A new, 6-3 U.S. Supreme Court ruling that favors lesbian, gay and transgender workers who are involved in employment discrimination suits could encourage lesbian, gay, bisexual and transgender (LGBT) workers to file health benefits discrimination lawsuits.
Justices Samuel Alito and Clarence Thomas made that prediction in a dissent to the majority’s opinion.
The majority held, in Bostock v. Clayton County (Case Number 17-1618), that Title VII of the Civil Rights Act of 1964 protects the employment rights of people who are gay, lesbian or transgender, because Title VII prohibits sex discrimination, and discrimination related to sexual orientation or gender identity is based on an awareness of an individual’s sex.
Justice Neil Gorsuch, who was appointed to the court by President Donald Trump, wrote the opinion for the majority.
“We agree that homosexuality and transgender status are distinct concepts from sex,” Gorsuch writes in the opinion. “But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”
Justice Brett Kavanaugh, who was also appointed to the court by Trump, opposed the ruling. He wrote a dissent in which he welcomed the happiness the ruling would bring to LGBT people but questioned the majority’s reading of Title VII.
“It is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans,” Kavanaugh writes in his dissent. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity and grit — battling often steep odds in the legislative arenas, not to mention in their daily lives.”
But Congress clearly was not referring to discrimination based on sexual orientation when it drafted Title VII, in 1964, and Congress is the body for responsible for changing the law, Kavanaugh writes. “This court is the wrong body to change American law in that way,” Kavanaugh writes.
Justices Samuel Alito and Clarence Thomas also opposed the majority’s ruling. Alito wrote his own dissent, and Thomas signed onto Alito’s dissent.
- The Bostock v. Clayton County opinion and dissents are available here.
- An article about the new federal Affordable Care Act discrimination regulations is available here.
For people interested in insurance and benefits law, the Alito dissent might provide a framework for thinking about the kinds of Bostock-related litigation that could move through the federal court pipeline.
PPACA Section 1557
The U.S. Department of Health and Human Services (HHS), for example, is in the process of publishing final regulations that will repeal a regulation provision that prohibits health care providers or health insurance issuers, including Medicare Advantage plan issuers and Affordable Care Act public exchange plan issuers, from discriminating against people based on gender identity.
The health program antidiscrimination regulations were based on Section 1557 of the Patient Protection and Affordable Care Act (PPACA). PPACA is one of the two federal laws in the Affordable Care Act statutory package.
HHS released the PPACA Section 1557 regulations during the administration of former President Barack Obama.
HHS officials say, in the preamble to their antidiscrimination regulations amendment that the antiscrimination regulations conflict with the lists of protected categories of people in other federal civil rights laws.
Alito suggests, in a footnote, that plaintiffs might try to use the Bostock ruling, along with PPACA Section 1557, to make employer-sponsored health plans pay for sex reassignment surgery.
Plaintiffs have filed suits seeking sex reassignment surgery benefits based both on Title VII of the Civil Rights Act of 1964 and PPACA Section 1557, Alito writes.
He also cites, in a footnote, an example of a transgender man who alleged discrimination under the ACA, in a federal district court case, because a Catholic hospital refused to let a surgeon perform a hysterectomy on him.
“And multiple district courts have already concluded that the ACA requires health insurance coverage for sex reassignment surgery ad treatment,” Alito writes.
“Such claims present difficult religious liberty issues because some employers and health care providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs,” Alito writes. “The entire federal judiciary will be mired for years in disputes about the reach of the court’s reasoning.”
Alito, however, acknowledged that the majority had an “updating desire” because of “humane and generous impulses.”
“Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.”
Alito concludes that Congress is the body responsible making the new legislation necessary to meet that goal.
— Read LGBT Community Eyes PPACA’s Anti-Discrimination Provisions, on ThinkAdvisor.