8th Circuit Allows ACA Action Against Employee Benefits Plan to Refuses to Cover Gender Reassignment Procedures for an Employee’s Dependent Son

Employee benefits litigation is so complicated! See Tovar v. Essentia Health, 2017 U.S. App. LEXIS 9009, 2017 WL 2259632 (8th Cir. May 24, 2017). In this case, Brittany Tovar, employed as a nurse-practitioner by Essentia Health, received health insurance as an employee benefit through the Essentia Health Employee Medical Plan, which “corresponded to an insurance policy offered to employers by HealthPartners, Inc. and was administered either by HealthPartners, Inc. or by its subsidiary HealthPartners Administrators, Inc. (HPAI).” Tovar’s teenage son, covered as a dependent beneficiary under the Plan, was diagnosed with gender dysphoria, and health care providers “decided that various treatments were necessary to treat her son’s condition, including medications and gender reassignment surgery.” But the Plan refused to cover her son’s treatments, because the Plan has a categorical exclusion of “services and/or surgery for gender reassignment.”

The refusal of coverage caused considerable agita for Tovar, who paid out of pocket for some medications but could not afford the full treatments or surgery without insurance coverage. She sued Essentia for discrimination under Title VII and the Minnesota Human Rights Act, and HealthPartners and HPAI for discrimination in violation of the Affordable Care Act (ACA), Section 1557 (which prohibits discrimination because of sex in connection with health insurance in certain circumstances, and has been construed in regulations by the Department of Health and Human Services to include discrimination because of gender identity, although the regulation is a bit ambiguous about any requirement that health plans cover sex reassignment surgery). The district court granted the defendants’ motion to dismiss the case outright on grounds of lack of statutory standing (the employment discrimination claims) and Article III standing (the ACA claims).

For the full story, access the June 2017 issue of LGBT Law Notes.