Rep. George Rauscher (R-Sutton) got a running start to the Alaska Legislature’s 31st session, debuting nine pieces of legislation and one proposed constitutional amendment with the first release of prefiled bills. The cadre of proposals range from beefing up criminal sentencing to sex education. It also features his second attempt at strengthening the prohibition barring state funding for gender reassignment surgeries.

Alaska is one of ten states – alongside Georgia, Iowa, Maine, Missouri, Nebraska, Ohio, Tennessee, Wisconsin, and Wyoming – with such a restriction; law stipulates that the Department of Health and Social Services will not fund “transsexual surgical procedures or secondary consequences.” 18 states (and the District of Columbia) offer such coverage, while the remaining 22 have no official policy.

Rauscher’s House Bill 5 seeks to define “gender reassignment medical procedure” as “a surgery or pharmaceutical drug therapy performed or supervised by a physician for the purpose of physiologically changing a person’s sex.” The proposal would reaffirm the preexisting prohibition for current state employees and expand it to include retired state employees and others in state custody.

In February of last year, the Sutton Republican filed an identical bill, HB364, which was promptly buried in three committees of referral and never received a hearing. With no clear House Majority and the body left whipping in the winds of uncertainty (in stark contrast to an upper chamber and executive branch in GOP control), HB5 could see favorable tailwinds this time around.

In an October 30, 2018 email, Alaska Family Council president Jim Minnery noted that then-gubernatorial candidate Mike Dunleavy – now-Governor Michael J. Dunleavy (R-Alaska) – also supported the bathroom bill.

Rauscher has gone on record supporting policies that explicitly discriminate against transgender Alaskans. While campaigning for reelection, Rauscher registered his support for legally defining “sex” as “the objective, biological condition of being female or male” and restricting public restroom use accordingly. This was a question posed in a voter guide published by the social conservative group Alaska Family Council, which led the opposition to Anchorage’s failed ballot initiative with that specific aim. He additionally opposes adding gay, lesbian, bisexual, and transgender constituents as classifications protected by state anti-discrimination law. Joining him in these positions, as indicated by the questionnaire, are senators Lora Reinbold (R-Eagle River), Peter Micciche (R-Soldotna) and representatives David Talerico (R-Healy), Mark Neuman (R-Big Lake), DeLena Johnson (R-Palmer), Cathy Tilton (R-Wasilla), Kelly Merrick (R-Eagle River), Gabrielle LeDoux (R-Anchorage), Sara Rasmussen (R-Anchorage), Chuck Kopp (R-Anchorage), Laddie Shaw (R-Anchorage), and Sarah Vance (R-Homer).

Such a reversal would counter the prevailing trend in the Lower 48.

The 2010 Affordable Care Act (Section 1557) made it illegal, under federal law, for insurance companies and health providers to discriminate against transgender people who seek transition-related care if the same care is permitted for non-transgender recipients. “That means that an insurance company may be breaking the law if it covers breast reconstruction for cancer treatment, hormones to treat post-menopause symptoms, or genital surgery after accidents but won’t cover those treatments to treat gender dysphoria,” notes the National Center for Transgender Equality.

Since 2016, 11 states have adopted inclusive policies paralleling the guidelines set by the ACA, recognizing gender reassignment procedures as “medically necessary” to treat gender dysphoria – defined by the American Psychiatric Association (APA) as “a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify. People with gender dysphoria may be very uncomfortable with the gender they were assigned, sometimes described as being uncomfortable with their body (particularly developments during puberty) or being uncomfortable with the expected roles of their assigned gender.”

APA added gender dysphoria to its Diagnostic and Statistical Manual of Mental Disorders, 5th Addition, in 2013, replacing the term “gender identity disorder” to clarify that identifying as transgender was not a mental disorder. Gender dysphoria is the stress, and often times trauma, produced by living in a society where identifying as transgender is stigmatized. Gender identity, itself, is not recognized as a mental disorder.

In July of last year, a federal judge in Madison, Wisconsin granted a preliminary injunction against a two-decades-old state law – nearly identical to Alaska’s – banning Medicaid funding for gender reassignment surgeries. The two plaintiffs in the suit, Cody Flack (a 30-year-old transgender man) and Sara Ann Makenzie (a 41-year-old transgender woman), are both disabled and receive Supplemental Security Income.

The plaintiffs’ stories are similar. Assigned the sex of female at birth, Flack has identified as a male since the age of four. He began transitioning as a teenager, enlisting the help of a gender therapist, and began hormone treatments in August of 2016. In October of that year, Flack had his uterus, fallopian tubes, ovaries, and cervix removed via a hysterectomy – paid for with Medicaid funding to treat dysmenhorrhea (lower abdominal or pelvic pain during menstruation) and premenstrual dysphoric disorder (a severe form of premenstrual syndrome), according to court documents.

However, when Flack sought a double mastectomy to remove his breasts, accompanied by requisite letters of support from his primary care physician, therapist, endrocrinologist, and the surgeon who had performed his hysterectomy, the Wisconsin Department of Health Services (DHS) denied the request, because state statutes specifically list “’transsexual surgery’ as a non-covered service under medical assistance… [and the] medical necessity of the services requested was not taken into account.” Flack appealed, but the appeal was also denied, despite DHS conceding that “the proposed surgery presumably would favorably address [Flack’s] gender dysphoria.”

The department did not take into consideration the medical necessity of the surgery, instead concluding that it was a “non-covered service” and “not a covered benefit.”

“The likelihood of ongoing, irreparable harm facing these two individual plaintiffs outweighs any marginal impacts on the defendants’ stated concerns regarding public health or limiting costs,” U.S. District Court Judge William Conley concluded, adding that the court had “little difficulty finding that the equities and the public interest favor entry of a preliminary injunction prohibiting the defendants from enforcing the Challenged Exclusion to deny the named plaintiffs medically necessary surgery in furtherance of treating their gender dysphoria.”

In Alaska, the exclusion is currently being challenged. Jennifer Fletcher is a 36-year-old, Juneau-based state employee. Fletcher began her tenure in 2012, serving as a project coordinator for a digitization project, and was promoted to legislative librarian in 2014. With her employment came enrollment in AlaskaCare, administered by Aetna. As Lambda Legal – a national civil rights organization that focuses on lesbian, gay, bisexual, and transgender communities as well as people living with HIV/AIDS through impact litigation, societal education, and public policy work – described her situation,

Ms. Fletcher ultimately came to terms with her female gender identity in adulthood after attempting to ignore and suppress it, which caused her to experience serious psychological harms including suicidal ideation. She realized that she needed to address the underlying cause of her psychological distress after she reached the point of loading a firearm and pointing it at herself in or around the fall of 2013.

Fletcher sought counseling and was diagnosed with gender dysphoria in 2014. She has been living openly as a woman since, has updated her driver’s license and passport, and has been undergoing hormone therapy. However, when she requested surgical procedures to further her transition – deemed medically necessary by her physician – Aetna informed Fletcher that “AlaskaCare does not cover gender reassignment surgery,” citing the prohibition in state law. She was forced to pay out of pocket. The cost of transition from male to female ranges from $7,000 to $24,000, according to Modern Healthcare, a national research and information source for healthcare business and policy news.

Fletcher received permission from the Equal Employment Opportunity Commission (EEOC) to file suit against the state. The EEOC granted her request, noting that the State’s “categorical exclusion of gender reassignment treatment and services from its health plan results in the adverse treatment of [the State’s] employees based on sex (including gender identity), in violation of Title VII.” The complaint for Declaratory Relief and Damages filed by Fletcher, who is represented by Lambda Legal and Anchorage Attorney (and West Anchorage Assembly member) Eric Croft, argues that it is “an unlawful employment practice [under Title VII] for an employer” to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s …sex.” They stipulate that, under Title VII, “discrimination ‘because of… sex’ includes discrimination on the basis of gender nonconformity, gender identity, transgender status, and gender transition.” The suit seeks Fletcher’s compensation for “the financial harm, emotional distress and suffering, embarrassment, humiliation, pain and anguish, violation of her dignity, and other damages that have been caused by Defendant’s conduct in violation of Ms. Fletcher’s rights under Title VII.”

Fletcher v Alaska has yet to be resolved. Fletcher’s Lambda Legal counsel, Peter Renn, told me via email last week that “it’s always hard to predict the course of litigation, but I would anticipate a decision sometime this year.”

The ongoing court proceedings make the reemergence of Rauscher’s efforts puzzling. The lack of enthusiasm expressed by the House last session could mean there’s a fair chance it will receive a similar attention deficit this year. Court rulings over the past several years have indicated that momentum falls squarely on the side of inclusive policies over blanket exclusions, such as the prohibition against gender reassignment surgeries.

The Alaska Supreme Court has compiled significant precedent to that effect, most notably in State of Alaska Department of Health and Social Services v. Planned Parenthood of Alaska, Inc. (2001), when they found that denying funding for certain, specific procedures – in that case, abortions – deemed medically necessary violates the Equal Protection Clause in Article I, Section 1 of the Alaska State Constitution. “[T]he issue is whether the State, having enacted a benefits program, may discriminate between recipients in the manner attempted by the Department of Health and Social Services (DHSS) today,” Alaska Supreme Court Chief Justice Dana Fabe wrote. “We hold that it may not. Once the State undertakes to fund medically necessary services for poor Alaskans, it may not selectively exclude from that program women who medically require abortions.”

Within the confines of that finding, the sentiment would hold true for gender reassignment surgery. In Wisconsin, the desired procedure to remove Flack’s breasts via double mastectomy is covered, by law, except when done for the purposes of gender reassignment. For Fletcher, the denied funding for vaginoplasty and mammoplasty creates an identical double standard: the former would be covered if done for purposes of reconstructing a vagina damaged during childbirth; the latter if done to reshape the breast or breasts because of physical discomfort. The denial of access to the procedures is accorded because of the classification of the applicant.

But that in no way summarily dismisses legislative redress, and House Bill 5 is looking to legislate before a definitive court ruling on the matter.

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