Protecting LGBTQ rights is of great importance for this country, and the legal issues related to transgender healthcare can be particularly complicated.

Many employer-sponsored healthcare plans now explicitly cover transgender-related healthcare. Part of the reason is likely economic. According to the Williams Institute, there are currently just under 1.4 million Americans who identify as transgender, which equates to approximately 0.58% of the population.1 In 2001, the City and County of San Francisco became the first major employer in the United States to publicly remove transgender access exclusions in its group health insurance plans.2 Financial data from the first five years of the program confirmed that premium increases were not necessary and that total claims averaged less than $77,000 per year from just 6-24 participants.3 Since then, an increasing number of employers offer transgender-inclusive healthcare coverage, including 65% of Fortune 500 companies and 89% of all major employers.4 That is up from approximately 0% in 2002 and just 9% in 2010.5

Nevertheless, some employers still do not offer transgender-inclusive healthcare coverage, and there has been a recent uptick in litigation challenging exclusions for transgender-related healthcare in group plans, particularly state-sponsored group plans. For example, on September 18, 2018, the United States District Court for the Western Division of Wisconsin held that the exclusion for gender confirmation surgery and related services in the State of Wisconsin’s group health plan for public employees constituted sex discrimination in violation of Title VII of the Civil Rights Act, Section 1557 of the Patient Protection and Affordable Care Act (“ACA”), and the Equal Protection Clause of the Fourteenth Amendment.6

Similarly, on December 23, 2019, the United States District Court for the District of Arizona denied a motion to dismiss filed by the State of Arizona and others in a case challenging its group health plan’s exclusion for gender confirmation surgery.7 An Associate Professor at the University of Arizona filed the case, and the court sustained his claims under both Title VII and the Equal Protection Clause.

Most recently, on March 6, 2020, the United States District Court for the District of Alaska granted partial summary judgment in favor of Jennifer Fletcher, a legislative librarian for the State of Alaska, who underwent gender confirmation surgery in Thailand after being denied coverage for the operation under the State of Alaska’s group health plan.8 The court found that the plan’s exclusion for gender-transition

related surgery violated Title VII’s prohibition on sex discrimination. The court reasoned that the “policy of excluding coverage for medically necessary surgery such as vaginoplasty and mammoplasty for employees, such a[s] plaintiff, whose natal sex is male while providing coverage for such medically necessary surgery for employees whose natal sex is female is discriminatory on its face and is direct evidence of sex discrimination.”9

Additional cases have been filed as well. On October 2, 2019, Anna Lange, a Deputy Sheriff in Houston County, Georgia, filed suit against the County for failing to cover gender confirmation surgery. Sgt. Lange’s claims were denied under the County’s plan’s exclusion for “drugs for sex change surgery” and “services and supplies for a sex change.”10 Sgt. Lange alleged violations of the Equal Protection Clause, Georgia Equal Protection Guarantee, Title VII, and Title I and II of the Americans with Disabilities Act.

A few months later, on January 13, 2020, Jami Claire and Kathryn Lane filed suit against the Florida Department of Management Services and the University of Florida Board of Trustees. Ms. Claire is a Senior Biological Scientist at the University of Florida’s College of Veterinary Medicine, and Ms. Lane is an attorney with the appellate division of Florida’s Public Defender Office. Both women sought gender confirmation-related medical care, and both women’s claims were denied under the State of Florida’s healthcare plan’s exclusion for “gender reassignment or modification services or supplies.”11 Similar to the others, Mss. Claire and Lane alleged violations of the Equal Protection Clause and Title VII.

Although 22 states and the District of Columbia have now passed laws that bar health insurers from explicitly refusing to cover transgender-related health care benefits,12 Wisconsin, Arizona, Alaska, Georgia, and Florida are not among the states that have enacted any LGBTQ inclusive insurance protections. Moreover, while the United States Department of Health and Human Services (“HHS”) promulgated regulations to expressly prohibit discrimination on the basis of gender identity in healthcare under Section 1557 of the ACA, they were never enforced,13 and have now been vacated.14

In addition, none of the recent cases has challenged these exclusions under the Federal Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”) or their state counterpart laws, which generally require health plans that cover mental health treatment to do so in parity to medical/surgical treatment claims. That is significant because gender dysphoria – defined as “a marked incongruence between one’s experienced/expressed gender and assigned gender” at birth, accompanied by distress caused by that incongruence – is codified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (“DSM-V”).15 Thus, for example, if a group healthcare plan covers spinal fusion operations for participants with herniated spinal discs, but does not cover gender confirmation surgery for participants diagnosed with gender dysphoria, that could constitute a violation of the applicable parity laws.

No matter which legal bases are raised, these cases are critical for ensuring the legal rights and protections for the transgender population; and will almost certainly continue to be brought until all healthcare plans provide access to transgender-inclusive coverage.

 

Marie Casciari is a shareholder at DeBofsky Sherman Casciari Reynolds PC.

 

1 The Williams Institute, How Many Adults Identify as Transgender in the United States? (June 2016), https:// williamsinstitute.law.ucla.edu/wp-content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States. pdf (last visited March 4, 2020).

2 Human Rights Campaign, San Francisco Transgender Benefit: Actual Cost & Utilization (2001-2006), https://www. hrc.org/resources/san-francisco-transgender-benefit-actual-cost-utilization-2001-2006 (last visited March 4, 2020).

3 Human Rights Campaign, San Francisco Transgender Benefit: Total Claims Experience and Plan Evolution, By Year (2001-2006), https://www.hrc.org/resources/san-francisco-transgender-benefit-total-claims-experience-and-plan-evolutio (last visited March 4, 2020).

4 Human Rights Campaign, Corporate Equality Index 2020 (2020), https://assets2.hrc.org/files/assets/resources/ CEI-2020.pdf?_ga=2.69279440.1797895078.1583272226-1097488738.1582839656 (last visited March 4, 2020).

5 Id.

6 Boyden v. Conlin, 341 F. Supp. 3d 979 (W.D. Wis. 2018).

7 Toomey v. Arizona, No. CV1900035TUCRMLAB, 2019 WL 7172144 (D. Ariz. Dec. 23, 2019).

8 Fletcher v. Alaska, No. 1:18-cv-0007, 2020 WL 2487060, U.S. Dist. LEXIS 45208 (D. Alaska Mar. 6, 2020).

9 Id. at *11.

10 Lange v. Hous. Cnty., Ga., No. 5:19-cv-00392 (M.D. Ga.) (Doc. 1 at ¶ 4).

11 Claire & Lane v. Fla. Dep’t of Mgmt. Servs. et al., No. 4:20-cv-20 (N.D. Fla.) (Doc. 1 at ¶ 1).

12 Movement Advancement Project, Healthcare Laws and Policies Equality Maps, https://www.lgbtmap.org/ equality-maps/healthcare_laws_and_policies (last visited March 4, 2020).

13 Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016).

14 Franciscan All., Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019).

15 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 452-53 (5th ed. 2013).

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Mark D. DeBofsky is a name partner of DeBofsky Sherman Casciari Reynolds P.C. — on the web at debofsky.com. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage issues. He can be reached at...