Lucas Waldron

In a state with school vouchers for all, low-income families aren’t choosing to use them

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Series: School Wars:How Battles Over Vouchers, Book Bans, COVID-19 and More Are Harming Public Education

Reporting Highlights

Not a Choice for Everyone: In Arizona, which now offers school vouchers to all students, lower-income families are using the program less than wealthier ones, a ProPublica analysis shows.
Barriers to Entry: Lower-income families said that the location of private schools and additional costs for things like transportation, tuition and meals keep them from using vouchers.
Sales Pitch: Advocates for vouchers have long argued their plan is a way for all children, no matter their socioeconomic background, to have access to a high-quality education.

These highlights were written by the reporters and editors who worked on this story.

Alma Nuñez, a longtime South Phoenix restaurant cashier with three kids, attended a community event a few years ago at which a speaker gave a presentation about Arizona’s school voucher program. She was intrigued.

Angelica Zavala, a West Phoenix home cleaner and mother of two, first heard of vouchers when former Gov. Doug Ducey was talking about them on the news. He was saying that the state was giving parents money that they could then spend on private school tuition or homeschooling supplies. The goal was to ensure that all students, no matter their socioeconomic background, would have access to whatever kind of education best fit them. Zavala thought: This sounds great. Maybe it will benefit my family.

And Fabiola Velasquez, also a mother of three, was watching TV with her husband last year when she saw one of the many ads for vouchers that have blanketed media outlets across metropolitan Phoenix of late. She turned to him and asked, “Have you heard about this?”

Working-class parents like Nuñez, Zavala and Velasquez have often said in surveys and interviews that they’re at least initially interested in school vouchers, which in Arizona are called Empowerment Scholarship Accounts. Many across the Phoenix area told ProPublica that they liked the idea of getting some financial help from the state so that they could send their children to the best, safest private schools — the kind that rich kids get to attend.

Yet when it comes to lower-income families actually choosing to use vouchers here in the nation’s school choice capital, the numbers tell a very different story. A ProPublica analysis of Arizona Department of Education data for Maricopa County, where Phoenix is located, reveals that the poorer the ZIP code, the less often vouchers are being used. The richer, the more.

In one West Phoenix ZIP code where the median household income is $46,700 a year, for example, ProPublica estimates that only a single voucher is being used per 100 school-age children. There are about 12,000 kids in this ZIP code, with only 150 receiving vouchers.

Conversely, in a Paradise Valley ZIP code with a median household income of $173,000, there are an estimated 28 vouchers being used per 100 school-age children.

The question is, if there’s interest in school vouchers among lower-income families, why isn’t that translating into use, as conservative advocates have long promised would happen?

In our interviews, several families said that they simply didn’t know about the program. Some mentioned that they didn’t have the social contacts — or the time, given their jobs — to investigate whether vouchers would be a better option for their kids than public school, which is generally simpler to enroll in and navigate.

But others, like Nuñez, Zavala and Velasquez, said that they knew plenty about Empowerment Scholarship Accounts. Still, they had come to understand that the ESA program was not designed for them, not in a day-to-day sense. Logistical obstacles would make using vouchers to attend private school practically impossible for them and their children.

It starts with geography. The high-quality private schools are not near their neighborhoods.

ProPublica compiled a list of more than 200 private schools in the Phoenix metro area using a survey conducted by the National Center for Education Statistics, as well as a Maricopa County listing and other sources. We found that these schools are disproportionately located to the north and east of downtown — in Midtown, Arcadia, Scottsdale, Paradise Valley and the suburbs — rather than to the south and west, the historically segregated areas where Nuñez, Zavala and Velasquez live.

Only six of all of these private schools are in Census tracts where families earn less than 50% of the county’s median income of $87,000.

So even if lower-income families were able to secure spots at a decent private school and could use vouchers to pay the tuition, they would still have to figure out how to get their children there. After all, while public schools generally provide free transportation via school buses, private schools rarely do.

Would they send their kids on $30-plus Uber rides each way every day? Or on city bus trips that might take up to two hours in each direction, because the routes aren’t designed for students the way that school bus routes are? This might require their little ones to make multiple transfers, on their own, at busy intersections.

Zavala used an app that showed the private schools near her home; there weren’t many, but she did know of one, St. Matthew Catholic School, that served students her daughters’ age and was in the vicinity. It also had sports and a dual-language program, which not many private schools provide.

She filled out all the forms to apply for her daughters to attend St. Matthew using vouchers, before deciding that the stress of transportation — there wouldn’t be a school bus — wasn’t worth it. (Zavala also said she realized that the academics wouldn’t necessarily offer an improvement over public school.)

Then there’s tuition. Zavala, as well as Nuñez and Velasquez, learned that a voucher might not even cover the full price of a private school.

A typical voucher from Arizona’s ESA program is worth between $7,000 and $8,000 a year, while private schools in the Phoenix area often charge more than $10,000 annually in tuition and fees, ProPublica found. The price tag at Phoenix Country Day School, one of the best private schools around, ranges from $30,000 to $35,000 depending on the age of the student. (The Hechinger Report has also found that private schools often raise their tuition when parents have vouchers.)

“Just because you gave me a 50%-off coupon at Saks Fifth Avenue doesn’t mean I can afford to shop at Saks Fifth Avenue,” said Curt Cardine, a longtime school superintendent, principal and teacher who is now a fellow at the Grand Canyon Institute, a left-leaning public policy think tank in Phoenix.

Next add the cost of food: breakfast, lunch, afternoon snack. These are provided by public schools to students from lower-income families, but at private schools, parents typically have to pay for them.

And throw in a supply of uniforms with the private school’s logo — hundreds of dollars more.

Plus there is pressure to spend money at auctions, raffles and other fundraisers. (It’s Christian to do so, many religious private school websites say.)

Consider the choices available to Nuñez. For 17 years, she was a cashier at a restaurant, working 10 or more hours a day. Now she is raising three children, two of whom have autism. Private schools have some appeal to her in part because they might have smaller class sizes and more support for her son in third grade, whom she describes as “an earthquake.”

For all of these reasons, Nuñez, Zavala and Velasquez — despite their initial interest — chose not to use Arizona’s voucher program. Instead, they have each decided to start volunteering at the neighborhood public schools that their kids attend and to organize other busy parents to help make those schools better. They meet with their school administrators regularly. They lend a hand at drop-off and pick-up. They’ve organized “cafecitos”: an informal sort of PTA coffee hour.

“I’m committed to the idea of public school for my and my neighbors’ children,” Velasquez said. “I have zero regrets about not using ESA.”

This school year, ProPublica is examining Arizona’s first-in-the-nation “universal” school voucher program: available to all families, no matter their income. We are doing so because more than a dozen other states have enacted, or are attempting to enact, voucher initiatives largely or partly modeled after this one.

Arizona’s experience holds lessons for the rest of the country amid an election season in which the future of education is at stake, even as issues like immigration and inflation grab more headlines.

As they were initially conceived, school vouchers were targeted at helping families in lower-income areas. The first such programs, in cities like Milwaukee and Cleveland, provided money specifically to poor parents who had children in struggling, underfunded public schools, to help them pay tuition at a hopefully better private school.

Conservative advocacy groups still say that this is the purpose of vouchers. “School choice provides options for low-income families” by breaking “the arbitrary link between a child’s housing and the school he or she can attend,” the Heritage Foundation, a conservative think tank with deep ties to former President Donald Trump, said in 2019. “At the core of the school choice movement is the aspiration that every family obtain the freedom to pursue educational excellence for their children — regardless of their geographic location or socioeconomic background,” the Goldwater Institute, the Phoenix-based conservative think tank that pioneered and helped enact Arizona’s ESA law, has asserted.

But now that groups like these have successfully pushed for vouchers to be made universal in several states, the programs are disproportionately being used by middle- and upper-income parents.

“Arizona is the school choice capital of the U.S. — great, but if it’s not quality schools within a reasonable distance, then it’s not meaningful choice for our families,” said Stephanie Parra, CEO of ALL In Education, a pro-public-education Latino advocacy group that Nuñez, Zavala and Velasquez have been working with.

Michael J. Petrilli, president of the Thomas B. Fordham Institute, a pro-charter-school and school voucher education reform think tank, told ProPublica that Arizona’s version of vouchers “is not well-designed to achieve the goal of providing more choice for low-income and working-class families.” He said that “if you were going to design a program that really wanted to unlock private school choice for those families, you would design it very differently than Arizona did.”

Petrilli said that this would at least include means-testing the program: in other words, making larger vouchers available to lower-income parents, rather than giving the same amount to the very wealthy, who do not need the help. (Some states with near-universal voucher programs, he noted, give priority to lower-income families, unlike Arizona.) This would help poor parents cover the cost of transportation, among other things.

Arizona’s program does allow parents to use their ESA money on transportation costs, but those who’ve already spent their voucher on tuition don’t have anything left for a year’s worth of Uber rides, city bus fares or gas. ESAs can also be used for homeschooling supplies, but most working parents can’t homeschool.

Some private schools provide additional scholarships or financial aid to students from lower-income backgrounds, though the process can be complicated to navigate. In some instances, ProPublica found, private school application systems even require a nonrefundable fee to apply for need-based aid.

Advocates for vouchers argue that many of these inequities already exist and are just as bad in the public school system. They note that poor families are often practically limited to the public schools nearest to them; it’s not as though the government provides transportation if parents want to send their kids to a better public school across town. (At least not since the end of the desegregation-era practice of busing Black children to mostly white schools. Busing helped to desegregate the public schools and improved academic outcomes for Black students, but it was broadly unpopular.)

Michael McShane, director of national research for the pro-voucher advocacy and research organization EdChoice, said that it’s still “early days” for universal programs like Arizona’s, and that “there is an adoption curve anytime any new innovation takes place.”

Asked why these efforts haven’t yet clearly helped lower-income families, McShane said that the “first movers” in a newly reformed system “tend to be more risk-takers, which sort of comes with affluence.” For lower-income parents whose children have long just been assigned to a public school, he said, school choice is “a muscle that has to be learned.”

He acknowledged, though, that more still needs to be done to help students from less-affluent areas access private schools, especially in a sprawling state like Arizona. This could include providing larger vouchers based on students’ socioeconomic circumstances as well as working on the “supply side” of the system — developing new private schools in places where there aren’t many.

But the question remains whether quality private schools, interested in making a profit, will have any reason to build new locations in South or West Phoenix, where most parents can’t pay tuition beyond their $7,000 voucher. So far, in these areas of the city, the free market has mostly just provided strip-mall, storefront private schools as well as what are called microschools, with little on their websites that working parents can use to judge their curricula, quality or cost. (Private schools in Arizona aren’t obligated to make public any information about their performance.)

These schools might not be accredited. Their teachers might not be certified. They might close soon. They are certainly not the large, established, elite private schools of the American imagination.

While lower-income families are struggling to access or even learn about ways to use vouchers, wealthier parents enjoy a smoother path.

Affluent parents in the Phoenix area whose kids were already attending private school, for example, told ProPublica that they are now being sent webinars and other emailed advice — from the private school administrators to whom they are already paying tuition — on how to apply for vouchers to subsidize that tuition.

Erin Rotheram-Fuller, a mom in South Scottsdale who is sending her daughter to a private school using the ESA program, is also an Arizona State University associate professor of education. She said that the program has largely worked for her family, in part because she lives in an upper-middle-class area and there are quality schools serving her daughter’s needs that are relatively nearby. Moreover, she has been able to rely on word of mouth and help from her social circle, asking other ESA parents for advice about navigating logistical issues, like which documents to submit during the application process.

“As a parent, I’m grateful for it,” Rotheram-Fuller said of the program. “But there are several layers of barriers.”

“Parents near us can make so many more choices than other families who really need it,” she said.

The moms in South Phoenix agree.

Zavala said that another reason that she didn’t ultimately submit those forms to send her daughters to private school using vouchers was that what she could provide materially was less than what she predicted the other kids at the private school would have. She worried that her little girls, if not equipped with the latest cellphone, laptop and other indicators of wealth, would feel left out or be bullied.

Velasquez, meanwhile, wondered if she would be received in the same way at a private school as she is as a public school parent leader.

“Yes, there might be a nicer playground and basketball court, but would I be able to advocate for them?” she asked, referring to her children.

Dani Portillo, superintendent of the Roosevelt School District in South Phoenix, which these three mothers all send their children to, told ProPublica that ultimately “parents will speak by choosing our schools.” She said, “The idea that if they don’t go to a private school, they’re not giving their child the best — no, that’s false.”

These parents made a clear school choice of their own, Nuñez, Zavala and Velasquez said: to say no to vouchers.

Mollie Simon contributed research.

From Your Site Articles

Georgia county spends $1.2 million to avoid spending money on sheriff deputy’s gender-affirming care

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

When a sheriff’s deputy in Georgia’s Houston County sought surgery as part of her gender transition, local officials refused to change the department’s health insurance plan to cover it, citing cost as the primary reason.

In the years that followed, the central Georgia county paid a private law firm nearly $1.2 million to fight Sgt. Anna Lange in federal court — far more than it would have cost the county to offer such coverage to all of its 1,500 health plan members, according to expert analyses. One expert estimated that including transition-related care in the health plan would add about 0.1% to the cost of all claims, which would come to roughly $10,000 per year, on average.

Since at least 1998, the county’s plan has excluded coverage for “services and supplies for a sex change,” an outdated term to refer to surgeries or medications related to gender transition. In 2016, the county’s insurance administrator recommended changing the policy to align with a new federal nondiscrimination rule. But Houston County leaders said no.

The county argued that even if the cost of expanding its insurance coverage to include transition-related health care was low on average, it could amount to much more in some years. The county also claimed that expanding the plan’s coverage would spur demands to pay for other, currently excluded benefits, such as abortion, weight loss surgery and eye surgery.

“It was a slap in the face, really, to find out how much they had spent,” said Lange, who filed a federal discrimination lawsuit against the county. “They’re treating it like a political issue, obviously, when it’s a medical issue.”

Major medical associations recognize that access to transition-related care, also known as gender-affirming care, is medically necessary for transgender people, citing evidence that prohibiting it can harm their mental and physical health. And federal judges have consistently ruled that employers cannot categorically exclude gender-affirming care from health care plans, though prior to Lange’s suit, there hadn’t been a ruling covering Georgia. The care can include long-term hormone therapy, chest and genital surgery, and other services that help transgender people align their bodies with their gender identities.

But banning gender-affirming care has become a touchstone of conservative politics. At least 25 states this year are considering or have passed bills that would ban gender-affirming care for minors. Bills in Oklahoma and Texas aim to ban insurance companies from covering transition-related health care for adults as well.

At the same time, state and local government employers are waging long legal battles against covering gender-affirming care for their employees. With recent estimates showing that 0.6% of all Americans older than 13 are transgender, these employers are spending large sums to fight coverage for a small number of people.

ProPublica obtained records showing that two states — North Carolina and Arizona — have spent more than $1 million in attorney fees on legal fights similar to the one in Houston County. Both have claimed in court filings that the decisions they made not to cover the care for employees are purely financial and not discriminatory.

But budget estimates and real-world examples show that the cost of offering coverage of gender-affirming care is negligible. When the state of North Carolina briefly covered gender-affirming care in 2017, the cost amounted to $400,000 — just 0.01% of the health plan’s $3.3 billion annual budget.

Two years later, North Carolina employees sued to get their gender-affirming care covered. The state hired several expert witnesses who expressed professional beliefs contradicting the major medical associations’ standards, including that transition care is unnecessary and even harmful. One expert, whom North Carolina paid $400 per hour, stated in court proceedings that transition care might be a “fad” or “consumer fraud,” similar to the widespread medical use of lobotomies in previous decades.

Julia McKeown, a professor at North Carolina State University and one of several plaintiffs suing North Carolina officials for denying their coverage, spent more than $14,000 out-of-pocket on gender-affirming surgery, pulling from her retirement account and personal savings. “They’re always talking about saving taxpayer money and being judicious with how we spend it,” McKeown said. “But here they are throwing money left and right to score political points, to discriminate, to target.”

Officials in North Carolina, Arizona and Houston County, Georgia, did not respond to questions from ProPublica about the amount of money they spent or their reasons for continuing to fight the lawsuits. Dan Perdue, chair of the Houston County Board of Commissioners, referred ProPublica to the county attorney, who declined to comment beyond pointing to existing court documents.

Compared to North Carolina and Arizona, Houston County stands out for the huge legal bill it amassed relative to its small size. North Carolina’s employee health plan covers more than 700,000 people and Arizona’s covers over 130,000 people, dwarfing Houston County’s 1,500. Yet Houston County has spent a similar amount of money on legal fees as those states in a shorter time, according to records ProPublica obtained.

In fact, Houston County’s total legal fees on the Lange case have amounted to almost three times its annual physical and mental health budget. “Is this a good use of public money? No,” said Joanna Grossman, a law professor at Southern Methodist University who focuses on sex discrimination. “It’s fair to say that this is an issue where it’s pretty clear they’re going to lose.”

After more than a decade working for the Houston County Sheriff’s Office, Lange came out as a transgender woman to her boss and colleagues in 2017. A therapist had diagnosed her with gender dysphoria, characterized by significant distress at the mismatch between her assigned and actual gender.

Sheriff Cullen Talton, who has been in office since the early 1970s, first thought Lange was joking, according to a legal deposition. When he realized Lange was serious, he told her that he didn’t “believe in” being transgender but that she would have her job as long as she kept working hard.

Lange let herself feel cautiously optimistic. But she soon found that the county’s health plan would not cover any of the surgeries needed to make her body align with her gender — the operations are on a list of procedures that the county explicitly opts out of paying for, which are known as exclusions.

Lange’s insurance does cover the hormonal medication she takes regularly, but not the lab work she needs once or twice a year to monitor how her body is responding to it. She receives a bill for $400 each lab visit, which is hard to afford on her $58,000 salary. The bills go to debt collectors, and she pays off smaller amounts when her budget allows.

Lange was able to cobble together several thousand dollars from savings and retirement funds to pay out-of-pocket for a chest surgery in early 2018, but the next surgery she needs costs more than $25,000, well above what she can afford. She sent letters to the insurance administrator and the county asking them to remove the exclusion in 2018 and 2019. Her appeals were denied.

In early 2019, in a last-ditch effort, Lange walked into the county board of commissioners’ meeting to ask the board to remove the health plan’s exclusion, hopeful they might hear her out. She mentally prepared herself to broadcast some of her most personal struggles to an audience that seemed less than receptive, bringing her son and a friend with her for support.

As Lange nervously waited for her turn at the podium, she watched someone familiar step up right before her. One of her neighbors had come to ask the county not to agree to her request. Addressing the row of commissioners at the front of the room, he launched into his list of questions: How does Lange’s request relate to her work? Why should taxpayers be on the hook for her surgery? How does her request differ from any kind of elective cosmetic surgery that also isn’t covered by insurance?

Lange watched, disheartened, as a commissioner reassured the neighbor that the board would not make any changes to the health plan that year. Lange would go on to speak that evening, despite believing it was a futile exercise. “You knew right then and there that no matter what I said, that it wouldn’t matter,” she said. “It’s a really helpless feeling.”

So she turned to the legal system. She worked with a team of attorneys handling a similar case — a lawsuit brought by a transgender employee against Georgia’s university system. In September of 2019, the university system agreed to a settlement that awarded the plaintiff $100,000 and provided all of its employees access to gender-affirming care. Just weeks after the settlement, Lange filed a lawsuit against the county for employment discrimination, arguing that denying her medical care subjected her to “inferior treatment.” Soon after, commissioners unanimously voted to continue excluding gender-affirming care from health coverage for yet another year.

In response to Lange’s lawsuit, the county’s lawyers said health insurance premiums had already soared and that the county wanted to prevent a flurry of requests to remove other exclusions in the plan. The county spent $57,135 — $390 per hour — on a budget expert who concluded that keeping the exclusion in place was “reasonable and consistent with general industry practices.”

The county’s expert argued that removing the exclusion could result in a “catastrophic claim,” in which a member of the county’s health plan seeks multiple surgeries in a single year that, combined, could cost hundreds of thousands of dollars. The county’s plan is self-funded, meaning that the employer — not an insurance company — is responsible for paying all enrollees’ medical costs, making it harder for the plan to absorb a high-cost claim.

Lange’s lawyers hired their own budget expert, whose estimate was in line with what other experts, government officials and academics have found. In her report, Lange’s expert wrote that, over time, the financial impact of removing the exclusion would be small, especially since few people would use the benefit. The expert also noted that the county has a separate insurance policy to cover unexpectedly large claims. She estimated that the cost of covering gender-affirming care would be “an amount so low that it would be considered immaterial.”

Without necessary treatment, transgender people are at higher risk for depression, anxiety and thoughts of suicide. Russ Toomey, a professor of family studies and human development at the University of Arizona, has helped establish that fact through his research on the mental health of transgender youth. He also has firsthand knowledge of discrimination: Toomey is suing his employer for withholding coverage for gender-affirming care.

When he was recruited for his job in 2015, he knew the university had hired other trans faculty members and believed it was committed to supporting them. In 2016, Arizona’s Department of Administration, which controls the health care plan for public employees like Toomey, chose to keep excluding gender-affirming surgery from its health plan, ignoring the advice of its insurance vendors. That same year, Arizona commissioned an internal analysis, in which a state budget expert described the cost of covering gender-affirming care as “relatively low.” A state employee was directed to delete that sentence from the analysis, according to legal documents.

In 2018, Toomey sought coverage for a hysterectomy to alleviate the distress of his gender dysphoria, and he was denied. In 2019, he filed a lawsuit against the state and its board of regents, which oversees all three of Arizona’s state universities.

The experience made him “see and feel very intensely” the link he’d studied between gender discrimination and mental health. Toomey regularly feels the anguish of “knowing that I have these organs inside my body that shouldn’t be there” and not being able to afford a hysterectomy. Toomey said the unfairness of Arizona’s health plan hit hard last year, when his friend and colleague, a cisgender woman, was able to obtain coverage for her hysterectomy, while he had been denied. Arizona’s employee health plan covers medically necessary hysterectomies except as part of “gender reassignment surgery.”

He said that he developed a panic disorder over the last couple of years due to the stress of the lawsuit and his inability to access care. When he heard that the university board had spent more than $415,000 to fight the case, Toomey was shocked. “That hurts in the gut to hear,” he said.

The Arizona Board of Regents argued in court filings that it should not be a defendant in the lawsuit because it has no control over the state plan — the board provides health care through a plan controlled by the state. And the state of Arizona argued that it was not legally required to remove the exclusion, a change that it said would be too expensive.

The case is still ongoing in federal court. The state, a named defendant in the case, now has a Democratic governor, Katie Hobbs, whose win last November ended 14 years of Republican control. In response to ProPublica’s request for comment, a Hobbs spokesperson declined to answer specific questions about whether the new administration would continue to defend the exclusion but emphasized the governor’s support for trans Arizonans.

“The Governor’s Office recognizes the need for the expansion of statewide benefits that are all inclusive,” Hobbs’ press secretary, Josselyn Berry, wrote in a statement.

Like Georgia’s Houston County and the state of Arizona, North Carolina has claimed that its key concern about removing the exclusion is cost. But the statements of officials suggest that’s hardly the only concern.

North Carolina state Treasurer Dale Folwell, one of the named parties in the lawsuit, has consistently referred to gender-affirming care as medically unnecessary, contradicting medical consensus. (North Carolina had briefly removed its exclusion in 2017, before Folwell took office and reinstated it.)

“The legal and medical uncertainty of this elective procedure has never been greater,” he said in a 2018 press release. “Until the court system, a legislative body or voters tell us that we ‘have to,’ ‘when to,’ and ‘how to’ spend taxpayers’ money on sex change operations, I will not make a decision that has the potential to discriminate against those who desire other currently uncovered elective procedures.”

The state also brought forward several expert witnesses who, rather than voice concerns about spending, expressed beliefs that transgender people should be prevented or discouraged from transitioning.

One of those witnesses, Paul Hruz, a pediatric endocrinologist in St. Louis who acknowledged he had no experience treating transgender patients for gender dysphoria, said in an expert report that in many cases the condition could stem from “social contagion” and that delaying care for children allows time for most of them to “grow out of the problem.” In his career and during the case, Hruz cited controversial theories, including that “cancel culture” and a “Gender Transition Industry” are preventing public debate on the merits of transition care. According to his deposition, Hruz has attended multiple events hosted by the Alliance Defending Freedom, a religious group that has pushed anti-trans legislation across the country.

In a deposition filed by the plaintiffs’ attorneys, a mother of a transgender child recalled a conversation she’d had with Hruz years ago about trans rights and her child’s challenging experience. She said Hruz told her, “Some children are born in this world to suffer and die.”

Hruz denied in his deposition that he made that statement. He declined to provide comment for this story.

Hruz’s views are so extreme that Judge Loretta Biggs limited what topics he was allowed to speak about during the case. “His conspiratorial intimations and outright accusations sound in political hyperbole and pose a clear risk of inflaming the jury and prejudicing Plaintiffs,” she wrote in a ruling last year. “It is the Federal Rules of Evidence, not some ‘Cancel Culture,’ that excludes this portion of Hruz’s testimony.”

She ordered North Carolina to remove its exclusion and allow transgender employees to access gender-affirming care. The state quickly appealed.

In 2020, as Lange anxiously watched her case inch through the courts, her legal chances suddenly seemed better than ever: The U.S. Supreme Court ruled that employment discrimination based on transgender status is illegal. Previously, courts had been divided on the issue.

Lange was driving to collect evidence for a financial fraud case she was investigating when she heard the news. She began to cry. “I had to pull over and just lost it,” she recalled. “I was just so happy.”

Still, Houston County kept fighting.

While the case dragged on, Lange was sometimes asked why she didn’t find another job that would cover her health care, but she felt she couldn’t afford to lose her pension benefits. She also loves her work investigating criminal cases, helping victims of violent attacks and fraud. She wondered if any other law enforcement agency nearby would hire a transgender woman, let alone one who was suing her employer. She was in her late 40s at that point and felt too old for a major career change.

“It’s been a lonely process and it’s just a grind,” Lange said. “It just tears at you each day that you go by. You’re constantly reminded that you’re still not who you’re supposed to be.”

Two more years would pass before Lange won her case in 2022, with the federal judge citing the Supreme Court decision as a major reason for ruling in her favor. “The Exclusion plainly discriminates because of transgender status,” Judge Marc Treadwell wrote in his order. A jury soon after awarded her $60,000 for “emotional pain and mental anguish.” Lange celebrated, immediately calling friends who had been there for her through years of heartache, then posting the news on social media. She scheduled an appointment with a surgeon in New York.

But Lange’s joy was cut short when the county appealed the ruling, a move that would cost it tens of thousands of additional dollars; it also meant that Lange wouldn’t get any of the money she was awarded until the process was complete. The county asked the court to let it keep its exclusion in place as the appeal moved forward, arguing again that the cost of covering Lange’s surgery could be exorbitant. In its argument, it referenced a New York Times article, “How Ben Got His Penis,” about a costly surgery not for a transgender woman but for a transgender man. That surgery is much more complicated than the one Lange sought. While the judge weighed the arguments, Lange had to postpone her surgery yet again.

Lange called her friend Shannon West when she found out the county was appealing. “She was really upset. She was crying,” West recalled. “It’s like climbing a stairwell and you get to the top. You’re about to go through the door and then somebody shuts the door and you get hit back down.”

This month, the door reopened: Treadwell ordered Houston County to cover transition care for its employees. He admonished the county for misrepresenting the cost of Lange’s surgery in its most recent legal argument, calling the decision “irresponsible.” He stressed that no connection existed, “anatomically or otherwise,” between the surgery mentioned in the New York Times article and the one Lange sought. The county, he added, had already received a specific, much lower estimate for the cost of Lange’s requested surgery.

Treadwell also said the county was “factually wrong” in suggesting that other transgender people would seek out even more expensive care. “It is undisputed that the Health Plan’s third-party administrator generally ‘concluded that utilization of gender-confirming care was low,’” he wrote. “In the four years this litigation has been pending, no other Health Plan members have sought gender confirmation surgery, or even identified as transgender.”

Lange heard about the ruling from her lawyer and struggled to feel excited. After the roller coaster of the previous several years, she had tamped down her optimism.

In many ways, Lange’s life has been on hold. She feels uncomfortable in her body and self-conscious about participating in activities she used to love: swimming, refereeing soccer, anything that would expose her body to heightened scrutiny. She’s divorced but has been hesitant to date. She goes to work, she comes home, on the weekends she plays tennis. She knows the surgery won’t restore the time she has lost.

Now, for the third time, she is starting the process of scheduling her surgery, hoping that the courts won’t yank the opportunity away again. She’s reluctant to book a hotel stay, already anticipating having to cancel it. “Until the case is done-done and over with, that’s when I can have some relief,” she said.

From Your Site Articles

TSA’s body scanners are gender binary. Humans are not.

This story was co-published with the Miami Herald.

On Sept. 15, 2017, Olivia stepped into a full-body scanner at the Fort Lauderdale-Hollywood International Airport.

When she stepped out, a female Transportation Security Administration officer approached. On the scanner’s screen was an outline of a human body with the groin highlighted. The officer told Olivia that because of something the scanner had detected, a pat-down would be necessary.

As a transgender woman, Olivia, 36, had faced additional TSA scrutiny before. On those occasions, a manual search at the checkpoint had been enough to assure TSA officers that there wasn’t a weapon or explosive hidden in her undergarments.

This encounter with the TSA went very differently.

After patting down Olivia and testing her hands for explosive residue, the officer said that she still couldn’t clear Olivia to board her flight and that a further search would be required.

Olivia was led to a private room where, she said, the officer patted her down again, running her hands down Olivia’s legs and over her groin.

“I told her: ‘If the issue is what you are feeling, let me tell you what this is. It is my penis,’” said Olivia, who agreed to be interviewed only if she were identified by her middle name because she fears people will treat her differently if they know she is transgender.

Soon after, three other TSA officers, all of them women and at least one of them a supervisor, entered the room, Olivia said.

TSA rules require that passengers be searched by officers of the same gender as they present. But, according to Olivia, the TSA supervisor told her that she would have to be patted down by a male officer.

After Olivia refused to be searched by a man, the officers told her that because she was not consenting to a search, she could not board her flight and would be escorted out of the terminal.

Olivia said she started crying and pleaded with the officers. “Can I just show you?” she recalled asking them.

TSA officers aren’t supposed to allow passengers to remove undergarments. But Olivia said the officers in the room with her did not object when Olivia pulled her ruffled, black and white skirt and underwear down to her ankles.

Olivia was then cleared to continue to her gate.

A Flawed System

What happened that day traumatized Olivia, who is now fearful of airports, and what she experienced reflects the worst fears of many transgender travelers, who say the TSA is failing them.

Shortcomings in the technology used by the TSA and insufficient training of the agency’s staff have made transgender and gender nonconforming travelers particularly vulnerable to invasive searches at airport checkpoints, interviews and a review of documents and data shows.

The TSA says that it is committed to treating all travelers equally and respectfully. But while the agency has known about the problems for several years, it still struggles to ensure the fair treatment of transgender and gender nonconforming people.

To understand the extent of the problem, ProPublica reviewed publicly available complaint data from the TSA’s website and asked transgender travelers to provide accounts of their experiences at airport checkpoints.

The review, which covered civil rights complaints filed from January 2016 through April 2019, found that 5%, or 298 complaints, were related to screening of transgender people, even though they are estimated to make up slightly less than 1%of the population.

This may understate the proportion of complaints from transgender travelers. When Olivia contacted the TSA, her complaint was filed in a different category — a catchall classification called “sex/gender/gender identity - not transgender.” That category accounts for 15% of the civil rights complaints in the period examined by ProPublica, but the TSA said it did not have a more specific breakdown of these complaints and could not say how many were, like Olivia’s, related in some way to gender identity and screening. ProPublica filed a Freedom of Information Act request in April seeking information about each complaint in those categories, but the agency has not yet provided any response.

When ProPublica asked transgender and gender nonconforming people to tell us about their experiences, we received 174 responses, many of them recounting humiliating treatment after being flagged by full-body scanners for additional scrutiny. Of those people, only 14 said they filed a complaint with the TSA. Many of those who did not file complaints said they didn’t know how, were afraid of outing themselves or didn’t want to relive the experience.

Some of the travelers who responded to ProPublica said they were asked by TSA officers to lift clothing to show private parts of their bodies or were pressured to expose their genitals so that TSA officers would allow them to pass through the security checkpoint.

“Transgender people have complained of profiling and other bad experiences of traveling while trans since TSA’s inception and have protested its invasive body scanners since they were first introduced in 2010,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality, or NCTE.

The TSA, which is part of the Department of Homeland Security, was created in an overhaul of transportation security after the 2001 terrorist attacks, with the mission to prevent similar tragedies. The agency, replacing a patchwork of private security providers, initially used metal detectors, which had been standard at checkpoints for years. But after a passenger attempted to blow up a plane in 2009 with plastic explosives hidden in his underwear, the agency began using full-body scanners.

The new scanners were designed to detect potential threats that are not necessarily metal. But TSA officers can’t tell by looking at the monitor whether the machine is detecting a weapon, or as in Olivia’s case, a body part that the scanner was not programmed to associate with a woman.

Since implementing the scanning technology, the agency has grappled with privacy and discrimination issues. Like the transgender and gender nonconforming communities, people with disabilities, people who wear religious head coverings and women of color, whose hairstyles trigger the body scanners to alarm more frequently, have raised concerns about profiling and invasive screening.

Jenny Burke, the TSA’s press secretary, said the screening is done “without regard to a person’s race, color, sex, gender identity, national origin, religion or disability.”

In February, the agency rolled out a new online transgender awareness training, mandatory for its 43,000 screeners, and is studying options for better technology, Burke said.

But advocates and some lawmakers said the improvements have taken too long for a federal agency that interacts with the public more than many others. On an average day, TSA officers screen more than 2 million people and manually search many of them.

“For many, TSA is not just the public face of government — but its hands, too. Its success as a security agency depends upon the trust and compliance of a diverse public,” Rep. Bennie Thompson, D-Miss., said during his opening statement at a Homeland Security Committee hearing in June.

Transgender people have faced growing uncertainty about whether their civil rights are protected by the federal government. In May, the Trump administration announced plans to roll back protections for transgender people under nondiscrimination laws. Earlier last year, the administration barred transgender people from serving in the military. As ProPublica reported last year, some states bar transgender people from obtaining a state-issued ID that matches their gender presentation unless they provide proof they’ve had surgery.

False Alarms

Most of the incidents ProPublica reviewed for this story started with a body scanner issuing an alarm.

Before a person steps into the full body scanner at an airport, a TSA officer must register the person’s gender, pressing a pink button for a female or a blue button for a male. Generally, the officers make the decision in seconds, based on a person’s appearance.

The body scanner is programmed to look for penises on passengers scanned as male and breasts on passengers scanned as female. If the officer selects the female button and the machine detects something in the passenger’s groin area — like in Olivia’s case — it could interpret a body part as a potential threat, issuing an alarm.

ProPublica also spoke to several cisgender women who said they were flagged for additional scrutiny after a TSA officer scanned them as male, causing their breasts to trigger the alarm. (“Cisgender” describes someone who identifies with the sex they were assigned at birth, meaning they are not transgender.) The women told ProPublica that they believed the officers scanned them as male because they had short hair or, in one case, because they were wearing baggy clothes.

Peter Neffenger, who served as TSA administrator for the last 18 months of the Obama administration, said he heard again and again about the anxiety brought on by the scanners.

“As many in the transgender community explained to me, it’s one of the most stressful parts of the screening process for them,” Neffenger said.

In September 2018, Terra Fox, a transgender woman, was at the airport in Albuquerque, New Mexico, on her way to a conference in Orlando, Florida. When she walked through the body scanner, the machine showed a yellow box over her groin.

Fox said she told the officers at the checkpoint that she is a transgender woman and that the machine was merely detecting her genitals.

Fox asked to be patted down by a woman, but the female officers near her refused to do it.

According to Fox, two male officers brought her to a private room and instructed her to pull down her leggings and show them her genitals. She complied, but the screening lasted so long that she missed her flight. She said the experience has taken a toll on her.

“Every time I travel, I have to cry and feel humiliated,” she said.

Fox has to travel for work frequently and said she doesn’t have the option of avoiding airports.

Allister McGuire, a transgender man who lives on Long Island, N.Y., said he didn’t fly for five years after an experience in the St. Louis Lambert International Airport in 2014. McGuire was taken to a private room after the body scanner went off, displaying a yellow patch on his chest.

“I was very nervous,” McGuire said. “I did not feel safe.”

The two male officers in the room told McGuire to remove his chest binder, a cloth undershirt some trans men and gender nonconforming people use to flatten their chests, and then lifted each of his breasts with their hands, McGuire said. He was eventually allowed to leave, but he said he immediately had to take anxiety medication.

McGuire said he did not file a complaint.

In an interview with ProPublica, McGuire wondered: “If I was coming through as a woman, would [the officers] be touching me like that?”

Burke, the TSA press secretary, said that the agency does not conduct strip searches, but that travelers may be required to “adjust clothing” during the pat-downs. The agency didn’t respond to detailed questions about the allegations made by Fox and McGuire.

Neffenger said that during his time as TSA’s administrator, officers were not supposed to ask people to take off their clothes during a screening. But he acknowledged that it was difficult to keep such an enormous workforce consistently trained.

“It wouldn’t surprise me if you said you discovered that people have asked people to undress,” Neffenger told ProPublica. “It’s a big organization; it’s got a lot of turnover.”

The overall attrition rate for the TSA officers is 17%, which is roughly in line with the federal workforce, according to a report this year by the inspector general for DHS. But officers leave the TSA voluntarily at a higher rate than other federal employees, according to the report, which said “retention and training challenges are contributing factors to airport security weaknesses.”

Neffenger spent 33 years serving in the U.S. Coast Guard before being appointed in 2015 to lead the TSA. He arrived amid fallout from damning revelations about the agency. A leaked government report showed that TSA officers had failed to detect nearly all weapons and explosives smuggled through by DHS investigators during a secret test.

Neffenger said his immediate focus as administrator was to develop a nationwide training program. It was a challenging task, he said, because the intrusive nature of the screening process will inevitably make both passengers and officers uncomfortable.

“Pat-downs are, by definition, invasive,” Neffenger said. “What [TSA officers] are asked to do is stuff people don’t like to do.”

Public Comments

TSA officers would need to do fewer pat-downs if the agency had better technology.

The agency uses a machine called a millimeter wave scanner at nearly every airport in the U.S. The machines, manufactured by L3Harris Technologies, rely on an algorithm to analyze images of a passenger’s body and identify any threats concealed by the person’s clothes.

The TSA has spent about $110 million deploying the machines, which cost about $150,000 each, according to a government report.

Since the TSA began deploying body scanners at airports, LGBTQ advocates have expressed concern that the new screening procedures would disproportionately affect transgender travelers.

In a letter to then-TSA Administrator John Pistole in December 2010, NCTE, the Transgender Law Center and the National Center for Lesbian Rights described two incidents in which transgender men were interrogated by TSA officers because their bodies looked different in the scanners than what the officers expected. The organizations urged Pistole to take immediate action to stop discrimination against transgender people. In a written response, Pistole said the agency was “working hard to respond to the concerns of the traveling public.”

In 2010, the Electronic Privacy Information Center, or EPIC, sued DHS in response to the TSA’s decision to make body scanners the primary screening system at airports. EPIC argued that the agency should have given the public an opportunity to comment on the technology before it was implemented. The District of Columbia Court of Appeals ruled in favor of EPIC in 2011, though the TSA didn’t begin accepting comments until 2013.

“They are now blaming the scanners when part of the rule-making process is to surface these kinds of issues,” said Jeramie Scott, director of EPIC’s Domestic Surveillance Project.

Burke said the agency procures equipment, such as body scanners, that can accommodate the largest demographic possible. Burke said the TSA does not develop its own technology and solicits private companies to develop scanners that meet the agency’s needs.

Neffenger said talking to transgender people and advocates helped him realize that the agency had to do better.

“You really have to design a system that is as close to 100% as possible,” he said.

The TSA and L3Harris Technologies did not respond to questions about how the scanner’s algorithm processes images to determine threats. (In June, L3 Technologies and Harris Corporation merged to form L3Harris, which has about 48,000 employees and is a key government contractor.)

In a written statement, Jennifer Barton, a spokeswoman for L3Harris, said details about the company’s research and development are confidential. She also said the company is working “with the TSA” on new technology and products that meet the agency’s “evolving requirements and the needs of all passengers.”

“We recognize the importance of ensuring that security scanning equipment accommodate all gender identities, and that is why (the company) is developing technology that moves away from the current male/female imagery and will safely screen passengers without the use of gender-specific images,” Barton wrote.

Barton didn’t respond to follow-up questions about when the technology would be ready for use at airports.

Beyond Technology

While Olivia was searched in the private room in Fort Lauderdale, her fiancee, Marguerite, was waiting on one of the benches near the security checkpoint. Olivia, a trial lawyer, and Marguerite, a school psychologist, had been dating for a year and were planning to marry that winter. The couple were on their way to New York for Marguerite’s brother’s wedding, and Marguerite was worried that they might miss their flight.

“I didn’t know if I could call the police,” Marguerite said. “I didn’t know what my rights were.”

Olivia said she is used to people questioning her appearance — and even her right to exist — because she is transgender. Showing her naked body to TSA officers, however, was a level of invasiveness she wasn’t prepared for.

“The whole weekend of the wedding I replayed the situation in my mind. It ruined the trip,” she said. “As a lawyer I am used to being in control of the situation, but that situation just completely went off the rails.”

Days after the incident, she filed a detailed complaint with the TSA. Her account describes actions, such as the directive that she submit to being searched by a man, that would violate TSA policy.

Burke, the TSA press secretary, said transgender people are supposed to be patted down by an officer of the same gender that they present.

A TSA officer, who has worked as a screener since 2016 and spoke on the condition of anonymity, said the officers should not have allowed Olivia to expose herself.

“The moment she [Olivia] said she was going to take her clothes off, they had to say: No, we can’t allow that. That is completely against SOP [standard operating procedure],” the TSA officer said.

Olivia said if she’d known she had the right to bring a witness into the private room, Marguerite would have been there with her.

Six weeks after she filed her complaint, on Oct. 31, 2017, Olivia received a letter from the TSA’s Office for Civil Rights and Liberties, Ombudsman and Traveler Engagement. The letter shared the conclusions of the agency’s investigation into the incident: “Our review to date does finds [sic] that the TSA officers and staff did follow Standard Operating Procedures (SOP) in the overall screening and the pat down procedures,” it said.

According to the letter, the agency’s investigation involved “a collection and review of eye-witness statements, close circuit television footage, and any other evidence tending to prove or disprove a traveler’s factual allegations.”

The two-page letter didn’t address Olivia’s claim that she had to expose her genitals to TSA officers.

“My complaint came back and it was not at all what I said had happened,” Olivia said.

Eventually, Olivia filed a Freedom of Information Act, or FOIA, request for the evidence the TSA said it reviewed to investigate her allegations. Her request was denied.

“Nobody called me, nobody did anything, they completely blocked my FOIA request,” she said.

ProPublica also submitted a FOIA request for documents related to the investigation into the incident, along with a privacy waiver signed by Olivia to allow ProPublica to access her records. The agency has yet to provide ProPublica with any of the requested records, citing a backlog in FOIA requests.

ProPublica reviewed the narrative that Olivia included in her original complaint to the TSA, as well as photos she took of the officers involved and an audio recording she made at the end of the incident, to corroborate her description of events.

The agency told ProPublica that it does not have cameras in private screening rooms and did not respond to questions about the incident or Olivia’s complaint.

ProPublica contacted one of the officers at her home in South Florida, but she declined to comment. We could not locate the other two officers.

Deficient Training

TSA officers and supervisors started taking a 30-minute online course titled “Transgender Awareness Training” in February. The course is supposed to teach employees how to interact with transgender people respectfully, according to a one-page summary of the training provided by the TSA.

Burke said that the agency would not provide a copy of the training materials because they are “sensitive security information.”

ProPublica reviewed hundreds of posts and comments from a private Facebook group for current and former TSA employees called “TSA Breakroom.” The conversations in the group, which has more than 18,000 members and is not administered by the TSA, shed some light on the content of the training.

In a series of discussions earlier this year, group members, some of them withholding their names, complained about the program. One of the anonymous posts said the course in the Online Learning Center, or OLC, instructed officers to introduce themselves to passengers by stating their name and the pronouns the officer uses.

A post in a private Facebook group for current and former TSA employees called “TSA Breakroom.”

This kind of introduction is common in the LGBTQ community, but dozens of group members wrote that they didn’t understand the instructions or would not be willing to introduce themselves that way.

Many group members wrote that they worried passengers would be upset if officers asked them about their gender identity.

“I shook my head through that whole dang course,” one member commented in April 2019. “Someone will throat punch me if I say that stupid shit.”

A comment from April 2019 about a transgender awareness training course, posted in a private Facebook group for current and former TSA employees.

Other group members wrote that the training didn’t address the fundamental problem that the scanners have only male and female options.

“I got a pink button and blue button. Which one you want?” one group member wrote.

The current TSA officer who spoke to ProPublica on the condition of anonymity said that she came up with her own ways to screen transgender passengers.

“I flip a coin in my head and hit a button, wait for the person to walk out of the scan, point at the screen and ask the person: Did I scan you right?” the officer said. “It is sort of a discreet way of asking.” If the passenger’s answer is no, the officer asks the passenger to walk through the scanner again and hits the other button.

Another TSA employee, who has worked for the agency for over a decade and spoke on the condition of anonymity, said that the gender buttons are stressful for both passengers and officers.

“A lot of the traveling public already hate us,” she said. “We don’t want to offend people by [scanning them] wrong.”

Some members of Congress have tried to address discrimination against transgender people at TSA checkpoints through legislation. In 2018, Rep. Kathleen Rice, D-N.Y., introduced the Screening With Dignity Act, which proposed funding for TSA training and education and a feasibility study for retrofitting or replacing the millimeter wave scanners. The bill died in the Homeland Security Committee and has not been reintroduced this year.

“It is clear that TSA needs to reassess its technological capabilities and improve its screening procedures to be more inclusive,” said Rice, who was the district attorney for Nassau County, on Long Island, before being elected to Congress. “No one should have to go through airport security scared that they might be humiliated, discriminated against or outed.”

In a 2015 survey of transgender Americans, NCTE found that of respondents who had gone through airport security in the last year, 43% had a problem at the checkpoint related to being transgender.

Many transgender people fear interacting with law enforcement in any setting. According to the NCTE survey, 57% of respondents said they would be afraid to ask the police for help.

Fox, the transgender woman who said she was asked to expose her genitals at the airport in Albuquerque, said her boyfriend encouraged her to file a complaint, but she decided against it.

“Dealing with the legal system is scary,” Fox said.

Lasting Trauma

When Olivia left the private room where she was searched at the Fort Lauderdale airport, she ran to Marguerite, who was waiting for her on the bench, and wept.

“Calm down, calm down, get your stuff together,” Marguerite can be heard telling Olivia in the audio recording Olivia took on her phone near the end of the incident.

From the time Olivia stepped in the body scanner to the time she was allowed to head to her flight, the encounter spanned just 20 minutes. But it’s been impossible to forget.

Marguerite and Olivia, who married last year, have traveled a few times since the September 2017 trip. Marguerite prints the screening procedures from the TSA website and keeps a copy in her purse, in case she has to show it to a TSA officer.

Each time they travel, Olivia panics as she approaches an airport checkpoint.

“I feel my heart speed up. I start thinking: It is going to happen again, it is going to happen again, it is going to happen again,” she said.

This May, while flying back to Florida from North Carolina, a TSA officer asked Olivia to step aside. The airport body scanner issued an alarm in her groin area. The officer patted her over her jeans and allowed her to head to her flight.

When she left the checkpoint, Olivia ran to Marguerite, who held her as she cried.

Do you have access to information about the TSA that should be public Email lucas.waldron@propublica.org and brenda.medina@propublica.org. Here’s how to send tips and documents to ProPublica securely.

Doris Burke contributed to this story.

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