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Newly Released "Provider Conscience" Regulations and their Effect on Transgender People
A message from Mara Keisling, Executive Director, NCTE
As I noted in my earlier e-mail, the Bush Administration issued a final rule on Thursday, commonly known as the "Provider Conscience" regulation, that is just one more assault on transgender people and their ability to access healthcare. The Department of Health and Human Services, in their press release, said that the rule ensures "the right of federally-funded healthcare providers to decline to participate in services to which they object."
What the press release does not say is that if this is allowed to go into effect in January, transgender people, already struggling for healthcare access, could be turned away by any medical provider who feels that transgender status is against their moral, religious, or even personal beliefs.
Impact of the New Regulations
In essence, any person who works in a hospital or other health care facility, including medical technicians, pharmacists, and even janitors, would not have to perform their jobs if doing so would offend their beliefs.
While this regulation would have a profound effect on everyone’s access to healthcare, transgender people could potentially be denied care at overwhelming rates, even for preventive care or emergency medical treatment.
Although we wanted to make you aware of the "Provider Conscience" regulations, we want you to know that they are not scheduled to take effect until January 18, 2009 and healthcare facilities have until October 1, 2009 to comply. You should not in any way be afraid of seeking health care at this point; not only are the rules not in effect yet, but most healthcare providers will continue to treat transpeople appropriately despite the prejudices of the very few who support these new regulations.
And, you should know that NCTE is working with numerous organizations to advocate that the incoming Obama Administration and members of Congress repeal this immoral policy.
We will continue to provide you updates about the work NCTE is doing to stop these regulations from being implemented. Meanwhile, you can draw attention to the outrageousness of this rule by calling your members of Congress as well as encouraging the incoming administration to repeal it before it is even implemented.
Thank you for your continued support.
New Family and Medical Leave Act Regulations to Affect Transgender People
A message from Mara Keisling, Executive Director, NCTE
I wanted to make you aware of some changes to the Family and Medical Leave Act (FMLA) that could impact the lives of transgender people. The FMLA was enacted in 1993 to ensure that employees would be able to take unpaid leave from work in certain circumstances related to medical care for them or their families. The emphasis on medical privacy in the original FMLA is especially vital for transgender people.
However, on November 17, 2008, the Department of Labor published final regulations for the FMLA that erode medical privacy and could have long-lasting adverse effects on transgender people when they take effect as planned on January 16, 2009. These new regulations appear to be part of the Bush Administration’s final effort to enshrine ideologically driven policies in advance of the Obama Administration taking office.
Impact of the New Regulations
The new regulations reveal private medical information and could subject transgender people to harassment and discrimination.
- Unlike the current policy, the new policy requires doctors to list their specialization as well as medical facts relating to the employee’s condition on the medical certification form given to one’s employer. A person’s transgender status could be revealed, requiring the individual to choose between a job and important medical care related to transition.
- The new regulations allow the employer to contact the employee’s health care provider to authenticate the medical certification, as long as the employer representative making that contact is not the employee’s direct supervisor.
The new regulations allow employers, not doctors, to determine whether an employee has a serious health condition that would make them eligible for unpaid leave.
- Because the recovery times for transition-related surgery and treatment are often extensive, it is extremely important that employees be allowed to take leave when doctors say it is warranted, regardless of whether employers believe the time off is medically necessary.
Family members may have to reveal the transgender status of their partners, children, or relatives to receive leave.
- A family member who is trying to take FMLA leave to care for their partner, child, or relative may be subjected to increased harassment and discrimination, and the family member’s FMLA claim may be denied.
Over the next few months, we will continue to update you about the work NCTE is doing to protect your medical privacy. In the meantime, we urge you to contact your Members of Congress to encourage them to expand FMLA and to encourage them to work with the Obama Administration to repeal these harmful regulations.
Transgender Veteran Wins Sex Discrimination Lawsuit Against Library of Congress
NCTE Congratulates Diane Schroer and the ACLU on This Significant Victory
WASHINGTON, DC September 19, 2008 -- Today the U.S. District Court for the District of Columbia ruled in favor of Diane Schroer, supporting her claim that she was wrongfully denied employment by the Library of Congress after she notified them that she intended to transition.
In 2004, while still living as David, retired US Army Colonel Diane Schroer was offered and accepted a job with the Library of Congress. When she notified her new employers of her intention to transition, the offer was rescinded. After a highly distinguished military career, Col. Schroer decided to fight once more to uphold American values of fairness and justice.
"True to form, Diane Schroer has once again demonstrated her bravery and her commitment to American democracy," noted Mara Keisling, Executive Director of the National Center for Transgender Equality. "By fighting for her rights, she has defended the honor and rights of all transgender people who have been discriminated against on the job. NCTE congratulates her on this historic win and applauds the tremendous work of the ACLU in securing this victory for us all."
In his ruling United States District Judge James Robertson stated, "After hearing the evidence presented at trial, I conclude that Schroer was discriminated against because of sex in violation of Title VII." He went on to note, "None of the five assertedly legitimate reasons that the Library has given for refusing to hire Schroer withstands scrutiny."
Judge Robertson concluded, "In refusing to hire Diane Schroer because her appearance and background did not comport with the decisionmaker's sex stereotypes about how men and women should act and appear, and in response to Schroer's decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII's prohibition on sex discrimination."
Diane Schroer and her legal team from the ACLA held a telephone briefing with NCTE on September 28, 2008. Listen to an MP3 recording of the call.
Transgender Anti-Discrimination Law in
Montgomery County, MD Safe from Repeal Effort:
State's High Court Agrees that Opponents Failed in Collecting Valid Signatures
WASHINGTON, DC -- The National Center for Transgender Equality (NCTE) applauds the decision by Maryland's highest court to invalidate the mean-spirited effort to remove a local anti-discrimination law that passed unanimously by Montgomery County Council last year. The failed effort could have repealed the county law protecting people from discrimination based on gender identity depending upon voters' decision. However, the court decided that the anti-transgender measure must be removed from the November ballot because opponents did not collect enough valid signatures to qualify.
NCTE would like to acknowledge the work of the advocates who fought this ballot question, particularly noting excellent work by Basic Rights Montgomery, Equality Maryland, The Task Force, Lambda Legal and the Arnold and Porter law firm which did significant pro bono work on the effort.
According to NCTE Executive Director Mara Keisling, "Montgomery County, Maryland was the second loss this year for anti-equality extremists and several more are still on the horizon. Fortunately advocates in Maryland were willing to stand up and fight smartly for what is right."
Concerted anti-equality efforts are also underway to repeal LGBT laws in Gainesville, FL and Hamtramck, MI.
Congress Held First Ever Hearing on Transgender Issues
The US House of Representatives held America's first Congressional Hearing on transgender issues. The hearing, "An Examination of Discrimination Against Transgender Americans in the Workplace," on Thursday, June 26, 2008. Congressman Rob Andrews (D-NJ) called the hearing as Chairman of the Health, Education, Labor, and Pensions (HELP) subcommittee of the Committee on Education and Labor.
View the hearing:
You can read the testimony of the witnesses on our website by clicking here.
"I am really proud of the role that NCTE played in getting us to this historical day. This is not only an opportunity to be truly heard by our fellow Americans, it will help to build the foundation for significant changes in federal laws protecting transgender people from discrimination," notes Mara Keisling, Executive Director of NCTE.
- Vist their website for more information on the Committee on Education and Labor
- Read our blog for more information, including answers to frequently asked questions about the process
- Visit our Congressional Hearing page for more information
Congressman Rob Andrews to Hold First Congressional Hearing on Transgender Discrimination
(Washington, DC, June 25) Congressman Rob Andrews (D-NJ), Chairman of the Health, Education, Labor, and Pensions (HELP) Subcommittee, has called the nation’s first hearing on transgender issues. The hearing, “An Examination of Discrimination Against Transgender Americans in the Workplace,” will be held on Thursday, June 26, at 10:30 AM in room 2175 in the Rayburn House Office Building. The National Center for Transgender Equality (NCTE) looks forward to Congress’ investigation of this important issue.
Chairman Andrews has called the following witnesses:
- Shannon Price Minter, Legal Director for National Center for Lesbian Rights (founding member of NCTE)
- Diane Schroer, Retired Colonel, US Army (member of NCTE)
- Diego Sanchez, Director of Public Relations and External Affairs for AIDS Action Committee of Massachusetts (Founding Board of Directors for NCTE)
- Sabrina Marcus Taraboletti, Former Space Shuttle Engineer (founding member of NCTE)
- Bill Hendrix, Chair of Gays, Lesbians, and Allies at Dow (GLAD) for Dow Chemical Company
The minority party has called the following witnesses:
- JC Miller, Partner at Thompson Hine
- Glen Lavy, Senior Counsel for Alliance Defense Fund
Statement by Mara Keisling, Executive Director of the National Center for Transgender Equality:
"We are grateful to Chairman Andrews and Congresspeople Barney Frank and Tammy Baldwin for their leadership on the very serious topic of ending workplace discrimination. As long as people are working, they shouldn’t be fired from their job just because of their gender identity or expression. Transgender Americans too often face tremendous obstacles in obtaining and holding meaningful employment and we are glad that Congress is thoroughly investigating the topic.”
For more information, visit our page on this topic.
Two New Federal Policy Changes With Some Impact on Transgender People
June 12, 2008
This week the federal government announced two new policy changes that may be of interest to transgender people and allies. Although neither has significant direct impact on trans people, NCTE is concerned that trans people and our allies may misinterpret the implications to be more serious, specific threats than they are. To be sure, both of these policies are bad policies and mean-spirited attempts by the administration to appear to be solving problems. NCTE opposes both, but we do so because they represent further general degradation of our rights, which the administration seems set on continuing to the very end of its time in office.
Executive Order Requiring Federal Contractors to Use E-Verify system.
On Monday, the White House announced Executive Order # 12989 which will require all federal contractors to verify the employment status of every employee using the seriously flawed E-Verify database system. Until now, E-Verify was a mostly voluntary system for employers to verify that their new employees were using legitimate names, social security numbers and immigration status. This executive order will make the system mandatory for hundreds of thousands of employees, putting all at risk for serious misunderstandings and adverse job actions caused by an intolerably flawed database.
Please note that the E-Verify is NOT the system through which trans people have been receiving gender no-match letters that out them at work. In fact, the E-Verify system that government contractors must now use does not allow for mandatory or optional gender matching and therefore, as of now, cannot and does not cause gender no-match letters. The primary system that triggers most employment-related gender no-matches is called Social Security Number Verification System (SSNVS ) and is not impacted by this executive order. (Note that SSA has numerous verification systems which can impact gender no-matches, but E-Verify is not one of them.) NCTE has made it a priority this year working to change SSNVS and related systems to eliminate gender no-match letters.
In addition to rampant documented inaccuracies in the database, the E-Verify system is under attack because it is clearly designed to scapegoat immigrants who are likely to face wrongful firing and inability to get jobs regardless of their immigration status. Furthermore, Congress has been investigating the negative impact E-Verify and other such systems are having on the Social Security Administration mission. SSA's core functions have suffered dramatically since it began to divert resources into these verification systems.
- To read the Executive Order, go to http://www.whitehouse.gov/news/releases/2008/06/20080609-2.html.
- To read more about E-Verify and why it is a bad policy go to http://www.aclu.org/immigrants/workplace/34821prs20080408.html.
- To read Los Angeles Times story on this Executive Order, go to http://www.latimes.com/news/la-na-immig10-2008jun10,0,6861491.story
If you receive a no-match letter at work, please contact NCTE at 202-903-0112 or email@example.com
TSA Changes Policy for Flying Without ID
Effective June 21, the Transportation Security Agency (TSA) will no longer allow airline customers who refuse to show ID access to flights or secure areas in airports. This will include transgender people who refuse to show ID because they believe doing so will reveal flawed documentation that would out them as transgender. However, travelers, including transgender people, who claim to have lost or forgotten their ID will still be allowed through security after a pat down and hand search of carry-on luggage. Thus, the new policy is clearly aimed at supporters of civil liberties who insist on their civil right to unencumbered travel. It will not affect transgender people or others who simply arrive at the airport without ID or who claim such.
The policy change is clearly little more than continuing Department of Homeland Security theater meant to make the TSA appear to be is doing its job and to discourage the exercise of court-tested civil rights.
NCTE is currently updating our publication on Travel Tips for Transgender People and we hope to make it available shortly. NCTE will prioritize impacting TSA policies beginning next year when a new administration takes office.
- To read the Department of Homeland Security announcement, go to http://www.tsa.gov/press/happenings/enhance_id_requirements.shtm.
- For a good explanatory blog entry, go to http://news.cnet.com/8301-13739_3-9962760-46.html
If you have trouble traveling because of ID issues or disrespect from TSA agents, please contact NCTE at 202-903-0112 or firstname.lastname@example.org.
NCTE Issues Analysis of the REAL ID Act
(March 14, 2008) NCTE issues a response to the Department of Homeland Security and the REAL ID act. Read more on our REAL ID page.
US Supreme Court Hears Voter ID Case Starting Today
(January 9, 2008) A voting rights case comes before the United States Supreme Court today. Oral arguments will be heard challenging an Indiana voting law requiring government-issued ID with photo. The court is expected to issue a decision sometime in June 2008, in time for the November Presidential election.
Voting issues affect the transgender community, and therefore, this case will be an interesting one to follow. For background on the case, see these webpages:
Voter ID Laws Are Set to Face a Crucial Test
New York Times - January 7, 2008
Voting Rights Advocates Challenge Voter ID Laws
civilrights.org - January 7, 2008
Crawford v. Marion County Election Board
Electronic Privacy Information Center
Victory in New Jersey! New Jersey Legislature Passes Gender Identity/Expression
Hate Crime and School Anti-Bulllying Law
(January 7, 2008) Today, the New Jersey General Assembly passed A4591/S2975 by a large majority of 65-10. This follows action last week in the state Senate where the bill passed unanimously 35-0. The law that passed will now go to Governor Corzine's desk for his expected signature.
NCTE congratulates our wonderful allies at Garden State Equality and Gender Rights Advocacy Association of New Jersey (GRAANJ) who have continued to represent transgender people in New Jersey with Incredible skill and determination.
Basically, the bill adds gender identity and expression to the state's hate crime law and gives teeth to New Jersey's safe school, anti-bullying laws.
According to Garden State Equality specifically, "the new law does the following:
- Adds 'gender identity or expression' as a protected class to the state hate crimes law.
- Updates other parts of the hate crimes law by adding 'national origin' as a protected category, which thus far has been included in the law by interpreting 'ethnicity' to include such; and substitutes the more sensitive term 'disability' for 'handicap.'
- Specifies that a 'mistake of fact' by a defendant committing a hate crime is not a defense.
- Requires two hours of hate-crimes sensitivity training for all new police officers.
- Specifies suggested sentencing options to which judges can sentence defendants, such as anti-hate sensitivity training.
- Creates a study Commission on Bullying in Schools, which has nine months to investigate the problem and make recommendations to the Governor and legislature for further legislation.
- Requires schools post their anti-bullying policies on their websites, and to distribute their anti-bullying policies, within 120 days after enactment of the law."