Dive Brief:
- Florida Senator Blaise Ingoglia filed what he dubbed the “Reverse Woke Act” Feb. 20, a bill requiring employers that pay for gender dysphoria treatment also cover the full cost of treatment that reverses gender dysphoria treatment, if it becomes necessary, regardless of whether that worker is still employed at the company.
- The bill would require employers to cover detransition care even if obtained out of state, according to the current text.
- If enacted, the law would take effect July 1.
Dive Insight:
As companies beef up their benefit packages, it has become increasingly common for them to cover gender-affirming care along with fertility treatments and other healthcare costs insurance companies sometimes decline to cover.
The Reverse Woke Act appears to apply to care that is both covered by insurance and offered by companies separate from existing healthcare plans, Emily Chase-Sosnoff, partner at FordHarrison’s Tampa office, told HR Dive.
The rate of detransition is unknown; many estimates put the number as low as 1% to 3%, while at least one found a rate closer to 30%. Detransition care may include switching hormonal therapies and reconstructive surgeries.
While detransition may be considered an extension of gender-affirming care, certain aspects of the bill stand out, including its coverage of care that occurs in other states, Chase-Sosnoff said.
“Another thing that’s very unusual about this law is that the employer would be required to cover these costs even if the employee who sought gender-affirming care is no longer an employee of the company,” Chase-Sosnoff said. “And there's no time limit on this. So former employees could potentially come back for payment, you know, 10-, 20-, 30-plus years later.”
The bill also creates a private right-of-action, allowing employees to file a civil lawsuit demanding payment from the employer that covered the initial cost. “That’s probably the most concerning [aspect] to employers: The creation of a new cause of action where employees or former employees may sue,” Chase-Sosnoff said.
In a prepared statement, Sen. Ingoglia reaffirmed the purpose of the bill to address workers receiving coverage in other states and discourage businesses from offering gender-affirming care. “Woke businesses need to be held accountable when offering to pay for gender-affirming surgeries in other states, such as California because they are nothing more than political decisions masquerading as healthcare and human resource decisions,” he said, according to the Orlando Weekly. “Floridians should not be used as political pawns to advance a leftist agenda for the Governor of California. If these companies truly cared about their employees, this should be a no-brainer for them.”
Certain elements of the bill are ambiguous, Chase-Sosnoff said. For example, it is not immediately clear whether a newly hired employee who previously received gender-affirming care would qualify for detransition care if the new employer covers gender-affirming care — even if the company did not provide coverage for that worker’s initial care. “Hopefully that would be clarified” if the bill is considered, she said.
In addition, “it appears that an employer subject to this law would be on the hook for a lifetime of detransition care but it does not clarify what would happen if the employee or former employee has insurance coverage for that detransition care, say, through a subsequent employer,” Chase-Sosnoff said.
If the law passes, employers would need to be sure to be aware of what their standing gender-affirming care policies are, and what their insurance policies cover, Chase-Sosnoff said.
As of now, the legislation has been filed, but has not yet been considered on the floor. Chase-Sosnoff recommended employers keep an eye on it. “At this point, it’s just a wait and see,” she said.
