This bulletin outlines the legal requirements regarding nondiscrimination in health insurance coverage for therapeutic interventions, medical and surgical procedures, and prescription medications as they apply to gender identity, including persons who are transgender or diagnosed with gender dysphoria. It is unlawfully discriminatory to exclude, limit, or deny benefits to an insured on the basis of the insured's gender identity.
Under Wisconsin law, “no insurer may unfairly discriminate among policyholders by … offering different terms of coverage except on the basis of classifications related to the nature and the degree of the risk." Wis. Stat. § 628.34. Further, it is unlawful to deny benefits or refuse coverage on the basis of sex. Wis. Admin. Code § Ins 6.55 (1976). An insured's gender identity is unrelated to the nature and degree of risk and denying benefits or coverage based on gender identity is unlawful discrimination based on the sex of the insured. Therefore, excluding coverage for health treatments that would otherwise be covered based on gender identity is unfairly discriminatory under Wisconsin law. The exclusion, limitation, or denial of covered benefits under individual or group health insurance based on an insured's gender identity is also a violation of Wis. Stat. §§ 632.746 (10), and 632.748 (2). Further, the exclusion, limitation, or denial of covered benefits based on an insured's gender identity by self-funded, non-federal governmental plans is a violation of Wis. Stat. § 632.746 (10) (b) 2.
The Office's position is further supported by two recent 7th Circuit federal court decisions that found exclusions for services and treatment of otherwise covered benefits based upon the member's gender identity violate Title VII of the Civil Rights Act of 1964, and the Fourteenth Amendment equal protection clause.
In
Flack, Cody et al. v. Wisconsin Department of Health Services et al., 328 F.Supp.3d 931 (W.D. Wis. 2019), the court enjoined the Department of Health Services from enforcing exclusions from coverage for certain medical services that are medically necessary to treat gender dysphoria. The court found that the exclusions were discriminatory in violation of § 1557 of the ACA and the equal protection clause of the Fourteenth Amendment. Similarly, in
Boyden et al. v. Conlin et al., 341 F.Supp3d 979 (W.D. Wis. 2018), the court determined that the State of Wisconsin Department of Employee Trust Funds' exclusion of procedures, services, and supplies related to gender reassignment constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964, the Fourteenth Amendment equal protection clause and the ACA. These cases and the Office's interpretation of the law are further supported by a recent decision of the United States Supreme Court, which found “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex" under Title VII of the Civil Rights Act of 1964.
Bostock v. Clayton County, GA., 590 U.S. ___, [19] (2020).
To enforce state anti-discrimination laws, the Office of the Commissioner of Insurance (OCI) will not accept policy form filings that contain exclusions or limitations on benefits that are based on a person's gender identity. Further, OCI will require insurers and self-funded non-federal governmental plans to fully comply with state insurance laws for policies currently in effect.
Any questions concerning this bulletin may be directed to Olivia Hwang, Director of Public Affairs, at
Olivia.Hwang@wisconsin.gov.