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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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