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Navigating employer-sponsored health insurance, care

One in four trans patients denied coverage for gender-affirming care

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(Photo by maxxyustas/Bigstock)

Even though 86% of transgender Americans have health insurance, one in four reported being denied coverage for gender-affirming care in the 2015 and 2022 U.S. Transgender surveys. These denials can occur when an insurance plan contains a categorical exclusion of gender-affirming care. It is important to note that transgender employees who receive insurance coverage through their employers are entitled to legal protections. 

Employers are responsible for ensuring that the insurance plans they provide do not violate any laws, including anti-discrimination laws. In 1983, the Supreme Court ruled that under Title VII of the Civil Rights Act of 1964, employers are legally required to provide employees with equal pay and benefits, including health insurance. This protection now extends to transgender employees after the Supreme Court’s ruling in Bostock v. Clayton County (2020), which clarified that sex discrimination under Title VII includes gender identity discrimination.

Since Bostock, several transgender employees have successfully sued their employers for discrimination because they were denied coverage of gender-affirming care by their employers’ insurance. While employers can be held liable under Title VII, it remains unclear whether insurance companies will be held liable under Section 1557, the antidiscrimination provision of the Affordable Care Act (ACA), in the future.

Most—if not all—courts have ruled that employers can be held liable for choosing insurance plans with categorical exclusions of gender-affirming care. A categorical exclusion is when an insurance plan has a blanket ban of coverage for certain services. Although discrimination cases generally require proof of intent to discriminate, it is not required of transgender employees because categorical exclusions of gender-affirming care are facially discriminatory (i.e. the policy is explicitly and obviously discriminatory in nature).

In Kadel v. Folwell (2024), the Fourth Circuit court considered the Fourteenth Amendment, Title IX, and ACA claims in a consolidated case considering two state health plans: the State of North Carolina’s insurance plans for teachers and West Virginia’s Medicaid program. The Fourth Circuit court held that it is impossible to ban coverage of gender-affirming care without discriminating against transgender people because (1) gender dysphoria is a legitimate medical diagnosis which requires medically necessary treatment; and (2) the services provided under gender-affirming care are also provided to cisgender patients for other medical diagnoses. In short, there is sufficient evidence of discriminatory intent because categorical exclusions of gender-affirming care are facially discriminatory. Under Kadel, the Fourth Circuit also ruled that a policy does not have to explicitly exclude transgender patients. “Rewording the policies to use a proxy,” like sex changes or sex modification, is still facially discriminatory.

Along a similar vein, in Lange v. Houston County (2024), the Eleventh Circuit court found that the Sheriff’s Office’s categorical exclusion of gender-affirming care was a violation of Title VII. Agreeing with the reasoning in Kadel, the court cited a 1991 Supreme Court Case which ruled that proof of intent to discriminate is not needed for facially discriminatory policies. The court also held Anthem Blue Cross liable because third-party administrators in the Eleventh Circuit (i.e., Alabama, Florida, and Georgia) can be held liable as an employer if they make employment decisions as the authorized agent of an employer. However, this decision is unique to the said jurisdictions, and the liability of third-party administrators/insurance providers remains generally unclear. Moreover, the decision is not final because the court granted an en banc appeal, and a panel of all twelve judges re-heard the case in February 2025. The decision after re-hearing remains to be seen. 

Recently, Executive Order 14168 and the EEOC’s motion to dismiss its lawsuit against Harmony Hospitality on behalf of a transgender worker prompted concerns over transgender employees’ ability to bring federal discrimination claims. While such concerns are understandable, there has yet been any mandate prohibiting the EEOC from issuing right to sue to transgender individuals. In other words, even if the EEOC may not investigate and file lawsuits on behalf of transgender individuals, it does not bar private parties from doing so. Ultimately, the executive branch alone does not have the power to make changes to the Constitution or any federal statutes. It is up to the legislatures to amend laws and the Constitution, and courts to interpret and rule on constitutionality. 

Protections Against Discrimination by Insurers Under Section 1557 Remain Unclear

While employers can be held liable for categorical exclusions of gender-affirming care, employees may be less likely to find relief for legal claims against insurers regarding discrimination on the basis of gender identity. Since Bostock, courts have found insurers liable for denying coverage of gender affirming care under Section 1557 of the ACA, extending sex discrimination to include gender identity. Recent litigation surrounding Section 1557 and the new presidential administration may precede a change in this trend.

In May 2024, the Biden administration issued a final rule implementing Section 1557.It reversed the rule put forth by the Trump administration four years prior, which had revised the Obama administration’s interpretation of the statute. The Biden administration’s final rule defined sex discrimination to include discrimination on the basis of gender identity and sexual orientation. Additionally, under the new rule, a wider swath of insurers and third-party administrators that receive federal financial assistance would be subject to Section 1557. 

However, in July 2024, a Mississippi District judge granted a nationwide injunction preventing the Department of Health and Human Services from enforcing the final rule’s prohibition of sex discrimination with respect to gender identity. Additionally, executive orders during the early days of the Trump administration, and guidance from the Department of Health and Human Services that followed, rescinded wide swaths of Biden-era guidance extending sex discrimination protections to include discrimination based on gender identity. It is not yet clear how the new administration’s position on Section 1557 will impact courts’ decision-making regarding insurer liability and the extent of sex discrimination provisions in relation to gender identity going forward. 

As the recent history of Section 1557 demonstrates, executive actions may influence the implementation of statutory antidiscrimination provisions, but do not change the law itself. While employers continue to face liability for discrimination towards employees seeking insurance coverage of gender-affirming care under Title VII, some protections remain on less certain ground as the United States enters a new presidential administration. 


Ting Cheung, Luke Lamberti, and Neha Sharma are with Sanford Heisler Sharp McKnight.

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Barney Frank’s powerful legacy for LGBTQ federal employees

The ‘Great Gay Communicator’ deserves respect

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Rep. Barney Frank (D-Mass.) (Washington Blade file photo by Michael Key)

Former Congressman Barney Frank, who died last week, was dogged during his life over being gay. The self-proclaimed only “left-handed, gay, Jewish congressman,” in Congress deserved better.

Frank’s perseverance paved the way for others. With wit and intelligence, he helped educate Americans about sexuality. As a federal employee and a member of the Federal Gay, Lesbian or Bisexual Employees (GLOBE), a government-wide organization founded by Dr. Len Hirsch, I saw Frank’s unforgettable speaking style when he was a guest speaker at our monthly events.

Frank’s detailed presentations about federal employment policies were not recorded. The only record of them, edited by Dr. Hirsch and other members of the GLOBE board, is in the minutes of the GLOBE meetings. I held several positions in GLOBE, including secretary, assistant newsletter editor, and as an elected member of the board. I drafted the minutes of the meetings.

GLOBE’s minutes were edited to protect the identity of federal employees. This was important because then-U.S. Sen. Jesse Helms (R-N.C.) attempted to obtain the minutes. Helms felt LGBT advocacy in the federal workplace was an illegal form of political activity. GLOBE was also concerned that the minutes would be illegally accessed and forwarded to Helms or used to blackmail federal employees. GLOBE’s minutes are preserved at the National Archives.

When I was named Gay, Lesbian, Bisexual Program Manager at the Department of Agriculture in 1993, I immediately notified Frank’s office of my appointment. After a federal newsletter published an article about a speech I gave, Helms accused me of using government resources to support “a homosexual agenda.” During several hours on the evening of July 19, 1994, Helms told the Senate and C-SPAN’s television audience that LGBT federal employees had their minds in their crotches. He called LGBT federal employees “perverts.”

Helms had government documents that described the position of “Gay, Lesbian, Bisexual Program Manager.” It was a program that used the incendiary words “promote” and “recruit” homosexuals. It was a huge mistake for government bureaucrats to have written such a program. Helms published it in the Congressional Record. Frank helped us through this battle and others. 

Aside from Frank, there were other LGBT members of Congress in the 1990s. Gerry Studds (D-Mass.), Steve Gunderson (R-Wisc.), and James Kolbe (R-Ariz.). Studds was censured for an affair with a 17-year-old male page in the House. Gunderson was publicly outed by a fellow House Republican. Kolbe was subject to sexual accusations.  

Among these gay congressmen, Frank weathered a hostile media, personal scandal, and vicious attacks from his Republican colleagues. In 1995, former Texas GOP House Majority Leader Dick Armey was caught referring to Frank as “Barney Fag.” His apology was grudging.

“I rule out that it was an innocent mispronunciation,” responded Frank. “I turned to my own expert, my mother, who reports that in 59 years of marriage, no one ever introduced her as Elsie Fag.”

After celebrating his 72nd birthday, Frank married his longtime partner. He successfully worked to place marriage equality into the 2012 Democratic platform, which President Obama endorsed.

Still, Frank was dogged by homophobia. The Tea Party’s Doug Mainwaring called Frank’s wedding “a mockery, a parody, a staggering caricature of the most fundamental and towering of American institutions.”

In an interview with Washingtonian magazine, Frank said he “hates being classified as ‘the gay congressman,’” as his legislative accomplishments go beyond gay rights. He co-sponsored the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act.

Frank will especially be remembered in Washington for his sharp wit. He once referred to advocating for gay marriage legalization as “cruising for gay rights.” He wrote devastatingly funny op-ed pieces, notably for the Washington Post.

Though Frank may not have wanted to be known as a gay congressman, when he spoke, the LGBT community listened. He was the Great Gay Communicator. Barney Frank deserved respect. May his memory be a blessing.


James Patterson, a life member of the American Foreign Service Association, is a writer and communications consultant in the D.C. area. 

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Time travelers from the AIDS era

Longtime HIV survivor reflects on stigma, survival

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A vigil was held along the Lincoln Memorial Reflecting Pool on Oct. 8, 1988. (Washington Blade file photo by Doug Hinckle)

If I admit I’m HIV positive, some men immediately reject me. If I lie and say I’m HIV negative, many of those same men will gladly have unprotected sex with me.

That contradiction has haunted me for years and made me wonder: What would the gay men who died of AIDS in the 1980s think if they could see us now?

The future would absolutely astonish them. Everybody carries around a handheld device that can instantly broadcast their thoughts, faces, bodies, and lives to the entire planet. We elected a Black president twice. Same-sex marriage is legal. Gay people can openly marry, raise children, grow old together, and even get divorced like everybody else. HIV itself is no longer “the deadly disease” it was when I learned I was infected in 1985 at age 23.

Back then, life expectancy was often measured in months. Surviving long enough to grow old felt like science fiction.

Now there are medications that can suppress the virus so effectively, a person living with HIV can become “undetectable,” meaning they cannot sexually transmit the virus. Countless people who once expected to die can now live long enough to worry about all the ordinary things people worry about as they age: heart disease, bad knees and what restaurant closes too early.

Back then, that wasn’t even a pipe dream. But the future also got weird.

What shocks me most is not the medical progress. It’s the emotional contradiction surrounding it. The general public no longer fears sharing space with people living with HIV. Most people understand you cannot get HIV from a hug, a handshake, sharing food, breathing the same air, or sitting next to someone on a plane.

But sex is different. Especially in the gay world, where stigma still lingers in strange and contradictory ways.

I’ve watched gay men reject HIV-positive men while simultaneously engaging in anonymous unprotected sex with people whose status they know only because somebody typed a word into an app. “Negative.” “Clean.” “DDF.”

As if viruses never lie.

At the same time, we now live in a sexual culture far more open and visible than anything most gay people from the 1980s could have imagined. The bathhouse has largely been replaced by hookup apps and social media. Sexual behavior is documented, broadcast and archived in real time.

But greater sexual freedom did not necessarily bring greater emotional clarity.

Some men still fear HIV intensely. Others eroticize it. Some even document their attempts to acquire it.

We solved the medical crisis of HIV far faster than we solved the psychological, emotional and sexual contradictions surrounding it.

As a long-term survivor, I sometimes feel like a time traveler trapped between two worlds: one that remembers the terror and one that barely remembers the war.

That feeling became the seed for my new novel,“The Unfrozen Few.” I imagined a group of AIDS patients from the late 1980s choosing cryogenic freezing rather than death, only to wake up in present-day America. They emerge into a world of smartphones, same-sex marriage, social media and medical breakthroughs, but also into a world that still doesn’t fully know what to do with people living with HIV.

In many ways, the frozen few are simply long-term survivors with the volume turned all the way up.

I think the dead would be amazed by how far we’ve come. And stunned by the ways we still haven’t.


Randy Boyd is a longtime HIV survivor, five-time Lambda Literary Award finalist and author of five novels, including ‘The Unfrozen Few,’ a speculative series about AIDS patients who were cryogenically frozen in the 1980s and awaken in present-day America. More information is available at randyboydauthor.com.

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Dual endorsement for Independent Council-at-large: Patterson or Crawford

Let’s move the District forward

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Washington, D.C. (Washington Blade file photo by Michael Key)

(Editor’s note: This column reflects the writer’s opinion and does not constitute a Washington Blade endorsement of any candidate.)

The race for Independent Council-at-Large is interesting. There are three main candidates and I suggest making your choice easier by first eliminating Elissa Silverman from consideration. She is a retread, and it is time to move forward, not backward. 

There are two candidates whom I have taken the time to talk with in some depth. They are both impressive, and either will make a great addition to the D.C. Council. I have some minor issues with both, but then have never found a candidate who I would agree with 100%, and never expect to. 

Jacque Patterson has held public office, and served the community well, as president of the D.C. State Board of Education. Just recently a study was released, and while we know there are many outstanding issues in our schools, this new Education Scorecard report from Harvard, Stanford, and Dartmouth, ranks District of Columbia students first in the nation for academic growth in both math and reading between 2022 and 2025. While they are still not doing as well as we want all our students to do, progress is important, and this scorecard shows how the District is working to help its students. Take a look at Jacque’s website to see what he will focus on. You will find it impressive. He understands among other issues what small businesses mean to D.C., what we need to do for safer communities, and to provide more opportunities for all our youth. 

Then take a look at Doni Crawford who has now been serving on the Council for about four months, having been chosen to replace Kenyan McDuffie until the election, when he resigned to run for mayor. She previously worked in his office as committee director for the Council’s Committee on Business and Economic Development. Prior to that she worked at the D.C. Fiscal Policy Institute. Her focus is also on safer communities, economic development, housing, and youth. You can look at Doni’s website to get a more detailed understanding of where she intends to focus her time. 

Both candidates have talked about how they will work to fight for D.C. statehood, and to ensure the 700,000 residents of the District can set their own budget priorities, and make their own legislative decisions, without oversight from Congress. 

When looking at who you choose to vote for as a Council member in D.C., it is important to understand the person you select will be working closely with 12 other members. They have to understand the art of compromise to get their initiatives passed. They must have the personality that will demand respect of the other members, and a style that will make them stand out on the Council. I think Jacque and Doni are the two choices in this Independent Council-at-large race who will be able to do that. Also, remember in an at-large seat on the Council the focus is a little different than when you are selecting a Council member for your own ward. These members need to have a little broader view, and be able to balance all constituents in every ward of the city. That is a little more difficult. 

I know from talking with them that both Jacque and Doni are committed to equality, and just as important, economic equality. They understand for the District to do well; everyone needs a fair playing field. I have gotten the strong feeling they both understand what is happening around the nation is impacting the people of D.C. That includes the resurgence of antisemitism, as well as racism, Islamophobia, homophobia, and sexism. They understand we are faced with a White House, and Republican-controlled Congress, who instead of doing anything to combat these issues, are making them worse. And because home rule still gives Congress and the felon in the White House much-too-much control over D.C., this impacts us directly. I have confidence in both Patterson and Crawford, that they will fight this, and do it intelligently, and successfully, to the benefit of all the people they are looking to serve.

So, my recommendation is you look at both their websites and decide who your first choice will be. Then rank that person #1 on your ballot for Independent Council-at-large. Then because you can with ranked choice voting, rank the other one #2. Then stop! You don’t need to rank any more. 

Again, I think either Jacque Patterson or Doni Crawford will serve us well on the Council. They are both smart, experienced, and both will bring something new to the Council. Elissa Silverman had her chance before, and there were reasons the voters turned her out. Let’s not go backwards, but rather let’s move the District forward, with either Jacque Patterson or Doni Crawford. 


Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.

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