Dive Brief:

• Two employees of the state of Florida have sued alleging that their respective health plans — both solicited, chosen and implemented by the state — discriminated against them on the basis of sex by denying coverage of medically necessary, gender-affirming care (Claire et. al v. Florida et. al, No. 20-cv-00020​ (N.D. Fla. Jan. 13, 2020)).
• The plaintiffs in the suit, Jami Claire and Kathryn Lane, are transgender women. Both alleged that the state's medical plans denied coverage for necessary gender-affirming care for gender dysphoria, including hormone replacement therapy and surgical procedures. The plans' denial of this coverage is a "categorical exclusion that precludes transgender state employees from having their gender-affirming medical needs subjected to the same medical necessity analysis to which all other state plan members' medical needs are subjected," they said.
• Claire and Lane alleged the defendants' denials violated Title VII of the Civil Rights Act of 1964, discriminating against them on the basis of their gender non-conformity and gender affirmation.

Dive Insight:

The suit, due to be heard in a federal district court, comes at a moment of uncertainty for LGBTQ workplace discrimination protections at the federal level. Even federal agencies, namely the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission, have taken opposing sides on the question of whether LGBTQ individuals are protected from discrimination on the basis of sexual orientation and gender identity.

Employers may soon receive some clarity on the issue from the U.S. Supreme Court, which heard oral arguments last year on a pair of cases asking that question. Discussion among the court's justices centered heavily on "sex" as defined in the statute. Although more than 20 states and the District of Columbia have enacted some form of employment protections for LGBTQ workers, experts who spoke with HR Dive said they still believe Supreme Court's decision could be "monumental."

The prevalence of medical coverage for gender reassignment surgery varies state-by-state. Twelve states, Florida included, explicitly exclude transition-related benefits from the health benefits of state employees, according to data from Movement Advancement Project, an independent think tank.

"We brought this lawsuit because all people need access to medical care. This is not about special treatment; this is about equal treatment," Simone Chriss, lead counsel for Claire and Lane and attorney with Southern Legal Counsel, said in a statement. "Transgender state employees are singled out and explicitly denied coverage for one reason: they are transgender. That is discrimination, and it cannot stand."

Certain private sector employers have opted to cover gender-affirming care, and some have expanded that coverage to include elements beyond reassignment surgery. Starbucks, for example, announced in 2018 the roll-out of coverage for so-called cosmetic procedures like breast reduction or augmentation as well as facial feminization. The company said it has covered gender reassignment surgery since 2012.

Experts who previously spoke to HR Dive advised employers to listen to and support those going through a gender transition, which may require patience on the part of management and staff. Employers seeking to be proactive in supporting transgender employees also can make changes to certain documentation to improve inclusivity efforts.