Transgender Worker Loses Bias Claim Against College Health Plan

Employee Benefits News examines legal developments that impact the employee benefits and executive compensation employers provide, including federal and state legislation, rules from federal...

By Carmen Castro-Pagan

The University of Wisconsin’s health insurance plan doesn’t have to defend claims that it violated federal anti-discrimination law by denying coverage for gender transition treatment.

Dean Health Plan Inc. wasn’t the participant’s employer, nor was it acting as her employer’s agent under Title VII of the 1964 Civil Rights Act, Judge William M. Conley held Nov. 20 ( Boyden v. Conlin , 2017 BL 415840, W.D. Wis., No. 3:17-cv-00264-WMC, order granting defendant’s motion to dismiss 11/20/17 ).

Conley’s opinion is the latest development in a challenge by a graduate student-teaching assistant at the University of Wisconsin-Madison. Alina Boyden challenged the university’s policy of not covering procedures and treatment related to “surgery and sex hormones associated with gender reassignment.” Earlier this year, Boyden sued the university and other entities over their denial of coverage of her gender reassignment surgery.

Legal challenges to insurers’ refusals to cover the costs of gender reassignment surgeries aren’t slowing down, which could be related to more individuals seeking treatment for gender dysphoria—the medical diagnosis for the feeling of incongruence between one’s gender identity and one’s sex assigned at birth. Earlier this year, the American Society of Plastic Surgeons reported that more than 3,200 gender reassignment surgeries were performed in 2016, a rise of nearly 20 percent from 2015.

Title VII isn’t the proper vehicle for Boyden to bring a claim against her employer-sponsored health plan, Conley said. Where a health insurer is merely following an unambiguous plan exclusion dictated by the employer—as in this case—the insurer isn’t acting as an employer’s agent within the meaning of federal anti-discrimination law, Conley said.

To hold otherwise would mean that Dean and all other health providers would be deemed at least an agent for every employer that contracts to provide health-care plans to its employees, even though they have no discretion as to the scope of health benefits covered, Conley said.

Hawks Quindel S.C. and the ACLU of Wisconsin Foundation Inc. represent Boyden. The Wisconsin Department of Justice represents the plan.

To contact the reporter on this story: Carmen Castro-Pagan in Washington at ccastro-pagan@bloomberglaw.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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