Tuesday, May 21, 2024

It's illegal to deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender

Can an employer-sponsored health plan legally deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender?

According to the 11th Circuit Court of Appeals in Lange v. Houston Cty., the answer is an unequivocal "No, it cannot!"

Houston County's employee group-health plan covers "medically necessary" services such as surgeries and anesthesia, but specifically excludes coverage for "drugs for sex change surgery" and "services and supplies for a sex change and/or the reversal of a sex change."

Anna Lange, a county employee, is a transgender woman diagnosed with gender dysphoria. To treat her condition, Lange's healthcare providers started her on a treatment plan of hormone therapy and gender-affirming surgery, both of which they deemed "medically necessary." The County's health plan, however, denied coverage for the surgery based on its sex-change-related exclusions.

Lange sued for sex discrimination under Title VII. The 11th Circuit — relying on the Supreme Court's holding in Bostock that transgender discrimination is sex discrimination — held that the plan's exclusions unlawfully discriminated on the basis of sex.

"Health Plan participants who are transgender are the only participants who would seek gender-affirming surgery," the majority opinion wrote. "Because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status." The court continued, "By drawing a line between gender-affirming surgery and other operations, the plan intentionally carves out an exclusion based on one's transgender status. Lange's sex is inextricably tied to the denial of coverage for gender-affirming surgery."

This is the legally correct decision; it's also the morally correct decision. Under Bostock, you can't debate the former, even if your personal, political, or religious views take issue with the latter.