New Law Prohibits Discrimination Based on Gender Identity

On July 21, 2017, Gov. Christie signed A4568 into law, creating Chapter 176. The new law prohibits plans from containing any provision that discriminates against plan participants or prospective plan participants on the basis of gender identity or expression or on the basis that plan participants or prospective plan participants are transgender persons. For purposes of the new law, discrimination includes denying, canceling, limiting or refusing to issue or renew contracts and requiring additional or discretionary payments or premiums. Discrimination also includes designating gender identity or expression (or designation of someone as a transgender person) as a pre-existing condition in order to deny or limit coverage. Finally, discrimination includes denying or limiting coverage, or denying claims for services, relating to an individual’s gender identity or expression or for a transgender person, including gender transition (if services are covered under plans when services aren’t related to gender transition), hormone therapy, hysterectomy, mastectomy and vocal training.

For purposes of the law, “gender expression” means a plan participant’s gender-related appearance and behavior, whether or not that appearance or behavior is stereotypically associated with the sex assigned to that person at birth. “Gender transition” means the process of plan participants changing their outward appearance, including sex characteristics, to agree with their actual gender identity. “Transgender persons” are plan participants who identify themselves as a gender different from their gender at birth.

The new law applies to health plans delivered, issued, executed or renewed in New Jersey on or after Nov. 1, 2017. The new law does not bring new employer compliance obligations, but employers should be aware of the new requirements and should work with outside counsel if they have questions on any health plan issues relating to gender identity and coverage of items or services relating to transgender persons.

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