SCOTUS on gender-affirming care for minors: Employer takeaways 

The U.S. Supreme Court has issued a decision upholding a Tennessee law banning gender-affirming medical care for minors (U.S. v. Skrmetti). The law was challenged on the grounds that it violated the Equal Protection Clause of the 14th Amendment. A majority of justices on the court held that it didn’t.

Currently, half of the states have laws banning the provision of gender-affirming medical care to minors. Conversely, at least 16 states and Washington, D.C. have laws or polices protecting access to healthcare for transgender and gender-diverse individuals. Most state laws banning gender-affirming care for minors have faced litigation, but only Montana’s has been blocked by a court for violating the state constitution (rather than the US constitution). Tennessee’s is the first to reach the Supreme Court for a decision on the federal constitutionality of such laws.

Employer coverage

Coverage of gender-affirming care services in employer health plans is fairly common, albeit varied. Mercer’s 2024 National Survey of Employer-Sponsored Health Plans found that 54% of employers with 500 or more employees (and 80% of those with 20,000 or more employees) cover gender-affirmation surgery and, typically, other forms of gender-affirming care as well.   

Currently, there is no federal or state law prohibiting employer group health plan coverage of gender-affirming care for minors. Employer group health plans, whether self-funded or fully insured, can cover this healthcare as long as the services are legal where provided.

In the case of insured plans, 24 states and Washington, D.C., prohibit plan exclusions of transgender care. These states may soon follow Colorado’s lead and affirmatively require coverage for medically necessary gender-affirming care.

Employer next steps

The Court’s decision means that legal challenges to similar bans in other states, brought on the same grounds as Skrmetti, will fail. Some challenges may continue under state constitutional claims or different federal constitutional claims, but the bans often will remain in effect while the litigation continues. This means that gender-affirming care for minors will be increasingly hard to access. 

Employers with health plans currently covering gender-affirming care for minors may want to consider the following next steps:

• Work with health plan partners to identify what services are covered
• Assess the impact these state laws have on plan members accessing gender-affirming care
• Consider plan member communications regarding coverage, navigators, and claim administration assistance
• Highlight available mental health benefits and/or EAPs
• Review plan medical travel benefits for sufficiency for plan members needing to travel frequently and far to access ongoing care

Employers contemplating plan exclusions of gender-affirming care for minors should consult with legal counsel regarding the risk of a discrimination claim under federal law (similar to litigations currently challenging plan exclusions for transgender care under ACA Section 1557 and Tile VII of the Civil Rights Act of 1964). Employers with insured plans in the 15 states and Washington, DC that prohibit discrimination in health plans based on gender identity are unlikely to be able to exclude coverage of gender-affirming care for minors.

Lastly, employers should continue to communicate with carriers and TPAs regarding changes to standard coverage designs or plan administration based on new or evolving federal and state law and policy.