Nathan Ebnet,left, and Nicholas Pappas,right, of Dorsey & Whitney. Courtesy photos
In recent years, courts have ruled upon a growing number of cases arising from delivery of and payment for gender affirming care. At the same time, state legislatures have passed a variety of laws aimed at such services. Some states enacted affirmative legal protections for patients and providers (e.g., Colorado, Illinois and Minnesota) while others sought to restrict or prohibit services available in their states (e.g., Alabama, Arkansas and Florida). Within the past two years alone, more than 30 states have enacted legislation regarding gender affirming care. Litigants continue to challenge many of these laws in court.
The law governing restrictions placed on the delivery of gender affirming care will continue to develop as litigants’ challenges work their way through the legal system. But even now, federal courts have provided guidance for the prudent employer and third-party administrator to evaluate their own policies regarding health care plan coverage for gender affirming care. Because a number of courts have held that a health care benefit plan’s denial of coverage for gender affirming care discriminates against individuals on the basis of sex when physicians opine that those treatments are medically necessary, health plan sponsors should consider whether to prophylactically eliminate plan provisions that unconditionally exclude coverage for transgender benefits.
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