By Erin Rook, PQ Monthly
The State of Oregon must offer its employees transgender-inclusive healthcare coverage following a landmark settlement in Esquivel v. Oregon, in which Lambda Legal argued on behalf of Alec Esquivel that the 2007 Oregon Equality Act prohibits gender identity-based discrimination in healthcare.
“The settlement in Esquivel v. Oregon is a powerful example of a state recognizing that it must follow its antidiscrimination laws when it comes to the state’s own employees,” says Lambda Legal staff attorney Tara Borellli, who worked on the case. “The legal theory that Lambda Legal raised in ‘Esquivel’ made the case a first-of-its-kind, and I think the state saw the writing on the wall when it settled. There simply is no legitimate reason to deny transgender employees the same kind of medical care that other employees routinely receive.”
The Jan. 14 settlement requires the state to scrap policies excluding diagnoses pertaining to gender identity, medication required for “sexual transformation,” and services related to a “sex change operation.” In addition to making the policy change, the state will also pay Esquivel $36,000.
Esquivel, 44, began the process of filing the lawsuit in late 2008 because he felt discrimination was built into the system. And despite the good intentions and support of the people he worked with as a state law clerk, that discrimination prevented him from accessing medically necessary care.
“I wanted to make people aware and bring current law up to date,” Esquivel says. “It’s kind of just common sense. Most people did not even realize healthcare related to transition was excluded.”
Still, the process of bringing the state’s policies in line with the law — and common sense — took longer than he anticipated.
“I’m surprised it took as long as it did,” Esquivel says. “I really thought it could all fall into place within a year.”
Being at the center of such a high profile lawsuit was challenging for Esquivel, who considers himself an introvert. He says he’s looking forward to having a less public role. Instead, Esquivel will be promoting equality in his new job as a civil rights investigator for the Oregon Department of Human Services.
“I investigate employee complaints of discrimination,” he says. Esquivel started in January, after a stint as a family law attorney with Beth Allen Law. “My job is more of an internal investigative process.”
Basic Rights Oregon Executive Director Jeana Frazinni applauds Esquivel’s willingness to take the lead and calls the state’s policy change — as well as other recent trans justice victories — a “huge step forward.” The LGBTQ rights organization has made healthcare access for transgender Oregonians a central focus of its work.
“We are grateful that Alec was willing to step forward in such a public way to share his story and inspire change,” Frazzini says. “We need to build a system of healthcare where every Oregonian can access the care they need to live healthy and productive lives. The American Medical Association, the American Psychiatric Association, and even the Internal Revenue Service have affirmed that transgender-inclusive health care is medically necessary. Ending discriminatory exclusions that deny people access to medically necessary care is the right thing to do and reflects Oregon values of fairness.”
The Oregon Insurance Division clarified in December that it is a violation of the 2007 law to engage in anti-trans discriminate in healthcare. TransActive recently announced that the Oregon Health Plan will begin covering gender-related healthcare for children and gender-related mental health services for all ages.
Esquivel encourages trans Oregonians to be bold in asserting their newly-established rights.
“Now, the insurance companies, they have to say: 1) We never ever cover this procedure, or 2) It’s not medically necessary,” he says. “It’s going to take all of us filing for coverage under our insurance products to get it really established and routine.”
Oregon joins a growing number of municipal entities in offering medically necessary healthcare to transgender employees, including Portland, Eugene, Multnomah County, Seattle, and the City and County of San Francisco. The California Insurance Commissioner has also issued guidelines prohibiting private insurers from discriminating against transgender people.
“We’re proud to see Oregon step into the lead on an issue of acute importance for transgender people: equal access to medically necessary care,” Borelli says. “By treating its transgender employees equally, Oregon is lighting the path for other states to follow. Equal insurance coverage for transgender employees has been gaining momentum, and it’s about time. There should be no room for discrimination in the workplace.”