Wisconsin Trans Employee Faces ‘Detransition’ Catch-22

Wisconsin is asking its transgender state workers to go through a new process to change their gender, or to prove a previous gender change.

Photo Illustration by The Daily Beast

When Donald Trump was elected president, the first thing Cary Gabriel Costello’s wife said was, “There goes our chance at transition health care coverage.”

Friends of the Wisconsin couple, both of whom are transgender, thought that they were overreacting, Costello told The Daily Beast. Some naïvely advised them to “stop overdramatizing,” reassuring them that President Trump “isn’t going to hurt you.”

After all, didn’t he once say that Caitlyn Jenner could use the Trump Tower ladies’ room? How harmful could a man who holds up a rainbow LGBT pride flag really be?

Then, a mere twelve days after the inauguration, the dire prediction came true.

On February 1, as The Daily Beast previously reported, the Wisconsin Department of Employee Trust Funds (ETF) announced that the state was reinstating a longstanding exclusion in its employee health plan on any “procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment.”

“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 [hormone therapy], that was more than depressing,” Costello, an associate professor of sociology at the University of Wisconsin-Milwaukee and the director of the school’s LGBT studies program, wrote in a viral blog post about the policy change. “But at least we saw it coming.”

That exclusion had actually been lifted for thirty days before the ETF reinstated it, citing a temporary injunction issued last December on an Affordable Care Act regulation that the Obama administration interpreted as prohibiting exclusions of transition-related medical care.

That regulation had pressured the ETF’s Group Insurance Board to vote last July to provide transgender health care—recognized as medically necessary by major medical associations—starting on January 1st, even though Governor Scott Walker didn’t want them to comply. Before the election, Costello was optimistic.

“[F]or a brief moment,” he recalled in his blog post, “things really started to look up.”

But now, the transition-related health care coverage is gone, the Affordable Care Act is on its way out the door, and the Jeff Sessions-led Department of Justice—which also rescinded Obama-era guidance on trans students last month—has passed on the opportunity to challenge the December 2016 injunction, as the Washington Blade reported. Wisconsin didn’t have to reinstate its exclusion on transgender health care for state employees like Costello. But the ETF has an opportunity to exclude the coverage without fearing retribution from the federal government—and they’re taking it.

And now, the Daily Beast can report that ETF is additionally asking Costello and other transgender state workers to go through a new process to change their gender or to prove a previous gender change. What’s more is that this new process, per the ETF website, can require “medical certification” of the very same “appropriate clinical treatment” that the ETF has now excluded from the employee health plan.

“It’s a Catch-22,” Costello wrote, “and [it] seems deliberately cruel.”

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ETF requires either an updated passport, court order, birth certificate, or physician’s letter to change gender—all of which require some degree of medical treatment.

Costello transitioned over a decade ago and has a male driver’s license. But as of January 1st, he has to prove to the state all over again that he’s a man—something he can’t do, he says, without undergoing costly and now-excluded surgery to get a court order or a corrected birth certificate, procuring a doctor’s letter with the details required by the state, or going through the necessary legal hurdles to obtain a new U.S. passport.

Costello says he was told by his human resources department in an email earlier this year that, in order to “maintain a current [gender] change,” he will need to comply with this process. In essence, he wrote in the blog post, he and his wife are “being detransitioned by the state.”

“My personal experience shows that having followed the rules to document our status only results in security if the rules aren't changed under our feet,” he told The Daily Beast.

The ETF told The Daily Beast that the new process for changing gender has nothing to do with the timing of the recent health care exclusion, adding that it will help smooth out any inconsistencies between data held by employers—like the University of Wisconsin—and the data that the ETF needs to administer Wisconsin Retirement System benefits.

“We developed the policy for members to change their gender on record based solely on requests from members, no other reason,” ETF communications director Mark Lamkins told The Daily Beast. “Since we did not have a policy or process in place prior to January 1, we will reach out to members who previously requested we change their gender on record.”

And in response to Costello’s claim in his blog post that ETF’s gender change process asks for an unusual amount of potentially privacy-compromising medical information, Lamkins said, “As a best practice to protect our members’ personal information, we implemented similar requirements being used by the Social Security Administration.”

The ETF’s new requirements, however, do go above and beyond the SSA’s requirements for changing gender.

The SSA merely requires a letter from a “licensed physician” like an M.D. or a D.O. “stating that the individual has had appropriate clinical treatment for gender transition to the new gender.” It does not require the letter to specify what, exactly, that “appropriate clinical treatment” entailed.

The ETF’s new requirements, on the other hand, specify that when an employee must submit a medical certification letter, that letter must include “the date the treatment began” and “an explanation of appropriate clinical treatment.”

“This is none of their business!” Costello wrote. “Moreover, ETF is staffed by bureaucrats and accountants, not medical personnel qualified to review such information.”

Costello is concerned that the ETF has intervened in a process that was previously handled by HR, alleging in his blog post that the department is effectively “maintain[ing] a database of gender transitioners.”

“In essence, we are being required to register with the state,” he wrote. “As a Jewish person who lost extended family in the Holocaust, I find this extremely creepy.”

“We are not maintaining a registry of transgender employees,” Lamkins told The Daily Beast.

Costello’s viral blog post was published on Sunday. Asked if he and his wife had been able to sort anything out with ETF yet, he said, “The situation is stressful, as you might imagine. Nothing yet has been resolved.”