On May 10, 2021, the Department of Health and Human Services (HHS) announced that effective immediately, the Office for Civil Rights (OCR) will enforce prohibitions on sex discrimination in line with the Supreme Court’s Bostock decision from June 15, 2020. This means that enforcement of health plans subject to §1557, as well as those where the employer is subject to Title VII and/or Title IX civil rights protections, will include investigations and potential enforcement activity against an employer whose health plan discriminates on the basis of sex, including gender identity and sexual orientation. “OCR will comply with the Religious Freedom Restoration Act” (RFRA) and the many other court decisions governing this space, including:
- Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019);
- Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1 (D.D.C. 2020);
- Asapansa-Johnson Walker v. Azar, No. 20-CV-2834, 2020 WL 6363970 (E.D.N.Y. Oct. 29, 2020); and
- Religious Sisters of Mercy v. Azar, No. 3:16-CV00386, 2021 WL 191009 (D.N.D. Jan. 19, 2021).
It is becoming more important than ever employers consider whether their benefit plans might discriminate against anyone based on their gender identity and/or sexual orientation, and potentially consider whether to amend those benefit plans to avoid such discrimination. This may include a review of gender dysphoria treatment, gender transition, and related services. A new lawsuit, Pritchard v. Blue Cross Blue Shield of Illinois, No. 20-6145 (W.D. Wash. May 4, 2021), is currently being allowed to proceed by a District Court for denying transgender reassignment benefits for a dependent.
IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.
This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.