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TS Argues: Need for Hormone Therapy a Protected Disability
Physician's Financial News
Contributed by Trish B
November 15, 1997
Just because Margaret O'Hartigan was not born a female, she does not
think that should exclude her from insurance coverage for a hormone condition
afflicting many women.
In her case, hypoestrogenism-diminished estrogen in the blood-was a
result of her 1979 sex-change operation and requires regular hormone
therapy.
Ms. O'Hartigan and the Oregon Bureau of Labor and Industries believe she
was discriminated against when the law firm where she worked would not buy
health insurance that covered such treatment for transsexuals, as well as
other women.
She now has taken her case to Federal court, seeking a ruling that
her condition caused by the sex change constitutes a disability that
should be protected by the Americans with Disabilities Act. But the ADA says
that transsexualism and gender-identity disorders are not disabilities.
Ms. O'Hartigan's lawyer, Tom Steenson, interprets the ADA as saying
only that transsexualism itself is not a disability-not resulting in
physical impairments, such as Ms. O'Hartigan's hypoestrogenism. "We
think state and Federal law covers her situation," he said.
Ms. O'Hartigan is not one to let rules block her path: In 1979, she got
the state of Minnesota to pay for her sex change surgery, and recently, the
Portland-area Metropolitan Human Rights Commission to vote to protect
transexuals under the city's human rights ordinance.
The Portland law firm where Ms. O'Hartigan worked as a
secretary-VavRosky, MacColl, Olson, Doherty & Miller-told the state it
was not aware she was having trouble with insurance coverage. "We
didn't discriminate. We've held that position straightforward through
the proceedings until now," said Dennis VavRosky, a member of the firm.
To be protected by the ADA, a disability must substantially impair a
major life activity-such as breathing, sleeping, working, walking, eating,
lifting, or standing, said attorney Ken Lehrman, director of the University
of Oregon's affirmative action and equal oopportunity office.
Possibly helping Ms. O'Hartigan's case are several court rulings
that say some conditions are protected under the ADA, Mr. Lehrman said.
For instance, in 1993, a Federal court in Rhode Island ruled that morbid
obesity is a protected disability, and an obese nurse's employer should make
reasonable accommodations so she can do her job.
Not Employers' Responsibility
On the other hand, Mr. Lehrman continued, employers are not required to
provide personal-use item, such as wheelchairs, except for use on the job.
"I would be shocked if a court held that an employer had to provide
medication for the employee," Mr. Lehrman said.
Initially, the state Bureau of Labor and Industries rejected Ms.
O'Hartigan's claim. But the agency gave it a second look after
realizing it must interpret Oregon's disability discrimination law in
accordance with the Federal Rehabilitation Act, which covers
transsexuals' disabilities, instead of the ADA.
The bureau recently found substantial evidence that the law firm
discriminated against Ms. O'Hartigan because of her disability.
Shortly after that, the Oregon legislature amended the state's law to
exclude disorders such as pyromania and kleptomania, but not
transsexualism, bureau spokesperson Joan Stevens-Schwenger said.
The agency also found that Ms. O'Hartigan's employer had not tried
very hard to find an insurance company that would cover her needs. The
bureau found two such insurers: Oregon Medical Insurance Pool and
Standard Insurance.
Ms. O'Hartigan has withdrawn a complaint to the bureau alleging the
law firm later fired her in retaliation, and instead raises that claim
in her lawsuit.
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