HARRISBURG – Litigation continues between a transgender male state employee and a Pennsylvania-affiliated health care provider, one which he claims is discriminating against him and denying insurance coverage for his gender/sex-affirming surgery.
John Doe first filed a complaint Dec. 23, 2019, in the U.S. District Court for the Middle District of Pennsylvania against the Commonwealth of Pennsylvania, the Department of Human Services, Pennsylvania Employees Benefit Trust Fund and others alleging violation of the Civil Rights Act of 1964, the Americans with Disabilities Act and other claims.
The suit stated that Doe, who was diagnosed with gender dysphoria, is currently receiving hormone therapy and that his treatment providers believe that a bilateral mastectomy is a medically necessary treatment for his gender dysphoria.
According to Doe’s complaint, the Highmark Health Insurance Company defendants are “the third-party administrators of the Commonwealth of Pennsylvania’s employer-sponsored health plan that offers health insurance plans to Commonwealth of Pennsylvania employees including Doe.”
As the third-party administrator, Doe claimed that the Highmark defendants, “exercised significant control over an important aspect of the employment relationship” and “acted as the agent of the Commonwealth defendants such that an agency relationship between the two entities existed.”
Specifically, Doe alleged that the Highmark defendants are subject to liability for employment and disability discrimination, as a result of denying insurance coverage for Doe’s gender reassignment surgery, according to the terms of the Commonwealth’s health insurance plan.
On June 29, counsel for defendant Highmark filed an answer to Doe’s complaint, seeking for it to be dismissed for failure to state a claim and other reasons, with prejudice.
After an amended complaint was brought by the plaintiff on July 13, this was followed by a July 27 motion to dismiss from the defense.
“In Counts I, II, III and V, Doe fails to state a plausible employment discrimination claim against the Highmark defendants in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Pennsylvania Human Relations Act,” defense counsel said.
“Specifically, Doe’s employment discrimination claims fail because the Highmark defendants were not Doe’s employer and, therefore, he cannot state claims against them under Title VII, the ADA or the PHRA.”
Doe filed a brief in opposition to the dismissal motion on Aug. 10 and argued that the Affordable Care Act precluded the defendant from taking part in any discriminatory conduct.
“At the time of the alleged discrimination in this case, Highmark was legally obligated not to discriminate based on gender identity as plainly set forth under Section 1557 of the Affordable Care Act, or the ACA non-discrimination rule. But for Highmark’s involvement here the Plaintiff would not have suffered as alleged in the complaint by being denied coverage by the Highmark Defendants on account of discrimination,” the brief stated.
“This brings Highmark into the sphere here such that it cannot be said Highmark was wholly uninvolved for purposes of liability for its own discrimination. Highmark can be held liable for its own involvement – its own discrimination – under Title VII, the Pennsylvania Human Relations Act, and the Americans with Disabilities Act. Highmark can also be held liable, alternatively, under an agency theory.”
UPDATE
Highmark defendants filed a brief in support of their motion to dismiss on Sept. 2.
“While the plaintiff, an employee of the Commonwealth of Pennsylvania and more specifically, the Department of Human Services, purports to bring claims against his employers for violations of his rights, his claims fail as a matter of law, because he cannot hold the Commonwealth and the Department responsible for the actions undertaken by others, such as the Commonwealth’s insurance carrier,” per the defense.
“Additionally, his remaining claims are barred by sovereign immunity. Thus, the amended complaint should be dismissed against the Commonwealth and the Department, with prejudice.”
The plaintiff filed a response brief countering these assertions on Sept. 16.
“Plaintiff has clearly set forth the legal liability as against the defendant, Commonwealth of Pennsylvania. Critically, the defendant, Commonwealth of Pennsylvania discriminated against the plaintiff by willfully and purposefully refusing to provide health insurance to meet plaintiff’s substantial medical need for gender confirmation surgery,” per the plaintiff’s reply brief.
“The arguments advanced by defendant, specifically, that it was ‘not responsible’ for the exclusions of gender confirmation surgery from its health insurance plan it bargained for, purchased and provided to plaintiff. The allegations of plaintiff’s amended complaint clearly set forth the Commonwealth’s liability and responsibility not to discriminate in the health benefits it provides to the plaintiff as the plaintiff’s employer. In the event, the Court is inclined to grant defendant’s motion, plaintiff seeks leave to amend to potentially plead additional facts to remedy any deficiency in the plaintiff’s amended complaint.”
Doe seeks injunctive and monetary relief, a trial by jury and all other just relief.
The plaintiff is represented by Justin Robinette and Graham F. Baird of The Law Offices of Eric Shore, in Philadelphia.
The defendants are represented by Caleb Curtis Enerson of the Pennsylvania Attorney General’s Office in Harrisburg, plus Douglas Cameron, Catherine S. Ryan and Mariah H. McGrogan of Reed Smith, in Pittsburgh.
U.S. District Court for the Middle District of Pennsylvania case 1:19-cv-02193
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com