Manning v. OPM

In June 2021, GLAD, with co-counsel Attorney Kevin Barry, authored an amicus brief to the Equal Employment Opportunity Commission in a case involving a transgender federal employee who was denied coverage for a chest reconstruction procedure under a Federal Employee Health Benefits Plan. The FEHB plan, administered by Aetna, has a categorical exclusion for the procedure, despite it being a component of medically-necessary gender transition.

The brief was filed to provide information to the Commission regarding the medical need for gender transition-related health care and the harm that bans on coverage for such care wreaks on transgender people’s lives. As the brief states:

People with gender dysphoria continue to be subjected to pernicious discrimination in access to vital healthcare. Many insurance and employer-sponsored health benefit plans, including Federal Employee Health Benefits Programs, continue to deny coverage for medically necessary and recognized treatments, most notably facial feminization surgeries, chest reconstruction, breast augmentation, and other treatments that bring the body into congruence with a person’s affirmed gender to eliminate gender dysphoria. The categorical exclusion of these procedures as per se cosmetic, and therefore never medically necessary, is wholly out-of-step with authoritative medical standards of care and the significant and well-designed body of research establishing their efficacy in alleviating or eliminating gender dysphoria.

The brief was submitted with the National Center for LGBTQ Rights, the National Center for Transgender Equality, and the National LGBTQ Task Force.

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On June 17, 2021, the U.S. Supreme Court issued a ruling in Fulton v. City of Philadelphia.

What does the ruling mean for the LGBTQ community?

At a June 21 briefing, GLAD Executive Director Janson Wu spoke with Gary Buseck, Senior Legal Advisor, about the case, the ruling, and its impact.

Recorded on June 21, 2021.

The Supreme Court issued a narrow and limited ruling Catholic Social Services (CSS) that focuses on specific contractual language. The ruling leaves intact the broader principle that governments can require contractors, including religious agencies, to comply with nondiscrimination laws – including those that protect same-sex married couples – when providing taxpayer-funded social services. While the Court found Philadelphia’s contract with CSS to be unenforceable, it did so because the contract allowed individual discretionary exemptions on a case-by-base basis but would not consider CSS’s claim. The case stemmed from a claim by Catholic Social Services that it should have been allowed to decline to work with same-sex couples when providing foster care placement services under contract with the City of Philadelphia. Read GLAD’s full statement.

Learn more about Fulton v. City of Philadelphia.

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Narrow Supreme Court Ruling for Catholic Social Services in Philadelphia Leaves Fundamental Principles of Fairness and Nondiscrimination Intact

June 17, 2021 (WASHINGTON, D.C.) – The Supreme Court today issued a narrow and limited ruling for Catholic Social Services in Fulton v. City of Philadelphia that focuses on specific contractual language. The ruling leaves intact the broader principle that governments can require contractors, including religious agencies, to comply with nondiscrimination laws – including those that protect same-sex married couples – when providing taxpayer-funded social services. While the Court found Philadelphia’s contract with CSS to be unenforceable, it did so because the contract allowed individual discretionary exemptions on a case-by-base basis but would not consider CSS’s claim. The case stemmed from a claim by Catholic Social Services that it should have been allowed to decline to work with same-sex couples when providing foster care placement services under contract with the City of Philadelphia.

Mary L. Bonauto, GLAD Civil Rights Project Director, issued the following statement in response to the ruling:

“While the Court found in favor of Catholic Social Services on an unusual feature of Philadelphia’s contract for services, today’s decision is narrow, and does not create a broad free exercise exemption from nondiscrimination laws. Our nondiscrimination laws are in place to ensure equal protection and access for everyone, including in vital taxpayer-funded social services like foster care, homeless shelters and food pantries. As the Court said, this is a “weighty interest,” including with regard to protections for LGBTQ people. Here the Court found only that Philadelphia’s “inclusion of a formal system of entirely discretionary exceptions” made the contract’s nondiscrimination provision unenforceable as to CSS. CSS’s desire to deny screening to same-sex couples is a disheartening reminder of the discrimination LGBTQ adults and young people still face even within a system charged with protecting vulnerable youth and families. We are encouraged by the many faith-based social services agencies who would rather serve everyone than exclude some. Congress also has an opportunity to act on this shared value and the wishes of the overwhelming majority of Americans, by passing the Equality Act to ensure clear and explicit protections from discrimination for LGBTQ people in vital social services and every area of life.”

LEARN MORE ABOUT THE CASE

TAKE ACTION FOR THE EQUALITY ACT

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The U.S. Department of Education today issued a statement clarifying that Title IX’s prohibition against discrimination in education on the basis of sex includes discrimination based on sexual orientation or gender identity.

“In a year in which LGBTQ young people, and particularly transgender youth, have been targeted, today’s statement from the Department of Education is a welcome affirmation that LGBTQ students are protected from discrimination in schools the same as any other student,” said Janson Wu, GLAD Executive Director. “As referenced in today’s notice of interpretation of Title IX multiple courts and federal agencies, including the U.S. Supreme Court and DOE’s Office of Civil Rights, have understood that discrimination because someone is transgender, lesbian, gay, bisexual or queer is by definition discrimination because of that person’s sex. Today’s announcement provides clarity for schools regarding the Department’s interpretation of Title IX and says to LGBTQ young people that they have a right to participate in school on equal terms with their peers and without discrimination or harassment.”

The Department’s notice of interpretation on enforcement of Title IX refers to the 2020 U.S. Supreme Court decision in Bostock v. Clayton County which concluded that discrimination on the basis of gender identity or sexual orientation is necessarily discrimination on the basis of sex. Title IX prohibits discrimination on the basis of sex in any educational program or activity by schools that receive federal funding.

Rios v. Redding

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On June 6, 2021, GLAD joined an amicus (friend of the court) brief in support of Divinity Rios in Rios v. Redding. The brief was signed by Lambda Legal, Dee Farmer, Black & Pink National, Center for Constitutional Rights, Just Detention Center, Muslim Alliance for Sexual and Gender Diversity, National Center for LGBTQ Rights, National Center for Transgender Equality, Transgender Law Center, Transgender Legal Defense and Education Fund.

Incarcerated LGBTQ+ people face not only a generally heightened risk of violence and harm but also a disproportionate risk of sexual violence. Prison officials have a constitutional obligation to protect people they incarcerate from sexual violence. As the brief explains, for incarcerated women like Divinity Rios, when the court fails to consider their constitutional rights as defined by Farmer, the courthouse doors are effectively closed to them, and prison officials are allowed to escape liability. This creates an intolerable risk of harm to LGBTQ+ people.

Read the brief.

State Department Updates Policy for LGBTQ Families

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U.S. State Department Updates Policy on Citizenship Transmission to Reflect Contemporary Family Formation

On Tuesday, the U.S. State Department announced a significant change in official policy regarding citizenship of children born through assisted reproduction. The new policy is to recognize the citizenship of children born abroad to married parents where at least one parent is a U.S. citizen and the child has a genetic or gestational tie to either parent. This updated application of citizenship transmission recognizes contemporary family formation, including families formed through assisted reproductive technology, and respects the ability of same-sex married parents to pass on citizenship to their children on equal terms with different-sex parents.

GLAD Senior Staff Attorney Polly Crozier, a leading advocate for equal recognition of legal parentage for children of LGBTQ+ families, issued the following statement:

“GLAD welcomes this announcement from the State Department that recognizes and respects the realities of contemporary families and ensures equal treatment to children born to LGBTQ married parents with respect to citizenship. It conforms to clear constitutional requirements as affirmed in multiple Supreme Court and appellate rulings, including Obergefell, Windsor and Pavan, which each require that married same-sex couples be treated equally to different-sex couples in all regards. This equal treatment obviously includes parentage and the ability to pass on citizenship to their children.

The State Department’s updated policy reverses the position held by the prior administration, which recognized citizenship only if a child born abroad to married same-sex parents had a genetic tie to the U.S. citizen parent. We applaud the Biden-Harris Administration for recognizing that our government should support families, not create barriers that make it harder for parents to care and provide for their children.”

Last October, the Ninth Circuit issued a powerful blow against the Trump administration’s position in the case Dvash-Banks v. Pompeo, challenging the U.S. Consulate’s refusal to recognize the citizenship of a child born abroad to Andrew Dvash-Banks, a dual U.S. and Canadian Citizen, where their child’s genetic tie was to his husband, Elad, an Israeli citizen. Together with Wilmer Hale and NCLR, GLAD authored an amicus brief in Dvash-Banks arguing that the U.S. Consulate’s position, which disregarded Andrew and Elad’s marriage and the integrity of their family, could not be reconciled with Obergefell, Windsor, and Pavan. The Ninth Circuit recognized both men in the married couple as parents and both of their sons as citizens.

Access to Equitable Family Planning Services Under Title X

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We should all have access to equitable, affordable, and high-quality family planning and sexual health services, no matter who you are, where you live, or how much money you make.

In 2019, the Department of Health and Human Services (HHS) adopted Title X regulations that created harmful barriers to family planning and sexual health services for LGBTQI+ people. In April 2021, HHS proposed a new rule to undo the damage caused by those regulations, and restore 2000 regulations with revisions that center health equity, inclusivity, and patient-centered care.

GLAD joined the National Center for Lesbian Rights and other LGBTQI+ organizations to submit a public comment in support of the proposed changes. The comment also encourage HHS to make the rule more inclusive by explicitly listing protections for intersex people and addressing the role of systemic racism in health equity.

As the public comment explains:

We cannot emphasize enough the importance of seeing our nation’s top public health agency returning to a focus on patients’ health care needs, something that was lacking in the prior administration. It comes at a critical time, when a distressing number of states are advancing legislation to block transgender people from the life-saving health care they need. Political interference in medical care is dangerous, and this [proposed rule] is the right move, restoring the Title X program’s commitment to adhering to medical ethics and standards of care. We hope that HHS will use its powerful position to oppose these ongoing attacks on transgender people’s health care and continue to lead by example in ensuring access to high-quality, evidence-based care for all.

Read the full public comment.

The public comment was signed by:

National Center for Lesbian Rights
GLBTQ Legal Advocates & Defenders (GLAD)
Bay Area Lawyers for Individual Freedom (BALIF)
Equality California
Equality Federation
Family Equality
GLMA: Health Professionals Advancing LGBTQ Equality
Human Rights Campaign
interACT: Advocates for Intersex Youth
Lambda Legal
Movement Advancement Project
National Black Justice Coalition
National LGBTQ Task Force
SIECUS: Sex Ed for Social Change

HHS Affirms LGBTQ Protections in Health Care

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The Biden-Harris Administration announced today that, in line with the Supreme Court Bostock ruling and other court decisions, the Department of Health and Human Services interprets the nondiscrimination protections on the basis of sex in Section 1557 of the Affordable Care Act to prohibit discrimination on the basis of sexual orientation and gender identity. In a press statement HHS affirmed that the Office for Civil Rights, the entity responsible for enforcing Section 1557, will investigate and act on reports of anti-LGBTQ discrimination by covered entities.

GLAD Executive Director Janson Wu issued the following statement:

We applaud the Biden-Harris Administration for its affirmation that access to health care without discrimination is a matter of equity and fairness and is critical to individual wellbeing. We hear frequently from LGBTQ people reporting discrimination they experience in healthcare settings and programs, including insurance coverage, and we know that such discrimination leads to negative health outcomes in our community. It is welcome news that the Office of Civil Rights will enforce the law to address anti-LGBTQ discrimination. The administration’s announcement today conforms to both the language of Section 1557 of the Affordable Care Act and established case law. The degree to which people can count on their ability to access healthcare free from discrimination should not depend on who is in the White House. Congress should take inspiration from today’s announcement to act on its responsibility to solidify critical nondiscrimination protections in healthcare and other vital areas by passing the Equality Act.

LGBTQ people in New England who have questions about what this announcement means, or who experience discrimination in accessing healthcare are encouraged to reach out to GLAD at www.GLADAnswers.org.

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COVID-19 has taken a considerable toll on all of us – adults and youth alike. For children, there has been an especially weighty impact on mental health.

As we mark National Child’s Mental Health Awareness Day this May 7, parents, guardians, teachers, doctors, and other caregivers are raising alarms about the supports we need to be providing children who have experienced trauma related to the year-plus-long pandemic.

COVID-19 has upended families, who are struggling with illness, death, lost employment, and housing and food insecurity. It has upended everything that was regular and routine in a child’s life – school, play dates, activities, even leaving the house. And it has brought the near-constant fear of infection.

Although people 16 and older who are able to be vaccinated are starting to see the hope and possibility of a return to a more normal routine – and there is good news this week that a vaccine will soon be approved in the U.S. for those ages 12-15 – there is not quite light at the end of the tunnel yet for younger children.

Layered on top of the COVID-19 pandemic is the epidemic of racism and violence that daily threatens the lives and well-being of BIPOC children and their communities. Our thoughts go in particular this week to Mikayla Miller of Hopkinton, a vibrant and promising Black, LGBTQ young woman who tragically died in late April. We mourn Mikayla, and stand in support of her family as they seek a full, independent investigation into the circumstances of her death.

National Child’s Mental Health Awareness Day also coincides with the beginning of National Foster Care Month. COVID-19 has exacerbated problems within our already stressed and malfunctioning foster “care” (certainly a misnomer) system. Nowhere are these stresses more obvious than in Massachusetts where the tragic death of David Almond, a teenager who died in the care and custody of DCF in October 2020, has laid bare, yet again, the failure of DCF to serve the needs of individual children and the failure of the many interlocking systems touching youth.

The child welfare system fails LGBTQ youth in particular ways, and that was true before the pandemic. LGBTQ youth, particularly youth of color, are overrepresented nationally in our child welfare systems. We should know more details about their representation in every New England state, but we do not because the U.S. government does not require state child welfare systems to collect data on sexual orientation and gender identity. Trump eliminated this requirement in May 2020. LGBTQ youth are not seen and counted in all of their dimensions. They are, effectively, rendered invisible.

What do we know? We know, anecdotally and directly from LGBTQ youth in care that they are often placed in congregate care settings rather than in foster homes. We know that they face bullying, harassment, and bias in school because the child welfare system entrusted with their care does not support them and advocate for them in school. We know that transgender youth are wrongfully placed in congregate care settings according to their birth sex, not according to their gender identity. And we know that transgender youth wait for months, sometimes years, for best-practice, medically necessary gender-affirming care.

What else do we know? That workers’ refusal to affirm youth just as they are, failure to provide medical care, wrongful placements, and lack of educational advocacy causes harm, trauma and erodes the mental health of LGBTQ youth who are child welfare involved. The isolation and restriction of the pandemic only heightens these negative effects.

On this day, I urge us all to look at our state child welfare systems and wonder:

Do LGBTQ youth have access to LGBTQ mentors, peer supports, and community resources?
Are parents and guardians of LGBTQ youth getting services and resources addressing the importance of family acceptance to child well-being?
Are transgender youth placed according to their gender identity, not their birth sex?
Does the agency have a clear, comprehensive LGBTQ policy that affirms LGBTQ youth and clearly guides all agency employees, contractors, and volunteers on how to affirm and support LGBTQ youth in all contexts? And does the agency comprehensively train adults on this policy so that they operationalize support for LGBTQ youth?
Does the agency have a clear policy for transgender youth to access best-practice, gender-affirming medical care without any unnecessary barriers?
Does the state have a statutory Foster Child Bill of Rights that includes explicit protections for LGBTQ youth?

LGBTQ youth in care are precious. The youth I have had the pleasure to know in my work – particularly transgender youth of color – radiate strength and resilience. They are true to themselves – proud to be transgender and fierce self-advocates – in the face of a harsh and uncaring system. On this day, let’s all acknowledge their strength, center their voices and needs, and recommit to doing the work to support them to flourish and thrive.

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From GLAD Executive Director Janson Wu:

Today we are thinking first and foremost of the family and friends of George Floyd, and of their Minneapolis community which has had to endure the nightmare of witnessing the brutal murder of a family member and neighbor, and the additional trauma of this trial. Our hope is that this verdict brings some measure of relief, comfort, and a starting point for healing for Floyd’s loved ones, and for Black families and communities who have particularly borne the weight and trauma of a country finally forced to begin reckoning with our history of racism. Today’s guilty verdict provides a measure of accountability for a deeply unjust death, and is a step toward justice. But we cannot forget that true justice would see George Floyd alive today. Accountability for police violence is still too rare. And for Black and Brown communities across the country, the nightmare and loss experienced by George Floyd’s family is too common and too persistent a threat. We must continue the work of confronting systemic racism in policing, end qualified immunity, and invest in our communities to create a system of public safety that is focused on safety for all rather than inherently deadly to some.