LGBTQ POLICY JOURNAL at the harvard kennedy school

volume 2, 2011–2012 an hks student publication All views expressed in the LGBTQ Policy Journal at the Harvard Kennedy School are those of the authors or interviewees only and do not represent the views of Harvard University, the John F. Kennedy School of Government at Harvard University, the staff of the LGBTQ Policy Journal at the Harvard Kennedy School, the advisory board, or any associates of the journal. ©2012 by the President and Fellows of Harvard College. All rights reserved. Except as otherwise specified, no article or portion herein is to be reproduced or adapted to other works without the expressed written consent of the editors of the LGBTQ Policy Journal at the Harvard Kennedy School. ISSN# 2160-2980 ii SUPPORT THE REVIEW The LGBTQ Policy Journal at the Harvard Kennedy School is a student-run journal published annually at the John F. Kennedy School of Government at Harvard University.

DONATIONS The LGBTQ Policy Journal at the Harvard Kennedy School is funded entirely through subscriptions and contributions. The John F. Kennedy School of Government at Harvard University provides only in-kind assistance. We would like to thank the following organizations and individuals who have made our publication possible: Super Star: $2,000 and above David Bohnett Foundation Benefactors: $1,000 and above Open Gate Foundation Supporters: $500 and above Mossavar-Rahmani Center for Business and Government Joan Shorenstein Center on the Press, Politics and Public Policy Scott Delaney Donors: $100 and above Malcolm Wiener Center for Social Policy Executive Education

lgbtq policy journal at the harvard kennedy school | volume 2 | 2011–2012 iii STAFF LIST 2011-2012 ADVISORY BOARD

Co-Editor-in-Chief National Gay and Lesbian Task Force David Dodge Rea Carey Co-Editor-in-Chief John F. Kennedy School of Government at Elliot Imse Harvard University Development and Fundraising Timothy McCarthy Ian Palmquist Center for Lesbian and Gay Studies in Religion and Ministry Editor Charles Seigel Rev. Irene Monroe Human Rights Campaign Editor Ning Fu Cuc Vu ServiceNation Editor Anthony Woods Patrick Hart Editor John S. Hoag Editor Helena Pylvainen Editor Jeff Rakover Editor Diego Solares Editor David Tian Staff Support Pedro Galvao Publisher Martha Foley Faculty Advisor Richard Parker

iv CONTENTS 1 Remarks from Editors-in-Chief by David Dodge and Elliot Imse

COMMENTARIES 3 Silent T: Humanizing the Transgender Experience by H. Tucker Rosebrock 7 Public Speaking in Pakistan: How an Interview Changed One Man’s Life and Challenged His Country’s Perceptions of Queerness by Meghan Davidson Ladly

FEATURE ARTICLES 13 A Gender Not Listed Here: Genderqueers, Gender Rebels, and OtherWise in the National Transgender Discrimination Survey by Jack Harrison, Jaime Grant, and Jody L. Herman 25 “Bathroom Panic” and Antidiscrimination Laws: The Role of Activists in Securing Gender Identity Protections in Gendered Public Spaces in Washington, DC by Jody L. Herman 35 A New Approach to Health Care Equality for Transgender People: California’s Insurance Gender Non-Discrimination Act by Kellan Baker, Shannon Price Minter, Kristina Wertz, and Matthew Wood 45 Addressing LGBT Poverty Through Regulatory Change in the Obama Administration by Christian Pangilinan 61 Where Do We Go from Here? Incorporating LGBT-Inclusive Health Policies in Affordable Care Act Implementation by Kellan Baker 73 Discrimination and Dollars: Why a Pro-Business Framing Is Key to the Passage of the Employment Non-Discrimination Act by Crosby Burns 83 Absence and Uncertainty: LGBT Families in Federally Funded Healthy Relationship Programs by Patrick Hart

97 aUTHOR BIOGRAPHIES

lgbtq policy journal at the harvard kennedy school | volume 2 | 2011–2012 v vi editor’s remarks

Remarks from Editors-in-Chief “All of the polls seem to indicate that if we live long enough—I won’t, you will—attitudes [toward LGBT rights] will be very much more relaxed. But they will only stay that way if we continue to push in that direction. If we don’t, things will move backward.” — Activist Frank Kameny in an interview in the October 2010 issue of the Washingtonian As the steady march toward equality quickened its pace this past year, our staff of twelve passionate and committed students reflected on the purpose of an annual pub- lication that aims to influence policy and policy makers. What can a printed, academic journal that cannot be continuously updated with breaking news or the latest legisla- tive proposals or court cases contribute to the advancement of rights for lesbian, gay, bisexual, transgender, and queer (LGBTQ) people? We proudly reviewed the year’s major headlines chronicling our community’s recent advances: achieving marriage equality in New York and Washington state, the end of “Don’t Ask, Don’t Tell,” and the United Nations Human Rights Council declaration against discrimination. Yet during this review we noticed many important issues not being discussed, often because they are complex or affect only the most marginalized of our community. The second edition of the LGBTQ Policy Journal at the Harvard Kennedy School aspires to share with its readers the in-depth research, commentaries, and stories often missed by the general public, the media, and, importantly, the legislators and govern- ment officials who—for better or worse—hold great influence over the progress of our equality. In these pages, you will read of the socioeconomic difficulties and discrimina- tion faced by a superficially understood group of our community: those who identify outside of the restrictive gender binary society typically allows. You will hear from a transgender man who shares the trepidation and excitement of his personal transi- tion process, the social complexities of which are often ignored. You will also learn of the struggles facing low-income members of our community. And you will live the traumatic but heroic tale of a gay Pakistani who risked everything to speak out, and as death threats accumulated, was forced to flee by night through his country’s lawless tribal areas into the relative safe haven of Afghanistan. We hope the research and commentary provided in these pages can assist policy makers and community members in understanding the issues that lag in our struggle and the potential approaches and tactics to comprehensively move equality forward. One of the American movement’s founding fathers, Frank Kameny, who passed away in October 2011, spoke to the continued need to push forward to avoid moving backward. We ask policy makers holding this journal to consider their unique ability to assist in this push forward and to become an active participant in our movement for equality. This second edition is dedicated to the life of Frank Kameny and to all those our community lost in 2011. David Dodge and Elliot Imse Editors-in-Chief Cambridge, MA

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commentary

Silent T: Humanizing the Transgender Experience by H. Tucker Rosebrock On 5 August 2011, I began testosterone hormone therapy to commence my medical transition from female to male. This decision was precipitated by years of self- questioning, self-doubt, and self-discovery. I began learning about transgenderism as a name for what I was feeling in my first year at Wellesley College in 2006. Having completed six months of hormone therapy as of this writing in January 2012, I stand on the other side of the fence and feel ready to reflect on what has happened. Once I realized starting testosterone (known in the female-to-male community as “T”) was an option for me, I began to feel as one might before getting married. It was a joyous occasion, and I was happy. But there was a twinge of sadness at the life I would leave behind and some fear of the life-changing decision I was about to make. I came to the conclusion that the best way to ease into this transition was to document every day of it. Ten days before my first injection, I took a photo of myself. I continue to take a photo of myself daily, noting the date, time, and some information about what I did: what I had for lunch, what I’d read, what movies I watched (see photos 1 through 4). I find this journal to be helpful not only in documenting my personal process but also in showing others the day-to-day changes I face. In much of the transgender community, the focus rests mainly on the “before” and the “after”: the “pre-hormones, pre-op” to the “visible man or woman” one has become. While for many, keeping this transition process concealed is vital, I found the invisibil- ity of the process of transitioning intriguing. How could one pinpoint a time and say, “This is when I became a ‘visible’ man?” Or, “This is when I felt comfortable in my own skin for the first time?” The important little victories like using the men’s room and being called “sir” even after speaking were lost in this focus on the beginning and the end. Through my photos, I hope to tell the story of this journey. I was eager to see the changes when I first started T. Every day I asked if my voice had changed; I inspected my face for new hair growth. Consciously, I knew this process would not occur quickly. It would take months, even years, before I would feel wholly satisfied with the changes. I didn’t know what to expect in the interim. Perhaps more importantly, I didn’t know how to explain to people the difference I felt between the

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Photos 1-4: Photographs and captions from H. Tucker Rosebrock’s journal documenting the changes after beginning testosterone hormone therapy in his transition from female to male. For more photos from Rosebrock’s journal, visit the LGBTQ Policy Journal at the Harvard Kennedy School online.

4 silent t day before I got my first shot and the day public transportation home at night, I after. Articulating this deep, internal, and could no longer be friendly and congenial chemical change was something unex- with women. I had to become aware of pected and challenging. how my actions, as a man, would be seen by the women around me. A man smiling Before I began “passing”—being read as at a woman alone on the subway at night male in public—I was confronted with a is very different than a woman smiling at host of issues that I had not yet antici- another woman. It took, and continues pated. My voice had yet to change, my to take, a constant sense of vigilance to body shape was much the same, and my remind myself of how others perceive me. face lacked the square jaw that, I have learned, is all part of being read as male. In addition to perceptions, practical For the first three months I was on T, I concerns were a struggle as well. Few was reliving puberty again, with all of the health insurances cover any kind of awkwardness and insecurities. During transgender treatment, and many still this in-between time, bathrooms proved refer to it as “cosmetic” and therefore the biggest challenge. I had been using the unnecessary and ineligible for coverage. female restroom at my office since my For the average person seeking transgen- date of hire, but as I was feeling more der treatment, navigating the world male internally (if not externally), it felt of health insurance is unnecessarily less appropriate for me to be using this complicated. There are no clear and restroom. I feared coming out to my simple answers, no checklist or informa- office as transgender, as changes were tion packet. observable to no one but me. I found As I did my research about hormone myself using the unisex restroom at therapy and the upcoming bilateral Starbucks across the street and feeling mastectomy, or “top surgery,” I found a uncomfortable when well-meaning wealth of information about everything friends would correct someone’s from doctors to injection techniques. pronoun usage. However, there were many conflicting I don’t know the precise date I began accounts about whether health insurance passing, but I remember the first time I would cover testosterone hormone went out in public and felt confident that therapy or any surgeries. There were I would not be read as female. I went to arguments for having one’s doctor not get my haircut and the hairdresser acknowledge that the hormones were for accepted that I was male and assumed I transgender treatment. These conflicting would want a male haircut. I was elated experiences made me wary of calling my and felt a sense of ease and relaxation in health insurance and outright asking, lest finally reaching this point, but growing I draw attention to myself. Navigating the up as female and shifting into a male health care system as a transgender place in society carries its own issues. individual involves a high level of Besides the fact that I attended an discretion. When not covered by insur- all-women’s college—and therefore could ance, the cheapest injectable testosterone not tell people my alma mater without can cost approximately $100 to $200 a outing myself—I found that my interac- month. Gel testosterone can cost to $200 tions with women needed to change to $500. For many young people, this is entirely. When I went out to bars or rode prohibitively expensive. Many I know

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t Few health insurances cover any kind of transgender treatment, and many still refer to it as “cosmetic” and therefore unnecessary and ineligible for coverage.

have talked about working second jobs or what path one chooses though, the having to stop hormone treatment policies need to be in place to support because of the expense. every step along the way. Insurance coverage for top surgery is no Looking back at myself in that pre-T better. Several respected surgeons, my photo, I think about what has changed. own included, refuse to take insurance up Friends have told me I carry myself in a front; the amount of paperwork and more masculine way, that I am more legalese required is complicated. Instead, confident. I know I certainly feel more in they require prepayment and suggest command of my space, but I still worry attempting retroactive coverage and about which bathroom to use (at work, reimbursement. Yet, coverage isn’t I’ve started using the men’s room, albeit guaranteed. The cost of my upcoming on a different floor), about being outed surgery is $5,900, not including pre-oper- inadvertently, about how to treat women, ation evaluations, blood work, or housing and about my health insurance coverage. (it is an out-patient surgery, so I have to I worry about my safety and acceptance. rent a hotel room in the area). Many And I often wonder if these are just transmen host fundraiser parties, start human worries, and that to humanize the online accounts for donations, or even transition process one needs to knit take out loans to pay for a surgery that together connections and expose the raw many feel necessary and vital to their human truth within all of us. well-being. Transitioning to a different gender is shrouded in mystery, and perhaps purposefully so. It is easy to show someone who you are now without the messy business of how you got there: the hammering and cobbling together, the ugly stages in between. It is easier to present a final draft than a rough one. But to ignore the steps along the way is to deny the importance of the journey and refuse others the knowledge you have gleaned. Transgenderism is easy to dehumanize. It is easy to fade into the woodwork as another cis male or cis female or to choose to live eternally in queer-exclusive social circles. No matter

6 commentary

Public Speaking in Pakistan: How an Interview Changed One Man’s Life and Challenged His Country’s Perceptions of Queerness by Meghan Davidson Ladly The first frame is a wide shot of a beach, the sun streaming down and reflecting off the sea. Far away figures are sticks of shadow, silhouetted against the glistening water as they walk along the sand and wade in the surf. Clifton Beach looks inviting; this is the Karachi waterfront at its best. But close to this idyllic scene, a less pristine reality is being exposed. Inside a Chinese restaurant, five individuals sit together, captured on video. They are gathered around a table covered in red and white cloth, its surface scattered with the glass bottles of soft drinks, white ceramic teacups, and saucers. The group speaks to the camera in Urdu— occasionally punctuated with English—and upon closer examination one notices the image is subtly out of focus. Two transgender individuals and three gay men are risking much to speak about their lives; their faces are unclear to protect their identities. They introduce themselves—and their nation—to lesbian, gay, bisexual, and transgender (LGBT) Pakistanis (YouTube 2010).1 Tehseen sits at the table, one person in on the left. He is slim with dark, short hair and gestures with his hands as he speaks. He is a confident twenty-one-year-old, unaware his life is about to unravel and of the price he will pay for speaking up as an LGBT activist in a state increasingly dominated by Islamic fundamentalism (YouTube 2010; Sohail 2012). “I’ve made my own peace,” he said in an interview with the author, reflecting on the past from his new home of Canada (Tehseen 2011). But this self-peace has required letting go of friends, family, and a naive former self that openly challenged Pakistani law and conservative values. For a brief few months, Tehseen and his two friends—one of whom was his boyfriend at the time—became the face of LGBT activism in their country through the interview described above, which aired on television and was also posted on the Web. It would shape the domestic dialogue surrounding queer Pakistanis, and would cost them their identities, their comforts, and almost their lives. It started in front of the Mr. Burger on Rashid Minhas Road, Gulshan-e-Iqbal, Karachi. Forty to forty-five men gathered on a day late in November 2009 and performed a simple, yet defiant, act. They held an hour-long march wearing rainbow-colored T-shirts with “Pakistan” written across them in black. The men walked beside the flow

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t “From nobility and engineering students we became beggars,” said Tehseen, a gay man from Pakistan who was forced to flee the country after his sexuality was exposed.

of cars to the expo center on University lifetime imprisonment for any guilty Road, in what was likely Pakistan’s first party, yet the law is used almost exclu- pride parade. The marchers did not sively to prosecute lesbians, gays, and disrupt traffic, nor did they hold any signs bisexuals. Until 2006, convictions could or banners. Although the rainbow is result in a death sentence because it was well-known as an LGBT symbol in the an offense against Sharia law, but legal West, it is not widely understood as such amendments have since placed this crime in Pakistan, so the marchers did not outside the jurisdiction of Sharia (Jilani encounter hostility. An organizer and 2011; Immigration and Refugee Board of participant, Tehseen was proud; the group Canada 2007). “Homosexuality is widely was allowing the community to be visible practiced, but legally it is not acceptable,” to the world. said I.A. Rehman, director of the Human Rights Commission of Pakistan, in an “It is very risky for anyone to be out in interview with the author (Rehman Pakistan, and to do any activism would be 2011). an even greater risk,” Rob Hughes, a Canadian human rights lawyer, said in an The legality of being LGBT is what the interview with the author (Hughes 2011). BBC interview was all about: defying the Upper- and middle-class LGB individuals established laws and attaining visibility. in the country tend to lead a quiet Delhi’s high court decriminalized existence. They socialize, hook up, and homosexuality in July 2009, which piqued date without even their families, let alone the marchers’ attention (Timmons and their wider social circles, knowing. This is Kumar 2009). While India housed a no small feat given adult children vibrant gay rights movement, the same frequently live with their parents and was not the case for its western neighbor. extended family (Khan 1997). BBC Urdu journalist Riaz Sohail heard about the Karachi pride parade through a They have good reason to keep quiet friend and made contact with several about their sexuality. Pakistan has not had organizers through Facebook to set up an the high-profile trials that have occurred interview. To Sohail, it was a unique story in neighboring states such as Iran and about a silent minority speaking out Egypt (Human Rights Watch 2001; (Sohail 2012). Human Rights Watch 2010), but homo- sexual acts are illegal. Sodomy laws When BBC Urdu contacted the group constructed by the British during responsible for the march, the individuals colonization remain in place. Unnatural involved were pleased about the prospect Offenses Article 377 criminalizes all of getting international media coverage, “non-reproductive” sex and can result in but there was concern about safety. The

8 public speaking in pakistan organizers avoided exposure in the After several weeks of hiding out in domestic media and turned away several various parts of the country and explor- press requests because they did not trust ing options, the three gay youths decided domestic outlets to safeguard their on a new strategy and took the BBC to identities. But with the BBC they felt court. Tehseen felt the media organization secure, and in the Chinese restaurant they should have done more to protect them. worked out the details of what was and Yet Sohail explains that the young men was not to be reported. Sohail says he had contacted the news organization and agreed to fade their faces only. Yet Tehseen requested the interview be taken down says he only agreed to speak because the from the BBC Web site and that the BBC BBC told him their faces and voices complied to avoid causing the interview- would be distorted to conceal their ees any harm as a result of its reporting. identities. “We wanted to show the world But the lawsuit was launched long after that Pakistan does not only have terrorists the taping aired on television. “If they and Taliban and Al Qaeda,” he said. have any objections, why are they waiting “Pakistan has loving and caring people as four or five months?” Sohail said. well who are being ignored and discrimi- The case went to, and remains at, the nated against” (Tehseen 2011). High Court of Sindh. Tehseen and the But their voices were not altered in the others tried to get BBC Urdu to recant the story and their faces, though unclear, were story, claiming they had been paid money evidently distinguishable. They were to say what they said during the interview. recognized. Several weeks after the story It was a desperate attempt to regain their aired on television in December 2009, heterosexual status and control of their Tehseen was told some of his university lives, but other news media and the friends were plotting to lure him and the general public believed in the BBC’s other two gay men appearing in the credibility. interview to a beach picnic with the intent The trial proceedings forced the three of raping and murdering them (Tehseen men back into hiding in Karachi, and they 2011). came under intense media scrutiny as a The young men’s fears of prosecution or result of the press conferences relating to vigilante justice increased as news of the the case. They were now recognizable and BBC Urdu story spread. Tehseen’s father confronting the real possibility of being shunned him and threatened to turn him kidnapped by extremists who demanded into the authorities should he return their lawyer hand over her clients. home. Tehseen stopped attending his Tehseen and his now ex-boyfriend who university lectures as he was too terrified also participated in the interview decided to risk venturing out where he might be they had to leave (Tehseen 2011). recognized. He remembers reading page Tehseen and his then-boyfriend applied after page of online discussions on how for visas at the embassy of the one best to make an example of the group for country they knew would get them the slandering the state. “If the extremists necessary documents within twenty-four get you first they will not exercise the hours: Afghanistan. Forced to leave the government laws,” he said, “they will third young man behind in the city execute Sharia law.” because he was a minor, they took a train

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to Peshawar and from there a cab Pakistani society that they will not accept northwest to the Afghan border. They fled it,” Rehman said (2011). across the border at night on foot, afraid Tehseen may wish to focus on his new life they would be killed while navigating the in Canada, but his ordeal in Pakistan is lawless tribal area where one state blends hard to forget. While he regrets doing the into the next. Once in Kabul, they went to BBC interview, he remains proud of his the Office of the United Nations High participation in the march. Despite the Commissioner for Refugees (UNHCR) in repercussions, he does not question his the city to seek help. They were forced participation in overt activism. initially, however, to survive through panhandling until they were able to As Hughes said, “Sometimes it is neces- register officially with the UNHCR, sary to be in the closet and to quietly eventually securing UN assistance and work for social change. And sometimes having their case for refugee status people have stood up and said ‘I’m here, expedited. “From nobility and engineer- I’m queer’ and been willing to suffer the ing students we became beggars,” said consequences. It really is very individual” Tehseen. (Hughes 2011). Before leaving Pakistan, the men had Tehseen says he will never return to been able to contact Hughes. The Pakistan. It isn’t safe now that he is a immigration lawyer has spent decades recognizable figure, and he continues to advocating for LGBT rights and has done worry about Pakistani Inter-Services extensive work with queer refugee Intelligence (ISI) members discovering claimants. He advised them on seeking his whereabouts. The ISI is active in refuge in his home country of Canada. Pakistani society, and after running afoul After four months, they were allowed to of both his home country’s law and leave for Canada. Yet Tehseen said during religious extremists, he is cautious about those months he “lost everything” who he speaks to about his ordeal (Tehseen 2011). (Tehseen 2011). As Tehseen found out too late, it is not a dialogue that state authori- During our interview, Tehseen reiterated ties and conservative voices wish to have. his support for queer Pakistanis living in a society that requires discretion around But Sohail thinks it is a conversation his sexual intimacy of all kinds. Rehman country should have. After his piece aired, asserts that all sexuality—and particularly he said other LGBT individuals volun- that which falls outside the traditional teered to speak from elsewhere in the confines of marriage—is taboo in country; the exposure had encouraged Pakistan. Since 1990, the Human Rights others to act despite the high cost. Yet Commission has received only two cases even though LGBT individuals may wish in which gay people complained of to speak out, the news media remains human rights violations, and those cautious. individuals eventually left the country. Following the lawsuit, Sohail has avoided The state and its mechanisms are largely reporting on any similar subject matter. silent on the issue, with many individuals “It discourages me,” he said about the viewing homosexuality as a construct and court case. “I think I was the first journal- vice of the West. “The idea is so alien to ist to report this, as usually Pakistani

10 public speaking in pakistan media are not talking about these issues” Sohail, Riaz. 2012. Interview with author, (Sohail 2012). January. Tehseen. 2011. Interview with author, May. In effect, Tehseen and the others opened up an interest in LGBT people with their Timmons, Heather, and Hari Kumar. 2009. interview but may have inadvertently cut Indian court overturns gay sex ban. New York Times, 2 July. off the dialogue as well. Though it is no longer of any benefit to Tehseen or his YouTube. 2010. Karachi gays and lesbian, BBC former boyfriend, the case is still pending report. Uploaded by muhusama007 on 2 May. in the high court. With two of the plaintiffs having left the country, it is Endnotes uncertain how things will proceed. 1 For the purposes of this article, I will be using gay, homosexual, queer, and LGB In the last shot of the BBC piece, the five interchangeably. All are terms used by the individuals file through the glass doors of people I interviewed. At times, a distinction the restaurant and out into the night. A will be made between LGB and LGBT because, few of them wave at the camera. “When within Pakistan, advocacy for the transgender we met them, we were inspired. They hijra community is sometimes viewed as were very brave, taking their case to the separate from LGB rights issues. The hijra in world,” Sohail said (2012). many ways have more visibility than LGB individuals, and the Supreme Court recently ruled that they should be recognized as a References third gender. Hughes, Rob. 2011. Interview with author, December. Human Rights Watch. 2001. Egypt: Gay men convicted in politically motivated trial. Human Rights Watch, 14 November. ———. 2010. Iran: Discrimination and violence against sexual minorities. Human Rights Watch, 15 December. Immigration and Refugee Board of Canada. 2007. Pakistan: Situation of homosexuals, including the application of laws towards homosexuals, the number of prosecutions of homosexuals and their outcomes; whether any regions have an open and active gay commu- nity. Immigration and Refugee Board of Canada, 29 November. Jilani, Hina. 2011. Interview with author, April. Khan, Badruddin. 1997. Chapter 20: Not-so- gay life in Pakistan in the 1980s and 1990s. In Islamic homosexualities: Culture, history, and literature. Edited by Stephen Murray and Will Roscoe. New York: New York University Press. Rehman, I.A. 2011. Interview with author, May.

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feature article

A Gender Not Listed Here: Genderqueers, Gender Rebels, and OtherWise in the National Transgender Discrimination Survey by Jack Harrison, Jaime Grant, and Jody L. Herman

In the landmark 2008 National Transgender Discrimination Survey, respondents were given the latitude to write in their own gender if the predefined categories were not representative. This article reanalyzes the survey data to determine the experiences of those respondents who chose to write in their own gender. By examining several key domains of the study— education, health care, employment, and police harassment—it becomes evident that gender variant respondents are suffering significant impacts of anti-transgender bias and in some cases are at higher risk for discrimination and violence than their transgender counterparts in the study.

In 2008, the National Center for Transgender Equality (NCTE) and the National Gay and Lesbian Task Force (the Task Force) launched a nationwide study of anti- transgender discrimination in the United States. Over a six-month period, 6,450 transgender and gender nonconforming people answered a seventy-question survey, reporting on their experiences of discrimination and abuse at home, in school, in the public sphere, and in the workplace, as well as with landlords, doctors, and public officials, including judges and police (Grant et al. 2011).1 The results stunned even those working in the trenches with the most targeted and marginalized transgender people. Despite having attended college or gained a college degree or higher at 1.74 times the rate of the general population (47 percent versus 27 percent), respondents revealed brutal impacts of discrimination, experiencing unem- ployment at twice the rate and living in extreme poverty ($10,000 annually or less) at four times the rate of the general population. These and other experiences impacted study participants gravely, as 41 percent report having survived a suicide attempt. For this landmark effort, NCTE and the Task Force attempted to collect the broadest possible swath of experiences of transgender and gender nonconforming people with the initial, qualifying question: “Do you identify as transgender or gender noncon- forming in any way?” A series of identifiers followed, including Question 3 (Q3), which will form the basis of our exploration in this article. Q3 asked, “What is your primary gender identity today?”

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Secondly, we wondered how Q3 gender (A) Male/man not listed here (Q3GNL) respondents are (B) Female/woman constructing and describing their gender identities. Might there be some coherence (C) Part time as one gender, part time among the Q3GNLs? What does the as another diversity of identities among Q3GNLs tell (D) A gender not listed here, please us about community, identity, and specify ______survival among gender variant people in the United States in this moment? Response rates for the four options were: male/man, 26 percent; female/woman, Finally, we wanted to look at the experi- 41 percent; part time as one gender, part ences of Q3GNLs in terms of the various time as another, 20 percent; and a gender domains the survey explores, such as not listed here (GNL), 13 percent. education, health, and housing, as well as experiences with police, to see if Q3GNLs Q3 garnered 860 written responses to are faring better or worse than their GNL, many of them creative and unique, transgender and gender nonconforming such as twidget, birl, OtherWise, and peers who did not write in their gender. transgenderist. The majority of these respondents wrote in genderqueer, or The findings we describe in what follows some variation thereof, such as pangen- affirm the relevance of creating nuanced der, third gender, or hybrid. Still others gender categories in collecting data on chose terms that refer to third gender or transgender and gender nonconforming genderqueers within specific cultural people. By providing study participants traditions, such as Two-Spirit (First- multiple options for identifying and Nations), Mahuwahine (Hawaiian), and describing their gender identity, the Aggressive (Black or African American). resulting data shows that those who wrote in answers to Q3 have both unique Our purpose in examining the experi- demographic patterns as well as distinct ences of respondents who replied to Q3 as experiences of discrimination. These “a gender not listed here, please specify” is important realities would have been threefold. First, we would like to share the rendered invisible by cruder or more experience of creating a survey instru- simplistic instruments. ment that afforded respondents great latitude in articulating their gender Posing the T Question identity in order to create a cache of data In late 2007, a group of advocates and that speaks to the nuances of identity researchers gathered in the conference formation among transgender and gender room at the Task Force to construct an nonconforming people at this moment in original survey instrument for a study our communities’ evolution. Language, coproduced with NCTE. This partnership age, culture, class, location, and commu- was facilitated by the proximity of the nity all shape identity among gender offices of the two organizations (upstairs/ variant people and by asking several downstairs) and by the strong networks demographic questions alongside a broad of transgender advocates and researchers series of identity signifiers, a data set has that both organizations brought to the been created that begs to be asked table as staff, volunteers, interns, and (pro complex questions. bono) consultants on the project. For a

14 a gender not listed here little over a year, advocates and research- Issues and Analysis of the full report ers with decades of experience in lesbian, (Grant 2011). gay, bisexual, and transgender (LGBT) No part required more strenuous movements at the grassroots and national negotiation than the initial four questions levels wrestled over hundreds of potential of the study, which included a qualifying questions and their formulation. This question for participants and then sought group included organizational leaders, to establish identity “containers” for legal advocates, experts in social science respondents so that we might study the research and statistics, feminist and impacts of discrimination across a broad antiracism organizers, health and spectrum of gender identities. These community-based researchers, therapists, questions were constructed so we might interns of various backgrounds and identify highest-risk identity categories training, and community organizers.2 The and, with this data, uncover needed policy combination of highly trained scholars and legal changes. and community-based end users of data was a particularly powerful mix that, in The context in which the survey was the end, attracted the largest group of created demanded attention on the participants in U.S. history to a project on matter of identity. The federal legislative transgender life and experiences of battle of 2007 regarding the Employment discrimination. Non-Discrimination Act (ENDA) exposed political fault lines within the No one in the room and no one providing community and also created a rallying cry feedback by phone or e-mail was com- for transgender advocates and their allies. pletely satisfied with the final question- Forces inside LGBT communities seeking naire. Everyone had to “give up” questions a short-term, “historic” win in Congress that were of vital importance from their led to transgender protections being particular vantage point in their move- dropped from ENDA, as some believed ments and organizations. At times, the that it would not have enough votes to struggle to find appropriate language to pass with the transgender inclusion. facilitate participation and elicit nuances ENDA with the transgender protection of experience frazzled nerves and tested dropped did pass the House but failed in relationships. After the survey was fielded, the Senate. for example, there was a collective groaning regret that a question on Additionally, twenty years of pressure on religious affiliation fell off the table in the both state and federal governments to final draft. The study team struggled to collect data on LGBT people’s experiences create an instrument that was accessible, was gaining steam and critical mass, both in terms of literacy and length, to resulting in a smattering of youth, family, community members whose experiences and health surveys on LGB experiences are the most suppressed and marginal- and only the merest experiments in ized, while at the same time capable of posing the “T” question. In 2007, there recording the breadth of anti-transgender was great internal debate in the commu- targeting. The team’s internal critique of nity that reflected the dynamics of the the National Transgender Discrimination ENDA battle, with many prominent Survey (NTDS) questionnaire is detailed lesbian and gay researchers arguing in Appendix B: The Survey Instrument— against pressing governments on

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transgender questions, given that there hoped the success of the survey would was so little consensus about how to challenge local, state, and national adequately pose them. researchers whose proposed set of survey options create only the narrowest avenue In this context, the group created a for members of our communities to multilayered set of questions that may or engage and make visible our realities. may not be replicable in other settings. Advocates are constantly told by state and In the end, though many researchers government actors that questions on viewed the questionnaire as prohibitively LGBT experience are “sensitive” and exhausting in terms of length (seventy dissonant for participants in mainstream questions total) and exclusionary in terms population-based studies; in fact, they are of its literacy level, the study attracted a considered so distressing that they risk record-breaking number of participants ending participation in a study, whether only a week after its fielding (3,500 on paper, by phone, or in person. participants at the one-week mark in However, several reviews of studies November 2008). The final sample of posing sexual orientation questions have 6,456 includes participation by people debunked this myth (Williams Institute living on the streets and those with low 2009). The next barrier governments levels of educational attainment and low often present is expense. Our relatively incomes, perhaps demonstrating the “small” LGBT community “can get” only energizing and attracting capacity of one question in which to identify questions that incorporate gender variant ourselves given the expense of adding us people’s language and processes of to large, population-based studies (i.e., identity creation. the National Survey of Family Growth, the National Health Interview Survey, or Methodology the survey gold standard, the census). Respondents for the survey were recruited Because sexual orientation and gender in collaboration with 800 active, trans- identity are constructed as “distinct” gender-specific or transgender-related identities by both our communities and organizations nationwide that announced society at large, logic follows that there the survey to their membership. The must be at least two questions to locate survey link was also disseminated through LGBT participants in any study. 150 listservs that reach the transgender community in the United States. The The group that formed the NTDS survey was made available online and on questionnaire endeavored to inform the paper. The final sample consists of 5,956 current debates about posing the T online responses and 500 paper question in both community-based responses.3 studies and population-based work by crafting a community-based question- naire that might attract participants through a layered set of identifiers that were likely recognizable to many gender variant people. While understanding that small, community-based questionnaires may be more nuanced instruments than larger, population-based surveys, we

16 a gender not listed here

We posed the following four questions at Q4: For each term listed, please select the start of the survey: to what degree it applies to you (not at all, somewhat, strongly). Q1: “Transgender/gender nonconforming” describes people ❏ Transgender whose gender identity or expression is different, at least part of the time, ❏ Transsexual from their sex assigned to them at birth. Do you consider yourself to be ❏ FTM (female to male) transgender/gender nonconforming in any way? ❏ MTF (male to female)

❏ Yes ❏ Intersex

❏ No. If no, do NOT continue. ❏ Gender nonconforming or gender variant Q2: What sex were you assigned at birth, on your original birth certificate? ❏ Genderqueer

❏ Male ❏ Androgynous

❏ Female ❏ Feminine male

Q3: What is your primary gender ❏ Masculine female or butch identity today? ❏ A.G. or Aggressive ❏ Male/man ❏ Third gender ❏ Female/woman ❏ Cross-dresser ❏ Part time as one gender, part time as another ❏ Drag performer (King/Queen)

❏ A gender not listed here, please ❏ Two-spirit specify ______❏ Other, please specify ______

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t Q3GNLs have significantly higher educational attainment than their peers who did not write in their gender. . . Nonetheless, Q3GNLs are living in the lowest household income category at a much higher rate than those who did not write in their gender.

In The Lives of Transgender People, Genny this sample and provide hypotheses for Beemyn and Susan Rankin (2011) also future research (Lájer 2007). examine respondents and interviewees whose identities challenge the constructed I Am Q3GNL: The Complexities male-female gender binary. In referring to of Identity these respondents, they proposed the In terms of gender spectrum, Q3GNLs term female-to-different-gender and identify more often on the transmasculine male-to-different-gender to complement spectrum than overall participants in the the transgender-identified constructs of study (see Table 1). In fact, participation female-to-male and male-to-female is flipped in terms of the full sample, with (Beemyn and Rankin 2011). In this 73 percent of Q3GNLs reporting assigned article, we explore the identities and sex at birth as female and identifying on impacts of discrimination on those who the transmasculine spectrum and 27 wrote in their own gender response for percent assigned male at birth and Q3. More research is needed to look identifying as transfeminine. In the full closely at those who also selected and/or sample, 60 percent of respondents were wrote in their own gender response on assigned male at birth and locate them- Q4, who at first glance appear to be quite selves on the transfeminine spectrum, different from Q3GNLs. Accordingly, while 40 percent were assigned female at there is a great deal more diversity of birth and identify along the transmascu- experiences around nonbinary gender line spectrum. identity and experiences of discrimina- In terms of age, Q3GNLs were younger tion to be explored in this data set. than those who did not write in their In this study, we employ Pearson’s gender. Fully 89 percent of Q3GNLs were chi-square tests of independence to under the age of forty-five, while 68 measure within-sample relationships percent of those who said “man, woman, between Q3GNLs and those who did not or part time” on Q3 were under the age of write in their gender for Q3. Pearson’s forty-five. chi-square tests are only generalizable Q3GNLs were less likely to be White (70 when using random samples. The test’s percent) than those who did not write in ability to find statistical significance may their gender (77 percent) and more likely also be limited when utilized with a to be multiracial (18 percent compared to nonrandom sample. Yet, the test can be 11 percent). They were more often Black used to crudely measure a statistical (5 percent) and Asian (3 percent) than relationship between two variables within those who did not write in their gender as

18 a gender not listed here

well as the overall sample (4 percent and higher rates. Q3GNLs live in the Midwest 2 percent, respectively), but less likely to and the South at a lower percentage rate identify as Latino/a (4 percent compared than do their counterparts who replied to 5 percent).4 “man, woman, or part time” to Q3. Q3GNLs live in California and the Q3GNLs have significantly higher Northeast, the Mid-Atlantic states, and educational attainment than their peers the West (including Alaska and Hawaii) at who did not write in their gender, and as

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t There appears to be no tension for many Q3GNLs between simultaneously identifying as fluidly gendered, multiply gendered, performing gender, or having no gender.

noted above, the full sample has a Several Q3GNLs claim a genderqueer considerably higher level of educational identity while expressing the belief that attainment than the general population. they possess no gender. There appears to Nonetheless, Q3GNLs are living in the be no tension for many Q3GNLs between lowest household income category (under simultaneously identifying as fluidly $10,000 annually) at a much higher rate gendered, multiply gendered, performing (21 percent) than those who did not write gender, or having no gender. Accordingly, in their gender (14 percent), which may the study illuminates rich variation be partially attributable to the high within genderqueer identity and raises percentage of young people among questions about identity and impacts of Q3GNLs in the study. discrimination. How do those whose identities present a more explicit confron- In terms of gender identity, 337 Q3GNLs tation or critique of current gender (39 percent) identify wholly or in part as paradigms (i.e., genderfuckers or rebels) genderqueer.5 An additional twenty-five fare relative to their peers? How does respondents wrote in “queer” to Q3, nuance or multiplicity in gender identity which might be interpreted as “my and expression play out when interacting current gender is queer,” an equivalent of with gender policing structures and genderqueer. If we read this intent forces? These and many other questions correctly, then an additional 2.9 percent await further study. of Q3GNL respondents identify specifi- cally as genderqueer (42 percent of Among Q3GNLs, several respondents Q3GNLs, 6 percent of the sample). wrote in their own unique genders including: birl, Jest me, skaneelog, Other written responses that conceptually twidget, neutrois, OtherWise, gendertreyf, align with genderqueer include: both/ trannydyke genderqueer wombat fantas- either/neither/in-between/non-binary tica, Best of Both, and gender blur. These (n=82), androgynous or blended (n=70), identifiers speak to the creative project of non-gendered, gender is a performance or gender identity creation. While much of gender does not exist (n=23), fluid the data in the study catalogs serious and (n=19), Two-Spirit (n=18), bi-gender, widespread violations of human rights, tri-gender or third gender (n=16), this data testifies to resilience, humor, and genderfuck, rebel, or radical (n=10). a spirit of resistance to gender indoctrina- Many respondents combined one of these tion and policing among respondents. descriptors with queer or genderqueer in their responses, as a way to further describe their genderqueer identity.

20 a gender not listed here

Q3GNLs and Discrimination ment at a rate of 83 percent. This com- This final section offers a preliminary pares to 77 percent of those who did not look at discrimination faced by study write in their own gender. Sixteen percent participants who chose a gender not listed of Q3GNLs reported surviving sexual in Q3. The analysis here merely scratches assault at school, compared to 11 percent the surface of this extensive data set, but of those who did not write in their by looking at several arenas for experi- gender. ences of discrimination, including Because these experiences took place early education, employment, health care, in respondents’ lives, perhaps often before police, and violence, we hope to create a they were fully expressing their gender foundation for our team and others to identity, one might expect these rates to make deeper explorations (see Table 2). be consistent with the rates for those who Education identified as FTMs because of the high concentration of female-assigned-at-birth Although the NTDS was only open to Q3GNLs. This is true for harassment, respondents aged eighteen and older, we where the Q3GNL rate of 83 percent is asked everyone to reflect on their experi- very close to the FTM rate of 84 percent. ences in K-12 schools. Q3GNLs who Yet the reported rate of sexual assault for attended K-12 expressing a transgender Q3GNLs was a full six percentage points identity or gender nonconformity higher than that of FTMs in the study, reported higher rates of harassment and raising questions about specific sexual sexual assault than their counterparts in the study. Q3GNLs experienced harass-

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assault risks for genderqueers assigned economies in sustaining people with female at birth in K-12 settings.6 genderqueer identity.

Employment Health and Health Care While we found virtually no difference In the health section of the survey, between Q3GNLs and the full sample in respondents reported on direct forms of terms of workforce participation, we did discrimination in medical care as well as find that Q3GNLs “lost a job due to health disparities, which may be inter- anti-transgender bias” at lower rates (19 preted as impacts of cumulative effects of percent) than other respondents in the discrimination. study. They are, however, more likely to Q3GNLs reported being refused medical be “out at work” (76 percent) than their care due to bias at a rate of 14 percent, a counterparts in the study (56 percent), lower proportion than those who did not while enduring the same level of harass- write in their own gender (20 percent). ment and abuse at work as the full However, they are more likely to avoid sample: 90 percent report having experi- care altogether when sick or injured enced some form of anti-transgender bias because of the fear of discrimination (36 on the job. Anti-transgender bias includes percent of Q3GNLs compared to 27 verbal harassment, denial of a promotion, percent of those who did not write in physical and sexual violence, or having their gender). taken steps to avoid these outcomes by individuals delaying their transition or Q3GNLs are slightly more likely to be otherwise hiding who they are. This HIV positive (2.9 percent) than those suggests that while Q3GNLs are less who did not write in their gender (2.5 negatively affected by being “out at work” percent). Additionally, 11 percent of in terms of possible job loss, transgender- Q3GNLs did not know their status, identified people as a whole in the study compared to 9 percent of those who did often have “lost a job due to bias,” not write in their gender. especially MTF transgender participants. Q3GNLs are slightly more likely to have Q3GNLs are more likely to have partici- attempted suicide at some point in their pated in underground or informal life (43 percent) than those who did not economies for income. Twenty percent of write in their gender (40 percent). Both of Q3GNLs said they had been involved in these figures strike a stark contrast against drug sales, sex work, or other off-the- the 1.6 percent rate of suicide attempts books work at some point in their lives. over the lifespan for the general U.S. This compares to 15 percent of those who population (McIntosh 2004). did not write in their gender and 16 percent of the overall NTDS sample. Police However, the rates of sex work for Among respondents who had interacted Q3GNLs and the full sample are the same. with police, Q3GNLs are more likely to This counters mainstream discourse on have experienced harassment (31 percent) the gender of sex workers in trans than those who did not write in their communities (widely viewed as MTF gender (21 percent). Correspondingly, transgender) and the role of underground Q3GNLs are more likely to feel very uncomfortable going to the police for

22 a gender not listed here assistance (25 percent) than those who and abuse than gender nonconforming did not write in their gender (19 percent). folks; our belief, based on anecdotal work This data indicates that harassment and in our communities, was that gender- police abuse of genderqueers is a major queers generally were faring better than problem that has not been fully examined their transgender FTM and MTF peers. In relative to the better-documented the end, the team decided that it would be problem of police harassment against important to compare the experiences of transgender women. genderqueer and transgender respondents and to examine how anti-transgender bias Violence impacted people across a spectrum of One of the regrets we maintain about the gender identities. survey instrument is that it did not pose a This preliminary look at the experiences question about overall experiences of of Q3 write-ins affirms the importance of violence. Instead, we asked about physical the study qualifier, “Do you identify as and sexual assaults due to bias that transgender or gender nonconforming in occurred in several different contexts, any way?” By examining just a few of the including at school or in the workplace, as key domains of the study, such as described above, as well as in various education, health care, employment, and spaces of public accommodation and in police, it seems clear that gender variant the context of domestic violence. Looking respondents, including those who see across these contexts provides some sense their gender as hybrid, fluid, and/or of the overall rates of violence perpe- rejecting of the male-female binary, are trated against Q3GNLs. suffering significant impacts of anti- Thirty-two percent of Q3GNLs report transgender bias and in some cases are at having been physically assaulted due to higher risk for discrimination and bias, compared to 25 percent of those violence than their transgender counter- who did not write in their gender. Fifteen parts in the study. percent of Q3GNLs report having been We hope this article encourages other sexually assaulted due to bias, compared researchers to look closer at this data set to 9 percent of those who did not write in for answers to the questions raised here their gender. Again, relative to their study about Q3GNLs in this study and to peers, the higher rates of violence suggest undertake new work to uncover and the need for rigorous examination of illuminate the lives, resiliencies, and violence against genderqueers. vulnerabilities of genderqueers. A possible outcome of the work here, given that 6 Conclusions percent of respondents overall identified In the earliest moments of crafting the specifically as genderqueer, might be that National Transgender Discrimination future survey instruments studying Survey questionnaire, research team gender variant people include a specific members wondered whether the NTDS checkoff for genderqueers. Other out- should collect data on gender variant comes might include future studies of people who did not identify as transgen- participants who wrote in for both Q3 der. Study team members theorized that and Q4, who certainly have much to tell transgender-identified people were likely us about the state of genderqueer and to face more significant discrimination transgender life in the United States and

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the specific resiliencies and challenges of including to rural areas, to recruit survey genderqueers, gender rebels, and respondents from a variety of regions, literacy OtherWise. levels, and socioeconomic backgrounds, there are certainly segments of the transgender References population that are not represented or are underrepresented in this survey. Therefore, Beemyn, Genny, and Susan Rankin. 2011. The while this is by far the largest sample of lives of transgender people. New York: transgender experience collected to date, and Columbia University Press. its racial composition mirrors that of the Grant, Jaime M. et al. 2011. Injustice at every general U.S. population, with respondents turn: A report of the National Transgender hailing from all fifty states and the District of Discrimination Survey. Washington, DC: Columbia, it is not appropriate to generalize National Gay and Lesbian Task Force and the findings in this study to all transgender National Center for Transgender Equality. and gender nonconforming people because it Lájer, Konrad. 2007. Statistical tests as is not a random sample. inappropriate tools for data analysis per- 4 Respondents who checked a single-race formed on non-random samples of plant option are described within a single race communities. Folia Geobotanica 42(2): category, such as Black, Latino, or American 115–122. Indian/Alaska Native. Respondents who McIntosh, John L. 2004. Suicide data page: checked more than one race option are 2002. Prepared for the American Association described in the multiracial category of the of Suicidology. Compiled from Kochanek, study. Different researchers’ analyses of the K.D. et al. 2004. Deaths: Final data for 2002. data report higher Black, Asian, and Latino National Vital Statistics Reports 53(5). participation by adding together Black-only, Hyattsville, MD: National Center for Health Latino-only, and Asian-only data with Statistics. multiracial respondents who also claim these Williams Institute. 2009. Best practices for corresponding identities (i.e., Black-only plus asking questions about sexual orientation on Black-multiracial participants may be the surveys. Sexual Minority Assessment Research focus of another researcher’s analysis of the Team, Williams Institute. data to discuss Black trans experience). For the purposes of this article, NTDS researchers use single-race only option participants to Endnotes describe Black, Asian, and Pacific Islander, 1 The information and figures in this article Latina/o, and American Indian and Alaska rely heavily on the data collected for and Native respondent experiences. We use published in “Injustice at Every Turn: A multiracial percentages to describe respon- Report of the National Transgender dents who checked any of these categories Discrimination Survey.” Where information is along with an additional race category derived from other sources, those sources will (including White). be noted. Otherwise, assume the data stems 5 They wrote: genderqueer, Gender Queer, from the aforementioned report. Genderqueer, and Gender-Queer, often 2 The group included Mara Keisling, Eli Vitulli, following with additional descriptors such as Nicholas Ray, M. Somjen Frazer, Jaime M. genderqueer/genderfluid, genderqueer Grant, Lisa Mottet, Justin Tanis, and Steven K. woman, genderqueer lesbian, genderqueer Aurand. Susan Rankin, Hawk Stone, Scout, trannyfag, genderqueer/both/neither, etc. Shannon Minter, and Marsha Botzer also 6 Female-assigned-at-birth Q3GNLs experi- responded to drafts of questions by phone and enced harassment in K-12 schools at a rate of e-mail consultation. 85 percent and sexual assault at 13 percent. 3 Though the research team and staff members conducted widespread outreach efforts,

24 feature article

“Bathroom Panic” and Antidiscrimination Laws: The Role of Activists in Securing Gender Identity Protections in Gendered Public Spaces in Washington, DC by Jody L. Herman

The designers of our built environment have created public facilities that are segregated by gender, such as public restrooms, prisons, and shelters. People who are transgender or gender nonconforming may face denial of access, harassment, and violence in these gendered spaces. Despite organized opposition, some U.S. jurisdictions have adopted laws that seek to address these problems. This first-of-its-kind case study of the policy process in Washington, DC, outlines the key activities and strategies employed by activists and advocates who worked to create and enact the strongest regulatory language on gendered spaces in the country. Findings of this case study inform hypotheses suggested for future research.

Gendered public facilities, such as restrooms and locker rooms, create one of the clearest structural lines between male and female—masculine and feminine—in the architecture of American society. In the moment that one must choose between two doors—one marked “men” and one marked “women”—the binary construction of gender is never more blatantly enforced. The expectation in our society that a person’s gendered appearance and physical characteristics will be “aligned” in the most tradi- tional sense for those entering these spaces is strong and nearly universal. Failure to conform to these expectations can result in violence, harassment, arrest, and public humiliation. Restrooms are an integral and necessary part of our built environment. Yet, since gender is hyper-scrutinized in these spaces, these areas can create dangerous situations for transgender and gender nonconforming people.1 A 2008 survey of transgender and gender nonconforming residents of Washington, DC, revealed that 68 percent of respondents had been denied access to, verbally harassed in, and/or physically assaulted in public restrooms (DC Trans Coalition 2009). These experiences took place in schools, places of employment, and places of public accommodation. The limitations and inadequacies of our built environment are becoming apparent. How will our society respond as the assumption of a binary concept of two distinct and separable genders continues to erode, especially when that assumption is “built” into our environment? Our reliance on gender segregation in our public facilities does not provide for the safety and security of all people. Enacting laws that prohibit

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discrimination against transgender and transgender (National Gay and Lesbian gender nonconforming people is one way Task Force 2012). In addition, 143 cities, to begin to address the problems created counties, and townships have added by gendered public facilities. specific protections for transgender and gender nonconforming people, including Antidiscrimination laws in Washington, Boston, Chicago, Los Angeles, New York, DC, contain the strongest language in the Philadelphia, and San Francisco. The country in regard to gendered public creation of these specific protections is a facilities. In this article, the District of recent and growing trend: 112 of the 143 Columbia’s path toward strong and jurisdictions (78 percent) that have explicit protections is revealed in a case adopted these protections have done so study based on participant observation, since the year 2000 (National Gay and key informant interviews, and archival Lesbian Task Force and Transgender Law document review. Where these protec- & Policy Institute 2008; National Gay and tions have been included in antidiscrimi- Lesbian Task Force 2011). nation laws in places like New York, Boston, and San Francisco, anecdotal Gendered public restrooms often serve as evidence suggests that advocacy groups an ideological battleground in debates and activists played an important role in over enacting antidiscrimination laws at the policy process. Therefore, this study the local, state, and federal levels. of Washington, DC, focuses on the Opponents of antidiscrimination activities of activists and advocacy groups protections for transgender and gender as they worked toward the goal of nonconforming people have argued that securing strong protections for transgen- such laws would grant male sexual der and gender nonconforming people. predators access to women’s restrooms This study provides an analysis of the key where they can assault women and decisions and strategies that activists and children. This type of “bathroom panic” advocates employed to achieve their goal tactic was used most recently by the and suggests hypotheses for future Massachusetts Family Institute in its research on policy-making processes campaign against the 2011 Transgender surrounding antidiscrimination protec- Equal Rights Bill in Massachusetts. tions in gendered public facilities. Massachusetts legislators eventually removed gender identity antidiscrimina- Current National Context for tion protections in places of public Antidiscrimination Protections accommodation from the final bill, which Many cities, counties, and states have was signed into law by Governor Deval adopted protections for transgender and Patrick in November 2011. gender nonconforming people in Currently, only around 5 percent of employment, education, housing, and jurisdictions with antidiscrimination public accommodations. As of 20 January protections explicitly protect a person’s 2012, the National Gay and Lesbian Task right to use the gendered public restroom Force (the Task Force) reported that consistent with that person’s gender sixteen states and the District of identity or expression (Mottet 2012). Columbia have explicit protections for Restroom protections are explicitly people based on gender identity or included in the antidiscrimination expression or based on status as statutes or ordinances passed by New Jersey, the cities of Oakland, Boston, 26 “bathroom panic” and antidiscrimination laws

Denver, and Boulder, and several jurisdic- Protections in Gendered tions within the state of Oregon. Public Spaces: The Case of Enforcement regulations, which are Washington, DC drafted and implemented by government agencies, provide restroom protections in Local History and Organizing in the the cities of San Francisco and New York, Transgender Community the state of Colorado, and Washington, On 7 August 1995, Tyra Hunter was DC. The offices of human rights or civil critically injured in a car accident in rights divisions in the states of Iowa, southeast DC. What happened in the Colorado, Nevada, and Washington have minutes between Tyra Hunter’s car created compliance brochures and/or accident and death would spark a checklists to aid implementation of their movement that continues to this day. DC gender identity antidiscrimination laws Fire Department (DCFD) first responders that cover restroom access. It remains arrived on the scene of the car accident unclear whether restroom protections are and began treating the victims. The included in statutes, ordinances, and DCFD worker who attended to Tyra regulations where they are not explicitly Hunter cut away her pants and discovered mentioned.2 that she had male genitalia. Upon this discovery, the DCFD worker stopped Regulations in Washington, DC, protect a treating her and, together with the other person’s right to use the restroom DCFD staff at the scene, spent several consistent with that person’s gender minutes making jokes and ridiculing her. identity or expression and require After Hunter was finally transferred to businesses that have single-occupancy DC General Hospital for treatment, the gendered restrooms to make those public hospital’s emergency room staff restrooms gender-neutral (Office of the refused to treat her. Two hours after her Secretary of the District of Columbia accident, Tyra Hunter died from surviv- n.d.). The provision to create gender- able injuries.3 neutral restrooms is unique to the DC regulations and serves to provide safer The transgender community was horri- restroom options for transgender and fied by the mistreatment and death of gender nonconforming people. Since Tyra Hunter and channeled the collective restrooms have served as an ideological energy generated by her death to organize battleground in debates over antidiscrim- to improve the lives of transgender people ination policies in places as progressive as in DC. Community members availed Massachusetts, how is it that Washington, themselves of opportunities to educate DC, and other jurisdictions have been DC government officials and to express able to explicitly include these protections the frustration created by the many in their statues and regulations? Findings hardships transgender people face. In from the following case study of the December 2008, a DC agency official who policy-making process in Washington, elected to remain anonymous described DC, begin to answer this question. his perspective on transgender commu- nity participation in public hearings: “It was a learning experience for me to learn about the hardships that these individuals would go through. Disowned, come out and kicked out of the home, lack of

lgbtq policy journal at the harvard kennedy school | volume 2 | 2011–2012 27 feature article | jody l. herman

education. There was a lot of pent-up munity-organizing abilities to launch a frustration over things that had happened campaign to amend the DC HRA and in the city, like the Tyra Hunter incident. advocate for strong enforcement We would hear that.” regulations. Transgender community leaders orga- An announcement for the first meeting to nized town hall meetings following both organize the campaign went out through the death of Tyra Hunter and a wave of e-mail messages to individuals and DC murders of several transgender women in transgender community listservs and was 2002 and 2003. The meetings were addressed to “Trans People and Allies in convened to discuss the violence and Washington, DC.” The announcement salient issues affecting the local transgen- explained that the purpose of the January der community. The community agreed 2005 meeting was to discuss antidiscrimi- on a variety of priorities to focus on to nation legislation and the kinds of improve safety and quality of life. There provisions desired by the community, was also increasing recognition of the such as whether to pursue potentially need for explicit legal protections for controversial provisions like public transgender people in DC. restroom protections. Light observed:

Organizing the Campaign to Amend the Meetings had happened before, usually DC Human Rights Act in 2005 after there was a tragic event, like a murder. There would be community After the series of community meetings in meetings that were reactionary in response to the 2002 and 2003 murders nature, then interest in legislation had ended, attorneys Lisa Mottet and would fade as people’s everyday lives Jeffrey Light, along with local activist resumed. This effort was successful in Sadie Crabtree, organized a community achieving legislative victory because it meeting with the explicit purpose of wasn’t reactionary. We [were] going to launching a campaign to pursue antidis- be more goal-oriented. Instead of a crimination protections for transgender reaction, it was a concrete plan for people in DC.4 The DC Human Rights change. (Light 2008) Act (DC HRA) outlines the prohibited forms of discrimination in Washington, The initial meeting was considered a DC, and at that time did not include any success, with attendance of thirty to fifty explicit protections for transgender and racially diverse DC transgender commu- gender nonconforming people.5 Light, a nity members and allies. The group former staff member for DC Council continued to meet biweekly to discuss the Member Jim Graham, had already been in various issues it wanted the new DC HRA communication with Graham about the amendment to address. The group agreed possibility of legislation to amend the DC to advocate for legal access to gender- HRA to include “gender identity or segregated public facilities. The group expression.” Graham was amenable to members created a name for their introducing legislation, but he wanted organization that centralized its structure community support before moving and purpose but did not indicate a basis forward. The community meeting was in any particular identity: the Coalition to therefore designed to organize a commu- Clarify the DC Human Rights Act. The nity-based advocacy group that would coalition agreed on the primary goal of provide the political communications, persuading the DC Council to amend the legal and technical expertise, and com- 28 “bathroom panic” and antidiscrimination laws

DC HRA with the subsequent goals of The coalition wanted the regulatory passing strong regulations through the language to address discrimination in DC Commission on Human Rights areas of employment, education, public (CHR) and serving as a community- accommodations, housing, identity based advocacy group to work toward full documents, harassment, and access to implementation of the law and restrooms, showers, and locker rooms. regulations. The coalition knew that restroom protections had been adopted in regula- Key Decisions and Strategies in tions in other jurisdictions, but those the Campaign provisions stopped short of mandating the creation of gender-neutral restrooms. Provisions and Text of Proposed The coalition was able to utilize the best Legislation and Regulations provisions from other cities to propose To reach its goals, the coalition made DC regulations that were even stronger. strategic decisions regarding the legisla- The DC regulations, therefore, not only tive language it proposed for the DC HRA cover the right of a person to use the amendment bill and the provisions it gendered public facility that accords with reserved for the enforcement regulations. that person’s gender identity, but also The coalition drew on the experience, mandate that current single-occupancy connections, and strengths of its mem- gendered restrooms must be made bership and networks (attorneys, political gender-neutral.6 insiders, community organizers, and The coalition did decide, though, not to long-time local activists). Having worked advocate for some provisions that may on transgender rights for the Task Force have been too controversial and might since 2001, Mottet was very knowledge- have delayed or derailed the process. For able about the most recent developments instance, the coalition desired a provision in antidiscrimination legislative language, that employer-based health insurance and with assistance from Light, she wrote plans must cover transition-related health the proposed language for the bill. care needs. However, the coalition The coalition made the strategic decision decided that this change likely would not to pursue some desired protections, provoke strong opposition from the such as legal access to public restrooms, in business community and therefore was the actual text of the legislation. Though not feasible. having statutory language is a stronger protection than enforcement regulations Community Outreach and Minimization promulgated by an agency, coalition of Opposition members were concerned about interfer- The coalition needed to provide a show of ence from Congress. Congress has support from the community for the oversight of all DC legislation and can amendment to the DC HRA but decided disapprove legislation or block appropria- neither to utilize mainstream media for tions to implement it. There is no formal outreach nor to engage in a public Congressional review of enforcement education campaign outside the lesbian, regulations, so the provisions the coali- gay, bisexual, transgender (LGBT) tion wanted would not fall under federal community. The coalition wanted to scrutiny if addressed in the regulations avoid provoking opposition from written to enforce the new DC HRA Congress or local conservative groups amendment. lgbtq policy journal at the harvard kennedy school | volume 2 | 2011–2012 29 feature article | jody l. herman

t The coalition did decide, though, not to advocate for some provisions that may have been too controversial and might have delayed or derailed the process.

during outreach efforts. As Everett write formal comments during public Maroon, a coalition member, explained, comment periods and, if possible, testify “There was no public discussion about at public hearings. When public hearings this. It wasn’t in the [Washington] Post. It were eventually held, several organiza- was in the [Washington] Blade a little. We tions, including GLAA and the Task basically kept it out because we didn’t Force, testified in support of the amend- want to have a fight. We didn’t want to ment. Organizations also wrote in have a public discussion on the validity of support during the public comment trans people. We just wanted the changes period on the regulatory language, to go through and then move on from including Metro DC PFLAG (Parents, there” (Maroon 2008). Families, and Friends of Lesbians and Gays) and Us Helping Us. The coalition conducted its main outreach effort to the public at the 2005 Though the coalition reached out to Capital Pride events in June. The coalition friendly organizations early in the decided that conducting outreach at campaign, relations between the coalition, Capital Pride would provide the best the ACLU-NCA, and GLAA became opportunity to garner support for the strained after the amendment had passed. legislation from a friendly community. The latter two organizations raised The coalition produced postcards that objections to the regulatory language late declared support for amending the DC in the process of drafting the regulations.7 Human Rights Act and asked individuals The coalition was blindsided and frus- to sign them. By the time the amendment trated by these objections but had to act was introduced on 6 July 2005, the quickly to reestablish united community coalition had collected nearly 1,200 support. The coalition met several times postcards and had hand delivered them to with the ACLU-NCA to work out the DC Council. concerns with the regulations. It was able to finalize new, and arguably stronger, The coalition also conducted community language that all three organizations outreach by tapping into networks of could support. friendly organizations and conducting education and outreach in the larger Strategic Political Communications LGBT community. Coalition members The coalition engaged in political attended meetings and contacted leaders communications with the government of local organizations, such as the Gay actors who would be involved in the 2005 and Lesbian Activist Alliance (GLAA), amendment and subsequent regulations. ACLU of the National Capitol Area The coalition knew that although the DC (ACLU-NCA), and the Gertrude Stein Council seemed generally supportive of Democratic Club, with the goal of gaining antidiscrimination protections for those organizations’ support of the transgender people, legislation had to be legislation. Organizations were asked to 30 “bathroom panic” and antidiscrimination laws introduced to the council, placed on the on 22 December 2005. The act was then relevant legislative committee’s agenda, transmitted for review by Congress. and then submitted favorably from the Congress took no action on the act, which committee back to the full council for a then became law in DC on 8 March 2006. vote. The coalition understood that while Coalition members attended the CHR Jim Graham would introduce the meeting in May 2005, more than seven antidiscrimination bill, the “gatekeeper” months before the DC HRA amendment would be Vincent Orange, the chair of the was passed. The CHR would be respon- Committee on Government Operations, sible for promulgating enforcement where the bill would be referred. regulations for the new amendment, so The coalition set up meetings with the coalition approached the commis- Orange’s staff to discuss the legislation sioners early in the campaign to begin well before it was introduced. Coalition advocating for the provisions they members knew that Orange was going to desired, such as protections in gendered run for mayor in 2006, but he did not public facilities. Coalition members also have a positive relationship with DC’s offered assistance with writing the LGBT community. Therefore, coalition regulations. In November 2008, one members were strategic in their commu- commissioner who chose to remain nications with Orange. Light explained: anonymous noted, “They discussed with us why they felt the legislation was needed I am pretty sure that Orange didn’t and made a presentation to bring our think that this bill was his top priority. attention to this issue so we were not If he wasn’t running for mayor, I think caught unaware when the council passed this would have sat for a long time in the law. We knew what was coming, and his committee. He basically had that’s the kind of advocacy we needed.” nothing to offer the GLBT community When the law was passed, the CHR had to vote for him. We gave him this bill so already begun work on the regulations. he was able to put on all his commer- cials that he supported civil rights by At the CHR meeting on 12 January 2006, introducing the gender identity the commission discussed the rule-mak- expression amendment. He definitely ing process for the enforcement regula- used that when he went to GLBT tions and created a committee to draft the conferences as a talking point. (Light regulations and to submit them to the full 2008) commission for review. Coalition members attended this meeting with the Orange decided to co-introduce the bill purpose of proposing the provisions the with Graham on 6 July 2005. It was coalition wanted. The CHR invited named the Human Rights Clarification Mottet of the Task Force, Craig Howell of Amendment Act of 2005. The remaining GLAA, and Sadie Crabtree of the coali- eleven DC Council members signed on to tion to participate on the drafting cosponsor the legislation. committee. The drafting committee held meetings to craft the proposed regulatory The act was then referred to Orange’s language, with substantial work com- committee. The committee submitted its pleted outside of regular commission favorable report to the council, which meetings by the commission’s Chief unanimously passed the Human Rights Hearing Examiner Neil Alexander, Clarification Amendment Act of 2005. Mottet, and Crabtree. GLAA had sent in Mayor Anthony Williams signed the act lgbtq policy journal at the harvard kennedy school | volume 2 | 2011–2012 31 feature article | jody l. herman

recommendations to the chair of the In keeping with the strategy to not commission via e-mail and did not provoke opposition, the coalition and the participate otherwise in the drafting commission agreed not to name or sessions. provide instructions for specific DC government agencies in the regulations, Through the drafting committee, such as the Department of Corrections. coalition members were able to be very The regulations were designed to provide ambitious in advocating for their desired blanket coverage of all DC agencies, provisions, including protections in which would all be subject to the regula- public restrooms and other gendered tions. The coalition and the CHR did not public facilities. In December 2008, one want to invite a fight from any DC agency commissioner who elected to remain by specifically naming agencies. anonymous noted of the decision to Subsequently, no DC agency opposed the invite the coalition to participate: regulations until after they went into We knew very little about what all the effect. The final rules were published on issues were that transgender people 27 October 2006, officially becoming part face in the day to day, so it would have of the DC Municipal Regulations. been very difficult, or stupid, to try to pursue the regulations without doing Conclusion what we did. When doing the original The antidiscrimination enforcement regulations, it wouldn’t have made any regulations in Washington, DC, are the sense to just publish something and first to address the discrimination and wait for comments because we didn’t harm suffered by transgender and gender even know where to start. nonconforming people in public rest- rooms not only by protecting a person’s In April 2006, the drafting committee right to use the restroom that accords presented a set of proposed regulations to with one’s gender identity but also by the full commission. The next CHR creating more gender-neutral restrooms. meeting would be held on 11 May 2006, These protections are especially notable with time allocated for testimony on the given that “bathroom panic” campaigns proposed regulations from coalition have been used by opponents in a variety members and the general public, followed of jurisdictions to argue against antidis- by a vote on the final draft. Though the crimination laws. Because DC’s regula- coalition knew the CHR was likely to pass tions are the strongest in the country, the the regulations, coalition members key decisions and strategies employed by attended the meeting in order to demon- the activists and advocates involved in strate the transgender community’s this particular policy success represent an support and to counter any challenge to example of an advocacy campaign that the regulations. Many coalition members achieved a unique and notable success in testified about the harassment, discrimi- the United States. Therefore, researchers nation, and other problems they had studying the policy-making process experienced because of their gender around antidiscrimination protections in identity, including being harassed in other jurisdictions, particularly in the public restrooms and having health area of gendered public facilities, may problems caused by avoiding public want to consider testing hypotheses based restrooms altogether. No members of the on the findings of this case study. general public attended the meeting. 32 “bathroom panic” and antidiscrimination laws

First, advocates created the Coalition to and engage in persuasive communica- Clarify the DC Human Rights Act to tions with the government officials provide the community-based organiza- involved in the policy process. tion necessary to launch a successful Finally, the coalition established a campaign for these protections in collaborative relationship with the DC Washington, DC. It is possible that in any Commission on Human Rights and acted jurisdiction the work of activists and as a resource for the commission, advocacy organizations is essential in providing needed expertise on the securing legal protections in gendered regulatory language. Success in securing public facilities for transgender and protections in gendered public facilities gender nonconforming people. may be related to the extent to which Second, in order to prevent mobilization advocates and government can work of the opposition and bathroom panic collaboratively so that advocates can campaigns, the coalition strategically provide the technical expertise necessary selected which provisions to advocate for to craft strong statutory or regulatory in legislation and which provisions to language. pursue in regulatory language. Advocates Furthermore, future research should also purposefully kept their work out of study the process of implementing the mainstream media and did not antidiscrimination protections and assess engage in general public education the impact they have in people’s lives. The activities during their campaign. Securing strategies employed by the coalition may legal protections in gendered public have been the right ones to achieve facilities in other jurisdictions may be victory in the short term, yet some related to the ability of proponents to decisions would have negative implica- minimize opposition mobilization and tions during implementation of the bathroom panic campaigns. regulations. Therefore, understanding the Third, the coalition harnessed the future impacts of strategic campaign political climate and upcoming mayoral decisions may help to refine the work of campaign of a key DC Council member other similar campaigns in the future. For to ensure that the proposed legislation instance, the strategy not to engage in was quickly considered and approved by public education, which included the appropriate legislative committee. businesses and business organizations, Gaining legal protections in gendered during the drafting of the regulations may public facilities in other jurisdictions may have contributed to an attempt by the DC rely on to the ability of proponents to Chamber of Commerce in July 2008, in take advantage of political opportunities collaboration with the new director of the t In order to prevent mobilization of the opposition and “bathroom panic” campaigns, the coalition strategi- cally selected which provisions to advocate for in legisla- tion and which provisions to pursue in regulatory language.

lgbtq policy journal at the harvard kennedy school | volume 2 | 2011–2012 33 feature article | jody l. herman

DC Office of Human Rights, to remove transgender people have in gendered the gender-neutral restroom provision of restrooms. the regulations. This led to a long and 3 Hunter’s mother, Margie Hunter, filed a civil hard-fought campaign to preserve the lawsuit against the District of Columbia in original text of the regulations and February 1996. In this case, Margie Hunter v. implement the gender-neutral restroom District of Columbia, et al., Civil Action No. regulations with area businesses. Such 96-1338, DC Superior Court, the jury found lessons from the implementation of the that medical negligence likely caused Tyra Hunter’s death and awarded Margie Hunter regulations in Washington, DC, may nearly $3 million in damages. The transgender therefore be instructive to the implemen- community in DC was angered that the city tation of similar measures elsewhere. appealed the ruling then settled for $1.75 million. References 4 Lisa Mottet, director of the Transgender Civil DC Trans Coalition. 2009. Our survey results. Rights Project of the National Gay and Lesbian DC Trans Coalition blog, 8 November. Task Force, wrote a memo on 25 August 2004 Light, Jeffery. 2008. Interview with author, entitled “Clarifying the District of Columbia Washington, DC, 17 November. Human Rights Act” that reviewed the status of Maroon, Everett. 2008. Telephone interview current protections and provided detailed with author, 10 November 2008. arguments for the adoption of explicit language to cover transgender people in the Mottet, Lisa. 2012. E-mail communication DC Human Rights Act. with author, 3 February. 5 The U.S. District Court for the District of National Gay and Lesbian Task Force. 2011. Columbia had found in Underwood v. Archer Jurisdictions with explicitly transgender-inclu- Management Services that a transsexual sive nondiscrimination laws. Fact sheet, woman was protected against employment October. termination under the “personal appearance” ———. 2012. State nondiscrimination laws in provision of the DC Human Rights Act. the U.S. Fact sheet, 20 January. 6 These regulations do not change current law ———, and Transgender Law & Policy in the District of Columbia that allows Institute. 2008. Scope of explicitly transgen- establishments to segregate certain facilities by der-inclusive anti-discrimination laws. Fact gender. The DC Municipal Regulations Rule sheet, July. 4-506.7 states: “Locker rooms, restrooms, and Office of the Secretary of the District of shower rooms may be lawfully segregated Columbia. n.d. District of Columbia based on sex.” In Hockaday v. United States, Municipal Regulations, Title 4, Chapter 8. 359 A.2d 146, 151 n.10 (D.C. 1976), the court found that property owners have a right to Endnotes segregate restrooms by gender. 1 For the purposes of this article, “transgender” 7 They argued that there may be potential First and “gender nonconforming” describe people Amendment challenges based on provisions whose current gender identity or expression is on harassment and hostile environment and different from those traditionally associated that there may not be adequate protection of with their assigned sex at birth. safety and privacy for non-transgender individuals in gender-segregated facilities. 2 For instance, see Goins v. West Group and Cruzan v. Special School District #1. Both cases originated in the state of Minnesota and leave unclear what protections, if any,

34 feature article

A New Approach to Health Care Equality for Transgender People: California’s Insurance Gender Non-Discrimination Act by Kellan Baker, Shannon Price Minter, Kristina Wertz, and Matthew Wood

This article outlines a new approach to protecting transgender people from insurance discrimination. Specifically, we describe the equality framework behind California’s Insurance Gender Non-Discrimination Act, the first statewide law in the United States prohibiting gender identity discrimination in insurance. To improve compliance with the law, in early 2012 the California Department of Insurance issued regulations that provide guidance to insurance carriers about practices that constitute impermissible discrimination. We explore the role these regulations will play in improving access to insurance coverage for transgender Californians and also discuss the law’s potential nationwide implications in the context of federal health care reform.

Overview of the Problem: Pervasive Discrimination Against Transgender People in Access to Health Care and Health Insurance Transgender people in the United States face serious and often life-threatening dis- crimination in access to health care. Nationally, one in five transgender people report being refused medical care because of their gender identity or expression (Grant et al. 2011). In California, transgender people report high rates of discrimination in access- ing a wide range of health care services. For example, 27 percent have been refused hormone therapy, 15 percent have been refused gender-specific care (such as pap smears for transgender men and prostate exams for transgender women), and 10 percent have been refused primary health care (Hartzell et al. 2009). A major contributor to these alarming rates of discrimination against transgender people in health care is the fact that many health insurance plans, including Medicare, most state Medicaid programs, and many private insurance policies such as those offered through the Federal Employees Health Benefits Program, exclude coverage for treatments relating to gender transition. In some instances, these exclusions apply only to surgical treatments while permitting coverage of counseling and hormone therapy. In others, the exclusions are sweeping, excluding, for example, the coverage of any “services, drugs, or supplies related to sex transformations” (Government Employees Health Association 2012). Such exclusions are frequently expanded in practice to deny

lgbtq policy journal at the harvard kennedy school | volume 2 | 2011–2012 35 feature article | kellan baker, shannon price minter, kristina wertz, and matthew wood

transgender people coverage for basic Professional Association for Transgender health care services that are routinely Health (WPATH 2008). covered for non-transgender people Moreover, in response to the growing (Hong 2002). understanding that exclusions targeting Insurers often seek to justify these care for transgender people are based on exclusions with the claim that treatments prejudice rather than any sound medical for gender transition are “experimental.” foundation, an increasing number of While this may have been true in the past, companies are requiring insurers to today there is a wealth of data and clinical remove these exclusions from the policies experience demonstrating the safety and they offer to their employees (Human efficacy of these treatments. As such, there Rights Campaign 2010; Human Rights is a strong and growing consensus among Campaign 2011). leading medical experts that treatments related to gender transition—including California’s Insurance Gender hormone therapy and gender confirma- Non-Discrimination Act tion surgeries—are medically necessary In 2005, attorneys from the Transgender for transgender people. Major U.S. Law Center, Equality California, and the medical associations recognize that National Center for Lesbian Rights sought optimal health for transgender people to address the pervasive discrimination requires access to the same health care against transgender people in California services and benefits as non-transgender by drafting the Insurance Gender people and that discrimination on the Non-Discrimination Act (IGNA). basis of transgender status is unethical; California law already prohibited discrim- some of these organizations include: the ination by insurance companies and

t There is a strong and growing consensus among lead- ing medical experts that treatments related to gender transition—including hormone therapy and gender confirmation surgeries—are medically necessary for transgender people.

American Medical Association (American health care service plans on the bases of Medical Association House of Delegates race, color, national origin, ancestry, n.d.); the American Psychological religion, sex, marital status, sexual Association (American Psychological orientation, or age. IGNA amended the Association Council of Representatives statute to explicitly protect transgender 2008); the Endocrine Society (Hembree et people by clarifying that the term “sex” al. 2009); the American College of includes gender identity. Then Governor Obstetricians and Gynecologists Arnold Schwarzenegger signed the (American College of Obstetricians and legislation in September 2005, and it took Gynecologists 2011); and the World effect on 1 January 2006, making

36 a new approach to health care equality for transgender people

California the first, and thus far only, state covered for other people; and refusal to in the country to prohibit insurance cover treatments related to gender companies and health service plans from transition when the same treatments are discriminating against transgender covered for other conditions. The State people. Senate report on the bill particularly highlighted the problems of health plans The protections established by IGNA and insurers declining to enroll transgen- apply to all private health insurance der applicants solely because of their policies and plans in California. The law transgender status and of transgender adds a prohibition against gender identity patients being denied sex-specific discrimination to two different sections procedures such as pap smears or prostate of the California Code: (1) the Knox- exams. With regard to the latter, the Keene Act, which applies to health care report explained: service plans and is enforced by the California Department of Managed [T]his problem occurs because while Health Care (DMHC); and (2) the transgender enrollees may identify Insurance Code, which applies to life, themselves as a certain sex, they may disability, and health insurance and is still need medical services typically enforced by the California Department of given to members of the opposite sex Insurance (CDI). The plans regulated by only. For example, a transgender the DMHC are health maintenance individual identifying himself as a man organizations (HMOs), and those may still need gynecological services. A regulated by the CDI are preferred health plan that automatically denies provider organizations (PPOs). Together, coverage of gynecological services for the plans affected by IGNA cover 30.8 men as inappropriate could then deny million Californians (U.S. Census Bureau appropriate and medically necessary n.d.; Fronstin 2011). IGNA does not affect services for transgender enrollees. Medicare, which is governed by federal (Senate Committee on Banking, law. It also does not affect the benefits Finance, and Insurance 2005) provided to California Medicaid recipi- ents, who were already eligible to receive The law sought to address these problems coverage for medically necessary treat- not by mandating coverage of specific ments related to gender transition. treatments or procedures but by adopting an equality framework. The equality By prohibiting gender identity discrimi- framework regards coverage determina- nation in insurance, IGNA sought to tions based solely upon gender identity or eliminate the full range of discriminatory a person’s transgender status as unfairly practices used against transgender discriminatory. This approach rejects the consumers by private insurance compa- marginalization of transgender people nies and health care service plans includ- and emphasizes that the health needs of ing but not limited to refusal to issue a this population are not qualitatively policy to a transgender person; charging different from those of other people. For higher premiums without sound actuarial example, individuals may require justification; refusal to cover medically hormone therapy for a variety of reasons, necessary treatments, including gender- including an intersex condition or low specific treatments such as pap smears or production of testosterone or estrogen. prostate examinations that would be

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The premise of IGNA is that if a health There is no data on how effective the law plan covers hormone therapy for other has been, but anecdotal experience of persons and conditions, it cannot deny community advocates and attorneys hormone therapy to a transgender person strongly suggests that unlawful insurance who needs it for purposes of gender discrimination against transgender transition. A similar analysis applies to consumers in California is still wide- reconstructive surgeries. If a health plan spread. This is likely due to a combination covers reconstructive surgeries for of factors: lack of knowledge among persons who require them due to illness consumers and insurers that the law or injury, it cannot deny reconstructive prohibits gender identity discrimination; surgeries for transgender persons. uncertainty or misinformation among consumers and insurers about what In principle, the equality framework has IGNA requires; failure by insurers to the virtues of being simple, clear, and recognize that certain practices, such as direct. In practice, however, this approach denying gynecological care to a transgen- poses a particular challenge: insurers and der man or providing coverage for a consumers must understand and apply its hysterectomy for cancer but not for broad principles in a variety of contexts, gender transition, are discriminatory; including enrollment in plans and resistance among insurers to comply with coverage of various treatments and the new law based on lingering bias procedures, without guidance from a list against transgender people; and failure by of mandated services and treatments. the administrative agencies responsible Moreover, the difficulty of changing for implementing the law to vigorously entrenched bias against this population and consistently enforce its protections. that persists in the insurance industry and society as a whole has made enforcement Consider the cases of three transgender of IGNA challenging. people who have contacted the Transgender Law Center to address Continuing Problems of discrimination perpetrated by health care Discrimination Despite IGNA’s service plans since IGNA was enacted. Enactment Although all of these individuals were In the seven years since IGNA was passed, insured by health service plans (HMOs) both the strengths and the weaknesses of administered by the DMHC rather than the equality framework have become the CDI, the types of discrimination they apparent. On the one hand, the law has faced are not unique to managed care been a valuable tool for attorneys and providers, and these cases demonstrate transgender community members, and its the need both for IGNA and for regula- application has resulted in the successful tions to clarify its protections. resolution of many individual claims of “J” is a fifty-year-old transgender man discrimination. On the other hand, many whose health plan refused to provide consumers are not aware of the law’s coverage for a bone density scan. J has a protections, and many insurance compa- family history of osteoporosis and nies do not fully understand their vitamin D deficiency, and his physician obligations under IGNA and have requested the procedure. Despite this, the continued to engage in discriminatory plan upheld the denial, finding that J did practices. not meet its policy’s criteria for a bone

38 a new approach to health care equality for transgender people density test on the basis of age or medical the plan reconsidered and offered him a history (from a letter from the insurer to policy but one with no prescription drug “J,” 2010, on file with the Transgender coverage. Unfortunately, despite IGNA, Law Center). the DMHC upheld the HMO’s decision on appeal without further comment. In In fact, J did meet the plan’s age and this case, the plan’s refusal to offer K a medical history criteria, but he did not policy with prescription drug coverage as meet the plan’s criterion related to sex, a result of his testosterone usage was which provides coverage for this test for merely a proxy for his transgender status. any female fifty years or older with a Thus, the DMHC’s approval of that family history of osteoporosis and a refusal was based not only on misconcep- vitamin D deficiency. J’s request was tions about the process of gender denied solely because he had transitioned transition (many transgender people, like from female to male. The DMHC many non-transgender people, utilize reversed the plan’s decision on appeal. It hormone replacement therapy on an recognized that the decision was based on ongoing basis, but this does not mean bias relating to J’s transition, finding, “the they are always “in the process of gender medical group incorrectly viewed your reassignment”) but also on overt discrim- transitioning male status as a medical ination against K as a transgender person. basis for its denial” (from a letter from the Medical misconceptions aside, the denial insurer to “J,” 2011, on file with the of coverage in this case was fundamen- Transgender Law Center). tally based on K’s male gender identity In another case from April 2009, “K,” a and his concomitant need for a testoster- transgender man, was denied an insur- one prescription. ance policy by another health care service In the last case, “F,” a fifty-five-year-old plan. K was twenty-five-years-old and for transgender woman, was denied coverage the past thirteen years had been covered for genital sex reassignment surgery in by his parents’ policy, which had covered December 2008. F’s health insurance the prescription and administration of policy specifically excluded “transgender testosterone therapy. When K “aged out” surgery,” although it included coverage of his parents’ policy, he applied for an for her hormone replacement therapy. individual policy and was surprised to Because F needed a high dosage of find that his transition had rendered him estrogen to offset her body’s unusually uninsurable. The denial letter stated as high natural production of testosterone, reasons that he (1) was “in the process of this increased her risk of stroke and other gender reassignment” and (2) had listed complications. Her doctor determined testosterone as a prescription medication that this was not a safe or sustainable (from a letter from the insurer to “K,” situation and recommended that she 2009, on file with the Transgender undergo an orchiectomy (removal of Law Center). testicles). The exclusion in F’s insurance As a healthy young man with no other policy unlawfully prohibited her from risk factors, K is precisely the type of obtaining coverage for this procedure person insurers like to cover because he even though it would have been covered offsets older, less-healthy people in the for other medically necessary reasons risk pool. After K appealed the decision, such as testicular cancer. The DMHC

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upheld the denial without explanation, including actual and perceived gender requiring F to pay out of pocket for care identity, transgender person, and gender that would otherwise have been covered. transition. The regulations then identify Although the DMHC’s decision directly four types of prohibited discriminatory contradicts IGNA’s mandate of equal practices, including the following: treatment, the agency appeared hesitant 1. Denying, canceling, limiting, or to enforce the law to override an express refusing to issue or renew an insurance exclusion. This again reflects the need for policy on the basis of an insured’s or more detailed regulations and vigilance prospective insured’s actual or perceived on the part of advocates to ensure that the gender identity, or for the reason that the administrative agencies responsible for insured or prospective insured is a enforcing IGNA understand the law and transgender person fulfill its purpose. 2. Demanding or requiring a payment or premium that is based in whole or in part New Regulations Issued by on an insured’s or prospective insured’s the California Department of actual or perceived gender identity, or for Insurance the reason that the insured or prospective In response to these recurring problems insured is a transgender person of discrimination and uneven enforce- ment of IGNA, advocates from the 3. Designating an insured’s or prospec- organizations that drafted the law urged tive insured’s actual or perceived gender both the DMHC and the CDI to adopt identity, or the fact that an insured or regulations providing specific guidance prospective insured is a transgender about what IGNA requires. In response, person, as a preexisting condition for in January 2012, the CDI adopted which coverage will be denied or limited regulations that spell out the require- 4. Denying or limiting coverage, or ments of the law in considerable detail. denying a claim, for services including The DMHC is now considering similar but not limited to the following, due to an regulations. It is not necessary for the insured’s actual or perceived gender DMHC to issue its own regulations to identity or for the reason that the insured implement IGNA, but issuance of is a transgender person: regulations by the DMHC would provide a. Health care services related to important additional guidance to all gender transition if coverage is insurers regarding compliance with available for those services under IGNA’s requirements. the policy when the services are not The new regulations issued by the CDI related to gender transition, bring clarity, consistency, and fairness to including but not limited to the application of IGNA to PPOs and the hormone therapy, hysterectomy, other private plans governed by the CDI, mastectomy, and vocal training and they set an important precedent for b. Any health care services that are health care service plans governed by the ordinarily or exclusively available to DMHC. The regulations specify acts that individuals of one sex when the constitute impermissible gender identity denial or limitation is due only to discrimination under the law. The the fact that the insured is enrolled regulations first define key terms, as belonging to the other sex or has

40 a new approach to health care equality for transgender people t A substantial number of transgender people stand to gain coverage under the ACA, many for the first time.

undergone, or is in the process of must effectively address the range of undergoing, gender transition deeply entrenched insurance industry practices described earlier that are These regulations mark an important new commonly used across the country to milestone in the quest to normalize and deny coverage to transgender people. In integrate health care for transgender this effort, California’s new regulations people into a framework that emphasizes for the Insurance Gender Non- equality and fairness in health insurance Discrimination Act provide an excellent coverage. Consistent with IGNA’s road map for other states and for the mandate, they identify the most common federal government in implementing the types of discriminatory practices directed ACA. at transgender people and provide clear guidance to insurance companies about One of the primary vehicles for insurance how to avoid them. coverage expansion under the ACA is the network of state-based health insurance Potential Nationwide exchanges that will become operational in Implications of California 2014. According to the ACA, the Approach in the Context of exchanges may only sell plans that are National Health Care Reform certified as qualified health plans (QHPs). California’s enactment of IGNA, includ- Importantly, the primary component of ing the new regulations issued by the QHP certification is that all QHPs must CDI, has taken on increased national cover the categories of minimum essential significance in light of the Patient benefits outlined in the law. Plans sold Protection and Affordable Care Act outside the exchanges may also seek (ACA). A significant focus of the ACA, certification as QHPs, but certification is which was signed into law by President not mandatory. Barack Obama in March 2010, is reform In December 2011, the U.S. Department of the private insurance market and the of Health & Human Services (HHS) expansion of health insurance coverage to released draft guidance proposing to give those who are uninsured. each state the flexibility to choose one of Because of the high degree of discrimina- four options as its benchmark for tion and poverty experienced by trans- defining the minimum essential benefits. gender people, they are more likely than These options are as follows: (1) one of the general population to be uninsured the three largest small group plans in the (Grant et al. 2011). Thus, a substantial state by enrollment; (2) one of the three number of transgender people stand to largest state employee health plans by gain coverage under the ACA, many for enrollment; (3) one of the three largest the first time. In order for the transgender federal employee health plan options by population to maximally benefit from the enrollment; or (4) the largest HMO plan ACA, however, the regulations developed offered in the state’s commercial market to implement the law’s insurance reforms by enrollment (Center for Consumer

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Information and Insurance Oversight unfair discrimination against transgender 2011). Californians in the state’s insurance market. This news is mixed for transgender advocates. On the one hand, many have It would also anticipate a major advance pushed HHS to set a nationwide mini- in nondiscrimination protections for mum standard for the essential benefits transgender people that may occur under that includes nondiscrimination man- the ACA. Specifically, ACA Section 1557 dates and coverage for transgender people applies existing U.S. civil rights statutes, regardless of where they live. The four- such as the Civil Rights Act, the option plan increases the likelihood that Americans with Disabilities Act, and the benefits will vary significantly from state Rehabilitation Act, to all federally funded to state, potentially widening already or supported health programs or activi- substantial disparities between benefits ties, including the exchanges and the and protections for transgender people in essential benefits. As of January 2012, different states. HHS has not yet issued regulations clarifying its understanding of the full On the other hand, the HHS guidance scope of the protections offered by recognizes that many proposed bench- Section 1557. However, judicial precedent mark plans do not currently cover all of and a recent trend in Equal Employment the benefit categories required by the Opportunity policies across a number of ACA. Many states will thus need to federal agencies, including HHS, indicate require their chosen benchmark plan to that HHS may interpret the protections update its benefits design and conditions against discrimination on the basis of sex of coverage before it can serve as a offered by Title IX of the Civil Rights Act minimum standard for the essential to include gender identity. This would benefits. During the process of updating a effectively prohibit the exchanges in every proposed benchmark plan to bring it into state from establishing an essential conformity with the ACA, these states benefits standard that invokes gender may be able to additionally incorporate identity as a pretext to deny any essential nondiscrimination protections in benefit or service to a transgender person. essential benefits coverage, including protections on the basis of gender Thus, all states may soon be grappling identity, and to expressly prohibit with the transgender equality framework exclusions that would prevent transgen- captured in IGNA. With California der people from accessing any essential leading the way, the implementation of benefit. In the case of California, explicitly ACA Section 1557 and the essential incorporating the fundamental premise benefits have the potential to build a of the Insurance Gender Non- powerful wave of momentum across the Discrimination Act into the state’s country to eradicate transgender exclu- essential benefit benchmark would simply sions from private and public insurance require plans offering the essential programs. The road is long and much benefits to cover all essential services for remains uncertain, but landmarks such as transgender people that they cover for California’s Insurance Gender Non- non-transgender people. Such a step Discrimination Act are pointing in the would substantially advance IGNA’s right direction. ongoing progress toward eliminating

42 a new approach to health care equality for transgender people

References workplaces on lesbian, gay, bisexual and American College of Obstetricians and transgender equality. Washington, DC: Gynecologists. 2011. Health care for transgen- Human Rights Campaign. der individuals. Committee Opinion, Number ———. 2011. Corporate equality index 2012: 512: Committee on Health Care for Rating American workplaces on lesbian, gay, Underserved Women, the American Congress bisexual and transgender equality. of Obstetricians and Gynecologists. Washington, DC: Human Rights Campaign. American Medical Association House of Senate Committee on Banking, Finance, and Delegates. n.d. Resolution 122 (A-08): Insurance. 2005. AB 1586, Bill analysis. Removing financial barriers to care for Hearing date, 29 June. transgender patients. U.S. Census Bureau. n.d. California American Psychological Association Council QuickFacts. State and County QuickFacts. of Representatives. 2008. APA policy state- WPATH. 2008. WPATH clarification on ment: Transgender, gender identity, & gender medical necessity of treatment, sex reassign- expression non-discrimination, August. ment, and insurance coverage in the U.S.A. Center for Consumer Information and World Professional Association for Insurance Oversight. 2011. Essential health Transgender Health (WPATH). benefits bulletin, 16 December. Fronstin, Paul. 2011. California’s uninsured. California Healthcare Foundation. Government Employees Health Association. 2012. A fee-for-service (high and standard option) health plan with a preferred provider organization. Government Employees Health Association, Inc. Benefit Plan. Grant, Jaime M., Lisa A. Mottet, and Justin Tanis. 2011. Injustice at every turn: A report of the National Transgender Discrimination Survey. National Center for Transgender Equality and National Gay and Lesbian Task Force. Hartzell, E. et al. 2009. The state of transgen- der California: Results from the 2008 California Transgender Economic Health Survey. San Francisco: Transgender Law Center. Hembree, Wylie C. et al. 2009. Endocrine treatment of transsexual persons: An endocrine society clinical practice guideline. Journal of Clinical Endocrinology & Metabolism 94(9): 3132-3154. Hong, Kari E. 2002. Categorical exclusions: Exploring legal responses to health care discrimination against transsexuals. Columbia Journal of Gender & Law 11: 88-126. Human Rights Campaign. 2010. Corporate equality index 2011: Rating American

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feature article

Addressing LGBT Poverty Through Regulatory Change in the Obama Administration by Christian Pangilinan

Comparatively little attention has been given to an important development that has taken place during the Obama administration: new regulations by federal agencies that prohibit discrimination in the provision of services to lesbian, gay, bisexual, and transgender (LGBT) people. This article examines the possible impact that these administrative changes may have on an issue of increasing importance to the LGBT community: LGBT poverty. While the new regulations are positive developments, they will have only a limited impact on amelio- rating LGBT poverty. Lawyering for social change through the administrative process is constrained by the need to accommodate the federal legislative limitations, including the still operative Defense of Marriage Act.

The first two years of the Obama administration saw widely publicized shifts in judicial and legislative attitudes toward lesbian, gay, bisexual, and transgender (LGBT) people. In July 2010, two opinions from a Massachusetts federal court held the Defense of Marriage Act (DOMA), which defines marriage to be between a man and a woman for federal purposes, unconstitutional. The two cases were Massachusetts v. U.S. Dep’t of Health & Human Servs. (2010), where it was held that DOMA violated the Tenth Amendment and exceeded Congress’s power under the Spending Clause, and Gill v. Office of Personnel Management (2010), in which it was held that DOMA violated the Equal Protection Clause. In August 2010, Perry v. Schwarzenegger (2010) invalidated a California state ban on same-sex marriage. In September 2010, Log Cabin Republicans v. United States (2010) declared invalid the infamous “Don’t Ask, Don’t Tell” (DADT) law, which allowed the military to discharge members of the armed services on the basis of their sexual orientation. In December 2010, the U.S. Senate followed the House in voting to repeal the DADT statute, and it was signed into law that same month by President Barack Obama. These events received extensive media scrutiny. Beyond the actions of Congress and the courts, the executive branch has also engaged in pro-LGBT activism, notably the administration’s decision not to defend DOMA in court. Further, LGBT advocacy groups have not restricted the forums of their advocacy to the courts and to Congress. Indeed, the National Gay and Lesbian Task Force launched an initiative before the 2008 election “to push for concrete federal administration policy and regulatory changes directly benefiting the lives of lesbian,

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gay, bisexual and transgender people” provide concrete benefits and where it (National Gay and Lesbian Task Force cannot. Looking at administrative 2011). In addition to trying to influence lawyering through the lens of LGBT legislation, win rights in court, and poverty may then identify the potential invalidate existing laws, advocates also and the limits of lawyering for social seek changes that benefit LGBT people in change through the administrative the way that government administers process. laws. This article begins by summarizing recent The use of law to change relationships of studies of LGBT poverty. It then explains power or to change social attitudes why administrative law might not have (Minow 1996, 289) is more often associ- been seen as an avenue for social change ated with judicial decisions like Lawrence in the past but also describes how v. Texas, invalidating a state prohibition advocacy groups have started to use on sodomy, or with civil rights legislation executive agencies as a means of pursuing than with the issuance of regulations or change. The article next provides an guidance documents that implement or overview of administrative change during interpret the law. Litigation and legislative the Obama administration with a focus action have overshadowed efforts to on two instances of informal rule making produce change through “administrative that extended nondiscrimination rules to lawyering,” a term that refers here to LGBT people. Finally, the article discusses activity affecting the administration of the legal and practical limitations that government or the way the government apply to pursing positive developments in interprets and applies law. Legislation administrative law for LGBT persons. usually requires and empowers the While the new rules are likely to survive executive branch to create rules and legal challenge, they are also limited regulations in order for the laws to be measures that only provide protections administered. Hence, the rule-making against discrimination. A focus on process, which requires agencies to nondiscrimination alone does not interpret the laws, is an arena for promot- sufficiently address the needs of the LGBT ing the administration of the law in a way poor. Nonetheless, the article also that benefits LGBT people. As this article provides guidance on pursuing adminis- illustrates, advocates and agencies are trative change to benefit the LGBT working together to advance the welfare community. and equality of LGBT people through administrative and regulatory action. LGBT Poverty A frequent stereotype applied to the This article represents a first effort to LGBT community is that it is affluent and examine regulatory change during the not subject to the poverty or political Obama administration in relation to a powerlessness of other minority groups pressing issue within the LGBT commu- (Albelda et al. 2009, iii; MAP and SAGE nity: poverty. An increasing volume of 2010a, i-ii). Indeed, in Romer v. Evans research suggests that poverty is a major (1996), Justice Antonin Scalia explicitly problem for LGBT people. Examining referred to LGBT people as politically regulatory change with regard to how it powerful with “high disposable income.” might or might not impact poverty may Recent research on poverty shows that identify where regulatory change can

46 addressing lgbt poverty through regulatory change in the obama administration this stereotype is not true. In 2009, the and immoral (2010a, 4). The lives of Williams Institute at the University of LGBT elders have therefore been dis- California, Los Angeles, released the first rupted by widespread social prejudice, detailed report on gay, lesbian, and negatively impacting their ability to earn bisexual poverty in America. The report and to build the social networks others revealed that perceptions of comparative may rely upon for support in their later LGB affluence are incorrect; LGB couples years (MAP and SAGE 2010a, 4-5). A or individuals are just as or more likely to resulting distrust in public institutions experience poverty (Albelda et al. 2009, also means that older LGBT persons are 1). Among other findings, the report less likely to access public services like indicated that child poverty rates for housing assistance and food stamps children with LGB parents are twice as (MAP and SAGE 2010a, 5). high as those for heterosexual married LGBT youth also face a higher risk of couples (Albelda et al. 2009, 2, 6) and that poverty and homelessness. Although LGB individuals are more likely to be estimates vary widely, most research poor than heterosexuals (Albelda et al. indicates that LGBT youth constitute a 2009, 6). Indeed, while 9.3 percent of disproportionately large percentage of heterosexual women are poor, 24.1 homeless youth (Ray 2006, 13-14). And percent of LGB women are poor (Albelda for LGBT youth, sexual orientation or et al. 2009, 6). gender identity is both a contributing A report by the Movement Advancement factor to homelessness and a potential Project (MAP) and Services & Advocacy source of abuse and discrimination. Many for Gay, Lesbian, Bisexual & Transgender young people leave or are forced out of Elders (SAGE) indicates that LGBT elders their homes after coming out (Ray 2006, are also less well-off financially (2010a). 16-17). Some suffer assault after their Specifically, the report says that LGBT parents learn of their sexual orientation elders are more likely to live in poverty or gender identity (Ray 2006, 18). And, than other elders (MAP and SAGE 2010a, upon leaving home, LGBT youth become ii). The report states that elder gay vulnerable to suffering from depression couples have a poverty rate of 4.9 percent and loneliness, alcohol and drug abuse, and elder lesbian couples have a poverty criminal victimization, and discrimina- rate of 9.1 percent while elder different- tory treatment from shelter and care sex couples have a lower poverty rate of providers (Ray 2006, 1-6). 4.6 percent (MAP and SAGE 2010a, 11). Finally, transgender individuals face a The report also found that many LGBT higher risk of poverty than the general elders identify financial problems as a population. This year, the National Center major concern (MAP and SAGE 2010a, for Transgender Equality and the 12). Aside from government policies that National Gay and Lesbian Task Force have a negative impact on LGBT elder released a report on discrimination couples, LGBT elders continue to live against transgender persons (Grant et al. with the implications of long-term social 2011). The publication reported on the disapproval. As the MAP/SAGE report findings of the 7,500-respondent National discusses, LGBT elders have lived through Transgender Discrimination Survey, times when being LGBT was considered a which indicated that transgender people psychiatric disorder, a criminal activity, are almost four times more likely than the

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general population to have a household themselves so that one may qualify for income of less than $10,000 a year (Grant expensive long-term care (MAP and et al. 2011, 2). Respondents reported SAGE 2010b). Throughout their lives, experiencing unemployment at twice the LGBT people face official discrimination rate of the general population, with those that also contributes to economic who were also members of racial minori- hardship. ties experiencing unemployment at four times the national rate (Grant et al. 2011, LGBT Welfare and the 3). Respondents also reported a high rate Administrative State of unequal treatment or harassment by government officials (Grant et al. 2011, Social Change and the 5). Moreover, transgender persons had Administrative State lower incomes than the general popula- The rise of the administrative state is tion regardless of their level of educa- most associated with the regulation of tional attainment (Grant et al. 2011, 33). economic life (Novak 2010). New Deal agencies such as the National Labor Of course, contributory factors to LGBT Relations Board and the Securities and poverty also include official public Exchange Commission reflected a “faith discrimination. Inequalities are man- in the ability of experts to develop dated, for instance, in the DOMA’s effective solutions to the economic restriction of the definition of marriage disruptions created by the market system” in federal law and the exclusion of sexual (Rabin 1986, 1266-1267), as well as efforts orientation as a prohibited cause for to produce social change in addition to employment discrimination in federal economic regulation of industry. law. For LGBT couples, the restriction of President Franklin Roosevelt’s Executive the definition of marriage has tangible Order No. 8802 (1941), for instance, negative economic effects. In Gill v. Office prohibited discrimination in employment of Personnel Management, the plaintiffs in defense industries or in government on complained that they had been denied a the grounds of “race, creed, color, or host of federal benefits that would be national origin.” Civil rights legislation available to persons presently in or who from the Great Society and afterward had been in different-sex marriages. follows a similar pattern of allocating to These benefits include the ability to various federal agencies the mandate and obtain federal health coverage under the authority to change the structure of Federal Employees Health Benefits Act for American society. a same-sex spouse, the ability to obtain dental and vision insurance coverage, Discussions of administrative law and access to retirement benefits and Social social change are limited even though Security survivor benefits, and the ability scholarship on the judiciary and social to file a joint tax return. Particularly change or of “judicial activism” is relevant to LGBT elders, the Medicaid substantial (Chayes 1976; Horowitz 1977; exemption that allows a healthy partner Fiss 1979; Sandler and Schoenbrod 2003). in a marriage to be able to retain signifi- Administrative law has not been studied cant assets while the other qualifies for as a medium for advancing social ends long-term care does not apply, meaning because of at least two factors. First, the that both partners must impoverish increasing prominence of the regulatory

48 addressing lgbt poverty through regulatory change in the obama administration t LGBT advocates have made administrative and executive action a forum for pursuing change. state notwithstanding, scholarly attention trative setting in addition to legislative was largely diverted from whether there and judicial ones. The most obvious is the was a need for a regulatory state toward openness of the Obama administration, what Judge Richard Posner refers to as the which has encouraged LGBT advocates to stuff of the “domestication” of adminis- reach out to the executive branch. trative law, matters like the scope of Another is the recognition, most notably statutory agency discretion and how well by Elena Kagan, that presidents can use an agency had to explain its decisions agencies to effectuate regulatory policy (Posner 1997, 954; Rabin 1986, 1262- without that necessarily meaning 1265). Second, administrative actors were deregulation alone (Kagan 2001, 2248- seen primarily as neutral actors in social 2249). The Clinton administration, Kagan debates until the 1960s—implementers of argued, made the agencies “more and legislation rather than primary actors in more an extension of the president’s own social reform themselves (Shapiro 1983, policy and domestic agenda” (Kagan 1495-1500; Strauss 1996, 755-756). This 2001, 2248-2249). In line with that view, view has shifted toward one of agencies as the Obama administration appeared political agents subject to interest group ready to assert similar authority over influence (Strauss 1996, 755-756), but agencies (Kerwin and Furlong 2010, much of the scholarship is focused on 20-21). Finally, the Supreme Court’s influence by industry (Seidenfeld 1992, administrative law jurisprudence has 1565-1570). increasingly given courts less leeway to overturn agencies’ interpretations of the Nevertheless, LGBT advocates have made laws that they administer, giving agencies administrative and executive action a more power to interpret them progres- forum for pursuing change. As mentioned sively (Eskridge et al. 2000, 322-320). In earlier, the National Gay and Lesbian Task particular, the Supreme Court’s decision Force’s New Beginning Initiative has the in Chevron U.S.A. v. Natural Resources express mission of pursuing “concrete Defense Council (1984) required courts to federal administration policy and refrain from invalidating regulations regulatory changes directly benefiting the when the underlying legislation was lives of lesbian, gay, bisexual and trans- “silent or ambiguous” and the agency’s gender people” (2011). The initiative and interpretation of it was reasonable. The its partner organizations developed a list Chevron-deference standard left statutes of policy priorities that they shared with open to interpretations that accommo- the incoming administration’s transition date LGBT interests so long as the statutes team. The list of state accomplishments were silent as to their application to indicates that LGBT groups have not been LGBT people. reluctant to seek to advance their causes administratively. Several reasons explain the decision to extend advocacy efforts to the adminis-

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Administrative Change in the Obama nondiscrimination act (Presidential Administration Documents 2010a). Since taking office, the Obama adminis- According to President Obama, congres- tration’s most prominent actions with sional efforts like the repeal of “Don’t Ask, respect to the welfare of LGBT people Don’t Tell” needed to be combined with have supported basic rights against administrative actions in order to “renew discrimination and against violence. In our commitment to the struggle for equal October 2009, Obama signed the rights for LGBT Americans and to ending Matthew Shepard and James Byrd, Jr. prejudice and injustice wherever it exists” Hate Crimes Prevention Act, which (Presidential Documents 2010b). In expanded the coverage of federal hate several areas, the administration has crimes law to include crimes motivated either initiated rule making that inter- by sexual orientation and gender identity, prets statutes in a way that protects and the Ryan White HIV/AIDS Treatment LGBT people, or, where rule making Extension Act of 2009, which repealed a was unnecessary, issued new or clarified ban on travel into the United States by existing guidelines to better include LGBT noncitizens with HIV and extended persons in regulations prohibiting federal funding for HIV treatment. In discrimination. As mentioned above, this December 2010, the administration and includes when the president issued a its congressional allies successfully memorandum to the heads of executive repealed the “Don’t Ask, Don’t Tell” law, agencies in June 2010 ordering the which had permitted the dishonorable extension of benefits to the same-sex discharge of service members who were partners of federal employees gay or lesbian. (Presidential Documents 2010a). While In addition to these legislative efforts, the the memorandum acknowledged that Obama administration has initiated or legislative action would be necessary to completed a number of agency and “provide full equality to LGBT Federal executive actions concerning LGBT employees,” it also stated that agencies welfare that have already eclipsed those of had identified “a number of benefits that the two full terms of the preceding Bush can be extended under existing law.” administration.1 The most prominent Since then, rule making to implement include the administration’s decision not the president’s order has begun. The to defend the Defense of Marriage Act in next section examines two instances court and the nominations of openly of rule making to gauge the success of LGBT individuals to judicial and other these efforts. posts. Yet preceding these actions, clear indications existed that the administra- Case Studies of Responses to tion intended to pursue a variety of Regulatory Change: HHS and HUD avenues to advance LGBT welfare. In one HHS: Visitation Rights and Advance proclamation, President Obama made no Directives distinction between legislative and administrative action, placing equal In April 2010, the president directed the benefits for LGBT federal employees secretary of the Department of Health & within the same category of actions as the Human Services (HHS) to initiate rule repeal of DOMA and the passage of a making to ensure visitation rights for

50 addressing lgbt poverty through regulatory change in the obama administration

LGBT people in hospitals that participate wrong for HHS to forbid such discrimi- in Medicare or Medicaid and to ensure nation. According to HHS, the negative respect for LGBT people’s advance comments only expressed the views that directives (Presidential Documents there was no need for the proposed rule 2010c). A lack of visitation rights for or that requiring further disclosures of same-sex partners or a failure to recog- patients’ rights would increase costs and nize same-sex partners as patients’ administrative burdens. Moreover, many representatives have led to the exclusion commenters expressed support for HHS of same-sex partners from their partners’ at having adapted to changed social bedsides or hospitals, overlooking patient circumstances. The final rule came into wishes (MAP and SAGE 2010a, 40). effect on 18 January 2011. Following the president’s directive, HHS Minimal opposition to HHS’s rule initiated informal rule making to ensure making shows that administrative efforts patients’ visitation rights (Presidential may be a successful means to directly Documents 2010d). Informal rule advance LGBT welfare. Yet the success in making, also known as “notice and this instance could be attributable to comment” rule making, requires an anti-LGBT groups’ lack of awareness of agency, at a minimum, to provide notice the regulatory proposal and a resulting of a proposed rule in the Federal Register, failure to organize against it, or perhaps the opportunity for interested persons to to the fact that the rule focused specifi- participate in the rule-making process cally on hospital visitation, an area in through written submissions, and the which LGBT couples may enjoy relatively publication of the final rule not less than more public support than on other policy thirty days before its effective date.2 In its questions. The success may also be notice, HHS proposed changes to existing attributable to the wide scope of the conditions of participation for hospitals regulatory proposal, which went beyond that participate in Medicare or Medicaid: extending nondiscrimination rules to hospitals would be required to have LGBT people. Although the proposed rule written policies and procedures regarding contained particular protections for patient visitation rights and would have LGBT people, it was also directed toward to inform patients or their representatives people with disabilities and to all patients’ of their right to visitation with a require- friends or unmarried partners. Prior to ment that hospitals expressly inform the new rule, no HHS regulation patients of their right to receive visitors, expressly protected the right of patients to including same-sex domestic partners visitation (Presidential Documents (Presidential Documents 2010d). 2010d). By embedding protections for Of the seven-thousand comments LGBT people within a general rule that received by HHS on the proposed rule, provided greater protection for all only a few comments were negative. persons, HHS may have avoided a Apparently no commenters disagreed that negative response to its rule making. HHS either lacked the authority to Hence, the success of the HHS rule does propose or adopt a rule that forbade not indicate that rule making with discrimination on the basis of sexual positive implications for LGBT people orientation or gender identity in this will go unopposed if it is solely aimed at context or that it would otherwise be LGBT people.

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t If embedding nondiscrimination provisions in rules that affect all persons deflects opposition to these provi- sions covering LGBT persons, then rule making with a sole focus on extending protections for LGBT people might encounter greater resistance.

HUD: Nondiscrimination in HUD operators of HUD-assisted housing or Programs housing whose financing is insured by If embedding nondiscrimination provi- HUD” from asking about the sexual sions in rules that affect all persons orientation or gender identity of housing deflects opposition to these provisions applicants. The rule also specifies that covering LGBT persons, then rule making eligible families may participate in HUD with a sole focus on extending protections programs regardless of sexual orientation for LGBT people might encounter greater or gender identity. HUD argued that it resistance. Rule making by the could create a nondiscrimination Department of Housing and Urban provision because it was not required to Development (HUD) with a sole focus on employ a restrictive statutory definition extending antidiscrimination rules to of “family.” The 1937 statute on which the LGBT people has not, however, encoun- agency had previously based its definition tered much opposition or publicity, and of “family” did not limit the term to the announcement that HUD was heterosexual couples or individuals (42 engaging in the rule making elicited only U.S.C. 1437a §3(b)(3)(B)). In practice, minor opposition.3 HUD noted, it had already allowed two persons living together to be considered a HUD formally provided notice of the family regardless of sexual orientation. proposed rule in January 2011 (Presidential Documents 2011). Challenges and Strategies Ahead Providing a more detailed factual basis for Administrative Efforts for the rule making than HHS provided in its notice, HUD argued that increasing The Limits of Administrative Lawyering evidence, namely reports from the for Social Change Michigan Fair Housing Center and the National Center for Transgender Equality, Legal Limitations had shown that “LGBT individuals and The enforcement of the new rules families do not have equal access to discussed above merits additional housing” (Presidential Documents 2011). scrutiny. Attempts at enforcement risk In addition, HUD noted that more legal challenges. For instance, although localities had moved to prohibit discrimi- the majority of comments to HUD’s nation on the basis of sexual orientation proposed rule were positive, it did or gender identity and that Congress had prompt one comment that suggests future passed the Matthew Shepard Act. The challenges to pro-LGBT administrative proposed rule prohibits “owners and efforts. The United States Conference of

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Catholic Bishops (USCCB) opposed ment that agencies constrain their HUD on the grounds that the agency had interpretation of the word “marriage” to no statutory basis to create a nondiscrim- legal unions between two people of ination rule that included sexual orienta- different sex. Rules that provide equal tion or gender identity (United States benefits to families or to couples of the Conference of Catholic Bishops 2011, 1).4 same sex may arguably run counter to USCCB noted that no statute establishes a congressional will. “general policy of forbidding discrimina- Counterarguments exist, for example, tion based on ‘sexual orientation,’ that agencies making rules protecting including any such policy in federal LGBT people is not itself cause for a legal housing programs.” Rather, it argued, challenge to the agencies’ actions, DOMA provided the applicable congres- provided the agency can offer a reasoned sional mandate and the proposed rule explanation for its action including a undermined its requirement that “the factual and legal basis (FCC v. Fox federal government treat only different Television 2009). The new research on sex unions as ‘marriage.’” The comment LGBT poverty or LGBT discrimination indicates that an avenue of attack upon may provide that factual basis, and HUD administrative efforts will be that they has already incorporated that research exceed an agency’s statutory authority. into proposed rule making as a basis for Specifically, challenges may argue that an its proposed rule (Presidential agency has acted outside the bounds of its Documents 2011). Congress has also authorizing statute or acted in contraven- acted since the beginning of the Obama tion of the express congressional mandate administration to repeal “Don’t Ask, against recognizing same-sex marriage in Don’t Tell” and to incorporate sexual DOMA. orientation and gender identity into the Such challenges would have some legal list of protected characteristics under foundation. The Supreme Court has federal hate crimes law. This recognizes made clear that the delegation of discre- that LGBT people deserve legal tion to agencies “is not a roving license to protection. ignore the statutory text . . . but a direc- Another argument is that, while DOMA tion to exercise discretion within defined provides a limitation on what kind of statutory limits” (Massachusetts v. EPA marriages the federal government can 2007). The Court has also made clear recognize, proposed rules such as that of that, in interpreting the scope of an HUD do not per se redefine marriage but, agency’s discretion, it is important to at most, redefine family. And in that case, consider how the “meaning of one statute HUD’s proposed rule making contains a may be affected by other Acts, particularly strong argument that the agency has been where Congress has spoken subsequently empowered by the breadth of the and more specifically to the topic at statutory text with respect to “family” to hand” (FDA v. Brown & Williamson allow the word to include same-sex Tobacco 2000). Given that the relationships. Under the Chevron- Republican-controlled House of deference standard, the HUD rule stands Representatives has retained counsel to little chance of judicial invalidation defend DOMA, it is unlikely to repeal the especially since HUD can argue that law anytime soon. DOMA sets a require-

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same-sex partners can constitute families Yet, the new regulations are also limited without being recognized as spouses. measures that cannot fully address LGBT poverty. The HUD and HHS rules focus Nonetheless, until DOMA is repealed or on nondiscrimination: LGBT persons or definitively deemed unconstitutional, couples or families are not to be excluded administrative rule making will likely be on the basis of sexual orientation or unable to expressly act whenever an gender identity. But as one comment to enabling statute relies on the word the HUD rules emphasizes, more would “marriage” or “spouse.” This also speaks need to be done to benefit LGBT people to a significant legal limitation to the use than just enacting nondiscrimination of administrative means to pursue change rules. The National Fair Housing to benefit LGBT people. Administrative Alliance’s comment points out that the agencies cannot rewrite their statutory existence of nondiscrimination rules is mandates. They can create rules that only the beginning of efforts to ensure address LGBT poverty only when their access to housing; for example, the Fair enabling statutes permit them. Worse, Housing Act already forbids racial and should a future Republican Congress and other kinds of discrimination but it did president amend existing law or write not end discrimination on those grounds new laws that expressly do not apply to (National Fair Housing Alliance 2011). LGBT individuals or families, the agencies Rather, enforcement and “education and would have little power to interpret the outreach” to “make people aware of statutes otherwise. discrimination and to prevent discrimi- Practical Limitations nation” was also necessary. HUD has to do more than just proscribe discrimina- From the perspective of LGBT advocates, tion; the agency also has to engage in the rule making by HUD and HHS affirmative efforts to ensure that LGBT represents a positive development. HHS persons have housing. rules about visitation require hospitals to announce to every patient that visitation As sensible as the National Fair Housing cannot be restricted on the basis of sexual Alliance’s comment is, there is a prag- orientation and gender identity, which matic barrier to carrying out affirmative may dissuade LGBT people from gener- efforts to alleviate LGBT poverty. The ally fearing discrimination in the provi- publication of efforts to advance LGBT sion of services. As previously noted, welfare runs the risk of political backlash LGBT elders, for instance, rely less on from conservative groups or from services like food stamps and housing Congress that would threaten to derail assistance out of distrust (MAP and new rule making. This was the case with SAGE 2010a, 5). HUD antidiscrimination the military’s policy of discrimination rules may help to address housing against gays and lesbians during the discrimination against LGBT people. A Clinton administration. Before “Don’t report from California has documented Ask, Don’t Tell,” the policy of excluding that one in five respondents to a survey gays and lesbians from the military was on gender identity discrimination has not statutory and could have been been denied housing because of gender revoked by executive action (Gardina identity (Davis and Wertz 2010, 477-478). 2009, 241). But when President Clinton told his secretary of defense to prepare an

54 addressing lgbt poverty through regulatory change in the obama administration t Until DOMA is repealed or definitively deemed unconstitutional, administrative rule making will likely be unable to expressly act whenever an enabling statute relies on the word “marriage” or “spouse.” order to end the policy, Congress vehe- away from social services or private mently opposed the move, eventually supportive networks as intentional leading to “Don’t Ask, Don’t Tell,” which discrimination. Thus, even granting the would take years to repeal (Gardina 2009, right to same-sex marriage on its own 241-242; Halley 1999, 19-23). Publicizing may not affect economic disparities administrative efforts to create affirmative between same-sex male couples and obligations ensuring access to LGBT same-sex female couples or between persons and improving LGBT welfare White same-sex couples and same-sex could similarly lead to adverse congres- couples of color. New administrative sional attention (Feldblum 2002, nondiscrimination provisions are, at best, 166-167). only components of what has to be a larger effort to address poverty. In addition, nondiscrimination provi- sions alone are unlikely to end LGBT Strategies for Social Change poverty. Certainly, nondiscrimination Notwithstanding the potential limitations provisions that incorporate race have not on administrative lawyering for LGBT ended poverty for people of color welfare, such lawyering may still provide (Zietlow 2008, 354). And in California, important benefits to LGBT people as a despite the passage of gender identity component of a wider program to address nondiscrimination laws, poverty and poverty. To that end, this section lays out homelessness continue to affect transgen- a potential strategy for further adminis- der people at an alarming rate, leading to trative change taking into consideration calls for more “education, health, and job the legal and pragmatic limitations training and placement programs” (Davis discussed earlier. and Wertz 2010, 472-473). There is a dearth of scholarship on the Moreover, as Alan Freeman identified, subject of effective administrative American antidiscrimination law has advocacy during the rule-making process, evolved toward the assumption of a though more scholarship on legislative “perpetrator perspective” in which advocacy exists. For instance, Georgetown discrimination is perceived only when it Law Professor Chai Feldblum calls her is “active” or intentional rather than when guidance on legislative advocacy the “Six it is structural (Freeman 1978, 1052- Circles Theory of Effective Advocacy” 1057). Many of the most significant (Feldblum 2003, 786). Feldblum suggests difficulties facing LGBT persons may be that effective advocacy requires “six structural as well as intentional. Exclusion circles”—a team whose members embody of LGBT people from social institutions six different skills sets: a strategist, and fear of government may play as lobbyist, legislative lawyer, policy important a role in keeping LGBT people

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researcher, outreach strategist, and context, it will be particularly important communications director (Feldblum to supplement advocacy efforts with 2003, 793-794). In much of its substance, empirical data on LGBT poverty. The the theory is applicable to rule making as availability of poverty data and reports well as legislative contexts: an advocacy would provide a foundation for identify- strategy for rule making will also require ing where advocacy should be directed. legislative lawyers, policy researchers, and This also informs legislative lawyers, the like. skilled at researching and interpreting statutory text, where their efforts should But rule making does call for different be focused. considerations than legislation (Mashaw 2002; Rubin 2002), as demonstrated by In addition, advocacy organizations, the New Beginning Initiative’s refusal to through their own comments or through employ a public campaign involving the mobilization of public comments, grassroots organizers or an effort to play an important role in agency think- mobilize public support using the media. ing. The public comment requirement for In the administrative context, this might rule making allows the provision of be a sound strategy. Given an administra- factual and legal support to agencies tion already receptive to proposals from seeking to implement regulatory change LGBT advocates, the publication of and the mobilization of comments from efforts to pursue regulatory change might members of the public to signify popular attract hostile congressional attention, as support (Mashaw 2002, 14). HUD and with Clinton’s regulatory proposal to end HHS have cited the overwhelmingly discrimination on the basis of sexual positive public comments as support for orientation in the military. In addition, as their rule making. Some organizations agencies are subject to congressional have also used the public comment oversight, advocates and agencies must be procedure as a means to buttress the wary of provoking hostile attention from legality of proposed rule making. Indeed, Congress, which can “require agency agencies may not have the ability to do all officials to testify, demand an explanation the necessary research to support their [for the agency’s] actions, and harangue rule making (Kerwin and Furlong 2010, [the agency] for [its] actual or purported 169). A prime example of this kind of errors” (Rubin 2002, 6). lawyering is the National Center for Lesbian Rights’ comment to the proposed The New Beginning Initiative’s coordina- HUD rule, which provides a detailed tion of efforts to produce regulatory defense of HUD’s authority to extend its change has several benefits. Coordination nondiscrimination regulations to include allows the shared utilization by advocacy sexual orientation and gender identity organizations of each other’s contacts (National Center for Lesbian Rights within the various agencies, thereby 2011). creating avenues to introduce proposals for regulatory change. Coordination also Finally, in light of pragmatic limitations allows for a division of major responsi- to efforts to advance LGBT welfare bilities for the regulatory effort. Some through regulatory change, advocates organizations will have particular should tie regulatory change to ameliorat- strengths as legislative lawyers, others as ing basic human welfare through changes drafters of best policies. In the poverty that improve access to health, education,

56 addressing lgbt poverty through regulatory change in the obama administration employment, and social services. Both the References HHS and HUD rule making concerned Albelda, Randy et al. 2009. Poverty in the basic needs. Seeking to address such lesbian, gay, and bisexual community. Los needs rather than abstract equality may Angeles: Williams Institute. be more legally defensible in relation to Chayes, Abram. 1976. The role of the judge in agencies’ authorizing statutes. Moreover, public law litigation. Harvard Law Review addressing basic needs may better address 89(7): 1281-1316. the basic problems that underlie LGBT Chevron U.S.A. v. Natural Resources Defense poverty (Minow 1996, 293-294). The Council 467 U.S. 837 (1984). incorporation of gender identity into Davis, Masen, and Kristina Wertz. 2010. When HUD regulations provides a protection laws are not enough: A study of the economic for transgender individuals who face a health of transgender people and the need for much higher incidence of housing a multidisciplinary approach to economic discrimination than others. Mandating justice. Seattle Journal for Social Justice 8(2): that the wishes of patients about who can 467-495. make their health care decisions should Eskridge, William N., Philip P. Frickey, and be followed regardless of the nature of Elizabeth Garrett. 2000. Legislation and their relationship to their proxy ensures statutory interpretation. New York: Foundation Press. that LGBT patients’ life wishes are honored. Although it is too soon to assess Executive Order 8802. 6 Fed. Reg 3109 (1941). the outcome of these regulatory changes, FCC v. Fox Television 129 S.Ct. 1800, 1800-12 what we do know suggests that adminis- (2009). trative lawyering may lead to positive, if FDA v. Brown & Williamson Tobacco 529 U.S. not necessarily comprehensive, outcomes 120, 133 (2000). for LGBT people. Feldblum, Chai R. 2002. Rectifying the tilt: Equality lessons from religion, disability, Conclusion sexual orientation, and transgender. Maine LGBT poverty is a real issue, and to Law Review 54(2): 159-194. address it, advocates should consider ———. 2003. The art of legislative lawyering paths other than the courts or Congress. and the six circles theory of advocacy. But administrative efforts during the McGeorge Law Review 34(4): 785-850. Obama administration, while certainly Fiss, Owen M. 1979. The forms of justice. positive developments, are limited both Harvard Law Review 93(1): 1-58. legally and practically. Whether agencies Freeman, Alan David. 1978. Legitimizing racial can produce social change that makes for discrimination through antidiscrimination real and concrete improvements to the law: A critical review of Supreme Court lives of LGBT persons and their families doctrine. Minnesota Law Review 62(6): remains to be seen. It will likely depend 1049-1120. on how agencies and advocacy organiza- Gardina, Jackie. 2009. Let the small changes tions navigate and overcome limitations begin: President Obama, executive power, and so that rule making can be supplemented “Don’t Ask Don’t Tell.” Boston University by enforcement and other positive action. Public Interest Law Journal 18(2): 237-268. It is clear that effective administrative Gill v. Office of Personnel Management 699 F. lawyering has the potential to improve Supp. 2d 374, 387 (D. Mass. 2010). LGBT welfare. Grant, Jaime M. et al. 2011. Injustice at every turn: A report of the National Transgender

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Discrimination Survey. Washington, DC: National Gay and Lesbian Task Force. 2011. National Center for Transgender Equality and New Beginning Initiative. Washington, DC: National Gay and Lesbian Task Force. National Gay and Lesbian Task Force Halley, Janet E. 1999. Don’t: A reader’s guide to Foundation. the military’s anti-gay policy. Durham: Duke Novak, William J. 2010. Law and the social University Press. control of American capitalism. Emory Law Horowitz, Donald L. 1977. The courts and Journal 60(2): 377-406. social policy. Washington, DC: Brookings Perry v. Schwarzenegger 704 F. Supp. 2d 921 Institution. (N.D. Cal. 2010). Kagan, Elena. 2001. Presidential administra- Posner, Richard A. 1997. The rise and fall of tion. Harvard Law Review 114(8): 2245-2385. administrative law. Chicago-Kent Law Review Kerwin, Cornelius M., and Scott R. Furlong. 72(4): 953-964. 2010. Rulemaking: How government agencies Presidential Documents. 2010a. Extension of write law and make policy. 4th ed. Washington, benefits to same-sex domestic partners of DC: CQ Press. federal employees. Federal Register 75(109), Log Cabin Republicans v. United States 716 F. 32247, 8 June. Supp. 2d 884, 888 (C.D. Cal. 2010). ———. 2010b. Proclamation 8529 of May 28, MAP (Movement Advancement Project) and 2010: Lesbian, Gay, Bisexual, and Transgender SAGE (Services & Advocacy for Gay, Lesbian, Pride Month, 2010. Federal Register 75(108), Bisexual & Transgender Elders). 2010a. 32079, 7 June. Improving the lives of LGBT older adults, ———. 2010c. Respecting the rights of March. hospital patients to receive visitors and to ———. 2010b. Issue brief: LGBT older adults designate surrogate decision makers for and long-term care under Medicaid. medical emergencies. Federal Register 75(75), 20511, 20 April. Mashaw, Jerry L. 2002. Agency statutory interpretation. Issues in Legal Scholarship 2002: ———. 2010d. Medicare and Medicaid Article 9. programs: Changes to the hospital and critical access hospital conditions of participation to Massachusetts v. EPA 549 U.S. 497, 532-33 ensure visitation rights for all patients. Federal (2007). Register 75(123), 36610, 28 June. Massachusetts v. U.S. Dep’t of Health & ———. 2011. Equal Access to Housing in Human Servs. 699 F. Supp. 2d 234, 235-36 (D. HUD Programs—Regardless of Sexual Mass. 2010). Orientation or Gender Identity. Federal Minow, Martha. 1996. Political lawyering: An Register 76(15), 4194, 24 January. introduction. Harvard Civil Rights-Civil Rabin, Robert L. 1986. Federal regulation in Liberties Law Review 31(2): 287-310. historical perspective. Stanford Law Review National Center for Lesbian Rights. 2011. 38(5): 1189-1326. Comment on Proposed Rule FR 5359-P-01, Ray, Nicholas. 2006. Lesbian, gay, bisexual and Equal Access to Housing in HUD Programs— transgender youth: An epidemic of homeless- Regardless of Sexual Orientation or Gender ness. National Gay and Lesbian Task Force Identity. Policy Institute and National Coalition for the National Fair Housing Alliance. 2011. Homeless. Comment on Equal Access to Housing in Romer v. Evans 517 U.S. 620 (Scalia, J., HUD Programs—Regardless of Sexual dissenting) (1996). Orientation or Gender Identity. Letter, 25 March. Rubin, Edward. 2002. Dynamic statutory interpretation in the administrative state. Issues in Legal Scholarship 2002: Article 2.

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Sandler, Ross, and David Schoenbrod. 2003. Endnotes Democracy by decree: What happens when 1 Agency actions during the administration of courts run government. New Haven: Yale George W. Bush that could be defined as University Press. pro-LGBT consisted only of funding measures Seidenfeld, Mark. 1992. A civic republican within the first two years of that administra- justification for the bureaucratic state. tion from the Department of Health & Harvard Law Review 105(7): 1511-1576. Human Services that identified LGBT persons as an underserved community in the provision Shapiro, Martin. 1983. Administrative of domestic violence prevention services. discretion: The next stage. Yale Law Journal Notices: Fiscal Year 2002 Family Violence 92(8): 1487-1522. Prevention and Services Discretionary Funds Strauss, Peter L. 1996. From expertise to Program, 66 Fed. Reg. 64437-01 (13 December politics: The transformation of American 2001); Violence-Related Injury Prevention rulemaking. Wake Forest Law Review 31(3): Research; Notice of Availability of Funds, 67 745-778. Fed. Reg. 9292-01 (28 February 2002); Tedeschi, Bob. 2009. HUD combats discrimi- Cooperative Agreement for Violence Against nation. New York Times, 8 November. Women Planning and Implementation, 67 United States Conference of Catholic Bishops. Fed. Reg. 38123-01 (31 May 2002). 2011. Comment on Equal Access to Housing 2 “Formal” rule making, as opposed to in HUD Programs—Regardless of Sexual informal rule making, requires rules to be Orientation or Gender Identity. Letter, 25 made on the record after a hearing (5 U.S.C.A. March. § 553(c)). Zietlow, Rebecca E. 2008. Belonging and 3 Mortgage lenders, for one, complained that empowerment: A new “civil rights” paradigm the rule making implied that they discrimi- based on lessons of the past. Constitutional nated against LGBT people (Tedeschi 2009). Commentary 25(2): 353-375. 4 The bishops also objected to the proposed rule on the grounds that it would “force” faith-based organizations participating in HUD programs to contravene their religious beliefs.

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feature article

Where Do We Go from Here? Incorporating LGBT-Inclusive Health Policies in Affordable Care Act Implementation by Kellan Baker

The Patient Protection and Affordable Care Act (ACA) of 2010 offers many opportunities to advance health equity for marginalized populations, including the lesbian, gay, bisexual, and transgender (LGBT) population. These opportunities include collecting more and higher-quality sexual orientation and gender identity data, establishing LGBT-inclusive nondiscrimination protections in the state-based health insurance exchanges, ensuring the essential health benefits are available to everyone who needs them, and supporting LGBT-inclusive community-based public health interventions. This article explores recent advances in each of these areas and formulates recommendations for maximizing the ACA’s potential to enhance the health and well-being of the LGBT population.

Introduction The Patient Protection and Affordable Care Act (ACA) of 2010 is the most significant reform of the American health care system since the creation of Medicare and Medicaid in the 1960s. One of the ACA’s many potential benefits is the opportunity it creates to advance health equity for marginalized populations, including the lesbian, gay, bisexual, and transgender (LGBT) population.1 The implementation of the ACA provides LGBT advocates with numerous opportunities at the federal, state, and local levels to address health disparities and to ensure that the law helps our health care system better serve everyone in America, including gay and transgender people and their families. This article builds on “Changing the Game: What Health Care Reform Means for Gay, Lesbian, Bisexual, and Transgender Americans,” a report released by the Center for American Progress and the National Coalition for LGBT Health in March 2011 (Baker and Krehely 2011). The report identifies several aspects of the ACA that have particular potential to help close LGBT health disparities: instituting LGBT-inclusive nondiscrimi- nation protections in the health insurance exchanges; counting LGBT Americans under the law’s disparity data collection requirements; recognizing and including LGBT families in new programs and activities created by the law; and supporting community-

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based public health initiatives that include orientation, with the goal of adding specific outreach to LGBT communities these questions to federal health surveys (Baker and Krehely 2011). in 2013 Since the report’s completion, recent • Advocate with state and local jurisdic- developments in ACA implementation tions to add questions about sexual have opened new windows for advocacy orientation and gender identity/ and change in these areas. To continue to transgender status to state and local create a road map for the ongoing health, employment, and other surveys incorporation of LGBT-inclusive policies State Health Insurance Exchanges in key aspects of ACA implementation, this article reviews the potential impact of • Engage with the exchange planning these developments on gay and transgen- process in individual states to push for der people and their families as well as the the meaningful and nondiscriminatory advocacy opportunities the developments inclusion of gay and transgender people, create. The four developments discussed their families, and other health insur- here include: ance consumers throughout exchange 1. The creation of an LGBT data planning, establishment, and operation progression plan by the U.S. Department activities of Health & Human Services (HHS) in Essential Health Benefits June 2011 2. The proposal of LGBT-inclusive • Encourage HHS to adopt LGBT- federal guidance mandating nondiscrimi- inclusive nondiscrimination rules that nation on the basis of sexual orientation protect access to the essential benefits and gender identity in the state health for gay and transgender people and their insurance exchanges in July 2011 families, regardless of where they live 3. The issuing of guidance on the • Encourage state governments to choose essential health benefits by HHS in essential benefits benchmark plans that December 2011 do not exclude coverage for care related to gender transition and that provide 4. The release of the first round of each consumer with comprehensive funding under the Community coverage for any essential benefit that a Transformation Grant (CTG) program in provider has determined to be medically October 2011 necessary for the individual’s well-being This review informs the following recommendations in each of those four Community Transformation Grant development areas for those working to Program maximize the ACA’s potential to enhance • Partner with local Community the health and well-being of the gay and Transformation Grant program grantees transgender population: to ensure that inclusion of gay and transgender communities is intentional, Data Collection culturally competent, and effective in • Encourage HHS to continue making reducing LGBT disparities progress in developing and testing survey questions for both gender identity/transgender status and sexual

62 where do we go from here?

Why We Need the Affordable and Prevention 2011b; Centers for Care Act Disease Control and Prevention 2011c). Few would deny that the U.S. health care These health disparities reflect more than system has long been in trouble. In 2009, just inequities in health status. They arise the United States spent 17.4 percent of from poverty, unfair allocation of the entire output of its economy on resources, and discrimination in critical health care (Organisation for Economic determinants of health such as access to Co-operation and Development 2011). insurance coverage and health care, Yet our health care system ranks well employment, education, and housing below that of other developed nations on (Braveman et al. 2011). This discrimina- efficiency, equity, and effectiveness. The tion particularly affects people who are World Health Organization awarded the already marginalized on the basis of sexual United States thirty-seventh place for orientation, gender identity, race, ethnic- overall performance in its landmark study ity, disability status, or other factors. of the health care systems in 191 coun- tries, putting the country just ahead of What Advances in ACA Slovenia and Cuba, and fifty-fourth place Implementation Mean for Gay for fairness (World Health Organization and Transgender People 2000). We spend 50 percent of our health In an ambitious attempt to reform the care resources on services for just five deeply flawed U.S. health care system, percent of the population (Kaiser Family President Barack Obama signed the Foundation 2009), prioritize expensive Patient Protection and Affordable Care medical technologies for a lucky few Act into law on 23 March 2010. Crucially, rather than primary care for everyone the ACA expands access to public or (Davis et al. 2007), and, according to the private health insurance coverage for an secretary of HHS, consistently fail to estimated 32 million currently uninsured make the investments in prevention and people.2 It also codifies the application of wellness necessary to transform the federal civil rights protections to health American “sick care” system into a true care programs and activities, dedicates health system (Sebelius 2010). $11.5 billion to support community Worse, these systemic weaknesses are not health centers, and invests $15 billion in evenly distributed. An African American prevention and wellness, among other key baby is twice as likely as a White baby to provisions. Some ACA provisions will not die before his or her first birthday take effect until 2014, but implementation (MacDorman and Mathews 2011). One of many parts of the law is already person in the United States dies every 12 underway at both the state and federal minutes from a lack of health insurance levels. As described earlier, this article (Wilper et al. 2009). And despite advances assesses four recent developments in ACA in HIV prevention and treatment, gay and implementation that are likely to have bisexual men and transgender women, substantial positive impact on gay and particularly African Americans and transgender people and their families. Latinos, are still disproportionately likely to become infected with HIV and to die Improving LGBT Data Collection from AIDS (Centers for Disease Control Comprehensive data collection through government health surveys and programs

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is a vital component of identifying, • June-December 2011: Test sexual understanding, and addressing the orientation data collection measures for disparities that negatively impact the federal health surveys. The National health and well-being of marginalized Center for Health Statistics at the populations. Unfortunately, the lack of Centers for Disease Control and standardized tools for collecting sexual Prevention (CDC) is testing measures orientation and gender identity data for collecting data that will allow means that researchers, policy makers, researchers to identify and assess and providers across the country have disparities associated with sexual trouble identifying, tracking, and orientation, including those related to addressing health disparities that affect health status and access to insurance the LGBT population (U.S. Department and care (Miller and Ryan 2011). of Health & Human Services n.d.a). In • Fall 2011: Hold first roundtable on March 2011, the Institute of Medicine gender identity data collection. Because issued a landmark report on LGBT health no national health survey collects that strongly recommended the routine demographic data on gender identity/ collection of demographic and health transgender status, HHS does not have data on LGBT people and specific significant experience in collecting this subpopulations, including LGBT people information. In fall 2011, HHS con- of color (Institute of Medicine 2011b). vened a roundtable that brought HHS The ACA directs the secretary of HHS to officials together with external research- collect a range of data on the health ers who work on collecting demo- disparities associated with race, ethnicity, graphic data on the transgender sex, disability status, and primary population that can help identify and language, as well as other factors that the assess disparities in health status and in secretary deems relevant (see Patient access to insurance and care that affect Protection and Affordable Care Act these individuals. Among these §4302). In June 2011, HHS Secretary researchers were several whose state- Kathleen Sebelius released the HHS LGBT administered Behavioral Risk Factor data progression plan, which indicated Surveillance System includes a question her intent to draw on the authority on transgender status, though this data granted under the ACA to direct federal has yet to be reported (Massachusetts health surveys to collect more and Department of Public Health 2009). higher-quality demographic data on • Winter 2011-2012: Hold follow-up sexual orientation and to begin collecting roundtable on gender identity data demographic data on gender identity collection. As of this writing in January (U.S. Department of Health & Human 2012, this second roundtable has not Services 2011b).3 The first survey targeted been held. for this effort is the National Health • Spring 2012: Create a strategy to Interview Survey (NHIS), which is the include gender identity measures on federal government’s flagship instrument HHS surveys. The HHS Data Council for assessing general population health in will incorporate the input gathered the United States. through the two roundtables to create a This plan is broken down into stages, the plan for integrating appropriate first of which begin in 2011: measures into federal health surveys. As

64 where do we go from here?

of January 2012, the timeline for survey instruments such as the NHIS developing and adding gender identity but also into administrative data measures to federal surveys remained collection efforts through HHS pro- unclear. Continued advocacy with HHS grams. The states and other federal will be necessary to ensure that this agencies can then use these standards as process parallels the development and guides for advancing their own LGBT- addition of sexual orientation questions inclusive data collection initiatives. to federal surveys as closely as possible. Instituting LGBT-Inclusive • Spring 2012: Complete initial field test Nondiscrimination Protections in the of sexual orientation questionnaire. Health Insurance Exchanges • End of 2012: Complete large-scale field One of the ACA’s central goals is expand- test of sexual orientation questionnaire. ing access to insurance coverage, with a If the measures developed to collect standard set of comprehensive essential demographic data on sexual orientation health benefits, for the 50 million perform well in the field tests (i.e., if Americans who are currently uninsured. they successfully identify gay, lesbian, This population includes many gay and and bisexual people; do not erroneously transgender people and their families; as a identify heterosexual people as gay, result of widespread discrimination in lesbian, or bisexual; and provide employment, relationship recognition, statistically meaningful estimates of the and insurance industry practices, gay and number of gay, lesbian, and bisexual lesbian Americans are twice as likely as Americans), these measures will be the general population to be uninsured, integrated into the NHIS and eventually and the disparity is even larger for into the full scope of HHS data collec- bisexual and transgender people (Lambda tion efforts. Legal 2010). The main vehicle for the • 2013: Begin collecting sexual orienta- expansion of insurance coverage under tion data through the NHIS. The the ACA is the network of state-based current phase of data collection under health insurance exchanges, which will the ACA, including sexual orientation, provide access to private coverage for gender identity, and the five statutory an estimated 16 million people starting categories of race, ethnicity, sex, in 2014. disability status, and primary language, is focused on national surveys. However, Under the ACA, the exchanges in each the law ultimately requires the expan- state will serve as marketplaces where sion of these data collection efforts to all individuals with incomes between 138 HHS programs. Fully implementing this percent and 400 percent of the federal provision with respect to sexual poverty level (about $14,000 to $42,000 orientation and gender identity data will annually for a single person) and small thus require HHS to eventually develop businesses can purchase health insurance comprehensive standards for LGBT data for themselves or their employees. The collection similar to those developed in exchanges will be largely federally funded 2011 for the five statutory categories but administered by the states, unless a (U.S. Department of Health & Human state chooses not to operate its own Services 2011a). These standards will be exchanges. In that case, HHS will admin- integrated not only into HHS health ister the state’s exchanges. States must

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demonstrate readiness to operate their 1972 includes protections from discrimi- exchanges by January 2013, and the nation on the basis of sex, which recent exchanges will become operational in court decisions and a trend in federal January 2014.4 agency equal employment opportunity policies define to include gender identity Eligible individuals and families will and sex stereotyping (U.S. Department of receive tax credits to defray premium Health & Human Services n.d.b; Glenn v. costs in the exchanges. Same-sex couples Brumby 2011). The HHS Office for Civil will not be eligible for family subsidies Rights, which is already enforcing Section because of the Defense of Marriage Act 1557, may thus respond affirmatively to (DOMA), which prohibits the federal complaints of discrimination brought by government from recognizing same-sex transgender individuals who are denied couples as spouses.5 However, in summer coverage for medically necessary services 2011, HHS issued proposed exchange by plans in the exchanges. The relation- regulations that direct states to not ship between nondiscrimination protec- discriminate on the basis of sexual tions in the exchanges and coverage for orientation or gender identity in market- transgender people is discussed in more ing, outreach, and enrollment, among detail in the following section. other unspecified areas (Presidential Documents 2011). As such, exchange- Defining the Essential Health Benefits related advertising, information hotlines, The ACA requires every health plan sold and public outreach programs in every through the exchanges to be certified as a state must be accessible to and inclusive qualified health plan (QHP).6 All QHPs of gay and transgender people and their must offer a minimum set of essential families. One of the most important health benefits in ten broad categories outreach mechanisms that these regula- (Patient Protection and Affordable Care tions will affect is the Navigator program, Act §1302(b)(1)): which each state must establish to help connect eligible individuals to coverage 1. Ambulatory patient services through exchanges (Community Catalyst 2. Emergency services 2011). Ensuring that Navigator programs 3. Hospitalization are actively engaged in helping gay and 4. Maternity and newborn care transgender people and their families understand coverage options through the 5. Mental health and substance use exchanges and choose appropriate plans disorder services, including behavioral is a key component of maximizing the health treatment benefits of the exchanges for the LGBT 6. Prescription drugs population. 7. Rehabilitative and habilitative services Another important aspect of nondiscrim- and devices ination in the exchanges is the implemen- 8. Laboratory services tation of ACA Section 1557, which applies 9. Preventive and wellness services and existing federal civil rights protections to chronic disease management any health program or activity established 10. Pediatric services, including oral and under ACA Title I (including the vision care exchanges) or receiving federal funds. Title IX of the Education Amendments of

66 where do we go from here?

When the ACA was first passed, many market (Center for Consumer advocates viewed the essential benefits as Information and Insurance Oversight a historic opportunity to transcend the 2011). current patchwork of state insurance All of these options have serious short- mandates by establishing a firm national comings from the perspective of gay and floor that would require QHP issuers in transgender people and their families. every state to offer adequate minimum FEHBP plans carry a DOMA-imposed benefits. Unfortunately from this perspec- ban on coverage for same-sex spouses or tive, the Obama administration has partners and their dependents, and the consistently sought to build support for other benchmark options in most states the ACA among state governments by likely have no existing precedent for demonstrating interest in supporting offering coverage to same-sex domestic individual state efforts at reform rather partners or spouses. The situation is even than invoking the full scope of federal more concerning for transgender people. regulatory powers available under the Despite statements testifying to the ACA. Thus, in December 2011, HHS medical necessity of transition-related released preliminary guidance that care from professional associations such proposes to give each state substantial as the American Medical Association discretion to define its own essential (American Medical Association House of benefits standards within the basic Delegates 2008), almost all FEHBP plans, parameters established by the law (Center as well as Medicare, most state Medicaid for Consumer Information and Insurance programs, and the majority of private Oversight 2011). insurance plans, explicitly exclude This guidance gives states the flexibility to coverage for services related to gender choose one of four options to serve as its transition. These exclusions are frequently essential benefits benchmark plan as interpreted to deny services to transgen- follows: der people that are routinely covered for 1. The largest plan by enrollment in any non-transgender people (Hong 2002). of the three largest small group insurance Such services include those that may be products in the state’s small group market related to gender transition but that are also frequently needed by non-transgen- 2. Any of the largest three state employee der people, such as a hysterectomy or health benefit plans by enrollment hormone replacement therapy, and those 3. Any of the largest three national that are unrelated to transition, such as Federal Employee Health Benefit Program routine preventive screenings for prostate, (FEHBP) plan options by enrollment cervical, and other cancers. 4. The largest insured commercial Many services that are medically neces- non-Medicaid health maintenance sary for transgender people fall under organization (HMO) operating in the essential benefits categories such as state prescription drugs, preventive services, If a state does not choose a benchmark and mental health services. It is impera- plan, HHS intends to propose that the tive that HHS and the state governments default benchmark plan in that state will act to ensure the full spectrum of essential be the largest plan by enrollment in the benefits is available to everyone who largest product in the state’s small group needs them, including transgender

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people. For state governments, this governing the general operation of the primarily involves selecting a benchmark exchanges, as well as the protections on plan that does not have exclusions for the basis of gender identity and sex care related to gender transition. If such stereotyping that many believe are an option is not available, it may be implied by the sex nondiscrimination possible for states to follow an example provision of ACA Section 1557. like that of California, whose Insurance The second rule would forbid insurers Gender Nondiscrimination Act (IGNA) from using arbitrary, condition-based of 2005 prohibits insurers from discrimi- exclusions to unfairly restrict access to the nating on the basis of gender identity in essential benefits. The Medicaid statute benefits design or coverage determina- already contains such a rule (42 C.F.R. tions. Under IGNA, any service that an §440.230(c)), and the Institute of insurer covers for a non-transgender Medicine’s 2011 report on the essential person must be covered for a transgender benefits concludes that, in drafting the person for whom the service is medically essential benefits provision of the ACA, necessary. Congress intended “to ensure that From the perspective of the federal insurers do not make arbitrary and government’s role in regulating the discriminatory decisions based on certain exchanges, two aspects of the ACA’s characteristics of people rather than essential benefits provision are particu- assessing the individuality of each case larly relevant. First, the secretary of HHS when making medical necessity decisions may not design the essential benefits in and applying clinical policies” (Institute any way that discriminates against of Medicine 2011a). A rule banning the individuals because of factors such as a application of arbitrary, condition-based disability (see Patient Protection and exclusions to the essential benefits would Affordable Care Act §1302(b)(4)). not only protect transgender people but Second, in designing the essential would also provide important protections benefits, the secretary must take into for others whose access to essential account the health needs of diverse coverage for medically necessary treat- segments of the population. On the basis ments related to conditions such as of these provisions, the secretary has the cancer, autism, or HIV is routinely authority to promulgate two rules that restricted by insurance carriers eager to would provide a strong foundation for curtail claims costs. efforts to ensure that no population is unfairly targeted for discrimination in the Supporting LGBT-Inclusive Public essential benefits. Health Interventions A central part of the effort to transform The first rule, a simple nondiscrimination our “sick care” system into a true health mandate, would prohibit discrimination care system is the ACA’s $15-billion in access to the essential benefits on the Prevention and Public Health Fund, basis of gender identity and sexual which is dedicated to supporting innova- orientation, as well as other factors such tive prevention and public health as race, sex, disability, or primary lan- initiatives (see Patient Protection and guage. Such a rule would mirror the Affordable Care Act §4201). One of the nondiscrimination provision already major initiatives supported by this fund is included in the proposed regulations

68 where do we go from here? the new Community Transformation serve at least 120 million Americans in Grants (CTG) program, which the ACA communities across the country. established under the oversight of the The CTG program requires grantees to CDC. Grants from the CTG program describe in their implementation plans support community-level efforts to how they will actively engage with reduce chronic diseases such as heart population subgroups experiencing disease, cancer, stroke, and diabetes; health disparities and to identify appro- promote healthy lifestyles; and close priate strategies for ensuring effective and health disparities. equitable CTG implementation. CTG Studies show that gay and transgender guidance indicates that grantees may people experience significant disparities choose to include gay and transgender in many of the priority areas for CTG populations in their proposals, and program intervention, including tobacco- several grantees specifically cited their free living; active living and healthy intent to work with these populations eating; and prevention and control of (Bauer 2011). As of January 2012, CTG high blood pressure and high cholesterol. grantees were negotiating their imple- For example, Healthy People 2020 and the mentation plans with the CDC, and a key Institute of Medicine report that LGBT role for LGBT health advocates across the people smoke at rates up to twice the country throughout 2012 will be to national average and that lesbians and partner with CTG grantees whenever bisexual women, particularly Black and possible to help ensure that the inclusion Latina women, are less likely than other of gay and transgender populations in women to have access to preventive CTG initiatives is intentional, culturally services and more likely to be overweight competent, and effective in reducing the or obese (U.S. Department of Health & burden of preventable health disparities Human Services n.d.a; Institute of affecting LGBT communities. Medicine 2011b). Conclusion In fall 2011, the CDC awarded the first The years 2012 and 2013 present several round of CTG funding, comprising $103 pivotal opportunities to ensure that the million, to sixty-one state and local ACA’s most vital and groundbreaking government agencies, tribes and territo- reforms respond to the needs of gay and ries, and state and local nonprofit transgender people and their families. organizations in thirty-six states (Centers The Department of Health & Human for Disease Control and Prevention Services, state governments, and LGBT 2011a). The CDC also funded a CTG and allied health advocates each have key National Dissemination and Support roles to play in collecting more data on Initiative at $4.2 million in fall 2011 LGBT health disparities, establishing (Centers for Disease Control and comprehensive protections from discrim- Prevention 2012). These grants went to ination in the exchanges and the essential seven national networks of community- benefits, and addressing LGBT health based organizations, including the disparities from the neighborhood to the American Public Health Association, the national level. As Secretary Sebelius YMCA, and the American Lung emphasized in her remarks at the October Association. Together, organizations and 2011 meeting of the National Coalition programs funded by the CTGs in 2011

lgbtq policy journal at the harvard kennedy school | volume 2 | 2011–2012 69 feature article | kellan baker

t As Secretary Sebelius emphasized in her remarks at the October 2011 meeting of the National Coalition for LGBT Health, the Affordable Care Act may be the best opportunity we have ever had to begin closing LGBT health disparities.

for LGBT Health, the Affordable Care Act Community Catalyst. 2011. Navigators: may be the best opportunity we have ever Guiding people through the exchange, June. had to begin closing LGBT health Davis, Karen et al. 2007. Slowing the growth of disparities (Sebelius 2011). It is an U.S. health care expenditures: What are the opportunity our community cannot options? The Commonwealth Fund, January. afford to miss. Glenn v. Brumby 663 F.3d 1312 (11th Cir. 2011). References Hong, Kari E. 2002. Categorical exclusions: American Medical Association House of Exploring legal responses to health care Delegates. 2008. Resolution 122: Removing discrimination against transsexuals. Columbia financial barriers to care for transgender Journal of Gender & Law 11: 88-126. patients. Institute of Medicine. 2011a. Essential health Baker, Kellan, and Jeff Krehely. 2011. Changing benefits: Balancing coverage and cost. the game: What health care reform means for Washington, DC: National Academies Press. gay, lesbian, bisexual, and transgender ———. 2011b. The health of lesbian, gay, Americans. Center for American Progress and bisexual, and transgender people: Building a National Coalition for LGBT Health. foundation for better understanding. Bauer, U. 2011. Personal communication Washington, DC: National Academies Press. with author. Kaiser Family Foundation. 2009. Health care Braveman, P.A. et al. 2011. Health disparities costs: A primer, March. and health equity: The issue is justice. Lambda Legal. 2010. When health care isn’t American Journal of Public Health 101(S1): caring: Lambda Legal’s survey on discrimina- S149-155. tion against LGBT people and people living Center for Consumer Information and with HIV. Insurance Oversight. 2011. Essential health MacDorman, Marian F., and T.J. Mathews. benefits bulletin, 16 December. 2011. Understanding racial and ethnic Centers for Disease Control and Prevention. disparities in U.S. infant mortality rates. 2011a. Community Transformation Grants National Center for Health Statistics Data (CTG) states and communities, 27 September. Brief 74. ———. 2011b. HIV and AIDS among gay and Massachusetts Department of Public Health. bisexual men. Fact sheet, September. 2009. The health of lesbian, gay, bisexual, and ———. 2011c. HIV infection among transgender (LGBT) persons in Massachusetts, transgender people, August. July. ———. 2012. Funded national networks, 19 Miller, Kristen, and J. Michael Ryan. 2011. January. Design, development and testing of the NHIS sexual identity question. National Center for Health Statistics, Questionnaire Design

70 where do we go from here?

Research Laboratory, Office of Research and state Medicaid programs to 133 percent of the Methodology. federal poverty level. Organisation for Economic Co-operation and 3 According to the Web site GayData.org Development. 2011. Health at a glance 2011: (www.gaydata.org), the National Health and OECD indicators. Nutrition Examination Survey and the Presidential Documents. 2011. Patient National Survey of Family Growth have Protection and Affordable Care Act; collected some data about sexual orientation Establishment of Exchanges and Qualified and/or same-sex sexual behavior since 1988 Health Plans. Federal Register 76(136), 41866, and 2002, respectively. 15 July. 4 Thus far, forty-eight states (excluding only Sebelius, Kathleen. 2010. From sick care to Alaska and Florida) and the District of health care. Charleston Gazette, 27 July. Columbia have received a total of $423.3 million in several rounds of federal grants to ———. 2011. Remarks at the annual meeting plan and, in some cases, to begin to establish of the National Coalition for LGBT Health, exchanges. As of December 2011, fifteen states 17 October. have passed legislation setting up exchanges or U.S. Department of Health & Human Services. announcing intent to set up exchanges. The n.d.a. 2020 Topics & objectives: Lesbian, gay, governance structures of the state exchanges bisexual, and transgender health. Healthy can vary within certain parameters. These People 2020. include whether the exchange is a clearing- ———. n.d.b. EEO policy statement. EEO house that accepts all plans, as in Utah, or an Compliance & Operations. active purchaser that contracts with specific ———. 2011a. Implementation guidance on insurers and sometimes negotiates premiums data collection standards for race, ethnicity, and other conditions of coverage, as in sex, primary language, and disability status, Massachusetts; whether it is a nonprofit, a October. government agency, or a quasi-governmental body; and the proportions in which its ———. 2011b. Improving data collection governing board includes stakeholders such as for the LGBT community. Office of Minority insurance industry representatives, consumer Health. advocates, state health officials, or service Wilper, Andrew P. et al. 2009. Health insurance providers. and mortality in US adults. American Journal 5 ACA §1401(d) states, “The family size of Public Health 99(12): 2289-2295. involved with respect to any taxpayer shall be World Health Organization. 2000. The world equal to the number of individuals for whom health report 2000: Health systems: improving the taxpayer is allowed a deduction under performance. section 151 (relating to allowance of deduc- tion for personal exemptions) for the taxable Endnotes year.” Section 151 of the Internal Revenue 1 This article uses “LGBT” and “gay and Code allows deductions only for spouses (as transgender” interchangeably to refer to the defined under DOMA) and eligible full range of people who identify as gay, dependents. lesbian, bisexual, and/or transgender. 6 Plans sold outside the exchanges may also 2 In addition to the approximately 16 million seek certification as qualified health plans, uninsured people who will be able to purchase though certification is not mandatory. private coverage through the exchanges, another 16 million will become eligible for Medicaid in 2014 under the new national standard raising the eligibility ceiling for all

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Discrimination and Dollars: Why a Pro-Business Framing Is Key to the Passage of the Employment Non-Discrimination Act by Crosby Burns

Workplace discrimination introduces significant costs and inefficiencies that result in a less qualified and less productive workforce. The proposed Employment Non-Discrimination Act (ENDA) will help reduce the existing high rates of discrimination facing the lesbian, gay, bisexual, transgender, and queer population. ENDA’s passage will ultimately benefit firms by enforcing efficient hiring and firing practices, breeding a qualified and productive workforce, and providing employers with legal clarity, uniformity, and predictability. To secure political support for ENDA, advocates of workplace fairness must deliver a compelling narrative that frames ENDA as a policy that will not only help victims of workplace discrimi- nation but also benefit businesses’ economic performance.

While many other demographic groups also experience high rates of employment discrimination, lesbian, gay, bisexual, transgender, and queer (LGBTQ) people are perhaps the largest recognized demographic group to lack comprehensive employment protections under federal law. Some states have passed laws prohibiting employment discrimination based on sexual orientation and gender identity. Still, it remains perfectly legal in a majority of states to fire someone simply for identifying as LGBTQ. As a result, far too many workers are forced out of a job or denied employment based on their sexual orientation or gender identity, characteristics completely irrelevant to job performance. The proposed Employment Non-Discrimination Act (ENDA) will help reduce the existing high rates of discrimination facing the LGBTQ population. While members of Congress have introduced ENDA in every session except one since 1996 (the sole exception being the 109th Congress), ENDA has failed to garner enough political support to be enacted into federal law. In fact, ENDA has only twice come up for a floor vote in Congress, first in 1996 before the Senate, and again in 2007 before both chambers of Congress. Both versions of the bill included only sexual orientation, not gender identity, as a protected category (Hunt 2011). It is unlikely that ENDA will have an opportunity for passage until 2013 at the earliest given conservative opposition in the 112th House of Representatives.

lgbtq policy journal at the harvard kennedy school | volume 2 | 2011–2012 73 feature article | crosby burns

t No federal law outlaws employment discrimination based on sexual orientation or gender identity. It is perfectly legal in most states to fire someone because they are LGBTQ.

Forty-two percent of gay1people have Congress should pass the Employment experienced some form of employment Non-Discrimination Act (ENDA) to discrimination because of their sexual protect workers’ rights and bolster firms’ orientation (Sears and Mallory 2011, 4). economic performance. ENDA will Transgender workers face even higher prohibit most U.S. businesses from rates of workplace discrimination and discriminating on the basis of sexual harassment. An astonishing 90 percent of orientation and gender identity. With transgender individuals report experienc- ENDA’s passage, businesses will conse- ing some form of harassment, mistreat- quently realize significant financial gains ment, or discrimination on the job or from a more qualified workforce and a taking actions like hiding who they are to more productive workforce, two of the avoid such issues. This includes 47 key ingredients of firm profitability. percent who say they have experienced an Businesses will also realize cost savings by adverse job outcome such as being fired, avoiding employee turnover that would being denied employment, or not otherwise occur when LGBTQ individuals receiving a deserved promotion because are needlessly forced out of their jobs. of their gender identity (Sears and ENDA will provide clearer and more Mallory 2011, 2). uniform standards for nondiscrimination compliance, enhancing legal predictability Employment discrimination doesn’t only and helping firms avoid potentially costly harms its victims. It also has a harmful litigation. Using these facts and figures, economic impact on businesses that advocates of workplace fairness should tolerate or encourage discrimination deploy a business framing in order to against their workers. Conservative build sufficient political support to secure estimates of the aggregate costs of ENDA’s passage. discrimination indicate that businesses lose at least $64 billion annually due to Implementation of ENDA Will unfairness in the workplace (Corporate Enhance Firms’ Economic Leavers Survey 2007, 2). Those costs result Performance in large part from inefficient hiring and Currently, twenty-one states and the firing practices that yield a substandard District of Columbia have enacted workforce. Such costs are also largely due statutes that prohibit private and public to depressed job productivity and employment discrimination on the basis performance since employment discrimi- of sexual orientation. Sixteen states and nation and workplace hostility prevent the District of Columbia have also employees from optimally performing implemented employee protections on their core responsibilities on the job. the basis of gender identity (Human Rights Campaign 2012). In addition to

74 discrimination and dollars these state laws, more than 240 munici- ably the businesses that would be most palities have enacted local ordinances impacted by ENDA’s passage—showed prohibiting employment discrimination that a majority have already prohibited on the basis of sexual orientation, with at discrimination against LGBTQ workers, least sixty of these municipalities includ- and that there were few costs associated ing gender identity as a protected class with implementing and maintaining (Burns and Ross 2011, 10). Laws prohibit- LGBTQ-inclusive nondiscrimination ing employment discrimination on the provisions (Burns and Krehely 2011). It is basis of sexual orientation and gender therefore likely that, when Congress identity are currently nonexistent in passes ENDA, businesses fearful of twenty-nine states and thirty-four states, compliance costs will realize that ENDA’s respectively. No federal law outlaws significant economic benefits outweigh employment discrimination based on whatever costs may be associated with sexual orientation or gender identity. It is introducing nondiscrimination policies. perfectly legal in most states to fire someone because they are LGBTQ. Recruitment Moreover, some of the states that do ban ENDA will require efficiency in hiring LGBTQ discrimination apply different practices to ensure employers across the legal standards in employee lawsuits nation are hiring individuals based on (Hunt 2012). their qualifications and capacity to contribute and not on their sexual Given the existing gaps in LGBTQ orientation or gender identity. Recruiting nondiscrimination coverage, ENDA is skilled and qualified employees has needed to provide employers with become increasingly necessary to remain uniform and comprehensive guidelines competitive in today’s global economy. concerning LGBTQ workplace protec- Discrimination, however, creates unnec- tions under federal law. When it is passed, essary barriers that could implicitly or ENDA will boost firms’ economic explicitly push away qualified LGBTQ performance by removing inefficiencies candidates for employment. As a result, from the market and by providing businesses that discriminate forego the employers with clearer, more uniform, economic benefits of an optimal work- and more predictable legal standards for force. These benefits can be substantial: LGBTQ nondiscrimination compliance. anecdotal evidence suggests that hiring ENDA Will Help Remove Market one high-performing worker has the Inefficiencies equivalent worth of hiring three mediocre workers, each paid the same salary Given the negative impact of discrimina- (Bryant 2010). By outlawing discrimina- tion on firms’ financial performance, tion based on sexual orientation and employers should independently imple- gender identity, ENDA will ensure ment a host of company policies to employers are pooling from the largest combat workplace discrimination against possible market of qualified labor in their LGBT employees. Many employers have industry. declined to do so because they wrongly believe those policies introduce more costs than they eliminate. In reality, a 2011 survey of small businesses—argu-

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Retention Productivity and Job Relatedly, firms will realize significant Performance cost savings from ENDA’s passage due to Businesses will also capitalize on a more decreased rates of employee turnover productive and higher-performing when LGBTQ workers leave or are forced workforce once Congress passes ENDA. out of employment due to workplace Numerous measures of job productivity discrimination. For LGBTQ employees, show that employees who do not feel workplace discrimination based on sexual valued on the job—as is the case for orientation results in turnover rates LGBTQ employees working in hostile and nearly double those of Caucasian discriminatory environments—have heterosexual men (Corporate Leavers substantially diminished levels of Survey 2007, 4). productivity compared to those who report working in inclusive and nondis- The turnover costs resulting from criminatory environments. Employees employment discrimination are signifi- who report fearing discrimination exhibit cant. According to one study, the recruit- higher rates of absenteeism, are less ing and staffing costs of replacing a committed to their employer, receive departing employee range from $5,000 to fewer promotions, and report more $10,000 for an hourly worker and from physical and mental health problems than $75,000 to $211,000 for an executive with those who do not report fearing discrimi- a $100,000 salary (Robinson and Dechant nation or hostility on the job (Burns 1997, 23). A more recent study found that 2012). Each of these negative outcomes these costs have increased over the last racks up substantial costs for businesses decade with the economy shifting toward that allow discrimination to go industries that require more highly skilled unchecked. workers. According to that study, replac- ing a low-skilled hourly worker costs The relationship between discrimination approximately half that worker’s annual and poorer job performance certainly wages plus benefits, and replacing holds for LGBTQ workers. According to someone in upper management can cost the Center for Work-Life Policy, “those employers three to five times that hiding their sexual orientation . . . are individual’s annual salary and benefits more likely to feel that they are stalled (The Rainmaker Group n.d.). [and] more likely to distrust the organiza- tion. And they are more likely to feel Firms will benefit from ENDA’s ultimate isolated” (Ludden 2011). Rather than passage by ensuring employees are not focus on their core responsibilities on the unnecessarily forced out of a job because job, many LGBTQ workers are distracted they are LGBTQ. Instead, ENDA will by hostile and discriminatory work facilitate more efficient human resources environments. One conservative estimate management by compelling employers to is that a company with 1,000 employees evaluate employees on their qualifications loses at least $200,000 annually from and contributions on the job rather than diminished productivity among its on their sexual orientation and gender LGBTQ workers (Hewlett and Sumberg identity. Firms will subsequently realize 2011, 7). significant cost savings by eliminating turnover-related expenses that arise when By outlawing LGBTQ discrimination, discrimination goes unchecked. ENDA will help foster LGBTQ-friendly

76 discrimination and dollars t Compared to their closeted counterparts, out LGBTQ employees report higher levels of trust, entrepreneurialism, loyalty to their employer, job satisfaction, and happiness with their careers. workplaces that encourage LGBTQ transgender victims of discrimination employees to “come out” on the job, have successfully sued their employer in allowing them to focus on completing federal court on the basis of sex discrimi- their core workplace responsibilities nation. These claims have proven rather than censoring themselves out of increasingly successful over the past fear of unfairness and discrimination. decade. In Price Waterhouse v. Hopkins, Compared to their closeted counterparts, for example, the Supreme Court held that out LGBTQ employees report higher existing federal laws prohibiting sex levels of trust, entrepreneurialism, loyalty discrimination apply to harassment to their employer, job satisfaction, and directed at an employee because that happiness with their careers (Hewlett and employee fails to conform to gender Sumberg 2011; Sears and Mallory 2011). stereotypes (Maza and Krehely 2010). Controlled experiments even suggest that Similarly, the Eleventh Circuit ruled that laws like ENDA will help increase the firing an individual based on his or her productivity of the non-LGBTQ work- gender identity violated the Equal force, since non-LGBTQ individuals Protection Clause’s prohibition of perform significantly better when they are sex-based discrimination (Glenn v. aware of their colleague’s sexual orienta- Brumby 2011). This trend in the case law tion (Everly et al. 2012). has resulted in significant legal uncer- tainty for employers who are unsure how ENDA Will Provide Employers with to avoid discrimination lawsuits from Clearer and More Uniform Legal transgender or gender nonconforming Standards with Respect to LGBTQ workers. Nondiscrimination Compliance Clarity in the form of a national standard Employment discrimination exposes prohibiting discrimination against firms to potentially costly litigation, transgender people is necessary to help which often results in high attorney and businesses avoid these often financially court fees, time spent away from the painful (and otherwise avoidable) business, and unwanted media attention. lawsuits. ENDA will make absolutely clear These costs are often significant regardless that hiring and firing decisions based on of the case’s outcome. ENDA will inject someone’s gender identity is against the both clarity and uniformity into the legal law. In this way, ENDA will help employ- system and ultimately help firms avoid ers better navigate the litigation minefield costly discrimination-related lawsuits. and avoid unnecessary litigation that First, ENDA will help employers by could result in millions of dollars of clarifying what constitutes discrimination damages. against a transgender employee. Some

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Second, ENDA will benefit businesses by community. Advocates of workplace harmonizing nondiscrimination compli- fairness attempted to highlight ENDA’s ance standards across the country, thereby economic benefits during the last political lowering the cost of compliance. Right debate over the policy in 2007. However, now, companies must comply with gay these advocates lacked the data points and transgender nondiscrimination laws needed to garner sufficient political on a state-by-state basis. A company with support for ENDA’s passage. For example, offices in Iowa and Florida, for example, executives from some of America’s largest must comply with different nondiscrimi- businesses testified before Congress that nation requirements in the two states, nondiscrimination policies and laws since Iowa has both sexual orientation made for good business policy and good and gender identity nondiscrimination public policy. Evidence to substantiate laws whereas Florida has neither. When those claims, however, was mainly limited passed, ENDA will create a more uniform to anecdotal and correlative facts and set of rules that will largely eliminate the figures. In the future, ENDA advocates inefficient state-by-state approach of must deliver a more robust, research- nondiscrimination compliance, reducing driven narrative and disciplined messag- overhead costs and boosting overall ing strategy to effectively augment public profits. and political support for comprehensive workplace protections for the LGBTQ LGBTQ Advocates Must Utilize population. a Business Framing to Garner Sufficient Political Support to Framing ENDA as an Economic Policy Secure ENDA’s Passage that Benefits Business Will Undercut As advocates of workplace fairness Opponents’ Central Argument Against prepare for the next legislative opportu- Workplace Protection Laws nity to secure ENDA’s passage, which as In prior legislative debates, conservative noted at the start of this article may not opponents of LGBTQ workplace protec- be until 2013 at the earliest, they must tions often emphasized alleged business deploy an effective communications, opposition to ENDA. For example, Senate messaging, and framing strategy that Minority Leader Mitch McConnell broadly appeals to the public and to (R-KY) argued that ENDA “would policy makers. Part of this strategy should impose significant regulatory burdens certainly focus on fairness as well as the and costs on small businesses.” Similarly, human impact of workplace discrimina- Focus on the Family sent a letter to tion. Firing or refusing to hire someone members of the House of Representatives simply for identifying as LGBTQ is an in September 2009 claiming that “ENDA affront to human dignity and should be will . . . increase compliance costs for portrayed as such. From a strategic businesses—costs that small business can messaging perspective, however, the ill-afford, particularly during this “fairness framing” is only part of the economic down turn” (Burns and Krehely story. 2011). This framing was also evident in Congressional testimony from small Equally essential is framing ENDA as a business owners and others that cast law that ultimately yields the numerous ENDA as an antibusiness piece of aforementioned benefits to the business legislation.

78 discrimination and dollars

ENDA advocates should counter these claims to the contrary (Burns and Krehely claims with the substantial body of 2011). evidence that suggests ENDA will actually LGBTQ and like-minded advocates lower costs and reduce operational should lobby businesses to actively voice inefficiencies resulting from a suboptimal their support for ENDA to the public and workforce. A pro-business messaging directly to policy makers. Having busi- strategy will strengthen ENDA’s prospects nesses themselves frame ENDA as an for passage by significantly weakening economic policy that benefits the business one of the core arguments conservatives community is key to securing ENDA’s have put forth in opposition to ENDA. passage, especially given the size and This framing will not only neutralize reach of this powerful constituency. opponents’ attacks on ENDA but also put ENDA advocates should also highlight opponents on the defensive, requiring recognizable brands and companies that them to spend time and resources in have voluntarily implemented workplace order to defend their claims. protections. This strategy has already A Business Argument for Workplace begun augmenting support for the Protections Will Capitalize on legislation. Future advocates should Significant and Increasing Support continue to build upon this success. from the Business Community Itself Framing ENDA as an Economic Issue Is Advocates should not only aggressively Necessary Given the Ongoing Emphasis communicate the evidence that discrimi- on Jobs and the Economy in the Current nation is wasteful and that ENDA is Political Discourse economically sound but also capitalize on ENDA must be framed as part of a the business community’s significant and broader jobs and economic agenda in increasing support for comprehensive order for it to become law. Given the LGBTQ workplace protections. tepid economic recovery following the Eighty-five percent of Fortune 500 Great Recession, particularly in the labor companies have enacted nondiscrimina- market, legislators are constantly empha- tion policies that cover sexual orientation, sizing the economic and employment and 49 percent have done so regarding benefits of proposed pieces of legislation gender identity. Looking at the very top of in order to garner political support for the Fortune ladder, the proportion of their passage. This is true both for bills companies offering employment protec- directly related to economic issues, like tions in the Fortune 100 skyrockets to 93 tax and budget policies, and for those not percent for sexual orientation and 74 directly related. For example, following percent for gender identity. Further, many the 2010 midterm elections conservative of America’s largest and most successful state legislators framed recently passed businesses have endorsed ENDA itself, anti-immigration bills as legislation that including more than 148 companies that would reduce state and local unemploy- have signed on as part of the Human ment rates. While ENDA will likely not Rights Campaign’s Business Coalition for resurface in Congress until 2013 at the Workplace Fairness (2011). Even a earliest, advocates should frame it as a majority of small businesses (63 percent) jobs bill and as a growth bill, one that support ENDA, despite conservative removes inefficiencies from the labor

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market. Such a framing will likely had promised to lift the ban on gays in broaden ENDA’s political appeal to some the military, also relied on this framing, policy makers who are less than arguing that everybody who was willing LGBTQ-friendly. to fight for their country deserved an equal opportunity to serve (Frank 2009, Establishing the Economic Case for 18). Opponents, however, successfully Nondiscrimination Laws Extends the argued that the inclusion of openly gay Argument for ENDA Beyond the Civil service members would compromise Rights and Equality Framework military readiness and combat effective- While support for LGBTQ individuals ness by weakening unit cohesion and and issues has grown over the past troop morale. Their success ultimately decade, the argument that laws such as maintained the gay ban in the form of the ENDA grant “special rights” to LGBTQ DADT “compromise” policy. people still resonates with a large propor- In the late 2000s, advocates of open tion of the American public. As a result, service turned their opponents’ argu- advocates of workplace fairness cannot ments against them by arguing that the rely solely on a “fairness framing” when DADT policy itself compromised military lobbying for ENDA’s passage. A civil readiness and combat effectiveness. These rights messaging strategy may in fact advocates successfully highlighted the fact prove detrimental to ENDA’s passage. that the ban on open service drove Unemployment is projected to remain thousands of otherwise capable men and relatively high over the next decade, and women out of the military, thus depriving arguing that LGBTQ people need an the armed forces of valuable service from employment rights bill may dissuade the these individuals while the country was public and policy makers from support- engaged in two wars halfway across the ing ENDA at a time when people from all globe. Open service advocates also demographics are struggling to find or neutralized their opponents’ unit-cohe- maintain employment. Instead, a messag- sion arguments by showing that the vast ing strategy that casts workplace protec- majority of service members were tions as promoting efficient labor markets comfortable serving alongside openly gay and profitable businesses could create a soldiers. Advocates’ success in reframing larger coalition for passing ENDA, a the issue in this way significantly contrib- coalition that goes beyond the LGBTQ uted to Congress ultimately repealing community and like-minded advocates. DADT in 2010. Lessons from DADT Repeal There are strong parallels between the The business case for enacting ENDA combat-effectiveness framing that helped mirrors a framing and messaging strategy end DADT and the pro-business framing successfully used to achieve the December that could help enact ENDA. By co-opt- 2010 repeal of “Don’t Ask, Don’t Tell” ing the combat-effectiveness argument (DADT), the military’s ban on openly gay promulgated by DADT proponents, service members. At first, in the early advocates lobbying for DADT repeal 1990s, advocates of repealing the ban on undercut the main rationale against open open service framed the issue largely as service, effectively putting DADT one of “the right to serve.” Former proponents on the defensive. Should President Bill Clinton, who as a candidate advocates of workplace fairness effectively

80 discrimination and dollars frame ENDA as an economic and Conclusion pro-business issue, they could similarly The high rate of LGBTQ workplace succeed in co-opting conservative discrimination in the United States harms arguments against ENDA, thereby not only LGBTQ employees but also the minimizing political opposition to the businesses that employ them. bill. Discrimination introduces significant inefficiencies into human resources DADT repeal advocates further capital- management, thereby imposing unneces- ized on newfound support for repeal sary costs on businesses. In order to from senior military officials. While many eliminate these costs, employers should in the military continued to oppose repeal independently institute low-cost and in the late 2000s, advocates successfully commonsense workplace policies that highlighted military leaders’ support for prohibit discrimination based on sexual repeal, especially emphasizing the support orientation and gender identity in their from leaders with historically conserva- organizations. Employers could achieve tive leanings like former Secretary of State even deeper cost savings, however, Colin Powell and then Secretary of through the enactment of federal Defense Robert Gates. ENDA advocates legislation, such as ENDA, that would ban would do well to promote and publicize LGBTQ workplace discrimination. ENDA support among business leaders—also would clarify and harmonize the legal traditionally a politically conservative standards surrounding workplace constituency—in order to neutralize protections, thereby reducing the costs of erroneous claims that ENDA will impose compliance and the risk of expensive costs on companies and hamper their litigation. There is now a wealth of performance. evidence regarding the economic benefits DADT repeal advocates learned an of workplace fairness. ENDA proponents important lesson from the early 1990s: a should make this evidence the corner- civil rights framing on its own can do stone of their advocacy efforts. With more harm than good. This is why support from a broad coalition including advocates rarely emphasized LGBTQ fairness advocates, the business commu- rights and equality when working toward nity, and others, ENDA may finally repeal in the late 2000s. Instead they become the law of the land. focused on the more pragmatic frame of combat effectiveness and how open References service would strengthen the armed Bryant, Adam. 2010. Three good hires? He’ll forces. ENDA advocates should adopt an pay more for one who’s great. New York Times, analogous approach. Rather than 13 March. emphasize ENDA’s civil rights implica- Burns, Crosby. 2012. The costly business of tions, they should frame ENDA as an discrimination. Washington, DC: The Center economic policy that will benefit the for American Progress. business community. ———, and Jeff Krehely. 2011. Ensuring workplace fairness is not expensive. Washington, DC: The Center for American Progress. ———, and Philip Ross. 2011. Gay and transgender discrimination outside the

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workplace. Washington, DC: The Center for Endnotes American Progress. 1 For variety and simplicity, the word “gay” is Corporate Leavers Survey. 2007. The cost of sometimes used as an umbrella term for gay, employee turnover due solely to unfairness in lesbian, and bisexual. the workplace. San Francisco, CA: Level Playing Field Institute. Everly, Benjamin A., Margaret J. Shih, and Geoffrey C. Ho. 2012. Don’t ask, don’t tell? Does disclosure of gay identity affect partner performance? Journal of Experimental Social Psychology 48(1): 407-410. Frank, Nathaniel. 2009. Unfriendly fire. How the gay ban undermines the military and weakens America. New York: Thomas Dunne Books. Glenn v. Brumby 663 F.3d 1312 (11th Cir. 2011). Hewlett, Sylvia Ann, and Karen Sumberg. 2011. The power of “out.” New York: Center for Work-Life Policy. Human Rights Campaign. 2011. Business coalition for workplace fairness. Washington, DC: Human Rights Campaign. ———. 2012. Statewide employment laws & policies. Washington, DC: Human Rights Campaign. Hunt, Jerome. 2011. A history of the Employment Non-Discrimination Act. Washington, DC: The Center for American Progress. Ludden, Jennifer. 2011. Workplace atmosphere keeps many in the closet. National Public Radio, 3 July. Maza, Carlos, and Jeff Krehely. 2010. Establishing fairness and legal predictability. Washington, DC: The Center for American Progress, 10 November. The Rainmaker Group. n.d. The real costs of employee turnover. Robinson, Gail, and Kathleen Dechant. 1997. Building a business case for diversity. Academy of Management Executive 11(3): 21-31. Sears, Brad, and Christy Mallory. 2011. Documented evidence of employment discrimination & its effects on LGBT people. Los Angeles: Williams Institute, July.

82 feature article

Absence and Uncertainty: LGBT Families in Federally Funded Healthy Relationship Programs by Patrick Hart

Federal resources for programs supporting marriage have coincided with an increase in the number of lesbian, gay, bisexual, and transgender (LGBT) families. This article examines how federal healthy marriage/relationship programs treat LGBT families through a discus- sion of previous research, personal interviews, and an examination of the program grantees. While more extensive research is needed, these findings indicate a range of attitudes within these programs toward LGBT families. Since there is a great deal of discretion for grantees, this range of attitudes indicates that LGBT families may have varied experiences within the program. Recommendations for future research and policy changes are offered to facilitate equal inclusion of LGBT families in federally funded healthy relationship programs.

Over the last fifteen years, policy makers in the United States have increasingly allo- cated resources toward the creation and promotion of “healthy marriage” programs. These programs provide financial support to help low-income parents remain in healthy and stable relationships, particularly marriages. This recent trend is in part due to a growing body of research suggesting that low-income children have more favor- able life outcomes when raised by two married parents, though there is still substantial dispute about the validity and meaning of this research (Nock 2005; Cowan and Cowan 2009). While much uncertainty exists regarding the government’s healthy marriage support strategy on both ethical and efficiency grounds, it has been embraced by major members of both parties. The administrations of Presidents George W. Bush and Barack Obama have both supported federally funded programs to encourage and nurture healthy relationships and marriages. While this shift in family policy has been occurring, another equally significant societal change has been taking place: the growing visibility and social acceptance of lesbian, gay, bisexual, and transgender (LGBT) individuals and couples as parents.1 Many older LGBT people who already had children have come out as cultural homophobia has decreased. In addition, as more LGBT people feel confident about coming out at a young age, more LGBT couples are having children of their own through adoption, donor insemination, or surrogacy (Movement Advancement Project et al. 2011). Legally, an increasing number of states explicitly allow adoption by same-sex couples or ban discrimination against them in the adoption process. Seventeen states and the

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District of Columbia now fall into this the organizations to ask about their category, while only five states explicitly programs. Fifty-six had e-mail addresses, ban joint adoption by same-sex couples either through a specific person’s e-mail (Movement Advancement Project et al. address or through a form on their Web 2011, 26-27). At the same time, more site. The response rate was quite low, but I states are legally recognizing same-sex did receive substantive replies from nine marriage, and there is a growing push to grantees, in addition to six responses make equal marriage rights the law promising more information that was nationwide. In the United States today, never delivered. LGBT parents are becoming more of a These findings are limited and point to norm. the need for comprehensive quantitative and qualitative research on this question. Methodology and Limitations This was a limited examination of a For this article, I wanted to determine preselected set of grantees with several what happens when these two develop- biases in both the researcher and the ments—the growing healthy marriage/ respondents; it was not a rigorous relationship movement and the growing scientific survey of these grantees and presence of LGBT parents—intersect. their practices. It is also important to note Specifically, I set out to answer the that since new grant activities started in question of how LGBT families are January 2012, descriptions on the treated and viewed in federally funded organizations’ Web sites do not necessar- healthy marriage/relationship programs. I ily correspond with what the grants are examined the Web sites of the most recent used for. Indeed, at least one e-mail federal healthy relationship grantees and respondent indicated that her organiza- conducted an e-mail survey of those tion would be serving a broader range of grantees to see what programs, if any, families than its Web site indicated. Yet they offered to LGBT families and what given the Web site is the primary public their attitudes toward those families were. face of an organization, its description of There were fifty-nine grantees, of which clients remains relevant and will deter- fifty-five had Web sites describing their mine which families seek out the pro- programs. While only eighteen actually gram. As the program evolves, it is described their recent grant award, the possible that Web sites and descriptions other thirty-seven did describe the will change. organization’s marriage/relationship I chose to examine the fifty-nine just- program in some level of detail. I announced grantees and not those that searched the Web sites for descriptions of had received the older Bush administra- their programs and their target popula- tion grants. While the previous grantees tions, as well as any language specifically may have had more experience and indicating whether LGBT families were perhaps records of couples served, I welcome in those programs. In addition, I determined it most beneficial and feasible examined the language and imagery on to evaluate new grantees for several all the Web sites to see whether they reasons. First, new grantees would be prominently contained anything specifi- performing these services for the next few cally inclusive of LGBT families or years and therefore would be most specifically anti-LGBT. As a follow-up to relevant to any policy discussion. Second, my Web site observations, I e-mailed all

84 absence and uncertainty the current grant application’s inclusion fatherhood organizations and govern- of proposals for “allowable activities” ment agencies can sometimes veer into gives new grantees a clear idea of which the heterocentric rhetoric used by equal services they will perform and which marriage opponents.2 At any rate, the populations they will serve. Finally, many fatherhood programs represent a promis- new grantees also received the previous ing future avenue for research. grant or have otherwise previously conducted marriage and relationship Healthy Marriage and work, and therefore many already have Relationship Programs Through programs in place. the Years The Personal Responsibility and Work Before discussing results, it is important Opportunity Act of 1996, or the welfare to understand the types of grantees. Many reform law, signed by former President different entities were eligible to apply for Bill Clinton, was an early indication that the grant, and those that received it were a the federal government intended to mix of public, private, and nonprofit promote marriage as a policy for fighting organizations. In many cases, the appli- poverty (104th Congress 1996). The bill cant was merely one of a larger coalition included language discouraging out-of- that might include many different types wedlock births and encouraging marriage of agencies. As mentioned above, most in the Temporary Assistance to Needy grant recipients have some experience Families (TANF) program, and several with relationship or marriage counseling states began using TANF funding for for adults or teenagers, but the depth and healthy marriage programs (National breadth of this experience varies widely. Healthy Marriage Resource Center 2009, The request for proposals (RFPs) indi- 3). During the early 2000s, President cated that the government reviewers George W. Bush launched an official would look favorably on applicants with a national push toward supporting mar- specific focus on low-income or other riage as a policy goal, and HHS began at-risk populations, so many recipients using various discretionary funds within had these focuses. As we will see later TANF to support healthy marriage when I discuss the findings, the grantees programs (National Healthy Marriage also have different target populations for Resource Center 2009, 5-8). In particular, their services. Bush and several scholars argued that The final important limitation is that I marriage was important in low-income did not do a comparable examination for communities and that one reason for the strong fatherhood grants, which were worse outcomes for low-income children announced by the U.S. Department of was the breakdown of the two-parent Health & Human Services (HHS) at the family in those communities (Rector and same time as the healthy relationship Pardue 2004). Several of Bush’s allies in grants. This would be an intriguing the conservative intellectual community avenue for further research. Because the spoke out in support of the president’s fatherhood awards are focused on so-called healthy marriage proposal parenting, not on couples, the sexual (Rector and Pardue 2004). In many ways, orientation of the father should not these arguments were the culmination of matter. Yet the rhetoric about the impor- a long tradition of conservative criticism tance of the father used by many national of the family structure in low-income,

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and particularly African American, to married and unmarried couples, single communities as a contributor to high parents, and teens (National Healthy rates of poverty in those communities. Marriage Resource Center 2009, 8-10). The initial grant ran until 2011. Along In recent decades, several more liberal with $100 million annually for healthy scholars focused on low-income children, marriage programs, the grant included such as Sara McLanahan (1999), also $50 million for “responsible fatherhood” began arguing that family structure did programs aimed at helping low-income matter for children’s outcomes. These single fathers (National Healthy Marriage scholars argued that, all things being Resource Center 2009, 9). equal, being raised by two married biological parents was better than being When President Obama took office, there raised by cohabiting parents or a single was substantial discussion within and parent (McLanahan 1999). Today, outside his administration about what McLanahan is the lead researcher on the grants should look like when renewed, Fragile Families study, which examines particularly with reauthorization of outcomes over a period of many years for TANF looming. The administration children born to unmarried parents. The initially proposed a Fatherhood, results from this study continue to show Marriage, and Family Innovation Fund that, particularly for low-income youth, that would focus more broadly on growing up without two married parents parenting, relationships, and a broad is a detriment to positive life outcomes, range of outcomes for children and less though there is a high level of uncertainty specifically on marriage (Boggess 2010). about how family status interacts with This proposal met with opposition from other factors (Waldfogel et al. 2010). those in the healthy marriage community Because of the many variables involved, who were concerned that it would this conclusion is not unanimously deemphasize marriage too much (Bradley shared, and there are serious critiques of and Rector 2010; Wetzstein 2010). the concept that marital status is a driving For the time being, the compromised force for children’s outcomes (Coontz and result is that the Obama administration Folbre 2002; Cowan and Cowan 2009). announced that the new round of $150 Nevertheless, by the time President Bush million in grants would be divided in and Congress reauthorized TANF in 2005 half: $75 million would be for healthy to include a specific carve-out for healthy marriage and relationship programs, and marriage and relationship funding the other $75 million would go to (National Healthy Marriage Resource responsible fatherhood programs aimed Center 2009, 3), the idea of supporting at supporting low-income fathers—single marriage, though not necessarily all the or not—and helping them build ties to components of Bush’s initiative, had their partners and children, though the support from both liberal and conserva- grant application did specify that these tive camps. services must be made available to The portion of TANF funding allocated mothers on an equal basis (U.S. in the budget for healthy marriage Department of Health & Human Services activities was awarded in 2006 and 2011b). HHS put out an RFP in June included several planks focused on 2011, and the grant awards were teaching marriage and relationship skills announced in October 2011. These grants

86 absence and uncertainty were selected through a competitive of parenting that a heterosexual couple process conducted by the department’s can. While this image persists, it has been Administration for Children & Families uniformly rejected by mainstream (ACF). ACF staff evaluated proposals medical and mental health associations, based on several factors such as capacity which note a voluminous body of studies and budget, but the most important and evidence confirming that all other factor was how well the proposal things being equal, children of LGBT advanced healthy marriage and relation- parents do just as well as children of ship goals and served clients through heterosexual parents. Because of the various allowable activities such as public difficulty in obtaining comparable sample advertising campaigns, direct work with sizes for different types of parents and the couples and single people, and youth difficulty of disentangling the effects of outreach (U.S. Department of Health & parents’ sexual orientation from the Human Services 2011a). Initial awards are effects of social stigma and other vari- for one year, but HHS left open the ables, there are still research questions option of continuing the awards in future that need to be answered in this area years subject to funding availability and (Biblarz and Stacey 2010). However, the grantee performance (U.S. Department of general consensus of the field is that Health & Human Services 2011a). LGBT parents can raise children just as well as straight parents can. LGBT Families in the United States The second stereotype presents a different In relative historical terms, the speed at challenge. Anecdotally, in conversations which the dialogue around LGBT people about this article, many people expressed as parents has changed is remarkable. surprise that LGBT parents would even While there have been movements for need any type of federal services, given LGBT rights throughout much of the the popular image of LGBT people as twentieth century, it has been only in the affluent and the prominent portrayal of last thirty years or so that historical lesbian and gay parents as well-off White prejudices against LGBT people and suburbanites (for example, in TV shows couples as parents have begun to dissi- and movies such as Modern Family and pate. In the United States today, the best The Kids Are All Right). However, recent recent estimate indicates that there are research provides a more accurate approximately 2.3 million children living portrayal of LGBT families in the United with openly LGBT parents (Movement States. Families with same-sex couple Advancement Project et al. 2011, 118- parents are more than twice as likely to be 119). While these parents are both single living in poverty as families with married and coupled, the best recent estimates straight parents, while same-sex couple indicate that more than 100,000 same-sex parents and their children are more likely couples are raising children (Williams to be people of color than straight parents Institute 2011). and their children, and same-sex couple When discussing LGBT parents, two parents of color have higher poverty rates challenging stereotypes often arise. The than same-sex White parents (Movement first, still common in much of the Advancement Project et al. 2011). country, is that a same-sex couple by its Government policies themselves exacer- very nature cannot provide the same level bate the problem: many federal programs

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t Families with same-sex couple parents are more than twice as likely to be living in poverty as families with married straight parents, while same-sex couple parents and their children are more likely to be people of color than straight parents and their children...

and tax breaks are only available to have a stated goal of focusing on low- married heterosexual families, and LGBT income families. Since LGBT families are families are thus forced to pay more than more likely to be poor, it is all the more they would if they were straight unjustifiable if they are being ignored by (Movement Advancement Project et al. this antipoverty program. 2011).3 TANF, the parent program for the healthy marriage grants, uses “a narrow When LGBT Families and Healthy definition of family” and can exclude Marriage Programs Meet families with same-sex parents Given the added barriers that LGBT (Movement Advancement Project et al. families face, it would seem important 2011, 57-58). that they are able to access federal programs aimed at helping families in In addition, while many straight parents difficult relationship situations. To be take their ties to their children for sure, there are both progressive and granted, many LGBT parents go through conservative critiques of the idea that procedures such as adoption, surrogacy, government should be providing these and securing legal contracts to ensure services at all (Polikoff 2008; Coburn their parentage, all of which can cost 2011, 182-183). There is also debate about thousands of dollars (Movement whether these programs actually achieve Advancement Project et al. 2011). their goals. A large-scale evaluation of the Persistent homophobia and social stigma program sites that were part of the can make families feel unwelcome in day Building Strong Families federally funded care programs and at other social service healthy relationship project in the last providers, and this can have a mental, decade found that most of the program emotional, and financial drain. Even sites evaluated did not have a significant where no legal barrier exists, providers of effect on relationship outcomes, though adoption, health care, and other social there were significant effects observed at services on the ground often act in the Oklahoma site (Wood et al. 2010). homophobic ways (Movement While this debate and evaluation is Advancement Project et al. 2011). LGBT ongoing, as long as the federal govern- families of color bear the double burden ment is providing services, it seems of facing homophobia and persistent important that it provides those services racial/ethnic discrimination and inequal- to all who might benefit. ity. Understanding the truth about poverty rates among LGBT families is The first anecdotal reports I saw indicated particularly important when we examine that many federally funded healthy programs such as healthy marriage, which relationship/marriage grantees cited the

88 absence and uncertainty

Defense of Marriage Act (DOMA) as a At the same time, while the language of bar to LGBT families participating in the RFP certainly leaves room for service their programs (Petrelis 2011; providers to serve LGBT couples and McGonnigal 2010). DOMA is a 1996 individuals, the federal government has federal law enacted in response to the not publicly made clear that this is the early movement toward same-sex case or encouraged grantees to do so. marriage. It mandates that in any federal During the Bush administration, HHS law or regulation, the words “marriage” explicitly announced, citing DOMA, that and “spouse” only refer to heterosexual healthy marriage grant funds could only marriage. While President Obama is be used for straight married couples (U.S. opposed to DOMA and his Justice Department of Health & Human Services Department has declined to defend it in 2004). My early attempts to gain informa- court, the law remains on the books. tion about the Obama administration’s HHS position met with limited success. The existence of DOMA, however, does HHS either did not answer or did not not alone account for the difficulties provide relevant information in response facing LGBT families in accessing support to several e-mails. through healthy marriage programs. While the program is a “marriage” In a later conversation, Naomi Goldberg focused program, there are many allow- of Movement Advancement Project able activities within the program that are suggested that this might be deliberate, as not limited to married couples. The HHS probably wanted to avoid taking an Obama administration’s recent version of affirmative position about what DOMA the healthy marriage RFP clearly includes said one way or the other given that it is many services about “relationship” rather still the law but is officially opposed by than “marriage” help. There are eight the administration (Goldberg 2011). Scott eligible activities in this RFP, and only two Stanley, who was involved in the develop- of these are reserved for married couples, ment and evaluation of one of these while three others include “relationship program models as an academic, has skills” or are specifically open to unmar- heard anecdotally (though there has been ried couples. The other three involve no official announcement) that HHS general advertising or policy change and might be telling grantees that if they are not direct work with couples. In addition, in a state where same-sex marriage is low-income families, whether they receive legal, they can serve same-sex couples. At TANF or not, are a specific population of the same time, he noted that even dating interest for the grant, and we have already back to the first Bush Healthy Marriage observed that LGBT families are dispro- Initiative, many grantees opened their portionately low-income (U.S. relationship support services to all Department of Health & Human Services couples, including LGBT ones, though 2011a). While DOMA clearly represents a there is no clear data on LGBT couples or major barrier to LGBT couples in many individuals served (Stanley 2011). respects, it is not true that it systemati- Theodora Ooms, another family policy cally bars federal grantees from using scholar involved in the development of healthy relationship resources to help marriage and relationship programs, also LGBT couples. reported that officials in the Bush administration HHS informally acknowl-

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edged that some programs would serve The Findings LGBT people in practice and that in her experience even programs designed for Finding 1: Most Programs Do Not married couples “never asked for proof of Explicitly Exclude LGBT Families, But marriage at the door” (Ooms 2011). Few Make Any Public Indication that LGBT Families Are Welcome In a similar vein, the Alternatives to Only two Web sites explicitly welcomed Marriage Project submitted Senate LGBT families to their programs. On the testimony in 2010 that noted that, other hand, four Web sites had language anecdotally, many healthy marriage– that was specifically anti-LGBT, such as funded relationship service providers statements that marriage is “between one expressed openness to serving same-sex man and one woman,” rules that only couples, though the project expressed heterosexual couples could meet despite a skepticism that all the openness was program being located in a state with genuine (Alternatives to Marriage Project marriage equality, and links to anti-equal 2010). Therefore, while there is still some marriage testimony from noted anti- uncertainty as to the precise federal LGBT activist Maggie Gallagher. Most of position, grantees appear to have discre- the Web sites did not include specifically tion under the current legal and regula- anti-LGBT language but had overtly tory language to serve LGBT families if heterocentric language and prominently they choose to do so. Ultimately, though, displayed happy images of straight the best way to determine the attitudes of couples on their Web sites. I could find no grantees is to examine the grantees

t Only two Web sites explicitly welcomed LGBT fami- lies to their programs . . . four Web sites had language that was specifically anti-LGBT, such as statements that marriage is “between one man and one woman.”

themselves. Using the methodology Web site in the group that included any described at the beginning of this article, images of same-sex couple parents. The I examined the Web sites of the grantees two Web sites with pro-LGBT language announced in October 2011 for the recent were both for organizations based in high healthy marriage/relationship grants. I equality states.4 Of the four organizations followed that up, when possible, with with anti-LGBT language on their Web e-mail messages to those grantees to ask if sites, two were based in low equality their programs worked with LGBT states, one in a medium equality state, couples, and if so, how many couples had and one in a high equality state. been assisted.

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Finding 2: Most of the Program substantial range of LGBT rights laws Descriptions on the Web Sites Do Not within the seven states (four are low Necessarily Exclude LGBT Families equality states, one is a medium equality Forty-two Web sites provided enough state, and two are high equality states). detail about who could be served through Finding 4: Some Organizations May Be their programs for me to draw some More Welcoming to LGBT Families than distinctions. Four only welcomed married Their Web Sites Suggest couples to their programs, and given the constraints of DOMA, that means their As a follow-up to my Web site survey, all healthy relationship programs are the organizations were sent e-mail reserved for straight couples. Thirteen requests for information. Of the grantees welcomed all couples, while six were who responded, two (one in a high specifically programs for unmarried equality state and one in a low equality couples; either of these sets could, state) explicitly said their programs theoretically, under the program lan- welcomed LGBT couples, while five (one guage, include same-sex couples. In in a high equality state and the rest in low addition, five programs specifically equality states) made statements that focused on relationship education for effectively said all comers would be teens. Some programs were reserved only welcome but did not explicitly embrace for parents. Of these, three were reserved serving LGBT families. One asked “what for either married parents or parents who does LGBT stand for?” while another had biological children together, in both cited DOMA as a bar to explicitly serving cases excluding LGBT couple parents, same-sex couples but said that many of its even when one parent may be the Web materials might well be applicable to biological parent and the other parent same-sex relationships (both of these may be a legally adoptive parent and no grantees were in low equality states). other legally recognized biological parent Multiple grantees reported that there was exists. A large number of Web sites were a donor meeting for grant recipients in unclear or undetermined as to what types Washington, DC, recently, and one of families they served. grantee reported that this issue had been addressed in the meeting. The impression Finding 3: The Organizational this grantee received from the meeting is Affiliations of Some Grantees Imply that if grantees chose objectives in their Additional Reason for Concern grant application that specifically focused It should also be noted that besides the on “marriage,” DOMA was still an four grantees with explicitly anti-LGBT obstacle. Several grantees were apparently language on their Web sites, seven trying to serve all same-sex couples, additional grantees had strong links either whatever their legal status, as unmarried to abstinence-only programs or to couples, so as not to run afoul of DOMA. religious groups that have a history of In the above results, however, there may hostility toward LGBT people. While this be a selection bias since grantees with a does not necessarily mean LGBT people more pro-LGBT outlook may be more will be mistreated or turned away in these likely to respond to an author writing an settings, it is cause for concern. None of article that is sympathetic to LGBT rights. these grantees were from a state with full marriage equality, though there is a

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Discussion of Findings itself toward LGBT families than with While we need to be cautious about federal or state policy. As mentioned drawing any broad conclusions from this earlier, there seems to be room within the limited data, some trends do become legal constraints of DOMA for a grantee clear. While few organizations explicitly to offer services to LGBT families. Even use anti-LGBT language, the overwhelm- so, there is no mandate for grantees to ing majority use heterocentric imagery offer such services, and it would certainly and language on their Web sites. In be possible for grantees to avoid serving addition, many programs implicitly bar LGBT families. The grantees with LGBT families because they are limited to specifically anti-LGBT language, strong married couples and/or couples with links to anti-LGBT organizations or biological children. abstinence programs, or e-mail responses that were not necessarily inclusive were There are some programs that welcome spread among states of many different LGBT families. The results of my e-mail types, though they were more likely to be survey indicate that at least some percent- in low equality states. At the same time, I age of the grantees are open to serving found examples of grantees in high LGBT families within the constraints of equality states that included LGBT-hostile federal law. This is consistent with language and grantees in low equality conversations I had for this project and states that reported that they welcomed with written Senate testimony by the LGBT families. Alternatives to Marriage Project men- tioned earlier. Still, an LGBT parent or The importance of organizational values couple looking at the Web sites of most of is reiterated because all organizations that the grantees, which is how many people had LGBT-positive language on their Web seek out services, would find very little to sites or specifically reported openness to indicate that the programs are LGBT- serving LGBT families were public friendly and in a significant number of organizations or secular nonprofits. Many cases would find language or organiza- of the organizations with anti-LGBT tional affiliations that would probably language were organizations of the same discourage them from attending the type, but it is notable that none of the program. religious organizations that received funds had LGBT-positive language on The survey results suggest that the their Web sites or substantively replied to inclusivity of a program may have more the survey. This does not mean that no to do with the attitudes of the grantee religious organizations will provide

t An LGBT parent or couple looking at the Web sites of most of the grantees . . . would find very little to indicate that the programs are LGBT-friendly and in a signifi- cant number of cases would find language or organiza- tional affiliations that would probably discourage them from attending the program.

92 absence and uncertainty services to LGBT families, but given fatherhood grants should be available to current high-profile examples of organi- all families. Indeed, there is precedent for zations using “religious liberty” claims in this type of regulation within the Obama an attempt to avoid providing publicly administration’s HHS, as detailed funded social services to LGBT people elsewhere in this volume of the LGBTQ (Goodstein 2011), it is worth noting the Policy Journal (Pangilinan 2012). concern. Insofar as this is possible within federal So potential trends indicate, if they hold law, future RFPs should include specific for all fifty-nine grantees, that secular requirements or credits for working with organizations in high equality states, all LGBT families, as the most recent RFP else being equal, are more likely to offer did for several populations likely to be LGBT-inclusive services. At the same disadvantaged. Since organizations’ own time, given that the federal rules are the attitudes appear to matter a great deal for same for all grantees, it seems likely that it their LGBT-inclusiveness, federal grant is the grantees’ own attitudes and values makers should consider these attitudes that primarily influence their actions when making funding decisions. Naomi toward LGBT families. Goldberg noted that it would be fascinat- ing to see what happened if an LGBT Next Steps community organization or counseling Multiple people interviewed for this service was a partner on a future healthy project felt that to truly determine how relationship grant application (Goldberg these programs treat LGBT families, a 2011). There are LGBT healthy relation- large nationwide survey of federal ship–focused groups, such as the Gay grantees, including qualitative and Couples Institute, as well as a well-estab- quantitative data, is needed (Goldberg lished network of LGBT community 2011; Stanley 2011). The evaluation of the centers and advocates across the country. Building Strong Families program and Theodora Ooms (2011) noted that it other healthy marriage initiatives has remains unclear whether LGBT families taken years, but a similar evaluation of would be best served by relationship these programs’ attitudes toward LGBT education classes with straight families or families would be welcome. It would need specifically LGBT-tailored ones, therefore to involve phone interviews and in-per- an LGBT-focused grantee might offer son visits to programs, as well as poten- additional opportunities to develop and tially testing to see how program staffers test the best methods of relationship treat LGBT families. This type of evalua- education for LGBT families. A recent tion would be a valuable project for LGBT pilot study suggested that relationship rights organizations, social policy research programs designed specifically for centers, government agencies, or some same-sex couples, free of heterosexist combination of these. imagery, could have strong benefits for those couples (Whitton and Buzzella At the same time, there are things that can 2011). As long as the federal government be done now. The federal government can continues to support healthy relation- make clear that except for services that ship–type activities, submitting LGBT specifically relate to “marriage” or family-focused applications is an idea “married couples,” all relationship worth considering; at the very least, it support services in the marriage and

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would be provocative and challenge many Coburn, Tom. 2011. Back in black: A deficit of the assumptions within the broader reduction plan. Plan from Tom Coburn, U.S. healthy marriage movement. Senator from Oklahoma. Coontz, Stephanie, and Nancy Folbre. 2002. In the long term, repeal of DOMA and Marriage, poverty, and public policy. other discriminatory laws is essential in Discussion paper from the Council on order for the LGBT community to have Contemporary Families. Prepared for the Fifth equal rights and opportunities. Since Annual CCF Conference, 26-28 April. LGBT families are a growing part of U.S. Cowan, Philip, and Carolyn Cowan. 2009. families, future versions of TANF and When is the relationship between facts a causal other family-oriented federal programs one? Council on Contemporary Families, should recognize that LGBT families are a August. part of society. The Obama administra- Goldberg, Naomi. 2011. Telephone communi- tion’s initial proposal to create a broader cation with author. healthy relationship/parenting support Goodstein, Laurie. 2011. Bishops say rules on fund less specifically linked to “healthy gay parents limit freedom of religion. New marriage” is an idea worth reconsidering. York Times, 28 December. Because of institutional and social McGonnigal, Jamie. 2010. Federally-funded discrimination, LGBT parents and their website provides help for (straight) couples. children are more likely to be economi- Talk About Equality blog, 27 December. cally disadvantaged than Americans at McLanahan, Sara. 1999. Father absence and large. Federal programs should be the welfare of children. Working paper. supporting these families and not actively Network on the Family and the Economy. embracing policies that will make them Movement Advancement Project, Family even more fragile. Equality Council, and Center for American Progress. 2011. All children matter: How legal References and social inequalities hurt LGBT families. 104th Congress. 1996. Public Law 104-193. Report, October. Personal Responsibility and Work National Healthy Marriage Resource Center. Opportunity Reconciliation Act of 1996. 2009. Administration for Children and Alternatives to Marriage Project. 2010. Written Families Healthy Marriage Initiative, 2002- statement in response to the hearing titled 2009: An introductory guide. U.S. Department Welfare Reform: A New Conversation on of Health & Human Services. Women and Poverty, September 21, 2010, Nock, Steven L. 2005. Marriage as a public submitted to the Senate Committee on issue. Marriage and Child Wellbeing 15(2): Finance. Alternatives to Marriage Project, 29 13-32. September. Ooms, Theodora. 2011. E-mail communica- Biblarz, Timothy J., and Judith Stacey. 2010. tion with author. How does the gender of parents matter? Pangilinan, Christian. 2012. Addressing LGBT Journal of Marriage and Family 72(1): 3-22. poverty through regulatory change in the Boggess, Jacquelyn. 2010. The president’s Obama administration. LGBTQ Policy Journal Fatherhood, Marriage, and Family Innovation at the Harvard Kennedy School of Fund. Madison, WI: Center for Family Policy Government 2. and Practice, 7 June. Petrelis, Michael. 2011. Can gays attend $12M Bradley, Katherine, and Robert Rector. 2010. fed-funded CA marriage classes? Petrelis Files How President Obama’s budget will demolish blog, 15 May. welfare reform. Heritage Foundation, 25 Polikoff, Nancy D. 2008. Beyond (straight and February. gay) marriage. Boston: Beacon Press. 94 absence and uncertainty

Rector, Robert, and Melissa Pardue. 2004. research on transgender parents, and given the Understanding the president’s healthy high level of transphobia in our society, this is marriage initiative. Heritage Foundation, 26 a pressing area for future work to address. March. While my focus is more on same-sex couples, Stanley, Scott. 2011. E-mail communication the issues of inclusion and acceptance in with author. federally funded social service programs are applicable to all LGBT people. U.S. Department of Health & Human Services. 2 2004. Will same-sex couples be eligible for For example, the National Fatherhood healthy marriage initiative services? U.S. Initiative notes on its Web site that “Fathers Department of Health & Human Services, make unique and irreplaceable contributions Administration for Children & Families. ACF to the lives of children.” One wonders about Questions and Answers Support, 18 March. the initiative’s views of children being raised by, for instance, a lesbian couple. ———. 2011a. Community-centered healthy 3 marriage and relationship grants funding See Movement Advancement Project et al. opportunity announcement. U.S. Department 2011 for more detail. This point is complicated of Health & Human Services, Administration because for certain federal tax breaks and for Children & Families. antipoverty programs, it may actually be advantageous for a couple not to claim ———. 2011b. Pathways to responsible married status since they may be eligible as fatherhood grants funding opportunity individuals but their combined income may announcement. U.S. Department of Health & be too high for the program. In addition, for Human Services, Administration for Children straight married couples, filing together can & Families. sometimes present economic disadvantages, Waldfogel, Jane, Terry-Ann Craigie, and while in other cases, the reverse is true; Jeanne Brooks-Gunn. 2010. Fragile families straight married couples, however, have a and child wellbeing. Fragile Families 20(2): choice about whether to file federal taxes 87-112. jointly, while same-sex couples, even if legally Wetzstein, Cheryl. 2010. The family funds married in their home state, do not. This is a breakup. Washington Times, 12 March. complex point well-explained by the Whitton, Sarah, and Brian Buzzella. 2011. Movement Advancement Project et al. (2011) Relationship education with same-sex couples. report, but the end result is that families with National Council on Family Relations Report same-sex couple parents are generally faced 56.4, Winter. with a substantial financial disadvantage when compared with similar families with hetero- Williams Institute. 2011. United States Census sexual couple parents. snapshot 2010. Williams Institute, September. 4 Throughout this section, I use the Movement Wood, Robert G. et al. 2010. Strengthening Advancement Project’s designation of states as unmarried parents’ relationships: The early high, medium, or low equality. These impacts of Building Strong Families. designations represent a summary of the state Princeton, NJ: Mathematica Policy Research. of LGBT legal equality in each state’s laws, though the Movement Advancement Project Endnotes notes that these designations do not take into 1 Throughout this article, I refer to “LGBT account how well such laws are enforced or families” or “LGBT parents.” Because of the implemented. See the organization’s Web site limited research that is available on this topic, for a complete map of the states by equality and because the healthy marriage programs designation and description of methodology have a heavy emphasis on couples, most of my (www. focus will be on same-sex couples raising lgbtmap. children. There is, however, a wide need for org/equality-maps/legal_equality_by_state).

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Author Biographies

Kellan Baker is a health policy analyst with the Center for American Progress (CAP) in Washington, DC, where he works with the federal government and other stakeholders on a broad range of LGBT health issues. Prior to joining CAP, Baker was the senior policy associate at the National Coalition for LGBT Health, the nation’s leading LGBT community voice in federal health policy. Baker is an affiliated faculty member for LGBT health policy at the Center for Population Research in LGBT Health at the Fenway Institute, and he has been a consultant on LGBT health with the Sexual Health and Rights Project at the Open Society Foundation, the Joint Commission, and the Sexual Rights Initiative. Baker holds a master of public health in health policy and a master of arts in international development from George Washington University, where he was elected to the Delta Omega Public Health Honors Society.

Crosby Burns is a research assistant for the LGBT Research and Communications Project at the Center for American Progress (CAP) in Washington, DC. Burns has led CAP’s efforts to combat discrimi- nation based on sexual orientation and gender identity by advocat- ing for laws and policies that extend legal workplace protections to the gay and transgender workforce. While at CAP, Burns docu- mented discrepancies in the higher education financial aid system that impact gay and transgender applicants for financial aid as well as applicants with same-sex parents. Burns also monitored the Don’t Ask, Don’t Tell repeal process to ensure a swift and efficient implementation of repeal. Burns holds a BA in political science and psychology from the University of California, Berkeley. His work has been covered in the New York Times, the Hill, the Chronicle of Higher Education, and Inside Higher Education and in late 2012 will be published in the Journal of Homosexuality.

Meghan Davidson Ladly completed her bachelor of arts degree in political science at the University of Toronto and her master’s degree in journalism at Ryerson University. Her work has appeared in the Toronto Star, This Magazine, and the Financial Times, among other publications. She enjoys writing about global politics and literature.

lgbtq policy journal at the harvard kennedy school | volume 2 | 2010–2011 97 biographies

Jaime Grant is the founding Executive Director of Kalamazoo College’s Arcus Center for Social Justice Leadership. She has worked for more than twenty years with a variety of national and interna- tional organizations focused on social justice and human rights for women, youth, and the LGBT community, as well as survivors of sexual and domestic assault, and people with mental illness. For three years, Grant served as director of the Policy Institute at the National Gay and Lesbian Task Force, the nation’s premiere LGBT think tank located in Washington, DC. She holds a bachelor’s degree in economics and government from Wesleyan University, a master’s degree in women’s studies from Bucknell University, and a PhD in women’s studies from The Union Institute, where she served as director of its Women’s Center from 1993 to 2000.

Jack Harrison is an activist and researcher currently serving as a policy analyst in the Policy Institute of the National Gay and Lesbian Task Force. In 2011, he was one of the authors of the groundbreaking publication, “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey.” He is also a contributing author of “Outing Age 2010: Policy Issues Affecting Lesbian, Gay, Bisexual, and Transgender Elders.” His other interests include audio culture, racial and economic justice, and sexual liberation.

Patrick Hart is a 2012 master in public policy candidate at the John F. Kennedy School of Government at Harvard University, concentrating in social and urban policy. He previously worked in the Massachusetts Department of Housing and Community Development and was active on several political campaigns. A native of Massachusetts and graduate of Swarthmore College, Hart’s academic interests include social welfare policy, workforce development, family policy, economic justice, and LGBT equality.

Jody L. Herman holds a PhD in public policy and public administra- tion from George Washington University, where she also earned her MA in public policy. She currently serves as the Peter J. Cooper Public Policy Fellow at the Williams Institute at the UCLA School of Law. Before joining the Williams Institute, she worked as a research consultant on issues of voting rights in low-income minority communities and gender identity discrimination. She served as a coauthor on the groundbreaking report “Injustice at Every Turn,” based on the National Transgender Discrimination Survey con- ducted by the National Gay and Lesbian Task Force and the National Center for Transgender Equality. Her main research interests focus on the impact of gender identity–based discrimination and issues related to gender regulation in the built environment.

98 biographies

Jody L. Herman holds a PhD in public policy and public administra- tion from George Washington University, where she also earned her MA in public policy. Her doctoral dissertation, on which this article is based, focused on the development of antidiscrimination protec- tions in gendered public facilities for transgender and gender nonconforming people. She has worked on issues of poverty, women’s rights, and antidiscrimination policy development with nonprofit research, advocacy, and direct-service organizations in the United States and Mexico. She currently serves as the Peter J. Cooper Public Policy Fellow at the Williams Institute at the UCLA School of Law. Before joining the Williams Institute, she worked as a research consultant on issues of voting rights in low-income minority communities and gender identity discrimination. She served as a coauthor on the groundbreaking report “Injustice at Every Turn,” based on the National Transgender Discrimination Survey con- ducted by the National Gay and Lesbian Task Force and the National Center for Transgender Equality. At the Williams Institute, her work has included research on the fiscal and economic impact of marriage for same-sex couples, the fiscal impact of employment discrimination against people who are transgender, and the development of trans-inclusive questions for population-based surveys. Her main research interests focus on the impact of gender identity–based discrimination and issues related to gender regulation in the built environment.

Shannon Price Minter is the legal director of the National Center for Lesbian Rights, one of the nation’s leading advocacy organizations for lesbian, gay, bisexual, and transgender people. He is the coeditor of Transgender Rights and coauthor of Lesbian, Gay, Bisexual and Transgender Family Law. Minter previously served on the American Bar Association Commission on Sexual Orientation and Gender Identity and currently serves on the boards of Gender Spectrum, Faith in America, and the Transgender Law and Policy Institute. He received a JD from Cornell Law School and has taught at Boalt, Stanford, Golden Gate, San Francisco University, and Santa Clara law schools.

lgbtq policy journal at the harvard kennedy school | volume 2 | 2010–2011 99 biographies

Christian Pangilinan is the Georgetown Fellow at Asylum Access Tanzania. He was previously a Dean’s Fellow at Georgetown University Law Center in Washington, DC, where he received his JD in 2011 and where he was Managing Editor of the Annual Review of Gender and Sexuality Law.

H. Tucker Rosebrock is a twenty-three-year-old transman living and working in Boston. He attended Wellesley College and now works in the publishing industry. He plans to continue his education and get a master of fine arts in comics and sequential art.

Kristina Wertz is the Transgender Law Center’s director of policy programs. Wertz oversees many of the organization’s public policy advocacy programs, including its health care access, economic empowerment, leadership development, and student safety programs. Wertz previously served as the Transgender Law Center’s legal director and was the lead attorney on a number of ground- breaking transgender civil rights cases. Prior to her work at the Transgender Law Center, Wertz practiced as a litigator focusing on employment discrimination and housing rights for a diverse clientele. Wertz has a BA from New York University and a JD from Brooklyn Law School.

Matthew Wood is a staff attorney at the Transgender Law Center where his work focuses on health, education, and employment law. Prior to joining the Transgender Law Center, Wood was an associate at a small civil litigation firm in San Francisco that served the LGBT community, and he worked in development for the International Gay & Lesbian Human Rights Commission. Wood received his JD from Golden Gate University School of Law and holds a BA from Tufts University, an MA from the College of William and Mary, and a PhD from the University of Minnesota in American studies. Wood is a former board member of Bay Area Lawyers for Individual Freedom, the GLBT Historical Society, the San Francisco Human Rights Commission LGBT Advisory Committee, and the California State Bar Committee on Sexual Orientation and Gender Identity Discrimination. He is currently a member of the Human Rights Commission’s San Francisco Coalition Against Hate Violence.

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