Gender-Affirming Care and Employer Health Benefits

New York City Lawyers Asserting the Rights of Transgender Employees

Historically, American health insurance plans contained broad exclusions that prohibited payment for services related to transgender care, transsexualism, sex change treatments, and gender identity disorders. Sometimes doctors themselves interpreted these exclusions to assume that transgender people could not get coverage for their medical care. As a result of these and other biases in health care, many transgender individuals avoided doctors. However, as of 2015, more employers offer transgender-inclusive health benefits plans. The New York City Human Rights Law prohibits employers from discriminating against transgender employees by failing to provide equal benefits with regard to gender-affirming care and employer health benefits. The New York City transgender discrimination attorneys at Phillips & Associates can help workers explore their options if they believe that they have suffered from inappropriate treatment on the job.

Gender-Affirming Care and Employer Health Benefits

Title VII and the New York Human Rights Law provide protection to employees who are transgender or gender nonconforming. However, the most explicit protections are provided under the New York City Human Rights Law, and in most cases, it is better to seek remedies under this law rather than Title VII or the state law. Title VII only applies to employers with 15 or more employees and does not explicitly protect transgender or gender nonconforming individuals with regard to health benefits. Moreover, damages are capped.

Under the New York City Human Rights Law, employers in the city may not offer their employees benefits that discriminate, deny, or exclude services based on gender. Employees are to be offered benefits equally, regardless of gender, gender identity, or gender expression. Generally, if your benefit plan is covered by and complies with ERISA and other federal anti-discrimination laws, it will also be legal under the New York City Human Rights Law.

Know Your Rights Regarding Your Health Plan

In order to be considered nondiscriminatory with regard to gender, your benefits are supposed to cover gender-affirming care, which is also known as transition-related care or transgender care. Gender-affirming care is life-saving and medically necessary, and it may include many different types of treatment, including surgery, voice training, and hormone replacement therapy. What an individual is likely to want depends on their own needs. Both New York State law and the Affordable Care Act require self-insured plans to cover medically necessary transition-related care. However, certain insurance plans completely exclude transgender care.

An employer is not held responsible if the insurer denies coverage of a particular medical procedure, such as sex reassignment surgery, even if the plan itself claims that it will provide gender-affirming care coverage. In these cases, you will need to seek relief against the insurer. A violation of the New York City Human Rights Law might involve, for example, an employer that offers health benefits to opposite-sex spouses of employees but not a transgender spouse. Another violation might be when health benefits do not cover care when an individual's sex assigned at birth is different from one in which a particular health service is ordinarily available, such as benefits available for breast cancer screening for cisgender women but not transgender women. Another violation might be an employer offering insurance that provides a categorical exclusion for health services related to transition.

Damages and Other Remedies

Damages may be available to an employee who experiences discrimination with regard to benefits because they are gender nonconforming or transgender. In some cases, an employee does try to exercise protected rights with regard to benefits and suffers from retaliation. Retaliation is prohibited under the New York City Human Rights Law. In some cases, an employee may be incorrect about the discrimination but believes in good faith that discrimination has occurred. In such cases, an employer that tries to punish an employee for exercising rights in good faith may be retaliating against the employee, and the employee may be able to recover damages for retaliation.

Remedies may include compensatory damages, such as emotional distress and mental anguish, as well as back pay, front pay, and reinstatement. These are not capped if you bring a civil lawsuit. If you file an administrative claim, the Commission may penalize employers with up to $125,000 for violations and up to $250,000 for willful, wanton, or malicious violations.