Thirty years ago this month, voters approved Amendment 2, which sought to make it illegal to prohibit discrimination based on sexual orientation. That earned Colorado a reputation as the Hate State. (The U.S. Supreme Court declared Amendment 2 unconstitutional in 1996.)
Now, Colorado is on track to become the first state in the country to include gender-affirming care services in its benchmark health insurance plan for essential health benefits.
That and other LGBTQ antidiscrimination protections are the best in the nation, and those are among the reasons people are moving here, said Liss Smith, communications manager at Inside Out Youth Services.
“We have personally interfaced with multiple families with trans kids 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 was specifically included in antidiscrimination protections by HB21-1108.
“The state of Colorado calls out sexual orientation, gender identity and gender expression in our antidiscrimination law,” said George Russo, director of the Southern Colorado Regional Office at Employers Council. “In Colorado, it’s much more clear that is a protected class” than in some other states.
According to a 2021 survey by the UCLA School of Law’s Williams Institute, more than 45 percent of the 8 million U.S. workers who identify as LGBT reported unfair treatment at work, including being fired or harassed because of their sexual orientation or gender identity. Transgender employees were significantly more likely to experience discrimination based on their status than LGB employees, the survey found.
“Employment discrimination and harassment against LGBT people has been documented in a variety of sources and found to negatively impact employees’ health and well-being and to reduce job commitment and satisfaction,” the report states.
While many states, with Colorado at the forefront, have sought to protect LGBTQ individuals in the workplace, at least 22 states considered or passed
anti-LGBTQ legislation in 2021, according to a tally by the American Civil Liberties Union.
THE LAW
The protections Colorado extends to LGBTQ individuals essentially are the same as those extended to other protected classes, such as race, national origin and sex, Russo said.
“An employer cannot discriminate based on a protected class, so they’re not allowed to use that in hiring decisions or termination decisions. They’re not allowed to give someone more benefits or pay based on that. Essentially, that should be taken out of employers’ decision making,” Russo said.
Colorado employers generally have understood for some time that antidiscrimination standards applied to sexual orientation and gender identity similarly to the way they apply to other protected classes, he said, so they were ahead of the game when the U.S. Supreme Court rendered the Bostock vs. Clayton County decision in June 2020.
That decision held that anyone who works for an employer with at least 15 employees is protected against employment discrimination based on sexual orientation or gender identity. (Colorado law covers businesses of all sizes.)
Colorado’s antidiscrimination law also prohibits employers from harassing or creating or allowing a hostile environment for protected employees, Russo said. Violations of that prohibition can lead to discrimination claims.
“In a lot of cases, it’s comments that employers should be on the lookout for, such as inappropriate comments or making jokes,” he said. “Those tend to create a negative or problematic culture or a potentially hostile work environment.”
Use of bathrooms by transgender people has generated controversy in many settings such as schools.
“We also hear some kind of friction around bathrooms” in workplaces, Russo said. But case law regarding use of bathrooms generally has held that “the employee should be able to use whatever bathroom they want.” Employers should make that clear as a matter of policy, he said.
INCLUSIVE CULTURE
“Bathrooms are something that we advocate for a lot,” Smith said. “It’s proven by multiple studies that having an all-gender restroom makes queer folks feel safer and happier. And ultimately, it’s a really good idea for everyone.
“A policy around that would be, ‘Do we have the same accommodations for nonbinary or trans people that we do for cisgender people? Can they use the restroom that corresponds with their gender identity under the policy?’” she said.
Employers can take other steps to encourage an inclusive culture that will benefit all employees, Smith said.
“You have to put as much emphasis on mental health as you do on physical health,” she said. “People can have mental health days, and there’s a culture of transparency, authenticity and vulnerability — being able to talk about challenges you’re facing at work, recognizing when challenges in your day-to-day life are impacting work, and making accommodations for that.”
Employers also can create an inclusive culture by getting to know and understand their employees on a personal level, she said. A truly inclusive culture will treat employees as full people and recognize that LGBTQ identity is only one part of who they are.
“You’re also a parent, or you’re also our best salesperson, or a person with other interests and skills,” she said.
Small actions like allowing employees to choose their pronouns in their email signatures help with inclusivity.
Displaying pronouns such as “she/her/hers” or “they/them” can be “a symbol of safety,” Smith said. “It recognizes that it’s safe to tell this person that I use these pronouns, and that could be huge.”
A bigger deal is taking complaints seriously, she said.
“If someone is complaining, usually that means they’ve tried talking to the person and it’s no longer an innocent mistake.
“None of us want to go to the authority figure and tell them that we need their help. That takes a lot of courage” in a right-to-work state, she said.
“It’s really important for employers to seriously investigate a complaint,” she said, “and do what they can to mitigate any harm that’s been done.”
INSURANCE ISSUES
Colorado in 2015 adopted the Kaiser HMO Plan as the state’s benchmark health insurance plan for 2017 through the end of 2022.
The benchmark plan, which establishes the minimum essential health benefits insurers must offer, applies to individual and small group plans for employers with less than 100 employees, said Vincent Plymell, assistant commissioner for communications at the Colorado Department of Regulatory Agencies Division of Insurance.
The Division of Insurance regulates coverage for employers with 100 or more employees that buy their health plans from an insurance company, but self-funded plans, when an
employer essentially becomes the insurer, are governed by federal regulations through the Department of Labor and the Treasury Department, Plymell said.
Colorado’s 2017 benchmark plan included health benefits for same-gender domestic partners but specifically excluded “services related to transgender identity disorder and sexual reassignment, including but not limited to, hormone therapy, surgery and psychosocial assessments for surgery.”
That exclusionary language is gone from the state’s new benchmark plan, which was approved by the Centers for Medicare and Medicaid Services in August.
The new benchmark plan is the first in the country to explicitly include coverage of medically necessary treatment for “gender dysphoria” and lists “gender-affirming care services” that range from facial surgery such as bone remodeling for facial feminization to laser hair removal and breast augmentation, reduction or construction.
“It’s really important for employers to seriously investigate a complaint.” — Liss Smith
“These will be comprehensive services that insurance companies cover for individuals and small group plans starting in 2023,” the Division of Insurance stated in an Oct. 12, 2021 news release. “Currently, all insurance companies must cover some form of gender-affirming care. However, coverage varies greatly by insurance company, and is not always comprehensive and may include explicit exclusions for certain services, even if a health care provider determines a service to be medically necessary.”
Inclusive insurance for gender-affirming care may appear to be cosmetic, “but in reality, it is mental health care as much as it is physical or transition-related care,” Smith said.
More inclusive insurance is a big push among LGBTQ activists and a victory for Coloradans, Smith said.
“On average, LGBTQ folks have less access to insurance coverage, because they’re more likely to be unemployed, and the insurance we can afford is usually the bare minimum and wouldn’t come close to covering transition-related health care,” she said.
And overall, Colorado has “incredible antidiscrimination protections, but that does not stop discrimination from happening,” she said. “It just means that we have legal recourse when it does.”
Editor’s note: Edits/additions were made to this version of the story.