In a victory for transgender individuals, on May 4, 2021, a federal district court in Washington State found that the Affordable Care Act (ACA) prohibits health care providers from denying transgender individuals gender affirming medical treatment. In C.P. v. Blue Cross Blue Shield of Illinois, health insurer Blue Cross Blue Shield of Illinois (“BCBS”) denied coverage for hormone therapy, a mastectomy (breast removal), and chest reconstruction surgery to a fifteen-year-old transgender male.[1] BCBS denied the care despite a certification from the plaintiff’s doctors that the procedures were medically necessary to treat his gender dysphoria. Many transgender individuals experience gender dysphoria, a feeling of clinically significant stress and discomfort due to an incongruence between one’s gender identity and sex assigned at birth. As recognized by medical authorities, the federal court in Washington found that gender dysphoria is an extremely serious medical condition that, if left untreated, can result in anxiety, depression, or even death.
Section 1557 of the ACA protects against discrimination in the administration of health care on the basis of sex, stating that individuals may not “be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance.” In 2016 the Obama administration issued a regulation reflecting that sex discrimination under Section 1557 included any discrimination based on gender identity. The Trump administration, by contrast, issued numerous orders and regulations that were hostile to the interests of transgender individuals, and in 2019 it changed course, issuing a rule that held that denying health care treatment for gender dysphoria did not amount to discrimination on the basis of sex. Notwithstanding those regulations, however, federal courts across the country have consistently held that the plain language of Section 1557 prohibits health care providers and insurers from discriminating against or denying treatment to transgender individuals for gender affirming care.[2] In the C.P. v. Blue Cross Blue Shield of Illinois ruling this month, the federal court in Washington State held true to that line of authority, and contrary to the Trump-era regulations ruled that the insurer’s actions were discriminatory.
In C.P., the plaintiff filed suit to challenge BCBS’ denial of his gender affirming coverage. In ruling in favor of the trans patient, the court stated: “The fundamental issue in this motion is whether a plaintiff who alleges that he was denied insurance coverage for medical treatment because he is transgender states a claim for sex discrimination under Section 1557 of the [ACA]. The Court finds that he does.” The court’s ruling in that case was a natural result given the Supreme Court’s ruling last year in Bostock v. Clayton County, in which the Court found that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII,” which prohibits sex discrimination in employment. Although the Supreme Court has not ruled specifically on whether that same principle applies to the health care setting, the court in C.P. held that it “would be logically inconsistent with Bostock” that the ACA, which prohibits sex discrimination in health care, would “permit[] discrimination for being transgender.”
By applying the reasoning of Bostock to Section 1557 of the ACA, the court made clear that transgender individuals who are denied healthcare coverage have a claim if they can show that (1) their healthcare program receives federal financial assistance; (2) they were denied coverage or subjected to discrimination; (3) the discrimination occurred on the basis of sex. The court held that, here, the plaintiff’s complaint had pled facts sufficient to establish each of these elements. Importantly, the court rejected arguments from BCBS that the 2020 Trump administration rule meant that denying treatment for gender dysphoria was not discrimination. Rather, it followed precedent set by other courts: only the plain language of Section 1557 governs. That language, coupled with the holding in Bostock, is clear that denying treatment based on gender identity is discriminatory.
Fortunately, the Biden issued an announcement that the Department of Health and Human Services would, in light of the Bostock decision, interpret and enforce Section 1557 to prohibit discrimination based on sexual orientation and gender identity, rending the Trump-era rule as moot. While this enables the government to bring enforcement actions against discriminatory healthcare providers, the judiciary’s reliance on the plain language of Section 1557 will continue to be essential in enabling transgender individuals to prevail in court when they have been denied access to gender-affirming treatments.
Correia & Puth represents transgender individuals confronting discrimination in employment, public accommodations, and in the health care setting. If you have faced discrimination, denial of care, or harassment, please contact us today.
[1] No. 3:20-cv-06145-RJB, 2021 U.S. Dist. LEXIS 85484 (W.D. Wash. May 4, 2021).
[2] See e.g., Kadel v. Folwell, 446 F. Supp. 3d 1, 17 (M.D.N.C. 2020); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 957 (D. Minn. 2018); Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d 1090, 1105 (S.D. Cal. 2017); Cruz v. Zucker, 195 F. Supp. 3d 554, 581 (S.D.N.Y. 2016).
