The US District Court for the District of North Dakota has ruled that employers with membership in the Christian Employers Alliance are exempt from the requirement to cover gender affirming care under their rights to hold to their sincerely held religious beliefs. This is expected to be appealed, and it’s unknown whether and to what extent this decision might be expanded to exempt other employers with sincerely held religious beliefs from covering gender affirming care in their health plans.
It was one year ago in May 2021 when we discussed the Department of Health and Human Services (HHS) Office of Civil Rights (OCR) asserted it would immediately begin enforcement of discrimination on the basis of sex to include gender identity and sexual orientation. We had mentioned Pritchard v. Blue Cross Blue Shield of Illiniois as a case to watch, where a parent sued BCBSIL for partially restricting and partially denying some coverage for their dependent’s gender affirming care. Thus far the court has denied BCBSIL’s request to dismiss the case, allowing the lawsuit to proceed.
In March 2022, we had discussed a notice from HHS ordering that:
- Parents or caregivers can complain to the Office of Civil Rights if a health care provider or health plan has “unlawfully restricted” access to gender affirming care for insured family members, and
- Health care providers and health plans can hide behind HIPAA to avoid complying with state laws that impose a duty to report those seeking or providing gender affirming care.
As we stated in those prior discussions above, employers wishing to restrict or exclude gender affirming care will want to consult with legal counsel to determine how to proceed. The Alliance decision above may give some employers some legal footing to stand on, but it’s not guaranteed, and state laws may also need to be taken into consideration.