Richard H. Chambers U.S. Court of Appeals
PASADENA, Calif. - Blue Cross may have to offer gender-dysphoria treatment in plans it administers even though it isn’t paid by the federal government to process claims, a federal appeals court has ruled.
The Affordable Care Act’s ban on sex discrimination would appear to apply to any activity Blue Cross engages in since it also provides government-funded Medicare and Medicaid policies, the U.S. Court of Appeals for the Ninth Circuit said Nov. 17. The court also rejected religious-freedom arguments.
The ultimate answer is clouded, however, in the wake of the U.S. Supreme Court’s Skrmetti decision upholding a Tennessee ban on administering puberty blockers and other gender-affecting care on minors. The Ninth Circuit remanded the case back to a district court to determine how to proceed.
Three plaintiffs seeking puberty blockers and hormone treatment filed a class action against Blue Cross Blue Shield of Illinois, claiming Section 1557 of the Affordable Care Act prevented Blue Cross from excluding gender care even when it was only administering plans offered by private entities. Those entities instructed Blue Cross to exclude gender care.
A federal court certified the class and granted summary judgment to the plaintiffs, ordering Blue Cross to continue providing the care while the case was on appeal. Then in June of this year, the Supreme Court handed down Skrmetti, ruling “gender dysphoria” wasn’t a medical treatment subject to sex-discrimination laws.
Blue Cross argued the federal Employment Retirement Income Security Act requires it to follow the instructions of the plan sponsors. The plaintiffs argued Section 1144(d) of the Affordable Care Act’s ban on sex discrimination overruled ERISA, and the Ninth Circuit agreed.
“When two laws conflict, one must yield,” the Ninth Circuit said. “And Section 1144(d) shows that ERISA is the law that yields.”
The Religious Freedom Restoration Act also doesn’t apply because Blue Cross isn’t a religious organization and RFRA only applies to government actions anyway, the court continued.
But Skrmetti undermined the district court’s ruling that transgender treatment is protected under sex-discrimination laws.
Two of the judges said there were at least two ways for the lower court to find a way around Skrmetti. One of the plaintiffs claims they need hormones to treat precocious puberty, an exception noted in Skrmetti. And the Supreme Court left open a potential claim refusing treatment was a pretext for “invidious discrimination.”
Since gender dysphoria only affects transgender people, the court said, “something else may be afoot,” with care exclusions, “and that something may be invidious discrimination against transgender people.”
