Lisa Pierce Reisz, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Columbus office, was quoted in the Bloomberg Law Daily Labor Report, in “Gender-Affirming Care Decision Leaves Uncertainty in Its Wake,” by Mary Anne Pazanowski. (Read the full version – subscription required.)
Following is an excerpt:
A federal appeals court ruling that an employee health plan excluding coverage for gender-affirming surgery wasn’t discriminatory on its face perhaps is more compelling for what it didn’t decide: whether transgender status is a protected classification under federal anti-bias laws.
By ducking that issue, the full panel of US Court of Appeals for the Eleventh Circuit judges left open the possibility for increased litigation over whether categorical exclusions are unlawful as applied to specific individuals—instead of a single, wholesale determination.
Plaintiffs could still prove their cases “the old-fashioned way” through evidence that an employer or plan deliberately singled them out for treatment different from that offered to their co-workers, said Lisa Pierce Reisz, a member of Epstein Becker Green. One Eleventh Circuit judge suggested there was evidence to that effect in this case. …
Attorneys for the defendants in that case urged the appeals court to remand it to the trial court with directions to rule that the exclusion at issue wasn’t facially discriminatory under the equal protection clause.
But other courts might feel they aren’t bound to apply the high court’s reasoning in Skrmetti, Reisz said. There likely will be disagreements as to whether Bostock or Skrmetti applies in Title VII cases, leading to a split that the Supreme Court likely will have to resolve, she said.
Transgender plaintiffs whose coverage is excluded can still argue that payment denials violate Section 1557 of the Affordable Care Act, which protects against discrimination in health-care programs based on characteristics protected by other civil rights laws, Reisz added.
