Insights

Prohibited Discrimination on the Basis of Gender Identity or Gender Dysphoria


On September 9, 2021, Commissioner Anderson released Bulletin 2021-11 to clarify the continuing applicability of Massachusetts law prohibiting discrimination on the basis of gender identity or gender dysphoria. The bulletin clarifies discriminatory practices prohibited in Massachusetts in light of changes to state law since the last bulletin addressed this subject (Bulletin 2014-03).

In 2018, Massachusetts amended its public accommodations law to include gender identity as a protected class and, in 2020, the state added specific discrimination protections regarding disability insurance. The Massachusetts Commission Against Discrimination also released guidance affirming that places of public accommodation include businesses that provide services, such as insurance companies.

In keeping with these amendments, the division uses this bulletin to remind carriers that they may not deny or categorically exclude medically necessary treatment based on an individual’s gender identity or gender dysphoria. In determining their obligations, carriers are expected to consult the most up-to-date medical standards set forth by nationally recognized medical experts in the transgender health field. Additionally, carriers must not single out a treatment or procedure for exclusion of coverage because it is associated with transgender people or gender dysphoria. They also may not impose stricter requirements for coverage for a service when used to treat or ameliorate symptoms of gender dysphoria than when used to treat other conditions. Carriers must also comply with applicable mental health requirements.

The division also expects carriers that are acting as administrators for employer-sponsored self-insured plans to take steps that are consistent with the bulletin’s provisions. Both employers of fully insured and self-insured health plans should be aware of this guidance.

Bulletin 2021-11 »