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Gender Affirming Care: Gender Identity and Gender Expression



A recent decision from the United States District Court for the Eastern District of Pennsylvania shows that gender affirming care continues to be a litigation hot point for group health plans.  In Doe v. Independence Blue Cross, No.2:23-cv-01530 (E.D. Pa. November 21, 22023), the plaintiff filed suit after her employer’s group health plan denied her claim for benefits related to facial feminization surgery.  Although the plaintiff’s employer’s health plan covered medically necessary gender affirming care, it also excluded cosmetic surgeries, i.e., procedures done to improve the appearance of any portion of the body and from which no improvement in physiological function can be expected. Id. The group health plan denied the plaintiff’s claim, finding that the surgery she sought was cosmetic and not medically necessary. Id.


The District Court denied the group health plan’s motion to dismiss, finding that the plaintiff plausibly alleged that the plan’s application of its cosmetic surgery exclusion was discriminatory because it was based in part on considerations of gender norms and gender conformity or nonconformity. Id.  Indeed, the plan allowed facial reconstructive surgery for participants who established a “medical necessity demonstrating a functional impairment.” Id. As alleged by the plaintiff, the plan’s decision to deny benefits for the facial feminization surgery was based on a personal impression of whether the plaintiff looked female or not. Id. The District Court found that the plan’s determination of medical necessity required it to consider the plaintiff’s gender identity, i.e., how she “perceived her appearance as incongruent with her female gender identity,” and “not her gender expression.”  Id.


Although the group health plan offered gender affirming care to its participants, the reliance on gender expression when reviewing the plaintiff’s claim was ill advised, but perhaps points to the reality that this is a legal landscape that will continue to be a rocky one.



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