Editor’s note: The tragic mass shooting at Club Q was a stark reminder of how radically El Paso County must change for LGBTQ+ people to live here in peace and safety. Although there is still a long way to go, Colorado is a leader among states for gender-affirming care services and other LGBTQ+ protections. This story was produced before the events of November 19.
Around this time, 30 years ago, Colorado voters approved Amendment 2, which sought to outlaw the ban on discrimination based on sexual orientation. This earned Colorado the reputation of being the state of hate. (The United States Supreme Court declared Amendment 2 unconstitutional in 1996.)
Today, Colorado is on track to become the first state in the nation to include gender-affirming care services in its benchmark health insurance plan for essential health benefits.
This and other LGBTQ discrimination protections are the best in the country, and are among the reasons people move here, says Liss Smith, communications manager at Inside Out Youth Services.
“We have personally interacted with several families with trans children who moved here from Texas and other states when discriminatory laws were passed,” Smith said.
Colorado’s Employment Non-Discrimination Act, passed in 2007, made it illegal for all employers in the state to discriminate based on sexual orientation and gender identity, and transgender status has was specifically included in the protections against discrimination by HB21-1108.
“The State of Colorado calls out sexual orientation, gender identity and gender expression in our anti-discrimination law,” says George Russo, director of the Southern Colorado Regional Office at the Council of Employers. “In Colorado, it’s much clearer that this is a protected class” than in some other states.
According to a 2021 survey by the Williams Institute at UCLA School of Law, more than 45% of the 8 million American workers who identify as LGBT have reported unfair treatment at work, including being fired or harassed because of their sexual orientation or gender identity. Transgender employees were much more likely to experience discrimination because of their status than LGB employees, according to the survey.
“Discrimination and harassment against LGBT people has been documented in a variety of sources and has negatively impacted employee health and well-being and reduced engagement and job satisfaction,” the report said. .
While many states, led by Colorado, have sought to protect LGBTQ people in the workplace, at least 22 states have considered or passed anti-LGBTQ legislation in 2021, according to a tally by American Civil Liberties. Union.
The protections Colorado extends to LGBTQ people are essentially the same as those given to other protected classes, such as race, national origin and gender, Russo says. “An employer cannot discriminate based on a protected class, so they are not allowed to use it in hiring or firing decisions. They are not allowed to give someone more benefits or pay based on it. Essentially, this should be taken out of the employers’ decision-making process.
Colorado employers have generally understood for some time that anti-discrimination standards apply to sexual orientation and gender identity the same way they apply to other protected classes, says he, so they were ahead of the game when the U.S. Supreme Court handed down the Bostock v Clayton County decision in June 2020.
This decision ruled that anyone working for an employer of at least 15 employees is protected from discrimination in employment based on sexual orientation or gender identity. (Colorado law covers businesses of all sizes.)
Colorado’s anti-discrimination law also prohibits employers from harassing or creating or enabling a hostile environment for protected employees, Russo says. Violations of this prohibition may give rise to complaints of discrimination.
“In many cases, these are comments that employers should watch out for, such as inappropriate comments or jokes,” he says. “These tend to create a negative or problematic culture or a potentially hostile work environment.”
The use of toilets by transgender people has generated controversy in many settings, including schools.
“We also hear a kind of friction around bathrooms” in workplaces, says Russo. But case law regarding the use of bathrooms has generally held that “the employee should be able to use any bathroom of his choice.” Employers should make this clear as a matter of policy, he says.
“Bathrooms are something we advocate a lot,” Smith says. “Several studies have proven that having toilets for all genders makes gay people safer and happier. And finally, it’s a very good idea for everyone.
“A policy around that would be, ‘Do we have the same accommodations for non-binary or trans people that we do for cisgender people? Can they use the toilets that match their gender identity under the policy? ” she says.
Employers can take other steps to encourage an inclusive culture that will benefit all employees, Smith says.
“You have to focus on mental health as much as physical health,” she says. “People can have mental health days, and there’s a culture of transparency, authenticity and vulnerability – being able to talk about the challenges you face at work, recognizing when the challenges in your daily life have an impact on the job and make accommodations for it.”
Employers can also create an inclusive culture by getting to know and understand their employees on a personal level, she says. A truly inclusive culture will treat employees as whole persons and recognize that LGBTQ identity is only part of who they are. “You’re also a parent, or you’re also our top salesperson, or someone with other interests and skills,” she says.
Small actions like allowing employees to choose their pronouns in their email signatures help with inclusivity.
Displaying pronouns such as “she/she/it” or “they/them” can be “a symbol of security,” Smith says. “He recognizes that it’s safe to tell that person that I use those pronouns, and that could be huge.”
Bigger Business takes complaints seriously, she said.
“If someone complains, it usually means they tried to talk to them and it’s no longer an innocent mistake.
“None of us want to go up to the authority figure and tell them we need their help. It takes a lot of courage” in a right to work state, she says.
“It’s really important that employers seriously investigate a complaint,” she says, “and do what they can to mitigate any harm that has been caused.
in 2015, COLORADO adopted the Kaiser HMO plan as the state’s benchmark health insurance plan for 2017 through the end of 2022.
The Benchmark Plan, which sets out the minimum essential health benefits insurers must offer, applies to individual and small group plans for employers with fewer than 100 employees, says Vincent Plymell, assistant commissioner of communications at the Division of Colorado Department of Regulatory Agencies Insurance.
The Division of Insurance regulates coverage for employers of 100 or more employees who purchase their health plans from an insurance company, but self-funded plans, where an employer essentially becomes the insurer, are governed by the Federal regulation through the Department of Labor and Treasury. Department, says Plymell.
Colorado’s 2017 Benchmark Plan included health benefits for same-sex domestic partners, but specifically excluded “services related to transgender identity disorder and gender reassignment, including but not limited to , hormone therapy, surgery and psychosocial assessments for surgery”.
That exclusionary language disappeared from the state’s new referral plan, which was approved by the Centers for Medicare and Medicaid Services in August.
The new referral plan is the first in the nation to explicitly include coverage for medically necessary treatments for “gender dysphoria” and lists “gender-affirming care services” that range from facial surgery, such as bone contouring for facial feminization, laser hair removal and breast hair removal. increase, reduction or construction.
“These will be full services that insurance companies will cover for individuals and small groups beginning in 2023,” the Division of Insurance said in a press release dated October 12, 2021. “Currently, all insurance companies insurance must cover some form of gender-affirming care, however, coverage varies widely between insurance companies, is not always comprehensive, and may include explicit exclusions for certain services, even if a provider health care provider determines that a service is medically necessary.
Inclusive insurance for gender-affirming care may seem cosmetic, “but in reality, it’s as much about mental health care as it is physical or transition-related care,” Smith says.
More inclusive insurance is a big push among LGBTQ activists and a win for Coloradans, she says. “On average, LGBTQ people have less access to insurance coverage, as they are more likely to be unemployed, and the insurance we can afford is usually the bare minimum and would not come close to covering the transition-related health care.”
And overall, Colorado has “incredible anti-discrimination protections, but that doesn’t stop discrimination from happening,” she says. “It just means we have legal recourse when it does.”
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