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Gender Dysphoria Treatment Litigation Update

Recent federal court cases have addressed discrimination issues related to coverage for gender dysphoria treatments. Below is a summary of the recent cases of Baker v Aetna Life Ins. Co (Baker 1);Baker v Aetha Life Ins. Co. (Baker II), and Tovar V Essentia Health 1.  These cases involve denied claims for treatment of gender  dysporia and allegations of discrimination under ACAs Section 1557, Title VII of the Civil Rights Act of 1964, and state law. As a reminder, in late 2016 a Texas federal trial court ruled that the inclusion of gender identity in the definition of sex discrimination in the ACA’s Section 1557 regulations was beyond the scope of Congress’s intent.  The court issued a nationwide injunction currently blocking the enforcement of that provision.  Given the complexities and unsettled legal and regulatory landscape, we are likely to see an increasing number of cases regarding discrimination and gender dysphoria treatment making their way through the courts.

Baker I and II

In the case of Baker v Aetna life Ins. Co., an employee diagnosed with gender dysphoria filed claims for short term disability (STD) benefits and for health insurance coverage for breast augmentation.  Both claims were denied and the employee sued the employer and the plan’s third party administrator (TPA) alleging gender identity discrimination under ACA’s Section 1557, gender discrimination under Title VII of the Civil Rights Act of 1964 (a benefit denial can constitute an adverse employment action), and wrongful denial of benefits under ERISA. In Baker I, on motions to dismiss, the court:

  • Dismissed the Section 1557 claim on the basis that no precedent recognized a cause of action under the statute for gender identity discrimination and the denial of benefits predated the Section 1557 regulations that authorized such a claim; and
  • Dismissed the Title VII claim as to the TPA since Title VII only provides a right of action against the employer.

In Baker II, the court found that the TPA’s interpretation of the STD plan was legally correct (concluding that the participant’s procedure was cosmetic and not medically necessary) and it did not abuse its discretion in denying the claim.

The employee’s Title VII claim against the employer remains to be adjudicated.


In Tovar, the employee sought coverage under her employer’s health plan for her son’s treatment for  gender dysphoria. The plan excluded coverage relating to gender reassignment and the claim was denied on the basis of this exclusion. The employee sued her employer and the plan’s TPA alleging sexbased
discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Minnesota Human  Rights Act (MHRA). The appellate court concluded that Title VII and the MHRA do not create causes of  action for the employee as the protections do not extend to an employee’s child and sent the case  back to the trial court to consider potential liability under Section 1557.  The content herein is provided for educational and informational purposes only and does not contain   legal advice. Please contact our office if you have any questions about these court cases or coverage for gender dysphoria treatments.


1 Baker v. Aetna Life Ins. Co., 2017 WL 131658 (N.D. Tex. 2017) (Baker I); Baker v. Aetna Life Ins. Co., 2017 WL 1881309 (N.D. Tex. 2017) (Baker II), and Tovar v. Essentia Health, 2017 WL 2259632 (8th Cir. 2017).