The U.S. Supreme Court announced on June 24, 2024, that it would take up a case challenging a Tennessee law that bans gender-affirming care for minors. The Court will hear arguments when they are back in session this coming fall with a decision to be released early in summer 2025.
Employer Action Items
- Employers should familiarize themselves with laws and regulations not only in the states where they have operational centers, but also in states where employees physically work or reside.
- Review plan documents and other policies to ensure they comply with current laws.
- If fully insured, consider contacting the carrier to confirm that the employer’s plans comply with all applicable law.
- If self-insured, consult with third-party benefit administrators (“TPAs”) and legal counsel to ensure health and welfare benefits offerings are compliant respecting existing laws and regulations.
- Carefully consider exclusions related to gender-affirming care and/or gender dysphoria when those same services are covered in other contexts (e.g., excluding medically necessary mastectomies to treat gender dysphoria while covering them for diagnoses not related to gender dysphoria) since those exclusions may be vulnerable to civil causes of action resulting in litigation (not only under state law, but also pursuant to Title VII of the Civil Rights Act of 1964, §1557 of the Affordable Care Act, and The Equal Protection Clause of the 14th Amendment).
Summary
Tennessee’s gender-affirming care ban was made effective July 1, 2023, prohibiting the performance of medical procedures upon resident minors for the purposes of the treatment of gender dysphoria or, specifically, to conduct gender affirming care. Several transgender minor state residents, along with their legal parents and medical care professionals challenged the law, asserting it violates the U.S. Constitution’s due process and equal protection clauses.
The U.S. District Court for the Middle District of Tennessee granted the plaintiffs’ request for a preliminary injunction, but the U.S. Court of Appeals for the Sixth Circuit reversed the injunction stating that the plaintiffs were not likely to succeed on the merits of their claims. In November 2023, the U.S. Department of Justice filed a petition asking the U.S. Supreme Court to review the case which was granted on June 24, 2024.
While states like Tennessee and Kentucky have enacted laws restricting or prohibiting available gender-affirming care, other states such as Colorado and Illinois have enacted laws protecting patients and health care providers involving such care.
Since laws and regulations governing gender-affirming coverage are rapidly changing and developing, with many states enacting laws banning or restricting gender-affirming care (with several of such laws being subject to active litigation in the state and federal courts at this time), employers should develop strategies to stay informed and comply with a quickly evolving legal and regulatory landscape nationally.
Additional Resources
KFF’s (public charity/endowed national nonprofit organization) Policy Tracker: Youth Access to Gender Affirming Care and State Policy Restrictions:
https://www.kff.org/other/dashboard/gender-affirming-care-policy-tracker
https://content.baldwin.com/assets/66be3445eedfe27bfdf19463?utm_source=Paperflite%20Link
For more information
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