The U.S. Department of Justice recently issued a press release concerning a Statement of Interest that shields small businesses from being forced to provide medical coverage for gender dysphoria.
In Bernier v. Turbocam et al., the Plaintiff, who identifies as a woman and has been diagnosed with gender dysphoria, claims denial of “medically necessary” “standard of care treatment.” The Plaintiff alleged that the exclusion of sex-trait modification interventions from the employer’s self-funded health insurance plan discriminates because of sex and disability. Therefore, the employer is allegedly violating the Americans with Disability Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).
The court concluded that gender dysphoria is not a disability under the ADA because it does not result from a physical impairment; it is rather deemed a “gender identity disorder” which is not protected under the ADA. It was also decided that Title VII’s ban on sex discrimination does not cover exclusions of medical procedures as similarly decided in United States v. Skrmetti1 (the Supreme Court explained that exclusions based on medical conditions are not necessarily discriminatory actions taken “because … of sex”). When a category of medical procedures is prohibited by the government, sex is not the “but for” cause for the exclusion; instead, the decision is based on views surrounding the medical procedure, not the sex of the patient.
Lastly, the Statement of Interest explicitly laid out that a closely held private company is prohibited by the Religious Freedom Restoration Act (RFRA) from a substantial burden upon its religious rights. This includes a right not to provide coverage for gender dysphoria procedures that violate the company’s religious values, therefore leaving the Plaintiff without a RFRA defense.
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