The Maine Human Rights Commission agreed Monday that the University of Maine system discriminated against a transgender student in Gorham when she was denied gender-affirming medical procedures through a health insurance plan that the school offered to students in 2019.
The decision was a reversal of the original vote by the five-member commission in November, when it voted 2-1 to dismiss the case, with one member abstaining and another absent.
One of the members who voted to dismiss, Jefferson Ashby, disclosed in December that he had a conflict of interest, prompting the commission to rehear the case. Ashby did not explain his conflict during the December meeting, only that he was “mortified” and apologized to fellow commission members and the student behind the complaint.
Ashby declined a request for an interview through Amy Sneirson, the commission’s executive director.
Commission members voted 3-1 Monday, with Ashby abstaining, to allow the case to proceed to a 90-day conciliation period during which the university system will work with the complainant on a solution that doesn’t involve a lawsuit.
The student, who requested anonymity because she fears mental and physical harm if her name is revealed, started at the University of Southern Maine campus in Gorham in August 2019 and filed her complaint with the commission in October 2020. She was denied coverage for several claims she submitted for gender-affirming care.
During Monday’s meeting, the student’s attorney, Kristin Aiello, said her client, who initially filed her complaint without an attorney, was automatically enrolled in the plan upon registering for classes, placing the burden on her to un-enroll from medical coverage. If she had chosen to do so, the school’s policy at the time would’ve required her to submit proof of insurance from another provider, likely at a much higher cost.
At the time, the health plan’s policy had a blanket exclusion for gender-affirming procedures, Aiello told commissioners, considering them “cosmetic” and unnecessary.
“That’s really important to remember – this was on the list of procedures that were explicitly excluded,” Aiello said. “Period, done, we won’t even look to see if it’s medically necessary.”
Since 2019, major medical organizations, including the American Medical Association, the World Health Organization and the American Academy of Pediatrics, are standing behind gender-affirming procedures as important tools that improve the mental health and well-being of transgender patients. MaineCare began offering coverage for gender-affirming procedures late in 2019.
Deirdre Salsich, the attorney for the university system, told commissioners on Monday that the school had not discriminated against the student because the insurance company was a separate legal entity that oversaw the plan and what it included.
“The real issue at hand in this case is an insurance company’s initial denial of coverage for certain medical procedures,” Salsich said. “We had no role in approving or denying any of the medical procedures that (the student) sought as part of her gender-affirming health care.”
Aiello countered that the system failed to negotiate benefits on behalf of its transgender students, noting that the health plan, which covers 30,000 students, contained several college-specific benefits the university system negotiated related to athletic injuries and its student health centers.
Commissioner Ed David also pointed out the university was able to negotiate the athletic and health center conditions and could’ve done the same for gender-affirming care. Before the student filed her complaint in October 2020, Aiello told commissioners that the student’s mother reached out to the school that spring to alert the university system that the policy excluded the needs of transgender students.
NEGOTIATING COVERAGE
“You engaged directly with the broker and said what your requirements were, and it was important to you … that you negotiated a plan that covered your health centers, that had unlimited coverage for athletic injuries, had these bells and whistles unique to a university campus setting,” David said. “Isn’t that a fair statement?”
“We also researched options that would cover preventative care and primary care for our students,” Salsich said.
“But did you research options that cover gender-affirming care?” David asked. “That’s the point.”
The student was eventually able to receive coverage after filing appeals directly with the insurance company and the Maine Bureau of Insurance – but it only covered 80% of the cost, Aiello said, and after two and a half years of fighting.
“They could’ve chosen another policy,” Aiello said. “They could’ve negotiated making sure that this didn’t contain discriminatory terms, but they didn’t. They selected this plan based on a number of factors, including no deductibles, no caps on claims for athletic accidents, but the complainant’s concerns – as a transgender student protected in a protected class – were not raised or discussed when the university negotiated this plan.”
Following the commission’s vote, the University of Maine System released a statement that they “value each of our students,” “including members of our vibrant LGBTQ+ communities.”
“It is our mission to keep every student safe and healthy,” Tory Ryden, the system’s director of external affairs, said in a written statement. “In light of the commission’s decision this morning, we look forward to the opportunity to resolve this matter.”
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