On May 30, 2024, the EEOC’s Office of Federal Operations issued a decision in the Lawrence v. OPM matter, ordering, among other things, that:
Before the open season for the 2025 plan year, the Agency shall submit an affidavit from the Agency’s Director of Healthcare and Insurance (or whichever administrator or official is best qualified to make this assessment), certifying that
a. Consistent with Carrier Letter No. 2015-1, each of the FEHB Program’s health insurance plans, as of the 2025 plan year, is required not to categorically exclude treatments or services (including, but not limited to, office visits and treatments for gender dysphoria) for transgender individuals; and
b. Each of the FEHB Program’s health insurance plans, effective with the 2025 plan year, is required to include in its plan brochure a nondiscrimination provision stating, in plain language, that all coverage decisions will be made using nondiscriminatory standards and criteria, and that a plan member’s gender identity and the fact that a service or benefit is needed in connection with gender-affirming care will not be factors in the denial of any service or benefit under the plan.
This direction is based on the Commission’s finding that the general exclusion of coverage for “[s]ervices, drugs, or supplies related to sex transformation,” contained in health care plans provided to federal employees was discrimination based on transgender status, and therefore discrimination based on sex in violation of Title VII. Lawrence v. OPM, EEOC App. No. 0120162065 (May 30, 2024). The Decision discussed the application of such an exclusion to Appellant’s medical treatment, specifically the denial of coverage for “hormone therapy treatment for gender dysphoria-treatments that were excluded from coverage under the plan terms.”
The Commission explained that because health insurance benefits are a benefit of employment under Title VII, employers, including the federal government, cannot discriminate in the provision of those benefits. Practically speaking, this means that “if an employer provides a health insurance benefit plan as compensation to its employees, that plan must provide coverage of medical treatment and services in a nondiscriminatory fashion.” Citing Macy v. Dep’t of Justice, EEOC App. No. 0120120821 (Apr. 20, 2012), and Bostock v. Clayton County, 590 U.S. 644 (2020), the Commission went on to explain that it is well-settled that discrimination based on transgender status is, in fact, discrimination based on sex in violation of Title VII.
Based on these principles, the Commission identified several conclusions to support the finding that “the Agency’s explicit exclusion of health benefits coverage for ‘[s]ervices, drugs, or supplies related to sex transformations . . .’ is direct evidence of discrimination on the basis of sex, in violation of Title VII.” The Commission explained that, “[f]irst, benefits exclusion that specifically targets gender-affirming care for disfavorable treatment plainly discriminates against transgender employees. That the Exclusion does not expressly use the word ‘transgender’ does not make the discrimination any less clear.” Second, the Commission explained that, as discussed in the Macy decision, “discriminating against a transgender individual includes discriminating based on ‘the fact that the person has transitioned or is in the process of transitioning’… To withhold a benefit because an employee needs it in connection with a gender transition is to discriminate on the basis of transgender status, and therefore sex, in violation of Title VII.” The Commission concluded, “[f]inally, and perhaps most fundamentally, the Exclusion is discriminatory because it is an impermissible, sex-based rule for allocating employment benefits. ‘Title VII’s message is ‘simple but momentous’: An individual employee’s sex is ‘not relevant to the . . . compensation of employees.
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