Gender Transformation Patients - A New Risk Management Issue

Can We Dance Around the Issues and Challenges of Transgender, Transsexual and Transitioning Patients?

TRANSGENDER PEOPLE ARE MEDICALLY UNDERSERVED Fear Embarrassment Discrimination Lack of Communication Insenstivity

Vocabulary Gender Identity is our innate and deeply felt psychological identification of being a man or a woman. This may or may not correspond to the sex assigned at birth. Gender Expression refers to all external characteristics that are socially defined as either masculine or feminine. Transgender refers to people who have gender identities, gender expressions, or gender behaviors that fall outside of the norm. Includes cross- dresser, transitioning & transsexual.

Vocabulary Cross –dresser refers to those who dress in clothing of the opposite sex. Generally part time and no desire to change their physical characteristics or gender expression permanently. (transvestite) Transitioning is the process of change to the opposite gender. May occur by living “in role” or by undergoing medical treatment to physically alter the body.

Vocabulary Transsexual refers to individuals seeking a permanent change to their physical characteristics. May include hormone therapy and sex reassign- ment surgery. Transsexual may be referred to as pre-operative (“pre-op”), post-operative (“post- op”) or non-operative (“non-op”). Gender Identity Disorder/Gender Dysphoria – a psychological disorder recognized by the American Psychiatric Association, of severe distress and discomfort caused by the conflict between one’s gender identity and one’s sex at birth.

Transitioning Process Initial psychological testing; Ongoing psychiatric monitoring and counseling to assess extent of condition; Health evaluation for hormone therapy; Administration of hormones; Monitoring to assess reaction to physical changes; Trial living period of at least one year in new gender; Continued hormone therapy and possible surgical reconstruction.

Protections for the Transgendered Federal Law – Discrimination is prohibited by the Civil Rights Act. State statutory protections that prohibit gender identity based discrimination Discrimination for sexual orientation prohibited in all States for public accommodations (hospitals) California Unruh Civil Rights Act, Civil Code 51 prohibits discrimination in hospital based on sex or sexual orientation.

Protections for the Transgendered TJC – RL 01.01.01 The hospital respects, protects and promotes patient rights. EP 29 – The hospital prohibits discrimination based on age, race, ethnicity, religion, culture, language, physical or mental disability, socioeconomic status, sex, sexual orientation, and gender identity or expression. Surveys for compliance effective July 1, 2011 President’s Memorandum April 2010

Protections for the Transgendered CMS issues alert prohibiting discrimination based on sexual orientation for patients and their medical decision makers effective September 7, 2011. Visitors chosen by patient or by representative must be able to enjoy visitation rights no more restrictive than those for immediate family members. Patient can designate medical decision maker who is not immediate family and is same sex

Gender Identity Discrimination Denial of Coverage Exclusion of gender specific procedures Exclusion of sexual reassignment surgery or hormone therapy Hostile or Insensitive Environment Inappropriate name or pronoun use Invasive inquiries about transgender status Denial of access to restroom

Provider Challenges Protecting Confidentiality HIPAA compliant Monitor Staffing of transgender sensitive & trained caregivers Education Address patient by name and with pronoun presented Housing of transgender patients To the gender as presented at admission

Provider Challenges Assignment of medical record number Medical Record number should not change in the interest of continuity of medical care and patient safety Change of gender, name and other identifying information on the record – when does it occur? Following receipt of notice of legal process Patient can petition to change sex and name Denial of visitation access Policy developed and implemented consistent with CMS COPs Restriction on medical decision making

Best Practices Patient Bill of Rights Education Policy Monitoring to be free from discrimination based on sex, sexual orientation, gender identity or expression Kaiser Permanente Education Educate staff at all levels Policy Develop a detailed policy Monitoring Monitor for adherence

Restriction of Access Visitation allowed by designated individuals Unless No visitors are allowed The hospital reasonably determines the presence of a particular visitor would endanger the health and safety of a patient, staff or other visitor, or disrupt the operations of the hospital, The patient has indicated to the staff a particular visitor is no longer wanted CHA Consent Manual 1.17-1.19 & 2.8 – 2.9

Patient or Family Resources Department of Fair Employment and Housing 1-800-1684, www.dfeh.ca.gov Medical Board of California 1-800-633-2322, www.medbd.ca.gov The Joint Commission CMS Bureau of Labor and Industries (BOLI) Civil Rights Division, Oregon www.Oregon.Gov, 1-971-673-0764

Patient or Family Resources Washington State Human Rights Commission 1-800-233-3247, www.hum.wa.gov Hawaii Civil Rights Commission, 1-808-586- 8636, www.hawaii.gov CMS

Questions and Discussion Erin L. Muellenberg, Esq. Arent Fox LLP 555 W. 5th St., 48th Floor Los Angeles, CA 90013 213.443.7595 muellenberg.erin@arentfox.com