This article has been updated to clarify that Friday's ruling was made by the Montana Human Rights Bureau, and not by a Montana court.
The exclusion of gender-affirming healthcare in Yellowstone County's insurance plan was ruled as discrimination by the Montana Human Rights Bureau Friday.
The decision, in which the Department of Labor and Industry's Office of Administrative Hearings cited the Montana Human Rights Act, marks first time that a Montana office has affirmed transgender and non-binary individuals as a protected class.
“We believed all along that the Montana constitution guaranteed the rights to individual dignity, and that nobody can be denied those rights. It was great to see that solidified today,” said Alex Rate with the ACLU of Montana.
Rate and several others represented Eleanor Maloney, a former senior deputy attorney in Yellowstone County who filed a complaint with the Department of Labor, after the county’s health insurance plan denied her coverage of both gender-affirming surgery and counseling.
Maloney became a Yellowstone County employee in 2017, when she began work as a senior deputy attorney. After being diagnosed with gender dysphoria, which the Mayo Clinic describes as the distress that comes with identifying as a gender that differs from the sex assigned at birth, she looked for treatment through the county’s health insurance plan.
Health care for gender dysphoria can include surgery, hormone treatment and counseling. According to documents detailing the decision, the insurance plan provided to Yellowstone County employees specifically excludes coverage for treatments related to "sexual reassignment."
In December 2017, documents say Maloney began therapy. She then resigned from her position in May 2018 following discussions with both insurance and county officials in which she challenged being denied coverage for the excluded services. A month later, management with the county’s health insurance plan told her that her previous therapy sessions would not be covered either.
According to the complaint filed by Maloney in September 2018 against Yellowstone County and its commissioners, Maloney submitted two grievances with Yellowstone County Human Resources before turning to the Human Rights Bureau of the Department of Labor and Industry.
In the decision Friday, Hearing Officer Chad Vanisko wrote that he rejected representatives of Yellowstone County’s assertions that it could not be determined whether Maloney belonged to a protected class.
“The Hearing Officer finds that Maloney is, in fact, a member of a protected class, and that transgender status is included under the prohibition against sex discrimination,”read the summary judgment.
Rate, who has been an attorney for Maloney since she filed her complaint in 2018, said he thought Montana’s constitution had always acknowledged transgender and non-binary as a protected class; that acknowledgment just needed legal clarification, he said.
In arguing on behalf of Maloney, Rate said the only similar cases for her attorneys to reference were those in which pregnant women were denied health care by their place of work.
“The analogy that we drew was that somebody was denied care based on a provision under the Yellowstone County health care plan,” he said.
Along with the Montana Human Rights Act, the bureau also cited a recent United States Supreme Court decision which ruled that Title VII of the Civil Rights Act of 1964 extended to protecting against discrimination in the workplace based on their sexual orientation or gender identity. The decision of Bostock v. Clayton County, Georgia, encompassed three cases which involved individuals fired from their jobs after coming out as transgender.
“Prior to that U.S. Supreme Court decision, there was a lot of doubt because in Montana there had not been a court that definitively addressed the issue,” Rate said.
A hearing will be held Tuesday to address the damages owed to Maloney.
Chief In-House Cousel for Yellowstone County Jeana Lervick said Friday's decision was against the provision in the county employee's health care plan, and not against the county.
"That provision is a problem in light of the Supreme Court ruling, so basically any entity that runs counter to that decision is now at fault," she said.
Lervick said for Tuesday's damages hearing, the Human Rights Bureau can determine whether the county's insurance company will need to provide payment for Maloney's treatment, or if the exclusion of sexual reassignment services has to be struck from its plan.
"If neither party is satisfied with the Human Rights Bureau, then they can take that matter to court," she said.
In the summary of the Yellowstone County Group Health Benefits Plan restated in January 2020, the exclusion of “medications, implants, hormone therapy, surgery, medical or psychiatric treatment” to treat gender dysphoria still remained.
“From our perspective, the language of that plan has been nullified,” Rate said.
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