I. Introduction: Excluding transgender-related health care is discriminatory. ... 2 II. Plans that exclude transgender care have fallen behind other health plans. . 5 III. Cost is not a legitimate basis to exclude transgender care...... 12 IV. Federal nondiscrimination law prohibits transgender exclusions in employee health plans...... 14 A. Americans with Disabilities Act – Disability Discrimination ...... 14 B. Section 504 of the Rehabilitation Act – Disability Discrimination ..... 17 C. Title VII – Sex Discrimination ...... 18 D. Title IX – Sex Discrimination ...... 25 E. Liability of Third-Party Administrators ...... 26 F. Duty of Fair Representation ...... 28 G. Executive Order (EO) 11246 – Federal Contractors ...... 28 H. Section 1557 of the Affordable Care Act ...... 29 V. ERISA prohibits clinical policies that do not reflect current standards of care...... 32 VI. The Federal Equal Protection Clause prohibits transgender exclusions. .... 33 A. Sex-Based Classification – Heightened Scrutiny ...... 33 B. Transgender-Based Classification - Heightened Scrutiny ...... 36 C. Animus-Based Exclusion - Rational Basis...... 37 VII. Settlements and pending cases involving transgender exclusions in employer health plans...... 37 A. Pending Matters ...... 37 B. Resolved Cases ...... 39

______Transgender Legal Defense & Education Fund 520 8th Avenue, Suite 2204, New York, New York 10018 646.862.9396 (tel) 646.993.1684 (fax) transgenderlegal.org Liability for transgender health care exclusions Page 2 of 44 VIII. Conclusion ...... 44

I. Introduction: Excluding transgender-related health care is discriminatory. Courts have consistently found that transgender exclusions in health plans violate numerous federal laws such as Title VII of the Civil Rights Act of 19641 or analogous sex discrimination provisions under Section 1557 of the Affordable Care Act.2 In Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020) the U.S.

1 Lange v. Houston Cty., Georgia, 499 F. Supp. 3d 1258 (M.D. Ga. 2020), reconsideration denied, No. 5:19-CV-392 (MTT), 2020 WL 7634054 (M.D. Ga. Dec. 22, 2020) (denying motion to dismiss Americans with Disabilities Act, federal Equal Protection and—citing Bostock—Title VII claims challenging an employee health plan with “sex change surgery” exclusion); Fletcher v. Alaska, 443 F. Supp. 3d 1024, 1030 (D. Alaska Mar. 6, 2020) (granting summary judgment under Title VII to the plaintiff where Alaska state employee health plan excluded surgeries “related to changing sex or sexual characteristics” because “[p]lainly, defendant treated plaintiff differently in terms of health coverage because of her sex, irrespective of whether ‘sex’ includes gender identity.”); Stipulated Final Judgment and Order, Fletcher v. Alaska, ECF 69, (D. Alaska June 15, 2020) (ordering $70,000 in compensation); Toomey v. Arizona, No. 4:19-cv- 00035-RM-LAB, 2019 WL 7172144, at *6 (D. Ariz. Dec. 23, 2019) (denying motion to dismiss because a “narrow exclusion of coverage for ‘gender reassignment surgery’ is directly connected to the incongruence between Plaintiff’s natal sex and his gender identity. Discrimination based on the incongruence between natal sex and gender identity—which transgender individuals, by definition, experience and display—implicates the gender stereotyping prohibited by Title VII.”); Boyden v. Conlin, 341 F. Supp. 3d 979, 997 (W.D. Wis. 2018) (a jury awarded $780,500 in damages after the court granted summary judgment against the Wisconsin state employee health plan because “[w]hether because of differential treatment based on natal sex, or because of a form of sex stereotyp

Table of Contents