How to Overcome Trans Health Insurance Exclusions
This is written in relation to surgery, but the same logic applies to medication. I'm not a lawyer so this isn't specific legal advice, just informative about what levers you can pull to receive the insurance coverage you paid for.
I was scheduled for a gender-affirming surgery for July 14. On June 26, I was told my surgery was denied due to an exclusion in the policy, and was told an explicit exclusion like that has virtually no room for appeal and I'm out of luck, despite coming from a sympathetic administrator.
But I don't get stopped that easily. I went to work learning everything I could about trans health law and looked for every angle I could to attack it.
What to do if your self-funded employer healthcare plan explicitly excludes cover gender-affirming care
tl;dr If your health plan is self-funded, email HR to request removing the exclusion because it's a Title VII violation. They'll likely comply, as not doing so will put them in danger of a losing lawsuit.
The first thing was finding the text of the exception, which was
(52) Sex Transformation: Expenses in connection with sex transformation will not be considered eligible.
Next was determining how the plan was funded.
Employer-provided health insurance can either be fully-funded or self-funded. Fully-funded is what you'd normally expect health insurance to look like, which is your premiums go to an insurance company, and that company deals out insurance so that when you make a claim, the payout comes from the insurance company.
A self-funded plan may be more clearly described as company-funded. The cost of claims come out of the employer's assets. The main relevancy here is that self-funded plans are not subject to state law, and the self-funded plans are dictated by the employer, meaning they can change the terms.
You may find which type of funding your plan is in your Plan Document or Summary Plan Description. In mine, it states
Plan Funding: All benefits are paid from the general assets of the Employer.
You can also just ask your HR department because they will know.
If your insurance is fully-funded, take a look at this guide from Doc Impossible that will walk you through your options in that case. For self-funded plans, she suggests you're at the whims of your employer, but you have a stronger position than that may imply.
If your insurance is provided through your employer, that employer has at least 15 employees, and a procedure or medication is provided when medically necessary to a cis person, but denied when medically necessary to a trans person¹, that is understood to be a violation of the law under Title VII. The logic then works like this,
- Employer-provided health insurance is subject to Title VII by the text of Title VII
- Denial of a claim based on gender dysphoria, or your status as a transgender person, is discrimination based on gender identity by definition
- Per Bostock v. Clayton County, discrimination based on gender identity is necessarily discrimination based on sex, and thereby subject to Title VII protections
- ergo denial of such a claim is a violation of Title VII
This isn't my speculation. This has been tested in lawsuits, and resulted in settlements. For example, Robinson v. Dignity Health filed by the ACLU. In speaking with the Transgender Legal Defense and Education Fund, I was told these tend to end in settlements because the law is fairly unambiguous, even if there are no guarantees.
This, combined with the fact that the employer has control over what goes into the plan, means that the simplest means of resolving the issue is by contacting your HR department to request to remove the exclusion, providing relevant information including how it is possible discrimination. I wrote my own letter, but also linked to this form letter provided by Trans Equality.
If the employer is then advised by a lawyer, that lawyer will tell them they are, at best, in dicey waters. A discrimination lawsuit can include lawyers fees and mental anguish, meaning it could cost a lot more than providing you necessary healthcare.
If the employer decides to revoke the exclusion, keep in mind they can do so retroactively to the start of the insurance year. So if you have a pending or even past procedure that has been denied, you can still have that covered, and if they don't, they haven't addressed the Title VII claim. Or they can, as was in my case, update the policy for the next year but provide you an individual exception for your surgery to have it approved.
If your HR department refuses to address the issue, you have legal levers to pull. Lawsuits of this kind are initiated through the Equal Employment and Opportunity Commission (EEOC). In the aforementioned Robinson v. Dignity Health case, the EEOC provided an amicus brief in support of the plaintiff arguing the Title VII violation, only this was pre-Bostock so the case has only gotten stronger.
You should contact an EEO Counselor within 45 days of the incident of discrimination, which in this case would be the insurance denial. Files must then be charged within 300 days of the original denial. Once formal submission through the EEOC is made, they will look to resolve the issue through mediation. If the employer continues to refuse, the EEOC, provided your case is sound, will grant you the right to sue.
Given these cases can include lawyer's fees, it may be reasonably possible to find a lawyer to work on contingency. The process for a lawsuit is slow, with the likely earliest point you'd be able to proceed to a full lawsuit being 6 months after.
To go through all this to deny healthcare and likely lose and then cost a lot more money isn't something most companies are likely to be willing to do. What you do have to consider is risk of retaliation, which while illegal, is hard to prove if it happens. And, if the process drags out, having to wait to receive care, or pay out of pocket and try to recover it later.
It may currently feel like the US legal system is increasingly stacked against trans people, but it's still the case that discrimination in healthcare based on gender identity is not legally permissible. Nobody deserves to have to be in this position, but if you face this situation, it's not hopeless.
- Trans exclusions are rarely if ever specific to a procedure, but I think it would be legal to deny vaginoplasty to everyone, though this not being the fight I had I don't know. It doesn't hurt to follow this same approach regardless, though, because there's nothing better at your disposal.