1. The Intersection of Gender Identity and Healthcare
Doran Stamps, RN, BSN, CHC, CPHRM
The Intersection of Gender Identity and Healthcare

2. Why do healthcare institutions need to address gender identity?
The right thing to do
70% of transgender individuals report experiencing discrimination in healthcare
19% of transgender or non-conforming individuals report being refused healthcare due to their status
41% of transgender individuals reported they had attempted suicide (compared with 1.6% of the general population)
Compliance with Non discrimination Section 1557 of the ACA

3. Key Parts of Section 1557 of the Affordable Care Act
Protecting individuals against sex discrimination
Ensuring Meaningful access for Individuals with Limited English Proficiency
Ensuring Effective Communication with and Accessibility for individuals with disabilities
Coverage of health insurance in marketplaces and other health plans

4. Protections Against Sex Discrimination
Includes discrimination based on:
An individual’s sex
Pregnancy, childbirth and related conditions
Gender identity
Sex stereotyping; including that an individual must identify as either male or female

5. Protections
Individuals cannot be denied health care or health coverage based on their sex, including their gender identity and sex stereotyping.
Women must be treated equally with men in the health care they receive and the insurance they obtain.
Categorical coverage exclusions or limitations for all health care services related to gender transition are discriminatory.
Individuals must be treated consistent with their gender identity, including in access to facilities. However, providers may not deny or limit treatment for any health services that are ordinarily or exclusively available to individuals of one gender based on the fact that a person seeking such services identifies as belonging to another gender.
Sex-specific health programs or activities are permissible only if the entity can demonstrate an exceedingly persuasive justification, that is, that the sex-specific health program or activity is substantially related to the achievement of an important health-related or scientific objective.
While the final rule does not resolve whether discrimination on the basis of an individual's sexual orientation status alone is a form of sex discrimination under Section 1557, the rule makes clear that OCR will evaluate complaints that allege sex discrimination related to an individual’s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under Section HHS supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments on this issue.

6. Examples of sex discrimination (from the OCR’s education slide deck)
Multiple staff at a hospital created a hostile environment for a transgender woman because she was transgender. She was also required to share a room with a male patient.
A pharmacist would not provide a flu vaccine to a woman and questioned her about her non-gender-conforming clothing and hairstyle.
Staff at a hospital’s emergency department ridiculed a male patient who arrived after sustaining injuries in a domestic incident. Staff did not evaluate the patient under a domestic violence protocol because he was male.

7. Gender Identity
An individual’s internal sense of gender, which may be female, male, neither, or a combination of female and male, and which may be different from an individual’s sex assigned at birth.

8. The way an individual expresses gender identity is frequently called “gender expression”, and may or may not conform to social stereotypes associated with a particular gender. A transgender individual is an individual whose gender identity is different from the sex assigned to that individual at birth.

9. What is gender identity?
Gender identity is one's personal experience of one's own gender. This is generally described as one's private sense of being a man or a woman, consisting primarily of the acceptance of membership into a category of people: male or female. All societies have a set of gender categories that can serve as the basis of the formation of a social identity in relation to other members of society.

10. Gender Categories 1. Male 2. Female
3. Female to Male (FTM)/Transgender Male/Trans Man
4. Male to Female (MTF)/Transgender Female/Trans Female)
5. Genderqueer, neither exclusively female nor male
6. Additional gender category or Other please specify
Decline to answer

12. Other terms
Cisgender: A term used to describe someone whose gender identity aligns with the sex assigned to them at birth. Androgynous: Identifying and/or presenting as neither distinguishably masculine nor feminine Bigender: Someone whose gender identity encompasses both man and woman. Some may feel that one side or the other is stronger, but both sides are present

13. Gender fluid: A person who does not identify with a single fixed gender, and expresses a fluid or unfixed gender identity. One’s expression of identity is likely to shift and change depending on context Gender non-conforming: A broad term referring to people who do not behave in a way that conforms to the traditional expectations of their gender, or whose gender expression does not fit neatly into a category.

14. Genderqueer: A term for people who reject notions of static categories of gender and embrace a fluidity of gender identity and often, though not always, sexual orientation. People who identify as genderqueer may see themselves as being both male and female, neither male nor female or as falling completely outside these categories.

15. Two-spirit: A term that refers to historical and current First Nations people whose individual spirits were a blend of male and female. This term has been reclaimed by some in Native American LGBT communities to honor their heritage and provide an alternative to the Western labels of gay, lesbian, bisexual, or transgender.

16. Gender Affirming Surgeries
For Affirmed Women
Breast Augmentation Facial Feminization (FFS) Gluteal and hip augmentation Orchiectomy Vaginoplasty Labiaplasty Clitoroplasty
For Affirmed Men
Chest Construction, also known as “Top Surgery” (Mastectomy) Hysterectomy Bilateral Oophorectomy Metoidioplasty Phalloplasty – Stage 1 includes: Vaginectomy, Urethroplasty & Forearm Pre-Lamination Phalloplasty – Stage 2 includes: Scrotoplasty & Glansplasty

17. Hormone Therapy MTF: Estrogen and anti-androgens spironolactone
FTM: Testosterone

18. What do we do?
Strategies to improve health care for gender non-conforming patients and to comply with Section 1557 requirements:
Use the patient’s identified gender
In the demographics- EHR
When addressing the patient
On wristbands and labels
Follow the Fenway guidelines (MTF, FTM, etc.)

19. •Understand that gender nonconformity is not a disorder •Gender identity is not binary (male, female) •Gain knowledge of transgender medical care needs •Room according to gender identity- (no charge for accomodation of gender by using a private room) •Identify and use the patient’s preferred pronouns

20. Include gender identity in Non Discrimination and Patient’s Rights policies
Provide role specific transgender care staff training

21. The EHR Not currently standardized nor mandated, but this is coming.
EHR requirements have been made a part of Meaningful Use requirements. All EHR systems certified under Stage 3 of Meaningful Use will allow users of record to record, change and access structured data on sexual orientation and gender identity. These requirements are slated to take effect in 2018.

22. Suggested questions  Female to Male (FTM/Transgender Male/Trans Man
 Male to Female (MTF/Transgender Female/Trans Woman
 Genderqueer, neither exclusively male nor female
 Additional gender category/Other please specify__________________
 Decline to answer

23. What sex were you assigned at birth on your birth certificate?
 Male
 Female
 Decline to answer

24. Record name and preferred pronoun in EHR
Registration records, in additions to Legal Name fields, should include a field for Name in Use. Nickname, alias or similar fields can be used.

25. Pronouns  She/her/hers  He/him/his  They/them/theirs
 Patient’s name
 Decline to answer
 Unknown

26. Sexual Orientation  Lesbian or Gay  Straight (not Lesbian or Gay)
 Bisexual
 Something else
 Don’t know
 Choose not to disclose

27. Federal Enforcement of Section 1557 (from OCR slide deck)
The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) enforces Section 1557 as to programs that receive funding from HHS.
OCR is a neutral, fact-finding agency that receives, investigates and resolves thousands of complaints from the public alleging discrimination in health services and health coverage.
When OCR finds violations, a covered entity will be required to take corrective actions, which may include revising policies and procedures, and implementing training and monitoring programs. Covered entities may also be required to pay compensatory damages.
When a covered entity refuses to take corrective actions, OCR may undertake proceedings to suspend or terminate Federal financial assistance from HHS. OCR may also refer the matter to the U.S. Department of Justice for possible enforcement proceedings.
Section 1557 also provides individuals the right to sue covered entities in court for discrimination if the program or activity receives Federal financial assistance from HHS or is a State-based Marketplace℠.

28. Enforcement
Violations and failure to address compliance issues can result in suspension or loss of federal funding and may include payment of compensatory damages.
Individuals can bring individual or class actions claims directly against covered entities in federal court.
Rumble v. Fairview Health Services
OCR opinion letter states that Section 1557 of the ACA extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity. The courts also have interpreted the term “sex” to include individuals who are perceived as not conforming to gender stereotypes and expectations.

29. Resources
Fenway Institute National LGBT Health Education Center:
Lambda Legal
OCR website (Section 1557 educational tools)

30. Questions?