Gender-Affirming Care: Health Plan Design and Compliance

Trucker Huss

The Supreme Court of the United States in Bostock v. Clayton County found that Title VII protection against employment discrimination on the basis of sex extends to an individual’s gender identity.  Although the case was not specifically related to benefit offerings, employer-sponsored health benefits fall under the broad protection of Title VII since benefits are part of the employment package.  Since the Bostock decision in 2020, there have been numerous court cases that have addressed whether a health plan that excludes coverage for the treatment of gender dysphoria violates Title VII or Section 1557 of the Affordable Care Act.  In the wake of increased litigation concerning gender dysphoria coverage, employers will need to understand and consider various federal and state laws when reviewing/designing provisions in health plans regarding coverage for gender dysphoria.

The following will be discussed:

• Bostock v. Clayton County and subsequent case law
• Description of Gender-Affirming Coverage
• State Laws
• ERISA Preemption
• Section 1557 of the Affordable Care Act (ACA)
• Title VII issues
• Mental Health Parity and Addiction Equity Act (MHPAEA)
• HIPAA Privacy

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