“This ruling underscores that other avenues remain open to challenging anti-transgender discrimination in health care, notwithstanding the Supreme Court’s ruling in Skrmetti.”
The U.S. District Court for the Western District of Washington yesterday affirmed its April ruling that Premera Blue Cross’s arbitrary and categorical policy to deny coverage for gender-affirming chest surgery for transgender patients under 18, regardless of the patient’s medical needs, unlawfully discriminated based on sex in violation of the Affordable Care Act’s anti-discrimination law, known as Section 1557.
The court had asked for additional briefing in light of the U.S. Supreme Court’s June ruling in U.S. v. Skrmetti, upholding Tennessee’s law denying gender-affirming care for Tennessee youth. In its ruling yesterday, the court determined that Skrmetti did not alter the April ruling in A.B. v. Premera Blue Cross. In fact, in its ruling, the district court determined its previous ruling was consistent with Skrmetti, which, in the court’s words, “involve[d] a fundamentally different type of claim than the ACA § 1557 claim raised in this case.”
“The reaffirmation of the Court’s decision in April that Premera’s discriminatory exclusion violated Section 1557 of the Affordable Care Act underscores the limits of the Supreme Court’s decision in Skrmetti. The Constitution only sets a floor, not a ceiling—federal and state anti-discrimination laws like Section 1557 of the ACA may establish civil rights that rise above that recognized by the Supreme Court under the Constitution,” said Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan. “The district court here not only recognized that the scope of the protections under Section 1557 of the Affordable Care Act differ from what the Supreme Court recognized under Fourteenth Amendment in Skrmetti, but also determined that Premera’s coverage exclusion constituted sex discrimination on its face. This ruling underscores that other avenues remain open to challenging anti-transgender discrimination in health care, notwithstanding the Supreme Court’s ruling in Skrmetti.”
“Premera should finally do the right thing and remove this discriminatory exclusion,” said Ele Hamburger of Sirianni Youtz Spoonemore Hamburger. “Every other health insurer in our state provides this coverage, which is mandated without age limits. Premera must follow the law, just like everyone else.”
Lambda Legal and Sirianni Youtz Spoonemore Hamburger PLLC filed a federal lawsuit in June 2023 on behalf then-15-year-old transgender adolescent A.B. and his parents challenging Premera Blue Cross’s policy. The lawsuit was later amended in June 2024 to add then-17-year-old transgender adolescent J.M. and his parents as plaintiffs. On April 18, 2024, the district court ruled against Premera Blue Cross. However, after the U.S. v. Skrmetti ruling came down June 18, Premera asked for the opportunity to submit supplemental briefing, which the court granted.
In December 2022, a federal district judge ruled in a class action lawsuit also filed by Lambda Legal and Sirianni Youtz Spoonemore Hamburger PLLC that Blue Cross Blue Shield of Illinois (BCBSIL) cannot discriminate on the basis of sex in any of its operations – even as a third-party administrator – and therefore cannot administer discriminatory terms of any health plans.
The case is A.B. v. Premera Blue Cross and is being litigated by Senior Counsel and Health Care Strategist Omar Gonzalez-Pagan of Lambda Legal, Eleanor Hamburger and Daniel Gross of Sirianni Youtz Spoonemore Hamburger PLLC, in Seattle, Washington
Read the court’s ruling and learn more about it here.