Using Federal Nondiscrimination Laws to Avoid ERISA: Securing Protection From Transgender Discrimination in Employee Health Benefit Plans

Abstract

Recent attempts to repeal the Affordable Care Act and the potential rollback of the interpretation of the protections the Act affords transgender people put transgender people at risk of being denied services and coverage for gender-affirming care. This Article provides advocates with alternative legal arguments to help employees bring claims when their employer provides a health benefit plan that discriminates on the basis of gender identity. These arguments can avoid the Employee Retirement Income Security Act’s broad preemption scheme and lack of nondiscrimination provisions. This Article proposes that, based on a narrow exception to preemption regarding the Employee Retirement Income Security Act’s construction with other federal laws and the case law interpreting that exception, federal nondiscrimination laws — including Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disabilities Act — may and must play a role in regulating discrimination on the basis of gender identity in employee health benefit plans.