In Re Parentage of a Minor Child

In an important ruling that creates an alternative path to parentage for couples who use assisted reproductive technology in their pregnancies – one that more closely tracks the reality of these families’ lives – GLAD secured an order of parentage for a Rhode Island non-biological mother who had initially sought a second-parent adoption.

When our client sought to adopt the child that she and her partner had planned together, and that her partner bore, the Family Court required the couple to post a newspaper advertisement to alert the sperm donor about the adoption they objected.

The requirement makes no sense in a situation where two women use an unknown donor to become pregnant. Also, it comes with a financial cost and risks disclosing private information relating to the couple and child. The notification is intended to alert someone who is a parent that a child is getting adopted. Because a donor is not a potential parent, it makes no practical or legal sense to provide notice of a pending adoption resulting from the donation of his genetic material.

In the context of asking the Court to waive the notification requirement, our clients argued that they should not have to adopt their child at all in order to establish the parent-child relationship between the non-birth parent and their child. Rather, they argued that Rhode Island law provides full protections for parent-child relationships that result from the very kind of family relationship presented by this case. The Court agreed.

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Rhode Island’s Department of Education (RIDE) has issued guidelines to schools to protect the state’s transgender students.

“The guidance is excellent and comprehensive,” said Jennifer Levi, Director of the Transgender Rights Project for GLBTQ Legal Advocates & Defenders (GLAD). “Rhode Island was one of the earliest adopters of a trans-inclusive non-discrimination law, and RIDE is making a strong statement in support of full inclusion and support for transgender youth.”

The document addresses issues such as names and pronouns, privacy and confidentiality, dress codes, the use of restrooms and locker rooms, sports, and other school activities. It outlines the requirements of state and federal laws, and gives guidance on planning for a student’s transition at both the elementary and secondary levels.

Guidance for Rhode Island Schools on Transgender and Gender Nonconforming Students: Creating Safe and Supportive School Environments can be downloaded at GLAD’s website.

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Yesterday, the Rhode Island Office of the Health Insurance Commissioner released a bulletin Regarding Prohibited Discrimination on the Basis of Gender Identity and Expression. The bulletin is a significant step toward increasing access to critical health care for transgender residents of Rhode Island, who have long been arbitrarily denied coverage for medical treatments related to gender transition. Insurance companies will have 90 days to implement the changes.

The guidance states that “denial, exclusion or other limitations of coverage by a health insurer for medically necessary treatment otherwise covered by a health insurance policy or contract based solely on an individual’s gender identity, expression or gender dysphoria is sex discrimination prohibited under Rhode Island Law”. Insurance regulators in California, Colorado, Oregon, Vermont, Massachusetts, Washington, Connecticut, New York, Illinois and the District of Columbia have issued similar bulletins instructing insurers in their respective jurisdictions to cover treatment for transgender patients equitably.

The bulletin is the result of years of advocacy by TGI Network of Rhode Island, Gay & Lesbians Advocates & Defenders and many community partners, to educate state leadership on the needs of the transgender community.

“This is a monumental moment for trans* rights in the state of Rhode Island” stated Ethan Huckel, board president of TGI Network of Rhode Island. “Combined with the announcement about updated Medicaid policies regarding Gender Dysphoria three weeks ago, the state of Rhode Island is sending the message loud and clear that transgender people are valued in our community and that the state will no longer tolerate systemic discrimination in health care access for transgender people. We would like to thank Governor Gina Raimondo for her strong support and leadership on this issue.”

“We applaud the Insurance Commission for helping to remove unprincipled and medically unsound barriers created by insurance companies that keep transgender people from getting the medical care they need and deserve,” said Jennifer Levi, director of GLAD’s Transgender Rights Project.

Rationale for the ruling cited the Affordable Care Act and Rhode Island’s strong non-discrimination laws protecting gender identity and expression which have been in place since 2001; Rhode Island was the second state in the country to enact such protections.

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This week, Rhode Island’s Department of Health and Human Services announced that the state’s Medicaid program has removed arbitrary and outdated coverage exclusions for transgender Rhode Islanders. The new guidance can be read here.

All major national medical and mental health experts, including the American Medical Association, the American Psychological Association, and the National Association of Social Workers, have affirmed the medical necessity of providing transition-related treatment for transgender people. Rhode Island is the 10th jurisdiction to update its Medicaid policy to include medically necessary treatments for its transgender policyholders, joining California, Maryland, Massachusetts, Oregon, Vermont, Connecticut, Washington, New York, and Washington D.C.

“This change will allow many people to get the care they need. It’s an important step towards addressing the healthcare disparities that impact trans* Rhode Islanders,” said Ethan Huckel of TGI Network. “We applaud HHS Secretary Elizabeth Roberts and Governor Gina Raimondo for their leadership in bringing our Medicaid policy up to date and ensuring that every Rhode Islander has the potential to live a happy, healthy, and productive life.”

“The guidance will be life-saving for transgender Rhode Islanders on Medicaid,” said Jennifer Levi, director of the Transgender Rights Project for Gay & Lesbian Advocates & Defenders (GLAD). “Unfortunately, all too often transgender people cannot get insurance programs to cover essential medical services. This guidance should change that.”

While the policy has expanded coverage, it does not address the surgical needs of transgender people under the age of 18; electrolysis, which is often a pre-surgical requirement, or Facial Feminization Surgery (FFS) which is needed for true parity between services offered for trans men and those offered for trans women.

Additionally, private health insurance companies in Rhode Island, regulated by the Office of the Health Insurance Commissioner, are not under the same purview as Medicaid and most plans still include discriminatory outdated coverage exclusions for transgender policyholders.

“Since Rhode Island’s nondiscrimination law was updated in 2001 to ban discrimination on the basis of gender identity and expression, we are hopeful that the Office of the Health Insurance Commissioner will soon follow suit and issue a public bulletin barring gender identity-based discrimination in private insurance plans,” said Huckel.

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Today Governor Raimondo signed a bill sponsored by Senator Gayle Goldin and Representative Grace Diaz adding non-discrimination language to the Children’s Bill of Rights, a document given to all youth and posted at all programs serving youth in the care of the RI Department of Children, Youth and Families (DCYF). With this legislation, youth will be informed of their right to be treated free from discrimination based on race, sex, national origin, sexual orientation, gender identity, disability or religion. Senator Goldin and Representative Diaz worked hard for passage of this important legislation for young people involved in the child welfare system.

“Young people in state care are dealing with many challenges in their lives; discrimination should not be an additional barrier to success,” says Darlene Allen, Executive Director of Adoption RI, an organization that works to find permanency for youth living in foster care and residential facilities. “We need to make it easier for children to speak out about any potential mistreatment. This legislation informs them of their rights and helps them advocate for themselves.”

DCYF serves Rhode Island’s most vulnerable youth—including those who have been kicked out of their homes and those who are in the juvenile justice system. “LGBTQ youth are disproportionately represented in these populations,” said Vickie Henry, Youth Initiative Director for New England LGBT legal rights organization Gay & Lesbian Advocates & Defenders. “This critical language will ensure that youth know they are protected from discrimination by law.”

Kerri Kanelos, Executive Director of Youth Pride Inc, the statewide organization serving LGBTQ youth, also spoke to the importance of nondiscrimination language. “Young people in state care need to know their sexual orientation and gender identity will be respected. We know that LGBTQ youth often look for nondiscrimination language; seeing it within their Bill of Rights provides a level of comfort that could make a real difference in their lives.”

The passage of this legislation was applauded by the Child Welfare Committee for LGBTQ Youth, a coalition of child welfare professionals, legal advocates, and medical personnel who advocated its passage. Isabel Storey, Committee Chair and Director of Special Population Services at Family Services of RI said, “Respect for the diversity of young people in DCYF care must be guaranteed; we hope this legislation will empower young people to address issues of discrimination they encounter or perceive. All youth must feel safe and protected in order to disclose their deepest needs.”

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Rhode Island has added LGBTQ-inclusive non-discrimination language to the Children’s Bill of Rights for youth in care of the Department of Children, Youth & Families (DCYF):

“No child shall be discriminated against on the basis of race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status or mental, physical, developmental, or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics.”

“DCYF serves Rhode Island’s most vulnerable youth—including those who have been kicked out of their homes and those who are in the juvenile justice system. LGBTQ youth are disproportionately represented in these populations,” says Vickie Henry, director of GLAD’s Youth Initiative. “This critical language will ensure that youth know they are protected from discrimination by law.”

The Children’s Bill of Rights is a document given to all children and youth who come into DCYF care to explain all the rights they have within the child welfare system.

Henry’s testimony submitted to the Rhode Island legislature in support of the added language can be read here.

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GLAD AIDS Law Project Director and Senior Staff Attorney Ben Klein testified before the Rhode Island House Judiciary Committee February 24 in opposition to H 5245, An Act Related to Criminal Offenses – Criminal Transmission of HIV, proposed legislation that would criminalize failure to disclose HIV status.

In his testimony, Klein pointed to the consensus among leading medical and public health organizations that such a law, if enacted, would undermine public health efforts to prevent HIV and actually increase HIV transmission.

“Scientific evidence demonstrates that laws like H 5245 don’t lessen transmission,” says Klein. “The most powerful tool we have to prevent transmission is to ensure that people are tested for HIV and connected to medical care. Today, HIV medications are powerful enough to reduce the risk of transmission by over 96%. Criminal laws undermine these public health measures by stigmatizing people with HIV and deterring HIV testing.”

Following the hearing, the Judiciary Committee held the bill for further study, which should be its demise.

There are national efforts underway to repeal harmful HIV criminalization laws in other states (for more information see the Sero Project and the Positive Justice Project). Fortunately, no state in the northeast has passed such a law.

You can read Klein’s full testimony here.

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Gay & Lesbian Advocates & Defenders (GLAD) filed suit today against the Social Security Administration (SSA) in U.S. District Court for the District of Rhode Island, charging SSA with wrongfully denying survivor benefits to 56-year-old Deborah Tevyaw after the death of her wife, Patricia Baker. The complaint can be read here on GLAD’s website.

Deb was married in Massachusetts in 2005 to Pat, a career Rhode Island corrections officer. Pat was diagnosed with stage 4 lung cancer and died in August 2011. Her final months were spent lobbying for marriage equality in Rhode Island, and trying to ensure Deb’s financial security. But SSA has repeatedly denied survivor benefits to Deb, who as a result has been living on virtually no income for more than three years.

“More than a year after the demise of the Defense of Marriage Act, Social Security’s misguided and mistaken application of the law is causing serious harm and distress to people like Deb,” said Janson Wu, GLAD Senior Staff Attorney.

“I’ve lost my wife and my best friend, and Social Security has made that so much worse by telling me that in their eyes, I was not Pat’s wife,” said Deb. “Not only is that hurtful and insulting, it has meant that I am living in poverty. I am not looking for a handout; this is money that Pat earned through hard work.”

Despite Deb’s valid marriage to Pat, Social Security initially refused in 2012 to provide Deb disabled widow’s benefits and a lump sum death payment, citing the Defense of Marriage Act (DOMA). While Deb appealed this denial, she was living on a disability income of only $723 a month. She was forced to sell her home of 38 years, leaving her destitute and dependent on friends and family.

After DOMA was struck down by the U.S. Supreme Court in June 2013, SSA continued to deny Deb’s appeal, claiming that the state of Rhode Island would not have recognized Deb and Pat’s marriage at the time of Pat’s death.

“There is no doubt in our minds that Rhode Island would have recognized Pat and Deb as validly married at the time of Pat’s death in 2011, and that Social Security’s reading of the law is just plain wrong,” said Wu.

Tevyaw v. Colvin

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Update: After a three-year-long battle, Deborah Tevyaw has finally received the Social Security survivor’s benefits she has been due since the death of her wife Patricia Baker in 2011. Over $30,000 in back benefits were paid to Deb on Monday, December 1, 2014, by SSA.

Read GLAD’s statement here.

Case Background

GLAD filed suit against the Social Security Administration (SSA) in U.S. District Court for the District of Rhode Island, charging SSA with wrongfully denying survivor benefits to 56-year-old Deborah Tevyaw after the death of her wife, Patricia Baker.

Read the complaint and attached exhibits.

The complaint filed on Deb’s behalf asserts that Rhode Island would have recognized Pat and Deb as validly married at the time of Pat’s death in 2011.

“There is no doubt in our minds that Rhode Island would have recognized Pat and Deb as validly married at the time of Pat’s death in 2011, and that Social Security’s reading of the law is just plain wrong.” – Senior Staff Attorney Janson Wu

More about Deb and Pat’s Story:

Patricia Baker and Deborah Tevyaw Testify in Favor of Marriage Equality Before RI Senate Committee (Deseret News)

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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.