Michigan HIV Activists Angered by No-Consent Testing Legislation

Todd Heywood

Legislation pending in Michigan sparks worries about health insurers denying coverage to those infected and tested without their knowledge.

Activists with the group Michigan POZ Action
are organizing a campaign to get state lawmakers to stop legislation
that will remove a law that requires persons being tested for HIV do so
with informed consent.

Under current law, anyone seeking an HIV antibody test must sign a
document acknowledging they have consented to the test. But under revisions proposed in the House and the Senate, any doctor would be able to order an HIV test for a patient without permission, consultation or counseling.

The legislation has sparked concerns about no-consent testing causing patients to lose their health insurance.

Kendra Kleber who previously practiced law focused on HIV and government benefits, told Michigan Messenger earlier this year:

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The whole idea of anonymous testing is that you can
control when you are tested and what happens to your results.
Everything about this bill, except that little section [on anonymous
testing], says you have no control over when you are tested and what
happens to your results. You have no control. … But the fact of the
matter is that if you went to your normal doctor and had a physical
last week and even if you doctor didn’t say anything to you about HIV,
he could have tested you and so your results could already be in the
record. Which means they are already knowable to an insurance company.

Kleber, who has been appointed to an administrative law judge
position in Cleveland, said she found the legislation to be “very,
very, very problematic.”

Activists infected with HIV and their advocates are up in arms.

“Being tested doesn’t do anything to prevent anything,” said Mark
Peterson, an HIV activist based in Detroit. “This sort of puts a wedge
between doctor and patient when it comes to an important health

The legislation was proposed in March by State Rep. Roy Schmidt, a Grand Rapids Democrat. He told Michigan Messenger in April the bill was created at the request of Spectrum Health,
a large health care provider in West Michigan. The system’s spokesman
Bruce Rossman confirmed Spectrum had requested the law, noting that
Spectrum physicians had indicated the current law created a barrier.

He also noted that Spectrum had not implemented a policy mandating HIV testing for patients over 16, as the Centers for Disease Control and Prevention has recommended.

“We have not [implemented the CDC guidelines] under the current law
because, unfortunately, a lot of our current physicians feel that it
[informed consent] is a hurdle,” he said.

An official with the Michigan Department of Community Health told Michigan Messenger the agency was opposed to no-consent testing.

“We feel [the CDC recommendations] can be implemented successfully
in the state without changing the law,” said Debra Szwedja, acting
director of the MDCH’s Division of Health, Wellness and Disease Control.

The Senate Health Policy Committee will take up the legislation
Wednesday at a 2:30 p.m. hearing in Lansing, and Michigan POZ Action
members plan to organize a grassroots lobbying campaign to oppose the

“This is about a convenience for doctors versus the ability of
patients to have an informed conversation,” said Peterson. “The
patient’s informed consent outweighs the convenience issue for

Commentary LGBTQ

Trans? Good Luck Accessing Reproductive Health Care

s.e. smith

Trans patients now stand to access health care more easily, but enacting policies against discrimination isn't quite the same as actually eliminating it.

Dominick, a disabled transgender man, started making the arrangements for a hysterectomy at age 30. The experience turned out to be a living nightmare—and not just because being disabled had previously presented obstacles to medical care, like being unable to access his gynecologist’s office.

“The doctor,” he says, “sent me home while internally bleeding after the surgery because he needed more beds. He ignored my concerns and dismissed my symptoms as overblown.” He says he almost died when he started hemorrhaging at home.

The horrors of that experience led Dominick to shy away from follow-up care and had profound psychological consequences. “I was afraid to leave my house, for fear I’d start bleeding out. I remember being on a bus to school, completely alone, and having a complete meltdown. I called my girlfriend and was crying and shaking and begging her to come get me.”

While he survived the experience, the trauma lingers to this day—and he’s not alone. For many trans men, dismissive treatment in the gynecologist’s office is part of a larger framework of harmful health-care practices that include verbal and physical abuse and denial of care. Thanks to the finalization of an Affordable Care Act (ACA) rule banning discrimination on the basis of gender, trans patients now stand to access care more easily, but enacting policies against discrimination isn’t quite the same as actually eliminating it. Trans people often face obstacles to care in health-care fields, unless they’re lucky enough to live in a region with a well-organized and structured clinic. Doctors who are ignorant about trans needs, like the imperative of surgical transition for some transgender people, can become dangerous roadblocks. And self-advocacy—including standing up for one’s immediate needs or asking for additional support in cases like Dominick’s—can be exhausting or impossible when continuously faced with such experiences.

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Reproductive health care in particular cuts to the heart of bodily autonomy, something trans people are often already denied in other settings. Yet trans men are frequently left out of the discussion when it comes to accessing services, even as the Women’s Health Network and other organizations, like the American Congress of Obstetricians and Gynecologists (ACOG), argue that the health needs of people who are assigned female at birth, no matter their gender, are indeed matters for reproductive rights conversations.

When it comes to seeking medical care in general, trans people say they often face ignorance or outright prejudice from medical professionals. A 2011 study conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that 20 percent of survey respondents were denied health care due to their transgender or gender-nonconforming identity—and people of color experienced even more profound disparities. Twenty-eight percent of all respondents said they had been harassed in physicians’ offices, and 2 percent experienced physical violence.

Chillingly, when care providers discovered that their patients were transgender, the incidence of discriminatory attitudes increased. Many didn’t understand the needs of the transgender community, forcing half of the respondents to provide basic education about managing transgender patients. While proactive self-advocacy—being educated about your own health, self-assured at the doctor’s office, and ready to speak up for yourself—can help everyone achieve better health-care outcomes, this goes far beyond advocacy. In a medical culture where people may have difficulty obtaining providers, trans patients can be forced to repeatedly discuss sensitive medical information that can trigger dysphoria and frustration. And gender dysphoria is fatal if untreated: A staggering 41 percent of the trans community has attempted suicide.

While all aspects of medical care are important, reproductive health care sits at the axis of many important oppressions: It determines whether people are able to have families, whether they receive treatment after rape and sexual assault, if potentially serious sexually transmitted infections (STIs) are treated in a timely fashion, or if they can obtain compassionate and appropriate abortion care. And here, too, trans people have reported difficulty when it comes to requesting and receiving breast and cervical cancer screenings, STI testing and treatment, fertility care, contraception, abortion and pregnancy care, and other reproductive health needs. When such care is provided, it may come with detrimental comments and practices like misgendering patients or making assumptions about their personal lives.

These are especially important issues for trans people: While transgender women are far and away the most likely to have HIV, with skyrocketing incidence rates thanks to poverty and other social factors, transgender men are also more at risk than the general population. They also have difficulty accessing pregnancy care. Approximately 50 percent of transgender people experience sexual violence, and insensitive care providers managing rape survivors can cause further trauma at a time when patients are particularly vulnerable. Denial of services ties into much larger human rights issues for the transgender community: We are in a climate, after all, where trans women risk bladder infections because they cannot use public restrooms.

But whether people are transgender men, along the nonbinary spectrum, agender, or along other axes of gender and experience, if they aren’t cisgender women, they say their reproductive health needs are often dangerously ignored.

“My first gyno, who was an older woman with all kinds of vocalized homophobic, transphobic, racist, and HIV-ignorant ideas,” says K., “left me so uncomfortable I wouldn’t let anyone touch me between my legs with their hands for a good ten years!” K., who is nonbinary, had a traumatic experience when seeking abortion care, and, like Dominick, wasn’t provided with counseling on the subject of egg storage before starting hormone therapy. “I personally never want to be pregnant again,” K. says, but the very option of freezing eggs and using a surrogate in the future was denied.

And this has real consequences: Trauma in reproductive health services, like that Dominick experienced, can drive transgender people into fearing the health-care system as a whole. Between discrimination and the fear that keeps people out of doctors’ offices, trans people are less likely to get preventive care—like HIV counseling and screening—and more likely to develop complications from delayed care. That includes vitally needed reproductive health services.

Discriminatory practices in gynecological care take place within the framework of another problem for trans people: Even with the ACA’s theoretical increased access to health care, substantial barriers to health-care access remain. Transgender people—particularly women and people of color, but also men to a lesser extent—are four times more likely to live in poverty, thus driving a disproportionate use of Medicaid coverage. As Rewire has reported, 16 states explicitly deny transition-related services under Medicaid coverage. Although the ACA explicitly bans discrimination on the basis of sex and gender, with additional protections for gender-nonconforming individuals now that the Department of Health and Human Services (HHS) has finalized its ruling on Section 1557, that doesn’t always work out in practice. Coverage of transition-related treatment, including hormones and surgery, may be denied as “elective” or “aesthetic” under insurance exclusions. For example, a hysterectomy may be deemed “not medically necessary.” Trans people can be instead forced to sue for their care, as in 2014, when Illinois woman Naya Taylor demanded access to hormones. This is especially true in cases where people have successfully changed the gender markers on their identifications, thereby creating a situation where Medicaid may deny coverage for activities like Pap tests for men or prostate cancer screening for women.

“I’ve got many stories about things that have gone wrong in my interactions with medical professionals,” remarks Everett Maroon, a transgender man who lives in the Pacific Northwest with his wife and family. “I’ve gotten inappropriate medical advice, incorrect therapies, seen medical and cultural incompetence, dealt with shitty care, not been provided options I should have gotten.” His issues are the health-care system’s issues, and they are a subject that should be of critical concern to everyone fighting for reproductive rights.

Fortunately, that’s growing to be the case more and more. As OB-GYN Cheryl Chastine wrote for Rewire last year, “How can providers or activists dare to presume that every patient we can’t ‘read’ as trans is cis?,” she said, adding “When those in the reproductive justice movement prioritize trans inclusivity, more trans individuals feel comfortable publicly identifying as such.”

Her commentary was just one example of the growing chorus of support from the reproductive rights and justice community as people come to understand that reproductive health needs are complex, and some populations have historically been left out of the equation.

Combating that oversight includes taking on challenges like providing competency training to health-care providers in medical school and beyond—including the recommendations ACOG is putting forward. Trans-competent health training should allow clinicians to put their patients at ease. At minimum, it should include discussions about gender identity and presentation, how to handle medical issues that may trigger dysphoria, how hormones might affect other prescriptions and the patient’s general health, and why trans patients may feel distrustful and uncertain around health-care providers.

It also includes passing comprehensive legislation to affirm that transition care and related medical treatments are covered by private insurance, Medicaid, and Medicare. And it includes robust third-party investigation—regulated by the HHS, whose Office of Civil Rights is responsible for enforcing the ACA’s nondiscrimination protections—of grievance complaints filed by trans patients, such as those made directly at clinics and hospitals in addition to those filed with state licensing boards.

It’s time to take trans health care seriously. Doing so will create a world of radical inclusion where people can feel safe seeking health care wherever they go.

News Law and Policy

Tennessee’s Drug Testing of Welfare Applicants Falls Flat

Teddy Wilson

Many of the states that have implemented these laws have had similar results to Tennessee, with few welfare benefit applicants testing positive for drugs.

Tennessee is the latest state to report shortcomings in its drug testing of welfare applicants, after less than 1 percent of those who applied for welfare benefits tested positive for drugs in the 18 months since the program’s inception.

Sixty-five of the 39,121 people applying for cash assistance through Families First, the state’s Temporary Assistance for Needy Families (TANF) program, tested positive for drugs, according to data provided by the state Department of Human Services to the Tennessean. The state spent more than $23,000 on the testing program over its first 18 months.

There have been 116 applicants who refused to take the initial drug screening questionnaire, which automatically disqualified them for benefits.

SB 2580, passed in 2012 by wide margins in Tennessee’s GOP-majority house and state senate, required the state Department of Human Services to implement a program of suspicion-based drug testing for those who applied for welfare benefits. The Republican-backed legislation mandated the department to consult with experts in identifying appropriate screening tools and assessments.

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The law was implemented on July 1, 2014.

“I thought the legislation when it passed was ridiculous,” Rep. Sherry Jones (D-Nashville) told the Tennessean. “I still think it’s ridiculous. Obviously the numbers don’t justify the cost, and in other states that have done this program their numbers don’t justify this cost either.”

Rep. Glen Casada (R-Franklin), who voted for the law, told the Tennessean that the law was a “good investment” and that the numbers prove it’s a success. “When you add up the 116 [who refused to go through drug screening] to the 65 people [who failed a drug test], that’s 175 or 180 people no longer receiving taxpayer-funded support for illegal activities,” Casada said.

The average benefit of the cash assistance program was $165 per month, or $1,980 per year.

There are are 13 states that have policies requiring welfare applicants to submit to drug testing or screening: Alabama, Arkansas, Arizona, Florida, Georgia, Kansas, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, Tennessee, and Utah. All of those state legislatures have Republican majorities.

Many of the states that have implemented these laws have had similar results to Tennessee, with few welfare benefit applicants testing positive for drugs.

North Carolina began drug testing welfare applicants in August, utilizing a similar screening process to the one used in Tennessee. Of the 7,600 applicants since the program’s implementation, there were 89 people required to take a drug test and 21 tested positive, reported the News & Observer.

In Kansas, there were only 20 drug tests in the program’s first four months, a far cry from the 1,852 drug tests that were estimated for that period. The $2.1 million cost of the program was to be offset by $1.1 million in savings from the estimated 1,475 people not qualified for benefits after testing positive for drugs.

In Utah, 12 applicants out of 466 tested positive for drugs in the state’s program from 2012 to 2013.

A Florida law that required drug testing of applicants for welfare benefits, even if they were not suspected of drug use, was struck down in December 2014 by the U.S. Court of Appeals for the 11th Circuit. The court ruled that the drug test constituted an unreasonable search because the state had not “demonstrated a more prevalent, unique or different drug problem among [TANF] applicants than in the general population.”