AB 1586 California's Anti-Discrimination Law for Transgendered Persons

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AB 1586 California's Anti-Discrimination Law for Transgendered Persons

Legislation

By: California State Legislature

Date: September 29, 2005

Source: California State Legislature. "AB 1586 Anti-Discrimination Law for Transgendered Persons." (September 29, 2005): 1283-1297.

About the Author: The California State Legislature has a tradition of being the among most progressive legislative bodies in the United States on social policies involving equal rights for minorities.

INTRODUCTION

California's Anti-Discrimination for Transgendered Persons law (also known as the Insurance Gender Non-Discrimination Act), was introduced by Assembly member Paul Koretz (D-West Hollywood) and signed into law by Governor Arnold Schwarzenegger on September 29, 2005. The law was the first effort by any state to protect transgendered people from discrimination in health care coverage. It added gender and gender identity to existing anti-discrimination provisions in California laws regulating insurance companies and health care service plans. Despite existing anti-discrimination statutes, many transgendered people in California suffered health care discrimination. They were either denied the option to purchase insurance or denied coverage for medically necessary procedures.

Transgender people may have undergone sex reassignment surgery to go from male-to-female or female-to-male, or altered their bodies with hormones. Transition-related health care and services can include blood work, hormones, mental health therapy, surgical removal of the breasts and chest reconstruction, breast augmentation, and genital reconstruction. People who have the legal gender of the opposite sex may also need medical care appropriate to their original sex. For example, a female-to-male transgender person may now be legally male, but may still have need for gynecological care. Additionally, transgender people often suffer substance abuse issues that relate both to their gender identity problems and to widespread discrimination against the transgendered.

In 2002, the Transgender Law Center released a report, "Trans Realities: A Legal Needs Assessment of San Francisco's Transgender Communities," that stated that ninety-three percent of the transgender people surveyed had utilized medical services as part of their transition to the other sex. Nearly one in three respondents experienced some form of health carerelated gender identity discrimination, including routine denial of coverage by health insurers and discriminatory behavior by health care providers and office staff. A 1999 Transgender Community Health Project study discovered that over half of transgender people were uninsured, while thirteen percent of male-to-female transgenders and thirty-nine percent of female-to-male respondents reported being denied or experiencing difficulties in obtaining health care.

PRIMARY SOURCE

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 1365.5 of the Health and Safety Code is amended to read:

1365.5.

(a) No health care service plan or specialized health care service plan shall refuse to enter into any contract or shall cancel or decline to renew or reinstate any contract because of the race, color, national origin, ancestry, religion, sex, marital status, sexual orientation, or age of any contracting party, prospective contracting party, or person reasonably expected to benefit from that contract as a subscriber, enrollee, member, or otherwise.
(b) The terms of any contract shall not be modified, and the benefits or coverage of any contract shall not be subject to any limitations, exceptions, exclusions, reductions, copayments, coinsurance, deductibles, reservations, or premium, price, or charge differentials, or other modifications because of the race, color, national origin, ancestry, religion, sex, marital status, sexual orientation, or age of any contracting party, potential contracting party, or person reasonably expected to benefit from that contract as a subscriber, enrollee, member, or otherwise; except that premium, price, or charge differentials because of the sex or age of any individual when based on objective, valid, and up-to-date statistical and actuarial data are not prohibited. Nothing in this section shall be construed to permit a health care service plan to charge different premium rates to individual enrollees within the same group solely on the basis of the enrollee's sex.
(c) It shall be deemed a violation of subdivision (a) for any health care service plan to utilize marital status, living arrangements, occupation, sex, beneficiary designation, ZIP Codes or other territorial classification, or any combination thereof for the purpose of establishing sexual orientation. Nothing in this section shall be construed to alter in any manner the existing law prohibiting health care service plans from conducting tests for the presence of human immunodeficiency virus or evidence thereof.
(d) This section shall not be construed to limit the authority of the director to adopt or enforce regulations prohibiting discrimination because of sex, marital status, or sexual orientation.

SEC. 2. Section 10140 of the Insurance Code is amended to read:

10140.

(a) No admitted insurer, licensed to issue life or disability insurance, shall fail or refuse to accept an application for that insurance, to issue that insurance to an applicant therefore, or issue or cancel that insurance, under conditions less favorable to the insured than in other comparable cases, except for reasons applicable alike to persons of every race, color, religion, sex, national origin, ancestry, or sexual orientation. Race, color, religion, national origin, ancestry, or sexual orientation shall not, of itself, constitute a condition or risk for which a higher rate, premium, or charge may be required of the insured for that insurance. Unless otherwise prohibited by law, premium, price, or charge differentials because of the sex of any individual when based on objective, valid, and up-to-date statistical and actuarial data or sound underwriting practices are not prohibited.
(b) Except as otherwise permitted by law, no admitted insurer, licensed to issue disability insurance policies for hospital, medical, and surgical expenses, shall fail or refuse to accept an application for that insurance, fail or refuse to issue that insurance to an applicant therefore, cancel that insurance, refuse to renew that insurance, charge a higher rate or premium for that insurance, or offer or provide different terms, conditions, or benefits, or place a limitation on coverage under that insurance, on the basis of a person's genetic characteristics that may, under some circumstances, be associated with disability in that person or that person's offspring.
(c) No admitted insurer, licensed to issue disability insurance for hospital, medical, and surgical expenses, shall seek information about a person's genetic characteristics for any nontherapeutic purpose.
(d) No discrimination shall be made in the fees or commissions of agents or brokers for writing or renewing a policy of disability insurance, other than disability income, on the basis of a person's genetic characteristics that may, under some circumstances, be associated with disability in that person or that person's offspring.
(e) It shall be deemed a violation of subdivision (a) for any insurer to consider sexual orientation in its underwriting criteria or to utilize marital status, living arrangements, occupation, sex, beneficiary designation, ZIP Codes or other territorial classification within this state, or any combination thereof for the purpose of establishing sexual orientation or determining whether to require a test for the presence of the human immunodeficiency virus or antibodies to that virus, where that testing is otherwise permitted by law. Nothing in this section shall be construed to alter, expand, or limit in any manner the existing law respecting the authority of insurers to conduct tests for the presence of human immunodeficiency virus or evidence thereof.
(f) This section shall not be construed to limit the authority of the commissioner to adopt regulations prohibiting discrimination because of sex, marital status, or sexual orientation or to enforce these regulations, whether adopted before or on or after January 1, 1991.

SEC. 3. This act is not intended to mandate that health care service plans or insurers must provide coverage for any particular benefit, nor is it intended to prohibit sound underwriting practices or criteria based on objective, valid, and up-to-date statistical and actuarial data. Rather, the purpose of this act is to prohibit plans and insurers from denying an individual a plan contract or policy, or coverage for a benefit included in the contract or policy, based on the person's sex, as defined.

SIGNIFICANCE

On January 1, 2006, two new California laws took effect that marked the first state efforts to ban all forms of transgender discrimination. AB 1586, the Insurance Gender Non-Discrimination Act, combined with AB 1400, the Civil Rights Act of 2005, to make California into the most protective state for transgender rights in the nation. Transgender people obtained legal safeguards against discrimination in health care coverage, education, employment, housing, foster care, and public accommodation.

In the past, a number of California localities, including Oakland, San Francisco, and San Jose passed ordinances protecting transgender people from discrimination. The ordinances covered all city facilities as well as all business establishments that were open to the general public, such as restaurants, cafes, and shops. Of particular value and in answer to a longstanding complaint, the laws allowed transgendered people access to restrooms and dressing rooms appropriate for the gender that they identified with, even if it is different from their biological gender. The ordinances were not prompted by any one particular instance, although transgendered people had long complained about harassment by police. The laws also did not immediately transform hostile attitudes toward transgendered people, with discrimination remaining enough of a concern to prompt the statewide protective legislation.

The California laws were an attempt to provide a powerful tool for creating lasting social change. It will take some time for the effects of the laws to be fully felt. However, their symbolic value is already being felt by transgendered people who have been told that their well-being is a matter of public policy concern.

FURTHER RESOURCES

Books

Lev, Arlene Istar. Transgender Emergence: Therapeutic Guidelines for Working with Gender-Variant People and Their Families. New York: Haworth, 2004.

Rice, Califia-Patrick. Sex Changes: The Politics of Transgenderism. San Francisco: Cleis, 2003.