New Bulletin on Discrimination Based on Sexual Orientation, Gender Identity or Expression, or Transgender Status

On July 23, 2019, the Department of Financial Services published Insurance Letter No. 8 (2019). The bulletin is a response to HHS’s proposed rule that repeals a federal regulation that clarifies that the ACA’s nondiscrimination protections based on sex include protections based on gender identity. That proposed rule would also remove protections and no longer considers discrimination based on pregnancy, false pregnancy, termination of pregnancy, and recovery therefrom, childbirth or related medical conditions, and sex stereotyping to be discrimination based on sex.

According to the bulletin, NY has its own requirements relating to nondiscrimination protections based on sexual orientation, gender identity or expression, and transgender status. As a result, NY law prohibits all carriers from refusing to issue an insurance policy or contract, or to cancel or decline to renew such policy or contract, because of the sex or marital status of the applicant or policyholder. Similarly, NY law prohibits carriers from discriminating in health insurance policies or contracts because of sex, marital status; or based on pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom; childbirth, or related medical conditions; or on gender identity or expression, sexual orientation, sex stereotyping, and transgender status. Those prohibitions apply to individual, small group and large group policies and contracts, as well as student health plan policies.

Lastly, the bulletin reminds carriers that there are three prior circular letters that address these types of nondiscrimination prohibitions (which we covered in prior editions of Compliance Corner). Insurance Circular Letter No. 7 (2014) reminds carriers that policies that cover mental health conditions cannot exclude coverage for the diagnosis and treatment of gender dysphoria. Insurance Circular Letter No. 12 (2017) clarifies that carriers should not automatically deny claims for transgender individuals because the gender with which the individual identifies does not match the gender of someone to whom those services are typically provided. Lastly, Insurance Circular Letter No. 7 (2017) addresses coverage for infertility treatment and advises carriers that the law prohibits them from discriminating based on sexual orientation, marital status, or gender identity with respect to infertility treatment.

For employers, there are no immediate requirements resulting from the bulletin. Employers with fully insured plans should work with carriers with any questions relating to coverage; self-insured plans are generally exempt from state rules (but employers should work with outside counsel if they want to treat any employees differently based on any of the above statuses.

Insurance Letter No. 8 (2019) »