Avoiding Pandora’s Box: Why Federal Nondiscrimination Statutes Do Not Prohibit Health Insurance Coverage Exclusions of Sex-Rejecting Procedures

Authors

• Rachel N. Morrison

Abstract

There is increasing litigation over whether employer-provided health insurance and state Medicaid plans can exclude coverage of procedures for “gender transitions.” Plaintiffs claim that gender-transition coverage exclusions violate the Equal Protection Clause of the Fourteenth Amendment and federal nondiscrimination statutes. While Fourteenth Amendment claims should be foreclosed by the Supreme Court’s holding in Geduldig v. Aiello, nondiscrimination claims require a separate analysis.

This article shows the proper analysis for whether coverage exclusions of transition procedures violate federal nondiscrimination statutes. Looking to the history of coverage exclusion claims, Part I traces sex and pregnancy discrimination claims challenging coverage exclusions of pregnancy and contraception. Pregnancy coverage exclusions are squarely prohibited by the second clause of the Pregnancy Discrimination Act and Supreme Court precedent, but that prohibition is limited. Neither the PDA nor Title VII’s general prohibition against sex discrimination mandates equal coverage of contraception or other sex-related conditions. Part II surveys gender-transition coverage exclusion claims that have arisen under sex and disability discrimination laws, including Title VII, Section 1557 of the Affordable Care Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act. Considering these claims in light of the statutory text and history discussed in Part I, the article argues that gender-transition coverage exclusions are not discriminatory. Part III explores how finding coverage exclusions of transition procedures discriminatory would open Pandora’s box, creating a host of practical and legal concerns, and allow discrimination claims challenging coverage exclusions of any medical procedure associated with a protected basis. The article concludes that such a theory of discrimination should be rejected by courts because it is unsupported in law, unlimited in reality, and unworkable in practice.

Recommended Citation

Rachel N. Morrison, Avoiding Pandora’s Box: Why Federal Nondiscrimination Statutes Do Not Prohibit Health Insurance Coverage Exclusions of Sex-Rejecting Procedures, 75 Cath. U. L. Rev. 718 (2025).
Available at: https://scholarship.law.edu/lawreview/vol75/iss4/6