The federal government in recent months has banned transgender people from joining the military and made plans to roll back protections that could lead to insurance companies and doctors refusing to provide them health care.
Colorado, meanwhile, is heading the opposite direction.
Just within 2019, the state approved an “X” marker on driver’s licenses in addition to the standard “M” and “F,” made it markedly easier for transgender people to change the gender on their birth certificates and stepped into a federal court case to support nonbinary markers on passports.
Plus, the state Division of Insurance added a new regulation to the books that makes it against the law for an insurance company in Colorado to deny coverage for transgender care deemed medically necessary by a doctor, including hormones and surgeries. The requirement, put in place by the insurance division last month with little public attention, is the exact opposite of plans in the works by the Trump administration.
The new state provision will protect transgender Coloradans — “notwithstanding a federal change in law,” said chief deputy insurance commissioner Peg Brown.
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The state is building on its reputation as a safe zone — or at least a tolerant place — for LGBTQ people, though recent policy changes were in play before Gov. Jared Polis, the nation’s first openly gay governor, stepped into his Capitol office.
“What’s happening at the federal level is a blatant attack on transgender people,” said state Rep. Brianna Titone, who took office in January and is Colorado’s first transgender legislator. “Colorado is one of those states that won’t stand for it.”
Federal officials indicated last month that they are rewriting an Obama-era rule, part of the Affordable Care Act, that gives LGBTQ people protections against discrimination in health care. The potential change would make it easier for doctors, hospitals and insurance companies to refuse to provide coverage or care for transgender people for religious reasons. The news surfaced as Trump administration officials filed a brief in a Texas lawsuit against the Obama policy, noting that they agree the rule is illegal and are rewriting it.
The federal stance has emboldened Colorado advocates to push back, demanding change locally as what they term a national assault on transgender rights continues.
“This administration has been one of the most vicious in its attempts to erase transgender people altogether,” said Daniel Ramos, executive director of the LGBTQ advocacy group One Colorado. “This is something that many folks have never seen before.”
At the heart of the transgender health-care issue has been whether insurance companies can categorize treatment for gender dysphoria — when a person’s physical body doesn’t match the gender they feel they are — as elective or cosmetic. The condition can lead to stress, depression and suicide, according to the American Psychiatric Association.
Transgender advocates argue the proper treatment for gender dsyphoria — and whether that involves hormones, surgery, mental health therapy or all of the above — is up to a patient and their doctor. Those in support of backtracking on the LGBTQ anti-discrimination rules laid out in the Affordable Care Act argue that hospitals, doctors and insurance plans should have the right to refuse care or coverage due to religious objection, similar to pharmacists who object to dispensing the morning-after pill.
The new Colorado insurance regulation comes after about a decade of conversation, one that intensified with a 2013 complaint from a transgender 18-year-old to the state Civil Rights Commission. The man, Alexander Manigault, claimed that Kaiser Permanente had refused to cover top surgery, or breast removal, to treat his gender dysphoria.
Manigault won the case and soon after, the Colorado Division of Insurance issued a statement, officially called a “bulletin,” that said insurance carriers doing business in Colorado could not discriminate against LGBTQ people. But a bulletin is not enforceable, and discrimination continued, said Ramos, the One Colorado leader. One Colorado scores health plans on their transgender policies for an annual report card.
“Even with that bulletin, and with the buyers’ guides published every year, we still hear cases every year of insurance companies denying life-saving care to transgender Coloradans,” he said. “What insurance companies have been arguing is that this medically necessary and life-saving care is cosmetic.”
Late last year, Colorado Insurance Commissioner Michael Conway, who was appointed by former Gov. John Hickenlooper and reappointed by Polis, began using the division’s rule-making process to turn the bulletin into a legally required and enforceable regulation. After a public hearing that drew few comments, Conway adopted the regulation in January and made it effective April 1.
The regulation states that insurance carriers cannot deny or cancel a policy because of a person’s sexual orientation or gender identity. They cannot impose differential premium rates because of a person’s LGBTQ status, nor can they consider it a pre-existing condition. Also — and here is the crux of it — insurance carriers cannot deny or limit coverage for “medically necessary services, in accordance with generally accepted professional standards of care.”
Besides health care related to gender dysphoria, the regulation requires that insurance companies pay for appropriate preventative care — that a transgender woman, for example, must have coverage for regular prostate exams.
Kaiser Permanente, one of Colorado’s largest carriers and part of the 2013 civil rights case, now provides a “spectrum of services” for transgender people, including psychological support, hormone treatment and surgeries, in all states where it operates, said communications director Amy Whited.
“Colorado continues to be a leader in sending a clear message that regardless of what the federal government does to erase transgender people, Colorado is one of the states that will stand up for transgender people,” Ramos said. “Any denials that are because of somebody’s sexual identification or gender identity are a violation of Colorado rules.”
Health care never felt more unfair than the time Lu Lo Coco’s insurance coverage paid for braces — no questions asked — but refused to cover testosterone when Lo Coco decided to medically transition to a nonbinary gender.
“They told me they would do the cosmetic thing, which was getting the braces, but they refused to give me testosterone, which I thought was necessary to continue living my life as the person that I am,” said Lo Coco, who uses the pronoun they instead of he or she.
Lo Coco, 28, knew by age 3 or 4 that they didn’t feel like a girl or a boy. By puberty, they were using ACE bandages as chest binders, an attempt to appear androgenous. And at 26, they wanted to begin hormone therapy.
At the time, Lo Coco was living in Montana with their spouse, Chris Lo Coco. Chris’ company had a self-funded insurance plan that did not cover treatments for gender dysphoria — so the Lo Cocos worked to change it, in part by calling the insurance company and company benefits manager almost every single day. Part of the problem was that Lu’s gender marker under the insurance plan was female, so testosterone treatment was not covered.
“It seems stupid and archeaic to say, ‘These medications are only applicable for men, and these medications are only applicable for women,” Chris said. “If your doctor prescribes it, you need it.”
They were successful after a few months, and Lu began testosterone. When the two moved to Louisville, Chris chose a job in part because the company had a chief diversity officer, someone Chris knew would have their back if there was an insurance issue.
After Lu decided to have top surgery, Chris researched, in preparation for a fight with human resources. But no fight was necessary. It was covered under the company plan.
“That de facto, that it was covered, was so reaffirming to me,” Chris said. “They were shocked that it was a question.”
Lu, who was the first person in Montana to get a nonbinary marker on a birth certificate — also through daily persistence that went on for months — is listed as male under the Lo Cocos’ current insurance policy. A nonbinary marker wasn’t an option in the insurance company’s computer system, they were told.
A male marker seemed the safer choice, in order to get coverage for testosterone and because insurance policies typically cover certain services for women, and certain services for men. When Lu had an annual gynecology exam, it was coded as “transgender care” so that the benefit would go through.
Rep. Titone has had similar frustrations. When the state representative transitioned to female and changed her name on her insurance benefits, the company refused to let her change her gender without a female birth certificate. “That’s absurd because in some states, you can’t change your birth certificate. Ever,” she said.
The new Colorado insurance regulation isn’t without loopholes, however.
Self-funded plans — those tailored to a specific workplace that then contracts with an insurance carrier to provide the coverage — do not have to follow the anti-discrimination regulation, which applies to plans sold through the individual and group market. An ongoing case now before the Colorado Civil Rights Commission, filed by a transgender man who claims he was denied top surgery as part of his transition to male, highlights that gap.
The case is complex because the man, Dashir Moore of Colorado Springs, claims his employer told him the surgery was covered. But after his breasts were removed, at a cost of $30,000, he learned his company’s health plan excluded coverage for gender transition, including medication and surgery.
Moore, represented by the American Civil Liberties Union of Colorado, would not have had the surgery had he known the policy had “an outright ban on transgender health care,” said Sara Neel, an ACLU attorney.
“Nationally, I certainly see an attack on transgender individuals’ rights and trying to roll back some of the progress that has been made,” Neel said. “One of the reasons we wanted to take this case is to provide information to the public about those rights, … and the difficulties that transgender individuals experience just trying to live their lives.”
Neel is arguing that Moore was discriminated against of the basis of sex, which is illegal under the Civil Rights Act of 1964. The U.S. Supreme Court, though, agreed last month to hear arguments about whether the law applies to workplace discrimination of gay and transgender people.
The Equal Employment Opportunity Commission says it does, but the Trump administration argues the act outlawed discrimination based on sex — not sexual orientation or gender identity.