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Next Frontier: Health Insurance and Sex Transformation Surgery

Federal courts are divided on whether Title VII protects transgender individuals from discrimination in the workplace. The new question for the courts: Is a health insurer's refusal to provide insurance coverage for an employee's sex transformation surgery a violation of Title VII?

The American Civil Liberties Union ("ACLU") filed suit against Dignity Health in 2016 on behalf of Josef Robinson. Mr. Robinson was a transgender nurse employed by Chandler Regional Medical Center, which was owned by Dignity Health. He sought coverage for a double mastectomy and a penis construction surgery; he was denied. Dignity Health's insurance plan excluded treatment for gender reassignment. Mr. Robinson appealed the decision to the CEO, asking for the removal of the exclusion from the company's health plan. Dignity Health refused, asserting that the policy was not discriminatory because it applied to all employees.

The Equal Employment Opportunity Commission ("EEOC") has requested that it be able to prepare a legal brief in support of the ACLU's position. The ACLU and EEOC both contend that the exclusion was a violation of Title VII because in application, it only applied to transgender individuals who are seeking to transition. In support of its position, the EEOC cited the U.S. Supreme Court's decision in Price v. Waterhouse. Discrimination against a woman for masculine behavior was based on a failure to conform to a gender stereotype; such discrimination was sex discrimination in violation of Title VII. It is the EEOC's position that the Supreme Court's reasoning applies to discrimination against a transgender individual seeking surgery to transition to the individual's gender identity. The federal district court has yet to rule on this case.