With Pride Month ending Thursday, brands and retailers face the task of proving the rainbow-hued tees and pink-white-and-blue sneakers they pushed were more than hollow cash grabs.
Fortunately for the apparel industry, there are many organic ways to support the LGBTQ+ community year-round. Brands can collaborate with queer designers and cast gender-diverse models in their marketing campaigns. Retailers, meanwhile, can stock queer-owned brands, including those that sell clothing designed for trans bodies.
There is also plenty the fashion industry can do in terms of advocacy and fundraising, whether that is donating to nonprofits like The Trevor Project, a suicide-prevention group focused on queer youths; supporting organizations like Lambda Legal and the ACLU, which are fighting anti-LGBTQ+ policies in the courts; or explicitly and vocally opposing anti-LGBTQ+ legislation and politicians, particularly those that would criminalize providing life-saving health care to trans youths.
If corporations are serious about supporting the community, however, they must also do the work at home and ensure they are creating and maintaining an inclusive workplace. While it can be easy to donate money to a cause, individual companies are best positioned to change the lives of their own employees.
The Human Rights Campaign (HRC) Foundation’s Corporate Equality Index (CEI) offers a rough approximation of what inclusivity can look like. Criteria include a workforce protection policy that includes sexual orientation and gender identity and expression; equivalency in same- and different-sex spousal and domestic partner benefits; and equal health coverage for transgender individuals “without exclusion for medically necessary care.”
However, companies can receive full marks on the HRC’s CEI and still leave transitioning employees paying tens of thousands of dollars for care broadly deemed medically necessary.
Executives interested in being a true ally to the queer community might want to consider sending an email to their human resources representative today and asking them about their company’s transgender health care policy and if it aligns with the WPATH Standards of Care.
What is medically necessary trans health care?
The World Professional Association for Transgender Health (WPATH) is an international nonprofit that bring together professionals in medicine, psychology, social work and other related fields to essentially write the book on trans health. Officially dubbed “Standards of Care (SOC) for the Health of Transsexual, Transgender, and Gender Nonconforming People,” the document’s most recent iteration, Version 7, was published in 2011, with Version 8 expected this year.
In addition to hormone therapy, genital surgery and chest and breast surgeries, Version 7 explicitly lists a range of non-genital surgeries* that “in an individual with severe gender dysphoria can be considered medically necessary, depending on the unique clinical situation of a given patient’s condition and life situation.”
The WPATH has also published an eight-page “position statement” on the medical necessity of treatment, sex reassignment and insurance coverage in the U.S. The statement, first published in 2008 and revised in 2016, refers back to the “medically necessary gender affirming/confirming surgical procedures” listed in SOC, Version 7. ** The 2016 statement lists 11 professional organizations that have endorsed the WPATH SOC, including the American Medical Association, the American Psychological Association and the World Health Organization.
All of which is to simply say: experts broadly agree that “medically necessary” trans care includes, but extends well beyond, genital surgeries, also known as bottom surgery; chest and breast surgeries, also known as top surgery; hormones; and mental health care.
Though this consensus has existed for years, insurance companies are not obligated to craft their coverage accordingly and can instead define “medical necessary” for themselves. For a long time, this meant most plans regarded all transition care as “cosmetic” and thus uncovered.
In the past decade, coverage for trans health care has undergone a sea change. Earlier this year, HRC reported that the number of CEI-participating companies offering inclusive coverage had increased 22 times since 2009. According to the group’s 2022 CEI, 67 percent of the Fortune 500 and 86 percent of all CEI-rated businesses—1,088 of 1,271—offer “transgender-inclusive health insurance coverage.”
To meet HRC’s definition of inclusive coverage, a company must offer equal health coverage for transgender individuals “without exclusions for medically necessary care.” The insurance contract must explicitly affirm coverage and contain no blanket exclusions. The contract and/or policy documentation must be based on the WPATH SOC. Plan documentation must be “readily available” to employees and “clearly” communicate inclusive insurance options. “Where available,” the following “should” extend to transgender individuals, including for transition-related services: short-term medical leave, mental health benefits, pharmaceutical coverage, such as for hormone replacement therapy (HRT), coverage for medical visits or laboratory services and coverage for reconstructive surgical procedures “related to sex reassignment.”
This framework, though better than nothing, allows for companies to exclude medically necessary care—typically non-genital gender-affirming surgeries—so long as their insurance plan declares such care “cosmetic.” It is even less impressive in the wake of the Supreme Court’s decision in Bostock v. Clayton County. Decided in 2020, the landmark decision prohibited employers from discriminating on the basis of “homosexuality or transgender status.”
Though the courts are actively parsing what this means for transgender health care, judges have repeatedly ruled that, under Bostock, employers covered by Title VII of the Civil Rights Act of 1964 cannot refuse to cover gender-affirming care for transgender employees that they would otherwise provide to cisgender employees. Thus, if a plan covers a hormone treatment for somebody with a hormonal disorder, it must cover it as treatment of gender dysphoria, but if it doesn’t provide for a hormone treatment “at all,” then there’s no “affirmative obligation” to provide the care, Omar Gonzalez-Pagan, a health care strategist and counsel for Lambda Legal, a civil rights organization serving LGBT people, said. In practice, he noted, “the vast majority of gender-affirming care” is generally otherwise provided for other medically necessary conditions as well.
Puberty blockers, for example, are typically covered for cisgender children experiencing precocious puberty. Hormone treatments are provided for a multitude of conditions, including menopause. Mastectomies, hysterectomies and orchiectomies—an assortment of procedures related to top and bottom surgery—are all performed as part of cancer treatment.
“The reality is that this is care that is essential, medically necessary and many times life-saving, and accessing it, notwithstanding legal requirements, it’s not easy,” Gonzalez-Pagan said. “There are still employers out there that have exclusions, and those categorical exclusions prohibiting the provision of this care, for the most [part], they’re unlawful. We have brought cases, we are bringing cases, we have cases in court right now and we hope to be at a place where employers understand that they cannot do this.”
Medically necessary vs ‘medically necessary’
There are, inevitably, degrees of inclusiveness. On one end of the spectrum, a company can offer no health care policy or, in violation of federal civil rights law, explicitly exclude gender-affirming care for transgender employees that would otherwise be covered for cisgender employees. On the other end, it may fully comply with the WPATH SOC, cover medical leave for gender-affirming surgeries, pay for travel when necessary and clearly communicate all this information to current and prospective employees.
The wide gulf between these two poles leaves plenty of room for variation. A company might explicitly offer coverage for bottom and top surgeries, but then declare certain elements of these procedures “cosmetic.” It could fully meet the CEI’s current standards—they are changing next year—but exclude a range of non-genital procedures the WPATH SOC declares medically necessary. It might offer a policy with “cosmetic” exclusions, but then offer a stipend for everything that is not covered. The stipend itself may run the gamut from better-than-nothing to genuinely meaningful.
In each case, a company might in good faith declare it covers “medically necessary” trans health care. After all, if a health care provider says it covers “medically necessary” care and only excludes “cosmetic” procedures, why wouldn’t HR take it at its word?
Take Aetna for example. The health insurance giant’s clinical policy bulletin on gender-affirming surgery lists top and bottom surgeries as medically necessary, given certain criteria are met. The same bulletin lists 35 transition-related procedures as “not medically necessary and cosmetic,” including hair removal (a “limited” number of sessions are allowed in preparation for bottom surgery), tracheal shave, facial feminization surgery, voice modification surgery, voice therapy/voice lessons and liposuction. Each of these procedures is deemed medically necessary by the WPATH SOC.
For the trans job seeker, this means, short of demanding the full health care policy of every prospective job opportunity—asking directly about trans health care may not illicit an accurate answer and requires applicants to potentially out themselves—there is essentially a single resource for determining which companies will cover care: the HRC’s CEI. But, rather than acting as a definitive list of businesses that meet the WPATH SOC, the index accepts the insurance company’s definition of “medically necessary” at face value.
Walmart Inc., for example, has received a perfect CEI score for several years running. According to the mega-retailer’s 2022 associate benefits book, the company covers “medically necessary services for treatment of gender dysphoria,” including gender reassignment surgery, hormone replacement therapy and psychotherapy visits. “Cosmetic services that are not medically necessary are not covered.” The 312-page document does not clarify what is meant by “cosmetic.”
Starting next year, however, HRC is changing its standards. To receive full points in the 2023 CEI, companies will be required to cover at least five of the following: hair removal, such as electrolysis or laser treatment, not as part of reconstructive surgery; hair removal required for reconstructive surgery; tracheal shave/reduction; facial feminization surgeries; voice modification surgery; voice modification therapy; lipoplasty/filling for body masculinization or feminization; and travel and lodging expenses.
Is covering trans health care expensive?
For the many smaller companies that utilize a fully insured health care policy, expanding trans health benefits will involve calling up the insurance provider and adding a rider for whatever fee the provider charges.
However, if an employer offers health insurance via a self-insured plan, as most major corporations do, it has “a lot more leeway and openness to make changes,” Jamison Green, a consultant to the HRC and the president of the WPATH from 2014 to 2016, said. These plans may appear to come from a major insurance company like BlueCross BlueShield or Cigna, but, in actuality, such providers are simply acting as the third-party administrators and the employer is paying the claims itself.
“So, if there are trans advocates inside the company or people who really care about this population, they can sit down with the insurer or the third-party administrator and go over all that they offer,” Green said. “They can consult with people like myself or even HRC, and… look up things in the WPATH Standards of Care and figure out what they want to cover.”
A long-time advocate for the trans community, Green was one of a group of activists who convinced the city of San Francisco to cover transition care. When the city first instituted the benefit in 2001, it initially charged all employees an extra $1.70 per participant per month. In 2004, as it became clear this grossly overestimated the cost of trans health care, it lowered this amount to 50 cents per month. In 2006, after collecting $5.6 million in surcharges and only paying out $338,118, it completely dropped the surcharge.
“In today’s dollars… the average trans person’s care, as long as there are no complications, will run roughly the cost of an appendectomy,” Green said. “And that’s averaging it out. Some people are going to cost more than that. Some people are going to cost less. And we don’t say ‘Okay, I have an employee base of 10,000 people, we’re only going to allow five of them to have appendectomies this year.’”
Colorado, meanwhile, updated its essential health benefits (EHB) package in October to cover “medically necessary” treatment, including facial feminization surgery, a procedure that commonly costs more than $20,000 out-of-pocket, and hair removal. The state, using a large survey of the LGBTQ population that asked respondents which procedures they would opt for if they could get all the gender-affirming care they needed, determined coverage would cost enrollees $2.52 per year, D. Ojeda, a senior national organizer for the National Center for Transgender Equality (NCTE), said.
According to a report commissioned by the Colorado Division of Insurance and written by Wakely Consulting Group, the added care will account for 0.04 percent of the total allowed claims when the updated policy goes into effect next year. Coverage for up to six acupuncture visits and an annual mental health wellness examination—both of which Colorado will add to its EHB package in 2023 as well—will account for roughly 0.08 percent and 0.02 percent, respectively, Wakely estimated.
Looking ahead, the legal obligations around gender-affirming care may soon shift once again. According to Ojeda, the NCTE is currently pushing for President Biden’s administration, which is in the process of issuing regulations implementing Section 1557 of the Affordable Care Act, to explicitly tie non-discrimination provisions of the ACA to the Employee Retirement Income Security Act (ERISA) such that they would apply to self-funded plans. Gonzalez-Pagan, who also discussed ERISA, noted that the law is “a little bit more complicated” than Title VII or the ACA in that “sometimes there may be an affirmative obligation to provide” care.
“An argument I make with insurance commissioners all the time is that Section 1557, once it’s finalized, you probably [will] have to do this,” Ojeda said. “So, you might as well just start…covering gender-affirming care as per the WPATH and Endocrine Society [another standard-setting group] guidelines…. I’m not saying that that’s going to be the result because no one really knows how this rule is going to be finalized at the very end of this, but I’m saying that the political landscape is moving in that direction right now…. It’s more like ‘you might as well join the bandwagon now.’”