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Location: St. Louis, Missouri, United States

Friday, March 16, 2012

Sandra Fluke and Karen Hu claim right to employer-paid sex changes

Jack Kemp

From Steven Gutowski in the Hawaii Free Press (also at other sites):

However, as I discovered today, birth control is not all that Ms. Fluke believes private health insurance must cover. She also, apparently, believes that it is discrimination deserving of legal action if "gender reassignment" surgeries are not covered by employer provided health insurance. She makes these views clear in an article she co-edited with Karen Hu in the Georgetown Journal of Gender and the Law.

The title of the article, which can be purchased in full here, is Employment Discrimination Against LGBTQ Persons and was published in the Journal's 2011 Annual Review. I have posted a transcript of the section I will be quoting from here. In a subsection of the article entitled "Employment Discrimination in Provision of Employment Benefits" starting on page 635 of the review Sandra Fluke and her co-editor describe two forms of discrimination in benefits they believe LGBTQ individuals face in the work place:
"Discrimination typically takes two forms: first, direct discrimination limiting access to benefits specifically needed by LGBTQ persons, and secondly, the unavailability of family-related benefits to LGBTQ families."
Their "prime example" of the first form of discrimination? Not covering sex change operations:
"A prime example of direct discrimination is denying insurance coverage for medical needs of transgender persons physically transitioning to the other gender."
This so called "prime example" of discrimination is expounded on in a subsection titled "Gender Reassignment Medical Services" starting on page 636:
"Transgender persons wishing to undergo the gender reassignment process frequently face heterosexist employer health insurance policies that label the surgery as cosmetic or medically unnecessary and therefore uncovered."
To be clear, the argument here is that employers are engaging in discrimination against their employees who want them to pay for their sex changes because their "heterosexist" health insurance policies don't believe sex changes are medically necessary.

Additionally Sandra Fluke and her co-editor have an answer for why exactly these "heterosexist" insurance policies, and the courts that side with them, deem sex changes as medically unnecessary:
"In Mario v. P & C Food Markets, Inc., an employee who was denied such coverage brought claims under the federal Employee Retirement Income Security (ERISA) and Title VII. The court rejected the ERISA claim, finding the plaintiff's mastectomy and hormone therapy were not medically necessary. The court's ruling was based upon controversy within the medical community regarding that treatment plan. Much of that controversy has been linked to ignorance and bias against transgender persons, and the American Medical Association has declared the lack of coverage to be discrimination."

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