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Transgender Rights | Health Care | Vermont

Can health care plans discriminate against LGBTQ+ people?

In general, under federal and Vermont state law, nearly all health plans cannot discriminate on the basis of sex, and, because the Supreme Court ruling in Bostock v. Clayton Co. concluded that all gender identity and sexual orientation discrimination is a form of sex discrimination, nearly all health plans cannot discriminate against LGBTQ+ people.

What health care plan protections are provided by Vermont?

Vermont Department of Financial Regulation Division of Insurance

In 2019, the Department of Financial Regulation issued a bulletin requiring that health plans regulated by the Department must cover medically necessary treatment for gender dysphoria and related health conditions.

The bulletin states that health plans “shall not exclude coverage for medically necessary treatment including gender affirmation surgery for gender dysphoria and related health conditions. In addition, insurers may not deny coverage of gender affirmation surgery as not medically necessary on the basis of age without other clinical factors or circumstances supporting the decision.”

Vermont Medicaid

In 2019, The Legislative Committee on Administrative Rules voted to approve a new rule for Vermont Medicaid that requires coverage for medically necessary surgery for the treatment of gender dysphoria. For more information, visit the Agency of Human Services Health Care Administrative Rules Gender Affirmation Surgery for the Treatment of Gender Dysphoria. 

Are there any health care plans that are not protected under Vermont law?

Yes. Medicare and employer health plans that are self-funded (also known as self-insured) are governed by federal law.

What health care plan protections are provided by the federal government?

Medicare

In 2013, Medicare removed the ban on coverage for the treatment of gender dysphoria because it was “experimental” and began to cover medically necessary treatment for gender dysphoria.

Section 1557 of the Affordable Care Act (ACA)

Section 1557 makes it unlawful for any health care provider that receives funding from the Federal government to refuse to treat an individual– or to otherwise discriminate against the individual– based on sex (as well as race, color, national origin, age, or disability). Section 1557 imposes similar requirements on health insurance issuers that receive federal financial assistance. Healthcare providers and insurers are barred, among other things, from excluding or adversely treating an individual on any of these prohibited bases. The Section 1557 final rule applies to recipients of financial assistance from the Department of Health and Human Services (HHS), the Health Insurance Marketplaces, and health programs administered by HHS.

Section 1557 generally does not apply to self-funded group health plans under ERISA or short-term limited duration plans because the entities offering the plans are typically not principally engaged in the business of providing health care, nor do they receive federal financial assistance.

In May 2021, the Biden Administration announced that the Health and Human Services Office for Civil Rights (OCR) would interpret and enforce Section 1557 of the ACA and Title IX’s nondiscrimination requirements based on sex to include sexual orientation and gender identity. The update was made in light of the June 2020 U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions.

In enforcing Section 1557, OCR will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and all other legal requirements and applicable court orders that have been issued in litigation involving the Section 1557 regulations.

Title VII

For employers with 15 or more employees, Title VII bans discrimination on the basis of race, color, religion, sex, and national origin in hiring, firing, compensation, and other terms, conditions, or privileges of employment. Employment terms and conditions include employer-sponsored healthcare benefits. Historically, not all authorities have agreed that Title VII protects LGBTQ+ workers against discrimination.

However, the Supreme Court decision in Bostock v. Clayton Co. changes this because that ruling made it clear that sexual orientation and gender identity discrimination are forms of sex discrimination. Although the decision is about wrongful employment termination, it has implications for employer-sponsored health plans and other benefits. For example, employers may want to adjust group health plan coverage of gender dysphoria and related services, including gender-affirmation surgeries, and review and compare benefits for same-sex and different-sex spouses.

Can religious employers discriminate against LGBTQ+ people?

On July 8, 2020, in Our Lady of Guadalupe School v. Morrissey-Berru, the United States Supreme Court reaffirmed its stance on the application of a ministerial exception to employment discrimination cases as established in earlier rulings. In doing so, the Court simultaneously raised an unanswered issue under Title VII: does the ministerial exception for religious employers allow those organizations to discriminate against employees or candidates based on their LGBTQ+ status?

It’s unclear at this point how the Court’s ruling in Our Lady of Guadalupe School v. Morrissey-Berru may impact the LGBTQ+ employees of religious employers, but religious organizations and employers should recognize that the ministerial exception does not apply to every position within their organizations. Rather, it is limited to those employees who truly perform religious duties. For example, the position of a school janitor who is only present in the building outside of school hours and is not responsible for transmitting the faith would likely not be considered ministerial in nature.

What steps can I take to get coverage for treatment of gender dysphoria?

  1. First, check to see if your health plan provides coverage for the type of treatment that you want by getting a copy of the plan’s “Summary of Benefits and Coverage.” 
  2. Most insurance plans, both public and private, have detailed requirements that must be met in order to obtain coverage. This is particularly true if you are trying to obtain coverage for transition-related surgery. So, contact your health plan and request a copy of the requirements for the treatment you are seeking. 
  3. Work with your therapists and doctors to make sure that you satisfy all the health plan’s requirements. Documentation from your therapists and doctors is the most critical factor in determining whether your treatment request will be approved. 
  4. Check what treatment requires pre-approval. In most cases, any surgery will require pre-approval, and the plan may only pay if you use a surgeon that takes their plan. 
  5. If your treatment request is denied, find out the reasons for the denial, and, if you still think that you qualify for the treatment, follow the plan’s appeal process. Usually, there will first be an internal appeals process, and, if you are not successful there, you can sometimes appeal to an outside agency. Make sure that you adhere to the deadlines—failure to meet a deadline can automatically end your ability to appeal. 
  6. Keep GLAD informed if you are denied treatment. GLAD may be able to offer suggestions that can help you win your appeal. You can contact GLAD Answers by filling out the form at GLAD Answers or by phone at 800-455-GLAD (4523). 
  7. Although more health plans now cover treatment for gender dysphoria, the process for obtaining treatment, particularly for transition-related surgery, can be time-consuming and frustrating. A great deal of documentation is required and finding a surgeon that does the type of surgery, and who is also acceptable to the health plan, can be difficult. 
  8. Don’t be afraid to be persistent and to refile if you are denied. 

How do I find a surgeon who will take my health insurance?

More and more surgeons who perform sex reassignment surgeries take health insurance. You should research surgeons carefully to find one who is a good fit for you. You can look at the list of in-network providers provided by your plan to see if they are included or if it includes any surgeons in your area, and if not, you can contact the surgeon’s office to determine if they accept your insurance. Most health insurance plans require that you use a medical provider in your network, but if your network does not include a surgeon who performs the services you need, you may be able to go out of network if you seek prior authorization from your plan.

What should I do if I am being discriminated against in healthcare?

If you are being discriminated against by a healthcare facility or provider, you can file a discrimination complaint with the Vermont Human Rights Commission. Visit the Discrimination Issue Area for detailed information about how to do this.

If you have a health care plan that is regulated by the Department of Financial Regulation, you can file a complaint with that department: Insurance Complaints | Department of Financial Regulation. 

If you have a health care plan that is governed by Section 1557 of the ACA, you can file a complaint with the federal Department of Health and Human Services Office of Civil Rights. For more information, visit How to File a Civil Rights Complaint. 

If you have a self-funded health care plan through an employer with at least 15 employees, you can file a discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC). For more information, visit the Discrimination Issue Area.

Resources

Resources for Transgender, Gender Non-Conforming and Intersex Vermonters | VTLawHelp.org. 

The New England Transgender Healthcare Consortium consists of providers from over one dozen healthcare facilities in New England who are dedicated to improving access to gender-affirming. For more information, visit New England Gender CARE. 

Vermont Health Care Guidance: Health Insurance Regulations – Vermont

Health Insurance Medical Policies: Health insurance Medical Policies

Legal Defense & Education Fund memo to plan administrators on liability for transgender health care exclusions

Out2Enroll ACA plan information for 2022 

Transgender health care coverage | HealthCare.gov

HHS Will Enforce Section 1557 To Protect LGBTQ People From Discrimination | Health Affairs

Know Your Rights: Healthcare | National Center for Transgender Equality (NCTE)

Health Coverage Guide | NCTE

EEOC Title VII discrimination protections for LGBTQ+ people: Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity | US Equal Employment Opportunity Commission

Guide to Gender Surgeons: TransHealthCare

Cases & Advocacy

To see Transgender Rights cases or advocacy which GLAD has been directly involved with in Vermont, go to Cases and Advocacy – GLAD and under “By Issue” click on “Transgender Rights” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Transgender Rights in Vermont, go to News & Press Releases – GLAD and under “By Issue” click on “Transgender Rights” and under “By Location” select “Vermont.”

Transgender Rights | ID Documents | Vermont

GLAD has an ID Transgender Project that provides free resources for transgender people living in New England (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, or Vermont) seeking to update their legal name and gender on federal and state identification documents.

In many cases, you can update these documents without the assistance of a lawyer using the information below. If you do need help, visit the question below: Where can I get help changing my name and gender on various ID documents?

How do I obtain a legal name change in Vermont?

You begin by filing documents with your county’s Division of Superior Court to obtain an “Order Changing Name.”

For an adult name change you will need to submit the following documents:

Steps to take:

  1. Don’t sign the name change petition form until you are in front of the court clerk or the judge. Each court does things differently. Leave the signature part of the form blank, except that you should include your name, mailing address, and phone number/email.
  2. At the top of the form, put your name where it says, “In re” and your town and state where it says “of.” Leave the docket number blank if you don’t have one. Put the name of your county where it says court “Superior Court Unit.”
  3. Mail or bring documents to your local probate court. We suggest that you bring an extra copy of the paperwork you submit and ask the clerk to stamp it with the filing date for your records. 
  4. The court will send you a notice with a hearing date.
  5. Plan to attend a short hearing. The judge may ask you a few questions, like confirming that nobody is forcing you to change your name or there is no opposing party. 
  6. If the judge approves your petition, you will be issued an Order Changing Name.

Note: You can get a certified copy of your Vermont birth certificate from the Department of Health’s Vital Records Office. Submit an application form or apply online and pay $10 per copy requested. This process varies from state to state. If you were born outside of Vermont, you should contact your state’s Department of Health or Vital Records Office to ask about getting a copy of your birth certificate.

Once the Order Changing Name is issued, you can get a certified copy for a $5 fee at the courthouse. Having several copies is useful. If you have multiples, you will not need to wait for one agency to return a copy before you can apply to change another record.

Do I need to publish my name change in a newspaper?

No. Vermont does not have this requirement.

How do I change the name and gender on my Vermont driver’s license?

Before you change your name and/or gender on your Vermont driver’s license or non-driver ID, you must make these changes on your Social Security card.

You should update your license or non-driver ID within 30 days of a legal name change. You can do this by bringing the documents listed below to your local DMV office. Once you update your information, the DMV will issue you a temporary ID and mail you a new ID.

To change the gender marker on your ID, the DMV does not ask for any documentation. Just submit an application form with the updated information. Vermont now allows three gender marker options on state IDs: Male (“M”), Female (“F”), or Other (“X”).

Documents you need:

  • Application for Replacement License (VL-040) or Non-Driver ID (VL-017) listing the new name and/or corrected gender marker
  • If changing name: Original or certified copy of Order Changing Name
  • An identification document, like a driver’s license or passport
  • Social Security verification showing the new name (new SS card, W-2, or other forms)
  • Two documents showing street address (mail you get at a street address, lease, utility bill, etc.)
  • Replacement fee ($20 for License or $24 for Non-Driver ID). There may be more fees for an enhanced license.

NOTE: Beginning May 3, 2023, if you want to use a state ID to fly domestically or enter a federal building, it will need to be a REAL ID. To obtain a REAL ID, in addition to all the requirements above obtain a VT ID, you must also document your lawful presence in the U.S. For more information about obtaining a VT REAL ID, see: Real ID | Department of Motor Vehicles 

If I was born in Vermont, how do I change the name and gender on my birth certificate?

If changing only the name on your Vermont birth certificate

Mail the documents listed below to the Vermont Department of Health, Vital Records, 108 Cherry Street, PO Box 70, Burlington, VT 05402. The Vital Records Office should process the change. If you ask for a certified copy and pay the $10 fee, you will get a copy of your updated certificate.

Documents you need:

  • Cover letter saying you want to change the name on your birth certificate
  • Certified copy of Order Changing Name
  • No specific form is required, but we recommend that you submit an Application to Correct or Amend a Vermont Birth Certificate
  • If you would like certified copies of the updated birth certificate once issued, submit an application form and $10 per copy requested.

If changing the gender marker on your Vermont birth certificate

Note: In April 2022, Vermont passed a law that will simplify the process of changing the gender marker on a Vermont birth certificate and allow a non-binary “X” option. The law went into effect on July 1, 2022. Please check back here or with the Vermont Vital Records Office for more information about the new process.

Mail the documents listed below to the Vermont Department of Health, Vital Records, 108 Cherry Street, PO Box 70, Burlington, VT 05402.

Documents you need:

If the Office of Vital Records approves your application, it will process the change. If you have asked for copies and paid the $10 fee, you will get a copy of your updated certificate.

If the office denies your application, you can appeal to the probate court (see below). Contact Legal Services Vermont for advice.

Appealing a denial of gender marker change on Vermont birth certificate

If the Vital Records Office denied your application to change the gender marker on your birth certificate, you can appeal to the Vermont probate court and ask the judge to reconsider that decision. File the documents below with your county’s Probate Division of Superior Court. 

Documents you need:

If the probate court agrees that you qualify to have your gender marker changed, it will issue an order that your sexual reassignment has been completed. The Office of Vital Records should then process the updated birth certificate.

Where can I get help changing my name and gender on various ID documents?

The Transgender ID Project is a joint project of GLAD, Massachusetts Transgender Political Coalition (MTPC), and law firms Ropes & Gray LLP and Goodwin. It matches a resident from any of the six New England states with a pro bono (free) attorney at one of these law firms. However, because of the popularity of the program, it may be several weeks before you are contacted by an attorney from one of these firms. For more information and to apply for the Project, go to: Transgender ID Project – GLAD.

However, in most cases, by using the information and forms provided here, you can update these documents fairly easily on your own without the assistance of an attorney.

Resources

Name and Gender Marker Changes in Vermont | VTLawHelp.org 

The National Center for Transgender Equality (NCTE) has an ID Documents Center with information about changing name and gender on state and federal ID documents. You can find information about Vermont here: Vermont | National Center for Transgender Equality. 

Cases & Advocacy

To see Transgender Rights cases or advocacy which GLAD has been directly involved with in Vermont, go to Cases and Advocacy – GLAD and under “By Issue” click on “Transgender Rights” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Transgender Rights in Vermont, go to News & Press Releases – GLAD and under “By Issue” select “Transgender Rights” and under “By Location” select “Vermont.”