The next frontier

Transgender rights take center stage

by

In October 2017, Kathy Oriel opened a private medical practice in a converted Taco Bell on Madison’s west side. It’s a small operation — Oriel has just one full-time employee, a nurse. When they’re not helping patients, they’re cleaning, doing laundry and maintaining the building. “I’m super lucky — she’s far better with a drill than I am,” Oriel says.

A family doctor who specializes in treating LGBTQ patients, Oriel spent 20 years at UW Health before striking out on her own. It was a professional and economic risk, and her reasoning is complicated. But above all, she wanted to provide the best possible care for her transgender and gender-nonconforming patients in a more private and supportive space.

“Very few people like medical settings,” Oriel says, and transgender patients are particularly vulnerable — studies have shown they frequently experience discrimination when seeking health care. This is linked to trans people postponing medical care, and they have much higher rates of HIV infection, smoking, drug and alcohol use, and suicide attempts compared to the general population. Some report being denied care or insurance coverage due to their transgender status. “I sit there and I listen to these stories, and I’m like, ‘You are so resilient, and you have been through so much,’” Oriel says. “[Medical providers] need to do everything you can to keep folks feeling safe in that conversation about their health.”

Oriel also left UW Health over disagreement about medical coding — the system that serves as a universal language for clinicians, health care organizations, billing departments and insurance companies. “Diagnostic codes can carry a lot of stigma,” she says.

While being transgender is no longer considered a mental illness, health care providers still use medical codes including “gender dysphoria” or “gender identity disorder” to indicate visits for gender-related care from patients across the TNBGNC — transgender, nonbinary and gender-nonconforming — spectrum. Gender dysphoria is defined in the Diagnostic and Statistical Manual of Mental Disorders as “the distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender.”

But not all transgender people experience gender dysphoria. “A patient of mine, who is witty, says: ‘I’m not gender dysphoric, I’m gender euphoric!’” Oriel says. “It was so lovely. I told her that even though I was told to use that [code], I could change the wording on her chart.”

In a document explaining gender-related codes to patients, UW Health acknowledges that the language should be updated. But beyond semantics, medical codes can dictate whether a patient’s health care is covered by insurance. Procedures can be coded several ways, covered in some cases but not in others. This can affect cisgender patients, but it’s of particular concern for those seeking gender-affirming care — things like gender reassignment surgery and hormone replacement therapy. Despite widespread agreement among medical professionals that this treatment is medically necessary, patients often must fight to get transition-related care reimbursed.

“Physicians are obligated to code truthfully,” Oriel says, but doctors also have discretion. She and a small group of UW Health physicians developed a system of coding for transgender and nonbinary patients. For example: A patient visiting to talk about high blood pressure, asks for a refill on their hormones during the appointment. A provider could enter the code and indicate gender dysphoria was part of the visit, but should they? “I did not feel it was appropriate to use the gender dysphoria code just because I happened to refill hormones,” she says. But the approach became a problem for the health system’s compliance department. Disagreeing with the institution’s interpretation and desiring greater flexibility in caring for her patients, Oriel launched her private practice.

“What I didn’t want to do was these mental machinations about what I should put on a bill,” Oriel says. “What the real focus should be is giving the best care to the person in front of me.”

Health care is hardly the only arena 0where transgender people face discrimination, erasure and barriers to access. The LGBTQ movement has achieved major victories, but these gains have disproportionately benefited cisgender individuals — those whose gender identity matches their natal sex. Trans people remain unprotected by federal civil rights laws when accessing housing, employment and public accommodations. Anti-trans animus is common among conservatives and the religious right — and even some liberals. The Obama administration advanced protections based on gender identity, but the Trump administration quickly reversed course, rescinding protections for transgender students and banning transgender people from serving in the military.

These developments are deeply troubling for sj Miller, an internationally known gender identity educator and social justice activist who works as a faculty assistant at UW-Madison’s School of Education. “I’m worried sick,” says Miller, who is transgender. “You talk about hope, but I’m scared. [The Trump administration’s policies on gender identity] are going to open up this maelstrom of possibilities for putting prejudice back into practice.”

Since there is no federal law banning discrimination based on sexual orientation and/or gender identity, some states and municipalities are enacting their own policies. Twenty states and Washington, D.C., have explicit legal protections for gender identity; other states have expanded existing sex-based anti-discrimination laws to include sexual orientation and gender identity.

Wisconsin was once a leader in LGBTQ legal protections, becoming in 1982 the first state in the nation to ban discrimination based on sexual orientation. But as other states have extended legal protections to transgender people, Wisconsin hasn’t followed suit. Of the states that protect sexual orientation, only Wisconsin and Indiana do not cover gender identity.

Still, the state is making progress. In July 2018, a federal judge in Madison ordered the state to cover transition surgery for two Medicaid recipients. In August of that same year, the state insurance board voted to lift a ban on coverage for transgender health care for state employees. For his first executive order, Gov. Tony Evers protected state employees from harassment and discrimination based on gender identity.

“The LGBTQ community — and particularly transgender individuals — has come under attack in recent years in Wisconsin, and the progress our state had made toward equality has been threatened,” says Evers’ spokesperson Melissa Baldauff. “This executive action sends a strong message about this administration’s commitment to affirming the dignity of every Wisconsinite.”

State Rep. Mark Spreitzer (D-Beloit) co-authored a 2017 bill that would have added gender identity to Wisconsin’s antidiscrimination law. Now that the U.S. Supreme Court has ruled on marriage equality, Spreitzer sees legal protection for transgender people as “the frontline of the fight right now.”

“[Wisconsin needs] to come back and catch up on this issue,” says Spreitzer, one of the few openly gay members of the Legislature. “We need to make sure we are protecting the most vulnerable.”

Spreitzer’s bill went nowhere in the Republican-controlled Legislature. But he plans to re-introduce a “comprehensive nondiscrimination bill” and is in the process of drafting additional measures aimed at reducing the “everyday burdens” that transgender people face; this includes legislation that would make it easier to update official documents, state-issued identification cards and driver’s licenses to reflect a person’s correct gender.

He’s optimistic, noting that two sessions ago, progressives were fighting a GOP bill that would have required public school students to use bathrooms and locker rooms that correspond to the gender they were assigned at birth. “Now we’re kind of at that pivot point, going from playing defense to moving proactively on increasing protection.”

Although Wisconsin’s nondiscrimination law does not mention gender identity, the term does appear elsewhere in state statute. The first and only mention of gender identity as a protected class was a 2015 law regulating transportation network companies (ride-hailing platforms like Uber and Lyft). The language, which is in line with the companies’ own nondiscrimination policies, didn’t raise red flags with GOP lawmakers in Wisconsin — the bill passed with bipartisan support.

Spreitzer says he and other LGBTQ lawmakers noticed the language, but it wasn’t discussed as the bill made its way through the process. “We were like, ‘Okay, let’s let this fly under the radar,’” he recalls. “We’re not going to stand up and make floor speeches. We don’t want to risk that getting stripped out. I don’t know how many Republicans realized they were voting for that.”

In the absence of state law, cities and counties across Wisconsin have adopted municipal ordinances banning gender identity discrimination. Madison’s policy is one of the broadest in the state, prohibiting discrimination in employment, housing and public accommodations. Verona, Sun Prairie, De Pere, Cudahy, Appleton, Janesville, Racine and Milwaukee also have ordinances.

Megin McDonell, executive director of LGBTQ advocacy organization Fair Wisconsin, says her organization helps city leaders craft ordinances that will be “as defensible as possible.” Similar to the fight for marriage equality, she sees local ordinances as part of “a steady, concerted, strategic effort” to advance rights for transgender people until a state-level law — or better yet, a federal law — is passed.

“That’s where the movement is going with discrimination protections,” she says. “It’s the next frontier.”

McDonell says “it’s not a radical or cutting-edge thing to have these protections — it’s pretty basic human rights.” But some religious groups, like Wisconsin Family Action, have fought the ordinances. Last February, a group of churches and a Christian-owned radio station sued the city of De Pere, challenging its gender identity antidiscrimination law. In December, a judge in Brown County ruled that churches are exempt from the ordinance, finding that religious organizations should be free to hire employees who align with the organization’s beliefs.

Casey Nelson, the De Pere city council member who introduced the measure, says the ordinance is clear that churches are not considered to be places of public accommodation — so they are exempt from it anyway. He says the impact of the ruling remains to be seen, but he believes the ordinance will remain intact.

De Pere’s ordinance was controversial, stalling once in council and passing in November 2017 thanks to a tie-breaking vote from Mayor Mike Walsh. Nelson says much of the opposition was voiced online, and the majority had to do with fear over allowing transgender people access to bathrooms that correspond to their identity. “That was the big one — people saying there’s going to be all these assaults and crimes,” Nelson says. “It’s kind of ridiculous.” A recent study found no link between transgender-inclusive bathroom policies and incidence of crime. To the contrary, transgender people are disproportionately affected by violent assault.

The ordinance, Nelson says, “is not special treatment — it’s just equality.”

School districts across the state are also adopting gender-inclusive policies. Brian Juchems, co-director of GSAFE, a Madison-based organization that advocates for LGBTQ youth, says nearly 230 districts have approved gender-inclusive language in their nondiscrimination policies. It’s a good start, he says, but many of the districts with such policies in place still have not established guidelines for implementation. For example, schools with gender-inclusive nondiscrimination policies may still have a procedural rule in place requiring parental permission before students can use their preferred name or their appropriate pronouns. “That feels pretty discriminatory,” Juchems says. “It’s setting up a standard that only applies to trans students.”

Some districts fear stirring up controversy, and for good reason — religious and conservative groups often respond to displays of trans inclusion at schools with lawsuits. In 2017, the Mount Horeb Primary School canceled a reading of I Am Jazz, a book about a transgender girl, after threats from the Liberty Counsel, an anti-LGBT organization classified as a hate group by the Southern Poverty Law Center.

“I think schools are not always clear about what they’re supposed to do,” Juchems says. He says the Trump administration’s rollback of protections for transgender students — including rescinding an Obama policy that allowed students to use the bathroom of their choice — has caused more confusion. “Sometimes schools are fearful of somebody being upset from the community, or overly concerned about what they can legally do or not do.”

Juchems calls Evers and Lt. Gov. Mandela Barnes “brilliant allies” for LGBTQ youth and is hopeful about the tone the new administration will set. But the GOP-controlled state Legislature remains a challenge. “I anticipate intentional conversations and efforts to move toward statewide protections, but ultimately we’re going to need some shift in the Legislature.”

Perhaps the most important avenue for advancing rights and legal protections for transgender people has been the courts. Some landmark victories have come out of the 7th Circuit Court of Appeals, which is based in Chicago and covers Wisconsin, Illinois and Indiana.

“The 7th Circuit isn’t necessarily known as a bastion of progressive thinking,” says Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin. “But it’s been actually, for quite some time, at least periodically good on LGBT rights issues.”

Each of the 13 federal appeals courts wield great power and influence. The U.S. Supreme Court reviews less than 2 percent of the more than 7,000 petitions it receives each year, so the appellate courts are almost always the final arbiter of federal cases.

Of the 11 judges who make up the 7th Circuit Court of Appeals, nine were nominated by Republicans. Despite the court’s conservative majority, it has often been a championed for LGBTQ rights.

In 2018, a three-judge panel of 7th Circuit judges ruled in favor of Marsha Wetzel, a lesbian senior citizen who was targeted for harassment and violence from residents in her assisted living facility based on her sex and sexual orientation. Wetzel v. Glen St. Andrew Living Community established that landlords may be held liable under the Fair Housing Act if they fail to protect a tenant from other tenants.

The previous year, the 7th Circuit ruled in Hively v. Ivy Tech Community College that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964. Also in 2017, the 7th Circuit’s decision in Whitaker v. School District of Kenosha brought a landmark victory for transgender legal protections. Plaintiff Ash Whitaker, a transgender boy, successfully sued after being denied access to male-designated restrooms.

Art Leonard, a law professor at New York University and executive editor of the LGBT Law Notes journal, says the 7th Circuit’s liberal rulings on LGBTQ rights are vestiges from when judges remained independent of partisan politics.

“The divisions of the court around LGBT issues don’t seem to be based on the politics of the presidents who appointed the judges,” Leonard says. “Or at least, not the judges who were appointed by Republican presidents prior to the turn of the century.”

“The process has become much more politicized,” Leonard adds.

LGBTQ legal advocates hope that transgender people will continue to secure legal protections in the courts. “Right now is when a lot of law is being made that will define the scope of transgender rights for a long time,” says Joseph Diedrich, an attorney with Husch Blackwell in Madison.

One of the biggest questions in many of these cases is the legal definition of the word sex. A host of statutes — including the Affordable Care Act, Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 — prohibit sex-based discrimination. But does the concept of sex include a gender identity that differs from a person’s sex assigned at birth? “How particular courts interpret that word will likely have far-reaching impacts on many different areas of law,” Diedrich says. “It’s likely too that a ruling in one particular context — like health care — about what ‘sex’ means would likely be persuasive to a court down the road in an employment or education context.”

Even with rising partisanship in the judiciary, LGBTQ advocates were, as recently as last spring, optimistic about the prospect of a landmark Supreme Court victory for transgender rights. But the retirement of Justice Anthony Kennedy — a crucial swing vote who sided with the court’s liberals on several LGBTQ rights decisions — changed everything. On Jan. 22, the U.S. Supreme Court issued an unsigned 5-4 ruling that allowed the Trump administration’s ban on transgender military service to go into effect. There are a number of other cert petitions — requests for a SCOTUS ruling from parties that lost in lower courts — dealing with trans rights.

With recent rulings from appeals courts on trans issues deviating from older decisions, Leonard believes the time is ripe for SCOTUS to establish a nationwide decision.

But with the new makeup of the court, advocates are apprehensive. In future terms, he anticipates advocates will avoid the U.S. Supreme Court — which means being willing to take losses at courts of appeal. “We’ve got to work on the Legislature,” he says, “and persuade them that this is an issue that shouldn’t be political.”

When Oriel’s clinic flooded during last summer’s heavy rains, she wondered if the universe was giving a sign that her private practice was a bad idea. But after posting about the damage on social media, she was amazed by the response from her patients. “We literally had people not just calling, but showing up to help,” she says.

Cass Dowling, a transgender woman who has been a patient of Oriel’s since 2001, isn’t surprised by the devotion she inspires. Dowling transitioned under Oriel’s care 11 years ago and now the pair work together to educate health care providers on best practices for treating the trans community. “I probably would not be alive if it was not for Dr. Oriel,” Dowling says. “She really gave me hope.”

After the flooding, Oriel moved her practice to a temporary space on University Avenue. In addition to seeing patients, she’s raising money to move the practice into a permanent home — someplace that has “all the things our patients deserve — like sinks,” she says with a laugh.

Oriel’s story is an example of how allies can make progress by pushing for justice and inclusion while institutions are still catching up. Despite the struggles, she has no regrets. “It has been absolutely moving and humbling just to feel like I’m part of this community,” she says. “It really is amazing.”

[This article has been edited to correct the home district of state Rep. Mark Spreitzer. He represents Beloit, not Racine.]