The U.S. Supreme Court recently held arguments in U.S. v. Skrmetti, which addresses the legality of Tennessee and Kentucky state laws banning gender-affirming care for minors. If the Court upholds the law as expected, some employers may consider providing travel benefits to allow employees and their dependents to seek types of healthcare prohibited by state law. Employers also could offer such benefits when covered healthcare services are unavailable within a certain geographical distance.
Until now, state laws banning gender-affirming healthcare have focused on medical providers, not insurance carriers or providers for employer-sponsored healthcare plans. However, employers should recognize that gender-affirming care remains a steadily evolving legal landscape, and they must remain vigilant to ensure that any plan benefits offered are not violative of state law.
Therefore, if the Court rules in favor of the state of Tennessee in the pending case, group health plans that wish to offer travel benefits should exercise caution, as such actions may involve legal risks and possible criminal liability. Some employers adopted abortion-related travel benefits for plan participants in response to the Court’s 2022 Dobbs decision, which allowed states to restrict or end abortion. Employers likely can treat travel benefits to seek gender-affirming healthcare in a similar fashion.
U.S. v. Skrmetti
The Skrmetti case involves Tennessee SB1, a 2023 law that bans medical treatments for transgender individuals under age 18 in some circumstances. The law prohibits medical treatments only when prescribed as gender-afforming care, such as to allow an individual to:
- Live consistently with their gender identity; or
- Treat gender dysphoria, which is an individual’s negative feelings that occur when their gender identity differs from their sex assigned at birth.
The law does not prohibit medical treatments necessary for other conditions unrelated to gender-affirming care. Skrmetti primarily involves puberty-delaying medication and hormone therapy; surgical procedures related to gender-affirming care are not part of the pending court case.
The Court is considering an appeal from the federal government to determine whether the state law violates the Equal Protection Clause of the 14th Amendment. The original plaintiffs in the case are three transgender teenagers who were receiving gender-affirming healthcare from their doctors, their parents, and one doctor who provides healthcare services to transgender patients.
The Lower Court Rulings
After the plaintiffs sued the state of Tennessee to enjoin enforcement of the law, a federal district court found parents had a fundamental right to direct medical care and request medical treatments for their children, including gender-affirming healthcare. The district court also ruled that the Tennessee law violated the Equal Protection Clause because it prohibited certain medical treatments for transgender, but not cisgender, teenagers. According to the district court, based on the heightened intermediate scrutiny standard, the law equates to sex discrimination.
On appeal, the U.S. Court of Appeals for the Sixth Circuit considered similar Kentucky and Tennessee laws. The appellate Court declined to apply the heightened level of scrutiny in favor of the lower rational basis level of scrutiny. Since the laws only prohibited medical treatments unique to each sex, the appellate Court found that each state was exercising its power to regulate the practice of medicine for children. As a result, the appellate Court ruled the states had provided a rational basis for the laws, thus rendering them legally valid.
Other State Laws on Gender-Affirming Care for Minors
In addition to Kentucky and Tennessee, 24 other states have state laws banning certain types of gender-affirming care for minors. Several other lawsuits concerning these state laws are pending in various courts. However, if the Supreme Court upholds the Kentucky and Tennessee laws in Skrmetti, these lawsuits will likely become moot.
Potential Impact of Skrmetti on Employers
The impact of the Supreme Court ruling in Skrmetti on employers is not likely to be significant. For example, the ruling will not impact other court rulings that healthcare plans which exclude all gender-affirming healthcare or medical treatments specific to transgender individuals violates Title VII of the Civil Rights Act of 1964.
If the Supreme Court upholds the Kentucky and Tennessee laws, health insurance carriers in affected states may stop offering coverage for gender-affirming healthcare for minors. The case also could affect future rulings in other transgender discrimination cases that affect employers. The ruling could impact issues for employers concerning gender-appropriate restrooms, name and gender marker changes, and other benefits for transgender workers.
HBL has experience in all areas of benefits and employment law, offering a comprehensive solution for your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.
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