Sunday, March 5, 2017

A Red State is "Detransitioning" State Employees--Like Me

It's been close to a decade since I legally gender transitioned.

While it was a great relief to finally live authentically in the gender I knew myself to be, transitioning was a process both challenging and tedious. I needed to have my name and gender marker changed in so many databases. This meant awkward interpersonal interactions. (For example, when I went to get a driver's license issued with my new name and gender marker, the person staffing the front desk at the DMV, apparently seeing me as insufficiently manly looking after just a few months on testosterone, responded by exclaiming in front of the crowd waiting in line, "What are you, some kind of pre-op?!").  It meant educating and cajoling and placating administrators of multiple bureaucracies who had never personally changed anyone's gender marker in whatever system they administrated, and were disconcerted to be asked to do so. It meant presenting my court order of name change and state ID showing my "M" marker over and over again.

Running the gauntlet of getting my gender transition acknowledged and implemented took months. It was tiresome. But I managed it, and moved on with my life. As my appearance shifted under the influence of hormone therapy and most people got used to addressing me as "he," the levels of stress involved in just living my life as myself slowly dropped. There were ongoing battles that remained, like my fight against the ban on insurance coverage for transition-related care in the policies offered to Wisconsin state employees, but the legal hassles seemed mostly behind me. I could mostly breathe free and just go about my business.

And for a brief moment, things really started to look up. After eight years of fighting with no success for insurance coverage for the trans care my wife and I required, policy directives under Obamacare forced my state to say it would lift the ban on transition care. The exclusion was to be lifted on January 1, 2017. But in November of 2016, Donald Trump won the presidential election, promising to repeal Obamacare and produce a total change in federal regulations. Now, my Republican governor and state legislature felt empowered to enact transpohobic policies. In December, the "Employee Trust Fund" or ETF--the agency administering all benefits programs for Wisconsin state employees--directed all insurers providing coverage to state employees to reinstate the ban on coverage for trans care.

For a family like mine, with two gender transitioners who had been waiting for many years to access additional care and get coverage for our HRT, that was more than depressing. But at least we saw it coming.

What came like a bolt from the blue was the notice I got a week ago.

It was a Friday afternoon. I'd just given a colloquium talk in my department. The week was winding down, and so was I, sitting in my office going through the day's pile of email--the usual questions from students about assignments and discussions about programming with instructors in the LGBT+ studies program I direct. Then I came across an email from my university human resource specialist, opening with a cheerful "Hello!" It informed me that ETF had changed their policy on gender transitioning in their system (which covers not only health insurance but all benefits, like disability, retirement plans, etc.). It stated that in order to "maintain a gender change," I had to provide additional documentation for myself and for my wife.

We were being detransitioned by the state, though I'd legally transitioned nearly a decade ago, and my wife started her transition in the 1990s. And we did not have the additional documentation demanded.

Reading this email caused an immediate feeling of shock at the attack on our identities. But let me note that reverting our gender markers to what they were years ago does more than emotional or psychological damage. And it impacts more than how others view our genders. For example, I have developed a neurological problem with my arm leading to partial loss of the use of one hand. I'll be seeing a neurologist in a few days--and a mismatch in my identification can mean denial of insurance coverage. That could be very costly to my family--but delaying needed medical care is costly in other ways.

Between a Rock and a Hard Place

Before I get to discussing the additional demands ETF is making, let me point out a very broad problem, and that is the idea that agents of the state can change one's legal status retroactively at any time. Imagine, for example, if the state decided that it wished to make it harder for people to get married, and so it imposed a new requirement--that in order to have a marriage recognized, residents would have to provide DNA evidence proving they and their spouse are not related (an expensive prospect). Then imagine that all married state employees were informed that their status had been reverted to single in employment databases and systems, because they had not complied with the DNA test requirement when documenting their marriages. That's not the way regulatory changes, mundane or shocking, operate--they are applied going forward, but not retroactively.

Now, as for the new procedures for gender transitioning, there are three requirements listed by ETF. The first is that the employee must notify ETF directly, providing their old and new names, old and new gender markers, ETF ID number, and a declaration that they are gender transitioning. Previously, employees notified HR at their place of employment, and employer HR staff changed the gender marker directly in the benefits system. But now ETF will centralize control over implementing transitions, and maintain a database of gender transitioners. In essence, we are being required to register with the state. As a Jewish person who lost extended family in the Holocaust, I find this extremely creepy.

The second thing trans people are required to do is provide "proof of identity," such as a driver's license or military ID showing the new name and gender marker. That's what we had to do in the past, and my wife and I can easily produce our Wisconsin driver's licenses showing our names and most correct binary gender markers. But now ETF is demanding more.

We are now being required to produce a third item, "proof of gender." This is very strange, because a driver's license already provides state-recognized proof of one's gender. Requiring more serves no purpose other than to make it harder for people to get their identified genders recognized. And the new "proof of gender" items are difficult and intrusive items to get.

Let's look at the options. One is a court order of gender change. To get one of these is difficult, expensive, and in many states, like Wisconsin, requires a doctor to testify that one has had surgical sex reassignment. Now, some people cannot have such surgery for medical reasons. Others do not want it--they desire social recognition of their identified genders, not a program of body modifications. And nonbinary gender transitioners often find they are denied access to surgeries. But let me underline that in any case, the very surgeries that ETF is making necessary in order to have one's transition recognized it has also categorically excluded from insurance coverage. My wife and I have been waiting for years to access some surgical interventions that would make our lives easier on many levels, one of which is being able to access things like a court order of gender change. But we can't afford them without insurance coverage. It's a Catch-22, and seems deliberately cruel.

Well. Instead of presenting a court order of name change, another "proof of gender" is a US birth certificate showing the identified gender. Now, in bluer states than mine, amending one's birth certificate sex requires just a letter from a doctor or therapist attesting that a person under their care is gender transitioning. A few states with reactionary policies, like Ohio and Idaho, do not allow birth certificate sex to be changed for gender transitioners at all. But most states, like Wisconsin, will do it for people who have had sex reassignment surgery which is documented in some particular way--in Wisconsin, it's by a court order of gender change. So we're back to square one, for my family and for so many gender transitioners.

What else will ETF accept as proof of gender? Another option is a US passport showing the identified gender. My wife and I have been trying for months to get the documentation we need to get passports issued in our lived genders, but have run into difficulties trying to get certified copies of legal documents. Hopefully these problems will be resolved in time and the rules for gender transition and passports won't shift under us before then. But even if we had them, this option as provided by ETF is highly problematic. Their policy requires that for a passport to "count" as proof of gender, the original passport must be mailed to an ETF P.O. box to be examined. It's crazy to demand that someone hand over their passport, via ordinary mail, with no specified procedure for ensuring its safety, no description of how long it will be held, no contact information given for an employee to inquire about the location of their passport should they not receive it back in a timely fashion, and most of all no explanation as to why the original document has been demanded, rather than just shown to the employee's HR office. So, even if we did have passports, we wouldn't want to mail them off to ETF as required.

Finally, there's the alternative of mailing a letter from a care provider as "proof of gender." At first, this seems the go-to option. Letters from medical practitioners and therapists are employed in many transition contexts. But there are two problems with ETF's letter option. First, ETF will only accept a letter from someone with a doctoral-level credential. The clinic where my wife and I get our medical care is staffed solely by (very competent!) nurse practitioners, with masters-degree-level credentials. So our care provider isn't allowed to write a letter for us.

But there's something more insidious, and that is the content required in the letter. Transition letters are commonplace, and they follow a standard format intended to protect the private medical information of the gender transitioner. The care provider writing the letter makes only a general statement that "appropriate clinical treatment" has been provided. But ETF demands that the letter writer explain what that treatment was. This is none of their business! Moreover, ETF is staffed by bureaucrats and accountants, not medical personnel qualified to review such information.

There's no justification given for the letter to disclose such highly personal information. But given what we've just experienced in terms of retroactive de-recognition of our gender transitions, there's reason to fear. It may be that if certain medical procedures are not listed in the letter, even if the letter is accepted now, at some time in the future employees might find their gender transitions reversed in state records yet again.

Ugh.

So, I've been trying to mobilize my university HR to push back against the detransitioning of me and my wife in the benefits system, and against the imposition of onerous and atypical requirements future gender transitioners. A conference call is planned between ETF and HR administrators. We'll see what the outcome is, but one piece of information I have been given so far by the head HR administrator at my university is that apparently my wife and I are the only people to whom ETF directed a notice be sent that our gender transitions would be reversed unless we produced additional documentation, at least as far as he could determine.

There are two interpretations I can give this disconcerting bit of information. Both turn on the fact that I am quite open about being trans, run an LGBT+ studies program, and as an academic who researches intersex and trans issues, have been interviewed by the media numerous times to provide commentary on related news stories. The first interpretation is that some ETF staffmember has been tasked with identifying trans state employees to receive detransitioning notices, and as I'm simply particularly visible as a trans employee of the state, I and my wife were the first identified. And the other is that because I am a critic of transphobic policy initiatives, my family has been personally targeted in retaliation--which is a pretty unsettling possibility. I suppose there's a third scenario--that every other trans person who is a state employee or receives benefits as family member of a state employee presented their HR office with a court order of gender change or amended birth certificate when they gender transitioned. But given that there are almost 300,000 state employees, how hard it is to get those documents, and the fact that they were not considered necessary until now, this seems extremely unlikely. It's an anxiety-inducing situation to find oneself in under any interpretation.

In any case, the short story is this: around the US and the world, as trans rights have advanced, insurance coverage for transition care has become commonplace, while changing gender markers has shifted to being based upon gender identity, not any particular physical sex characteristic or its modification. States like Wisconsin were lagging behind the curve, but progress was being made. Yes, there were backlashes, like the flurry of so-called "bathroom bills," but under the Obama administration, these were federally identified as discriminatory.

But like so many things, a lot has changed fast. And trans people are among those finding themselves besieged.

And that's how I find myself facing detransition by an agency of the state.


32 comments:

  1. This is very much intimidation beyond just being illegal I think. By what authority do they do this? Reach out to the ACLU or the SPLC for advice and hopefully legal representation on this.

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  2. The way you and your wife are being treated is cruel and completely unacceptable. I agree that you should escalate to the ACLU or perhaps the Transgender Law Center.

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  3. You absolutely need to get Lambda Legal, HRC, NCTE, and any organisation you can think of on the line immediately. ACLU in particular has received a towering windfall of donations in response to the fascist regime in DC.

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  4. This isn't just foolish or hostile, it may be illegal. I hope your consult with a local ERISA attorney. I can see no valid, necessary or prudent use of the fund's resources in the collection of this kind of information. Therefore, in my view, it may be a breach of the fiduciary duty of the trustees of the fund to spend fund monies on this kind of stuff.

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  5. U are being targeted for who are. A state issued you your ID and now the state is invalidating it? Illegal. Contact EEOC, state and fed.

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  6. This comment has been removed by a blog administrator.

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  7. What a true clusterfuck! I am so sorry. I transitioned in 2002 and, fortunately, I had private medical care provided by the State of California as a retired person. I just don't know what to really say; however, this is so wrong, wrong, wrong! I feel for you.

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  8. Please. Contact the ACLU ASAP.

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  9. This pisses me off, and makes me feel vindicated for telling a LGBT friend who voted for Trump that she was horrible selfish person and removing her from my life.

    I would like to share with you a passage from one of my favorite authors, Nadia Makita.....



    "The personal, as everyone's so fucking fond of saying, is political.

    So if some idiot politician, some power player, tries to execute policies that harm you or those you care about, take it personally.

    Get angry.

    The Machinery of Justice will not serve you here – it is slow and cold, and it is theirs, hardware and soft-. Only the little people suffer at the hands of Justice; the creatures of power slide out from under with a wink and a grin.

    If you want justice, you will have to claw it from them.

    Make it personal.

    Do as much damage as you can. Get your message across. That way you stand a far better chance of being taken seriously next time. Of being considered dangerous. And make no mistake about this: being taken seriously, being considered dangerous, marks the difference – the only difference in their eyes – between players and little people.

    Players they will make deals with. Little people they liquidate. And time and again they cream your liquidation, your displacement, your torture and brutal execution with the ultimate insult that it's just business, it's politics, it's the way of the world, it's a tough life, and that it's nothing personal.

    Well, fuck them.

    Make it personal.

    - Nadia Makita

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  10. HRC won't do anything, but any of the other agencies mentioned (ACLU, Lambda Legal, or Transgender Law Center) are very good resources.

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  11. Hang in there, Cary. It is completely outrageous for you to have to deal with this AGAIN when you have been so painstakingly careful all through the process to attend to details and been through so much. I'm glad you and your wife have each other to lean on, and send my long distance support. -Meri Berlin

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  12. I feel for you and agree with everyone about enlisting the help of the ACLU, Lamda Legal and the others named. This all sounds about as illegally discrimatory as it gets. Keep us informed and be strong! As a recently legally transitioned Trans woman this is scary, scary shit to hear. I'm afraid it will get worse before it gets better.

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  13. Words fail me. :( I cannot imagine what my husband and I would do if the UK took the same stance. I really hope you are able to find the grounds and the support to challenge such blatant, malicious discrimination.

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  14. It would be interesting to see if you can find the number of people affected, maybe via FOIA or something similar. Or just asking. The person you talk to you may just give up the info.

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  15. Think of the costs and time involved:
    1) figuring out criteria that can be used to identify.
    2) figuring out what and how to query.
    3) making these changes to them
    4) writing correspondence
    5) sending
    6) creating a new mechanism for these checks
    7) tasking people with reviewing "re-applications"

    And for what?

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  16. This is terrible. NCLR has a good track record on trans litigation. Reach out to Shannon Minter.

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  17. Hi I was directed here from a FB post via Helen Boyd's blog. I noticed on the ETF page there is a contact option, if folks were to contact them via calls/emails to voice their opinion that this change of protocol is unnecessary and transphopic. I'm wondering if anyone has reached out yet and if so what numbers/emails they used so far? The contact page link is this but I also wonder what other contacts should be reached out to: http://etf.wi.gov/contact.htm

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  18. What's worse is that these things catch up Cisgender persons as well. When the Bush admin did that to Social Security, thousands of cisgender persons suddenly found themselves getting caught up in IRS holds of their taxes or benefits because of some clerical error which is not easy for them to fix!
    This doesn't even seem to be vaguely legal, but...

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    Replies
    1. That is not worse. THAT IS NOT WORSE. There is no comparison between some people losing tax money, and others having their very identity ripped from them.

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  19. So I found this on reddit and went to /r/law to ask a question on the lgality and ways around this. Here is the link. https://www.reddit.com/r/law/comments/5xvhvo/wisconsin_detransitioning_many_trans_identified/

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  20. Yep, I expected bullshit like this to start happening in the U.S. Don't forget Lambda Legal who may want to fight this battle with you. It may already have been suggested, as I didn't read through the comments. Some of your story didn't quite make sense, as I've gotten my passport with nothing but a doctor's letter. I used my unaltered birth certificate, my court document changing my name, and it was just an expense, but not a hassle. I don't live in Wisconsin, though, and that may be why. I am a veteran, and get my HRT through them. Right after Chump became president, I was instantly afraid they would go after our ability to get HRT and freaked out. I can only hope they don't turn towards the military & veterans next. UGH!

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    1. Yeah, it's based on states. Pennsylvania also needs a doctor's note that shows proof of sex reassignment. It's crazy what they expect out of us. My wife is in the Navy and just started her transitioning, so I get your fear.

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    2. Yeah, it's based on states. Pennsylvania also needs a doctor's note that shows proof of sex reassignment. It's crazy what they expect out of us. My wife is in the Navy and just started her transitioning, so I get your fear.

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  21. I'm a city employee in another state. Spent the past two years fighting the trans exclusion in my employer's insurance, and the EEOC and ACLU helped me get the policy revised as of this year. Definitely reach out to them. You are being discriminated against, and the ACLU is 100% behind you.

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  22. Oh gawd... I'm so sorry.

    If it's any help I'm as disgusted about the state's behaviour as you are.

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  23. I see where you are coming from and living Texas, I am not sure what tomorrow will bring as a senior trans fluid.

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  24. I am so, so sorry to hear this. My wife transitioned a few years ago here in Washington State. We have been very lucky to live here in this state that seems to be progressive, for now. We must do everything we can to support all of our brothers and sisters in less progressive states. Please keep us updated and let us know if there is ANYTHING that we could do to keep this disgusting attack at bay. This is so wrong. Incredibly wrong.

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  25. My heart is with you. Just beginning legal transition here

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  26. I'm so sorry this is happening. Is there anything concerned members of the general public can do to help or to express our outrage that won't put you and your wife at further risk of targeting?

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  27. HIPPA law prohibits them asking for specific information from medical providers. I looked it up. It appears the courts agreed. I would get in touch with the ACLU. They're getting away with it because of a loophole. A stupid loophole.

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  28. This is objectively horrifying. For whatever it's worth, I apologize oh behalf of my species. I am not trans, have no trans family, no close trans friends, and I can clearly see that this is legally and morally wrong. Please know that there are folks outside of your community (as well as in it) who are outraged by this and will support you however they can. - Jordan

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  29. I sent a message to ACLU Nationwide about this issue, but can't contact the ACLU for your state - please consider contacting your affiliate with a link to this post. https://www.aclu.org/about/affiliates

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