Health plans imposing restrictions or exclusions on gender dysphoria treatment can run into several legal discrimination issues. From ACA §1557 to mental health parity and Title VII civil rights, the law remains unsettled on this topic. So, restricting or excluding gender dysphoria treatment that is otherwise covered by the plan for other reasons (such as for cancer or congenital deformities) remains risky.
Applies To: Employers wishing to impose restrictions or exclusions on services for gender dysphoria treatment that are covered by the plan for other conditions.
Go Deeper:
Recent court decisions continue to oscillate on whether gender dysphoria treatment restrictions or exclusions are discriminatory under various federal laws.
- A court recently ruled in L.B. v. Premera Blue Cross that Premera Blue Cross violated §1557 by excluding certain gender dysphoria treatment.
- A federal district court and a three-member panel of the Eleventh Circuit Court of Appeals ruled in Lange v. Houston County, Georgia, that an employer’s group health plan discriminated on the basis of sex in violation of Title VII by excluding certain gender dysphoria treatment. However, the full Eleventh Circuit Court of Appeals recently reversed those rulings, holding that the plan did not violate Title VII and applying the Supreme Court’s reasoning in its United States v. Skrmetti ruling to come to that conclusion.
- The Mental Health Parity and Addiction Equity Act (MHPAEA) would also seemingly impose restrictions on the exclusion of gender dysphoria treatment. However, enforcement of the law has fluctuated and its implications regarding gender dysphoria remain uncertain.
Any decisions courts issue are subject to appeal, and they tend to be focused on the facts and circumstances of the specific plan in question. Often a key point is that the plan covers a specific treatment for some conditions but not for gender dysphoria.
Practical Impact to Employers:
Since this is such an unsettled area of law, it is important that any restriction or exclusion of gender dysphoria treatment is evaluated with the help of legal counsel who will defend the employer should a government investigation or litigation arise.