GLAD Announces New Board Officers

GLBTQ Legal Advocates & Defenders (GLAD) will kick off 2017 with new leadership on its Board of Directors. At its December meeting the board voted in Richard J. Yurko as the new President, Joyce Kauffman as the Vice President, Darian Butcher as the Clerk, and David Hayter as the Treasurer. Yurko replaces Dianne Phillips, who served as board president for the past five years, and who will remain on the board.

Yurko, who previously served as Vice President, has been on GLAD’s board since 2009. He is the founder and former Managing Shareholder of Yurko, Salvesen & Remz, P.C., a business litigation boutique based in Boston. A graduate of Dartmouth College, he received his J.D. from Harvard Law School, where he was Senior Projects Editor for the Harvard Civil Rights-Civil Liberties Law Review. Yurko frequently writes and advocates on First Amendment issues. He lives in Brookline, Massachusetts with his partner.

“I’m honored and humbled to become board president at this critical time for our community and for GLAD,” said Yurko. “The priorities laid out by our new strategic plan – racial and economic justice, state level public policy, and access to justice – are particularly apt. Our work is more critical than ever before. Reaching all in our community and joining forces with other progressive movements is essential to defending our rights and making still further advances towards equality.”

Joyce Kauffman is a graduate of Northeastern University School of Law. She is a founding member of the National Family Law Advisory Council, a member of the Family Equality Emeritus Board, and a frequent speaker and writer on LGBTQ family law. Kauffman has received numerous awards, including Massachusetts Lawyers Weekly’s “Lawyer of the Year” in 2009, the Gwen Bloomingdale Pioneer Spirit Award, and the Fisher Davenport Award. Her firm, Kauffman Law & Mediation, focuses in the areas of adoption, assisted reproductive technology, and mediation. Kauffman has been on GLAD’s board since 2012.

Darian M. Butcher is an Associate at Day Pitney LLP. She represents mortgage companies, loan servicers, and other financial institutions in the defense of claims by borrowers. She also represents individual and corporate clients in probate controversies. Butcher earned her J.D. from Boston University School of Law and clerked for Massachusetts Appeals Court Justice Malcolm Graham (ret). She has been on GLAD’s board since 2014.

David Hayter has held executive and finance positions at Liberty Mutual, Hospitals of Ontario Pension Plan, and Manulife/John Hancock. At Liberty Mutual, he was the founding co-executive sponsor of the company’s first LGBT Employee Resource Group. He holds an MBA from Wilfrid Laurier University in Canada, and brings to GLAD knowledge and experience in investments, accounting, and finance. Hayter has served on the boards of Wave Accounting, Community Servings, St. John’s Hospital Foundation, and the Wilfrid Laurier University Board of Governors.

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GLAD Publishes Toolkit to Assist Transgender People Making Changes

Last week, Connecticut Governor Dannel Malloy signed into law a bill that updates the state’s birth certificate procedures, enabling transgender people to change their birth certificates to the appropriate gender without having to undergo invasive and sometimes unnecessary surgical requirements.

“This is a critically important advance for Connecticut’s transgender citizens,” said Jennifer Levi, Director of the Transgender Rights Project for Gay & Lesbian Advocates & Defenders (GLAD). “When transgender people cannot obtain identity documents that match their gender identity, they become vulnerable to discrimination, harassment, and violence.”

GLAD has published a toolkit to assist transgender people who wish to change the gender marker on their Connecticut birth certificate. The toolkit is available at https://www.gladlaw.org/rights/toolkit/connecticut-birth-certificate-tool-kit

The new law eliminates a Department of Health requirement that people show proof of surgery before changing the gender marker on their birth certificate. This burdensome condition denied recognition to numerous people including those who did not have medical need of or could not afford such a procedure.

The new process allows an appropriate range of healthcare professionals to provide letters in support of the request to correct a person’s birth certificate.. The criteria for correction is “surgical, hormonal, or other treatment appropriate to the individual for the purpose of gender transition.”

H.B. No. 7006 passed the Senate by a vote of 32-3 and the House by a vote of 126-18.

GLAD worked on the legislation in a coalition with the ACLU of Connecticut, Planned Parenthood of Southern New England, True Colors, Connecticut TransAdvocacy Coalition, Connecticut Women’s Education and Legal Fund, and others.

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Earlier this week the Connecticut Department of Social Services updated state regulations to require Medicaid to cover treatment for Gender Dysphoria.

Transgender Rights Project Director Jennifer Levi, who led GLAD’s work with state allies to advocate for the new regulations, applauded the update:

“This change affirms the overwhelming medical consensus that gender reassignment surgery and other related procedures are essential health care services, and will ensure more transgender people in Connecticut will have access to necessary care.”

Connecticut joins Massachusetts, California, New York, Oregon, Vermont, and Washington D.C. in removing barriers to Medicaid coverage for treatment related to Gender Dysphoria. Last year, the federal Medicare program also removed a categorical exclusion of gender reassignment surgery from its coverage, following advocacy by GLAD, the American Civil Liberties Union, and the National Center for Lesbian Rights.

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Gay & Lesbian Advocates & Defenders (GLAD) has filed a lawsuit against Pittsburgh-based Bayer Corporation on behalf of Gerald Passaro of Milford, Connecticut, whose late husband, Thomas Buckholz, was a chemist with the company for more than 20 years. Bayer has denied Passaro spousal survivor benefits to which he is entitled, based upon the vested service of his husband.

In 2009, when Jerry originally requested that Bayer provide him benefits as Tom’s surviving spouse, Bayer cited the federal Defense of Marriage Act (DOMA) as the only reason it would not provide him with benefits. Jerry became one of 13 plaintiffs in the lawsuit Pedersen v. Office of Personnel Management, which was filed in 2010 to challenge DOMA and in which the federal district court in Connecticut ruled in the plaintiffs’ favor in 2012.

In June 2013, the Supreme Court of the United States found DOMA unconstitutional in deciding the case Windsor v. U.S.; and the Pedersen victory was confirmed as well.

With DOMA wiped from the statute books as if it never existed, Jerry asked again for his spousal pension benefits. Bayer again said no. “Despite the fact that DOMA has been found unconstitutional, Bayer continues to deny benefits to Jerry even though its pension plan provides benefits to all surviving spouses and even though federal law (ERISA) mandates pension benefits for surviving spouses under plans like Bayer’s,” said Gary Buseck, Interim Executive Director of GLAD, who is representing Passaro. “Bayer has turned a deaf ear to its legal and moral obligation to the widower of a dedicated employee, who is in need of this basic support that his husband earned.”

Thomas Buckholz and Jerry Passaro were married on November 26, 2008, in their home, when Tom was already seriously ill with lymphoma. They had been together for 13 years. Tom died two months after the wedding. Prior to his death, he believed he had received assurances that Jerry would be the beneficiary of his pension. But Bayer has refused to acknowledge any obligation to this day.

GLAD filed a civil action on Jerry’s behalf in the U.S. District Court for the District of Connecticut on May 12, 2014. The complaint can be read here on GLAD’s website.

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Woman standing on a balcony — Rikki Bates

Gender transition-related medical care is necessary medical care for many transgender people, but getting that care paid for can be a huge barrier. Private and public insurers have traditionally simply excluded gender transition-related procedures from their coverage based on the unfounded assumption that treatment is experimental, elective, or cosmetic. Transgender people are disproportionately represented in prison, and they, too, have limited and, most often, no access to care.

GLAD is working across a range of contexts to guarantee access to medically necessary care for all transgender people, whatever their situation in life. Each victory lays the groundwork for the next, because each time we establish the reality and legitimacy of transgender people’s medical needs, we make it easier for others to make the case.

GLAD worked with the Massachusetts Department of Corrections (DOC) to encourage DOC’s creation of an ombudsperson position to individually evaluate and develop medical treatment plans for transgender people in the prison system. We are regularly in contact with several inmates who are challenging denials of health care. We expect to regularly meet with the ombudsperson to continue to advocate for those inmates who are in touch with us.
GLAD is in the initial stages of bringing a case on behalf of a Massachusetts state employee denied surgical coverage by the Group Insurance Commission plan.
GLAD represents Rikki Bates (pictured above) in a challenge to MassHealth’s denial of coverage for gender transition-related surgery; GLAD had previously helped her successfully challenge MassHealth’s denial of her coverage for hormone therapy.
GLAD worked with the Massachusetts Department of Youth Services and other advocates to revise state policy to include gender transition-related care for youth in juvenile justice settings. GLAD is working in Rhode Island to ensure this same result across both child welfare and juvenile justice settings.
In Connecticut, GLAD advocated on behalf of a transgender state employee who was initially denied coverage for his gender transition-related surgery because of a categorical exclusion in the state insurance plan. GLAD worked with his union representative to secure a resolution from the union eliminating the insurance exclusion for all state employees.
By working with state insurance commissions, GLAD has expanded access to private insurance coverage in Vermont and Connecticut, where state insurance commissions issued bulletins to insurers advising that they could not exclude coverage for gender transition-related care. In Vermont, this bulletin was followed by a revision of the state-sponsored insurance plans to remove exclusions in those plans.
GLAD is working with insurance commissions throughout the rest of the New England states to secure bulletins clarifying the impermissibility of exclusionary plans.
GLAD represents Michelle Kosilek in the appeal by the Massachusetts Department of Corrections of the federal district court’s order that she receive gender-transition surgery.
GLAD worked with the National Center for Lesbian Rights and the ACLU to successfully challenge Medicare’s exclusion of gender transition-related surgeries. A final ruling issued May 30 by the U.S. Department of Health and Human Services Department Appeals Board removes the threshold barrier to coverage for care for transgender people under Medicare.
GLAD represented Vanessa Adams, an incarcerated transgender woman, in a challenge to the federal Bureau of Prison’s (BOP) exclusion of medical treatment for persons who come into BOP without a treatment plan. That case lead to a settlement in which BOP agreed to provide our client with treatment and also revised federal policy to eliminate its “freeze frame” policy.
GLAD successfully challenged the IRS’s denial of a taxpayer’s medical deduction for gender transition related care in O’Donnabhain v. IRS. Now all transgender taxpayers can deduct their medically necessary transition-related expenses.
In Beger v. DMA, GLAD secured a Superior Court order ruling that the Division of Medical Assistance had to cover breast reconstruction surgery for a transgender woman, needed as the result of defective breast implants.

Passaro v. Bayer

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Update, September 2014: Through proactive discussions and careful deliberation amongst our legal representatives, we have jointly reached an agreement, the terms of which are confidential, that results in the spousal survivor benefit requested. We are pleased that Jerry is going to be receiving these benefits, and we are equally pleased with the manner in which Bayer has addressed and resolved this legal issue.

Case History

In re Jane Doe

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GLAD submitted an amicus brief along with the ACLU in a case in which the state sought to transfer a transgender girl from a youth juvenile justice facility to a men’s adult prison.

The brief set forth two arguments. First, that a transgender girl should be in a girl’s facility. Second, that transferring her to a an adult prison would undermine the rehabilitative goals the state must strive to meet.

The brief includes research showing that as a transgender youth, she is particularly vulnerable to abuse and violence and therefore should not be transferred.

Considine v. Brookdale Senior Living

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GLAD represented Kerry Considine in a discrimination suit against her employer, Brookdale Senior Living, after Brookdale denied her the right to put her wife, Renee, onto her employer-provided health plan. Kerry’s claim charged that Brookdale discriminated against her on the basis of her sex, in violation of Title VII of the federal Civil Rights Act of 1964, the Equal Pay Act and the Connecticut Fair Employment Practices Act.

Kerry filed her claim with the federal Equal Employment Opportunity Commission (EEOC) and shortly thereafter Brookdale changed its policy and decided to extend health insurance benefits to both same-sex and different-sex spouses. Subsequently, the EEOC made an initial determination that there was “reasonable cause to believe that the Respondent [Brookdale] has discriminated against the Charging Party [Kerry] on account of her sex.” Kerry then received a right-to-sue letter from the EEOC.

Following the filing of our complaint in the federal district court in Connecticut, it came to light that Kerry had, as a condition of her employment, signed a mandatory arbitration agreement. Brookdale moved to compel our case to arbitration, and the US District Court judge agreed, ruling that an arbitrator had to determine whether Kerry’s claims were subject to arbitration.

In arbitration, Kerry argued that her claims for declaratory and injunctive relief should not be in arbitration and should return to federal court based upon an express exclusion in the arbitration agreement. Brookdale asserted that, at best, the agreement was ambiguous and, therefore, must be interpreted to favor arbitration. On the merits, Brookdale also argued that Kerry had no current claim because she was now receiving the benefits that previously were denied. The arbitrator has now ruled that Kerry’s claim is subject to arbitration, and that Kerry’s claim on the merits should be dismissed in arbitration because it was not ripe (meaning essentially that she has no current, live controversy with Brookdale because she is receiving the benefits).

We do not believe the arbitrator’s ruling is correct on any point, but the arbitrator’s ruling is final and cannot be appealed.

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Today, Gay & Lesbian Advocates & Defenders praised the Connecticut Insurance Department for issuing a bulletin directing all health insurers operating in the state to pay for treatment related to a patient’s gender transition. The bulletin is a significant step toward increasing access to critical health care for transgender residents of Connecticut, who have long been arbitrarily denied coverage for medical treatments related to gender transition.

The bulletin, which was issued Dec. 19, directs entities licensed by the Department of Insurance and writing individual and group health insurance policies to “ensure that there is no discrimination against insured individuals with gender dysphoria and ensure that individuals are not denied access to medically necessary care because of the individual’s gender identity or expression.”

Gender dysphoria is defined as a “condition in which an individual is intensely uncomfortable with their biological gender and strongly identifies with, and wants to be, the opposite gender.”

“We applaud the Connecticut Insurance Department for this significant step to ensure that transgender people have access to life-saving, medically necessary care,” said Staff Attorney Zack Paakkonen. “First, it brings Connecticut health insurers into alignment with state and federal law prohibiting discrimination against transgender people in the health care setting. Second, the bulletin comports with the position of all of the major medical and psychological associations, which is that gender dysphoria is a legitimate medical condition with a prescribed course of effective, medically necessary treatment that should be determined by an individual’s doctor rather than an insurance company.”

Connecticut enacted a law in 2011 that prohibits discrimination against transgender people in employment, public accommodations, housing, credit, public schools, state contracts and numerous other areas. The Department of Insurance interpreted the legislative intent of the law to extend to health insurance practices as well. The federal Affordable Care Act also prohibits insurers from adopting benefit designs that discriminate against transgender people or on the basis of a specific health condition.

Insurance regulators in California, Colorado, Oregon, Vermont, and the District of Columbia have issued similar bulletins instructing insurers in their respective jurisdictions to cover treatment for transgender patients equitably. Efforts are underway to have other New England states issue similar bulletins.

Read the full bulletin from the Connecticut Insurance Department here.