support for sex-change coverage

- By Bob Egelko Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicl­e.com Twitter: @egelko

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?”

Newspapers in English

Newspapers from United States