How to Determine if an Employee Benefits Plan Discriminates on the Basis of Gender Identity

Gender-affirming care is a hot-button topic for health insurance providers, with the U.S. House of Representatives currently considering an appropriations bill which would prohibit the use of federal funds for this type of healthcare and several states imposing similar limitations. When denied coverage, it is important for employees to know their rights and determine whether they can challenge this decision.

In a recent article in The Legal Intelligencer, our firm examines ways to identify when an employee benefits plan discriminates on the basis of gender identity. The U.S. Supreme Court decision in Bostock v. Clayton County has resulted in a split among courts as to whether gender identity protections apply to the ACA. Some courts have found anti-transgender discrimination where a benefit is covered for some medical purposes but is denied for the treatment of gender dysphoria.

Beneficiaries may also be able to challenge the denial of gender-affirming care under ERISA, which requires health plans to have unambiguous rules for coverage and exclusion of benefits. For example, some health care plans cover treatments relating to “gender transition” but exclude cosmetic surgeries. Because cosmetic surgery may be part of a course of treatment for gender dysphoria, this could result in an ambiguity that violates ERISA.

Policies regarding employee benefits plans and gender-affirming care are complex, and the landscape continues to evolve. Understanding the protections currently in place is vital to securing the benefits employees deserve.

Read the full article here: “How to Identify When an Employee Benefits Plan Discriminates on the Basis of Gender Identity” (Subscription is required.)