Judge OKs Insurer’s Gender Surgery Denial

(CN) — A federal judge dismissed claims by a nurse practitioner whose employer denied coverage for her transgender teenage son's gender-reassignment medications and surgery.

Brittany Tovar filed a federal complaint this past January in Minnesota against her employer since 2010, Essentia Health and Innovis Health LLC dba Essentia Health West in Ada.

Tovar claims her teenage son was diagnosed with gender dysphoria after he became a beneficiary under her employee health insurance plan.

Yet because the 2015 version of the plan barred coverage for "services and/or surgery for gender reassignment," Tovar's son was denied coverage for certain medications and gender reassignment surgery that were deemed medically necessary by his doctors, according to her lawsuit.

Tovar says that though her son was prescribed Lupron, which treats painful menstruation and can even suspend menstruation temporarily, in 2015, the prescription was not covered her health plan.

The drug would have cost about $9,000, which Tovar could not afford, according to the complaint.

Tovar's son was also prescribed a form of testosterone, Androderm, for which Tovar had to pay out of pocket because it was "for use by males only" and was "not covered for patient gender," but "Essentia later agreed" to cover the medicine as a one-time exception, she claims.

Defendant HealthPartners Inc. allegedly refused to authorize gender reassignment surgery for Tovar's son in December 2015, due to the exclusion in Tovar's 2015 health plan.

Her lawsuit asserts violations of Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act against Essentia, and Affordable Care Act (ACA) violations against HealthPartners.

The defendants moved to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim.

U.S. District Judge Richard Kyle granted the motions Wednesday.

"Essentia argues that only an employee is protected from discrimination and can bring a claim," Kyle wrote in a 16-page ruling. "There is no dispute that Tovar is an employee and her son is not. Accordingly, Tovar must be the individual to have suffered the discrimination—and this is where her claim falters." (Emphasis in original.)

The judge later added, "There are no allegations that Tovar herself is transgender or was denied health benefits by either Essentia or HealthPartners, let alone denied benefits because of her sex."

"Instead, she assumes the discrimination against her transgender son was also discrimination against her. This assumption confuses the true target because it was not Tovar who was discriminated against; it was her son (a non-employee and nonparty) who was the sole object of the discrimination. This does not support a claim of discrimination," he wrote. (Parentheses in original).

The court rejected Tovar's claim that the 2015 plan itself is discriminatory.

"Tovar does not allege that HealthPartners gave her a different plan or fewer benefits because she had a transgender child, which would clearly be discrimination under the ACA," Kyle wrote. (Emphasis in original).

The judge accepted HealthPartners' claim that a separate entity, HealthPartners Administrators Inc., is actually the third-party administrator of Essentia's self-insured plan.

"HealthPartners plainly was not the administrator of either the 2015 or 2016 plan," the ruling states.

The judge later added, "Not only is Tovar's alleged injury not fairly traceable to HealthPartners, but HealthPartners is also unable to provide her redress."

Tovar may amend her ACA claim to name the proper defendant, according to the ruling.

HealthPartners spokeswoman Erin Ghere and Tovar's attorney, Jill Gaulding with Gender Justice in St. Paul, Minn., declined to comment on the ruling.

Essentia's attorneys, Lisa Edison-Smith and Vanessa Anderson with Vogel Law Firm in Fargo, N.D., did not return requests for comment Thursday.

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