Update: December 19, 2022:
VICTORY: Court Rules that Blue Cross Blue Shield of Illinois Cannot Administer Health Plans with Gender-Affirming Care Exclusions
“Third-party administrators that accept federal funds cannot discriminate when administering employer-sponsored health plans.”
(Tacoma, WA, December 19, 2022) – A federal district judge today ruled that Blue Cross Blue Shield of Illinois (BCBSIL) cannot exclude coverage for medically necessary gender-affirming care in its administration of employer-provided ERISA health plans. This follows the district court’s November 9, 2022, order certifying a class comprised of individuals who were, are, or will be denied pre-authorization or coverage of gender-affirming care as a result of BCBSIL’s administration of categorical exclusions of such care.
The ruling came in a class action lawsuit filed by Lambda Legal and Sirianni Youtz Spoonemore Hamburger PLLC challenging BCBSIL’s administration of the discriminatory blanket exclusion on behalf of a 17-year-old transgender young man, C.P., and his parents. The lawsuit, filed in the U.S. District Court for the Western District of Washington, argued that BCBSIL’s administration of the exclusion is in direct violation of the health nondiscrimination law enacted as part of the Affordable Care Act, known as Section 1557.
“The court’s decision not only establishes that categorical exclusions for coverage of gender-affirming care are unlawful discrimination, but it also concludes that health insurers who receive federal funds and act as third-party administrators have an independent duty to not administer discriminatory ERISA health plans,” said Omar Gonzalez-Pagan, Counsel and Health Care Strategist for Lambda Legal. “This is a victory not only for C.P. and his parents, but also for the hundreds of transgender people who were, are, or were likely to be denied medically necessary gender-affirming care because of BCBSIL’s administration of approximately 400 ERISA health plans with these unlawful exclusions. The court’s decision sends a clear message that third-party administrators that accept federal funds cannot discriminate when administering employer-sponsored health plans.”
“All we want is for our son to receive the medical care he needs to live, be healthy, and to thrive. I’m relieved the court saw the justice in our claim, and hope that BCBSIL will not continue to throw obstacles in our way to access the care our son needs and is legally entitled to,” said Pattie Pritchard, C.P.’s mother and the primary beneficiary on the employer-provided health benefit plan that BCBSIL administers. “My son and all other transgender youth deserve the ability just to be themselves and to thrive. That’s all we ask.”
The court concluded that BCBSIL is a “health program or activity” that receives federal funds, such that BCBSIL cannot discriminate on the basis of race, national origin, sex, age and disability in any of its operations – including BCBSIL’s administration of ERISA health plans as a third-party administrator. As such, BCBSIL cannot administer discriminatory terms of any health plans, including the plan provided by Pattie Pritchard’s employer—St. Michael Medical Center in Bremerton, Washington, which is part of the Catholic Health Initiatives Franciscan Health System, now known as CommonSpirit Health.
“The court has pulled back the curtain and made it clear that BCBSIL cannot hide behind a defense that it was 'just following orders' from Pritchard’s employer to apply the illegal exclusion,” said Eleanor Hamburger of Sirianni Youtz Spoonemore Hamburger who has worked with C.P. and his parents during the past five years. “BCBSIL has a separate legal, contractual and fiduciary duty to C.P. and other class members to not discriminate in all of its operations and the court agreed.”
C.P., a transgender young man, is a dependent on his mother’s employer-provided health insurance plan and has obtained gender-affirming care on the recommendation of his health care providers. However, C.P. and his family were informed that some of his care would not be covered because of an exclusion of any care “for or leading to gender reassignment surgery”, including the same care and medical interventions that other cisgender patients receive without question or problem. C.P.’s family has had to pay out-of-pocket for his care, causing unnecessary financial stress.
The case is C.P. v. Blue Cross Blue Shield of Illinois and is being litigated by Counsel and Health Care Strategist Omar Gonzalez-Pagan, Chief Legal Officer Jennifer C. Pizer, and Director of Constitutional Law Practice Karen Loewy for Lambda Legal, and Eleanor Hamburger and Daniel Gross of Sirianni Youtz Spoonemore Hamburger PLLC, in Seattle, Washington.
Read the court’s summary judgment decision here: https://www.lambdalegal.org/in-court/legal-docs/cp_wa_20221219_order
Read the court’s class certification decision here: https://www.lambdalegal.org/in-court/legal-docs/cp_wa_20221212_amended-order
Learn more about the case here: https://www.lambdalegal.org/in-court/cases/cp-v-bcbsil
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Contact: Tom Warnke; (c): 213-841-4503; Email twarnke@lambdalegal.org
Ele Hamburger; (c): 206-214-6657; Email ele@sylaw.com
Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through impact litigation, education and policy work. www.lambdalegal.org
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Case Filed: November 23, 2020:
Sirianni Youtz Spoonemore Hamburger PLLC and Lambda Legal Take Blue Cross Blue Shield of Illinois to Court Over Anti-Transgender Policy
“This denial … sends a message to my son and all transgender people, that their health care needs aren’t real or they’re not worthy of care. I won’t accept that.”
(Tacoma, WA, November 23, 2020) – Today, Lambda Legal and Sirianni Youtz Spoonemore Hamburger PLLC filed a federal lawsuit challenging Blue Cross Blue Shield of Illinois’s (“BCBSIL”) administration of a blanket exclusion of gender-affirming care in an employer-provided health insurance plan provided by Catholic Health Initiatives Franciscan. The lawsuit was filed in the United States District Court for the Western District of Washington in Tacoma on behalf of a 15-year-old transgender boy, “C.P.,” and his parents, and argues the exclusion is in direct violation of the nondiscrimination provisions under Section 1557 of the Affordable Care Act.
“My son needs the medical care that will allow him to live, be healthy, and to thrive. However, because he is transgender, I have to fight and jump through hoops for him to have access to the care that he needs, is legally entitled to and that he deserves,” said Pattie Pritchard, C.P.’s mother and the primary beneficiary on the employer-provided health benefit plan that BCBSIL administers. “This denial also sends a message to my son and all transgender people, that their health care needs aren’t real or they’re not worthy of care. I won’t accept that.”
BCBSIL is a “covered health entity” under the ACA, which means BCBSIL cannot, and it has represented that it does not, discriminate on the basis of race, national origin, sex, age and disability. The ACA’s Section 1557, which BCBSIL agrees it must abide by, prohibits discrimination on the basis of sex and gender identity, such as in the provision of transition-related care. As such, BCBSIL cannot administer the discriminatory terms of the health plan provided by Pattie Pritchard’s employer—St. Michael Medical Center in Bremerton, Washington, which is part of the Catholic Health Initiatives Franciscan Health System, now known as CommonSpirit Health.
“The law is clear, Blue Cross Blue Shield of Illinois cannot deny C.P., or any transgender person, the health care that he needs,” said Omar Gonzalez-Pagan, Senior Attorney and Health Care Strategist for Lambda Legal. “Section 1557 of the ACA expressly prohibits categorical bans on gender-affirming care because it is discrimination on the basis of sex, plain and simple. BCBSIL cannot adopt or administer discriminatory terms on behalf of others. As a covered entity under the ACA, BCBSIL has to play by the same rules as everyone else, no exceptions.”
“BCBSIL cannot hide behind a defense that it was 'just following orders' when Pritchard’s employer told BCBSIL to apply the illegal exclusion,” said Eleanor Hamburger of Sirianni Youtz Spoonemore Hamburger who has worked with C.P. and his parents during the past three years to prepare this case for litigation. “BCBSIL has a separate legal, contractual and fiduciary duty to C.P. and others in the health plans it administers, to comply with the anti-discrimination law.”
C.P. is a dependent on his mother’s employer-provided health insurance plan and began receiving medically necessary gender-affirming care three years ago. Recently, however, C.P. and his family were informed that some of his care would not be covered because of an exclusion of any care “for or leading to gender reassignment surgery”, including the same care and medical interventions that other cisgender patients receive without question or problem. C.P.’s family has had to pay out-of-pocket for his care, causing unnecessary financial stress.
“Although it is a heavy burden on our family, we are lucky that we can pay for C.P.’s critical health care while we fight, but I shudder to think of the families that cannot,” added Pritchard. “What is a family who cannot afford this very expensive care for their child supposed to do? This is a matter of life and death for many transgender people and children, and I hate to think of the difficult and scary decisions families are forced to make; it’s not fair, and it’s not right.”
The case is C.P. v. Blue Cross Blue Shield of Illinois and is being litigated by Lambda Legal Senior Attorney and Health Care Strategist Omar Gonzalez-Pagan, Law and Policy Director Jennifer C. Pizer and Eleanor Hamburger of Sirianni Youtz Spoonemore Hamburger PLLC, in Seattle, Washington.
Eleanor Hamburger
Sirianni Youtz Spoonemore Hamburger
999 Third Avenue, Suite 3650, Seattle, WA 98104
Tel. (206) 838-3210
Email: ehamburger@sylaw.com