Sandra Fluke, Gender Reassignment, and Health Insurance - Transcript

Here is an excerpt of Employment Discrimination Against LGBTQ Persons appearing in the Georgetown Journal of Gender and the Law's Annual Review 2011 edited by Sandra Fluke and Karen Hu:

III. Employment Discrimination In Provision Of Employment Benefits

Many LGBTQ individuals face discrimination in the provision of employment benefits. Discrimination typically takes two forms: first, direct discrimination limiting access to benefits specifically needed by LGBTQ persons, and secondly, the unavailability of family-related benefits to LGBTQ families. A prime example of direct discrimination is denying insurance coverage for medical needs of transgender persons physically transitioning to the other gender. Denial of family-based employment benefits (including family health insurance, survivor benefits, and time off for family illnesses) is often predicated on a lack of recognition of civil unions, domestic partnerships or co-habitation. Only 33% of all organizations offering spousal benefits include benefits to same-sex partners, and LGBTQ employees in lower paying industries are less likely to be granted suck benefits.

A. Gender Reassignment Medical Services

Transgender persons wishing to undergo the gender reassignment process frequently face heterosexist employer health insurance policies that label the surgery as cosmetic or medically unnecessary and therefore uncovered. In Mario v. P & C Food Markets, Inc., an employee who was denied such coverage brought claims under the federal Employee Retirement Income Security (ERISA) and Title VII. The court rejected the ERISA claim, finding the plaintiff's mastectomy and hormone therapy were not medically necessary. The court's ruling was based upon controversy within the medical community regarding that treatment plan. Much of that controversy has been linked to ignorance and bias against transgender persons, and the American Medical Association has declared the lack of coverage to be discrimination. Mario's rule that gender reassignment treatment is normally not medically necessary forces any individual claiming otherwise to show why his or her case is exceptional. This presumption is the reverse of the prevailing one for Medicaid and Medicare beneficiaries; those plans may not have a blanket denial, but can deny coverage on a case-by-case basis.

There is a relative lack of case law addressing coverage denials under private plans, as well as the difficulty of accessing FMLA leave for recovery from gender reassignment surgeries. By contrast, there are many cases adjudicating claims for Medicaid and Medicare denials of these services, as well as many cases relating to the government's responsibility to provide prisoners with access to such services. The reason for this lack of cases is unclear. Private employee insurance plans do not more frequently cover this need, so it may be a sign that transgender employees do not see the courts as likely to provide any assistance against private employers.