The Gender Identity Nondiscrimination Act of 2013

TRINIDAD NAVARRO

COMMISSIONER

STATE OF DELAWARE

DEPARTMENT OF INSURANCE

NOTE: This Bulletin is intended solely for informational purposes. It is not intended to set forth legal rights, duties, or privileges,

nor is it intended to provide legal advice. Readers should consult applicable statutes and rules and contact the Delaware

Department of Insurance if additional information is needed.

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DOMESTIC/FOREIGN INSURERS BULLETIN NO. 86 (revised and reissued)

TO:

All Insurers, Producers, Third Party Administrators, Medical Service Plans,

and Hospital Service Plans Licensed to Do Business in Delaware; and Other

Interested Persons

RE:

The Gender Identity Nondiscrimination Act of 2013

FIRST

ISSUED:

March 23, 2016

REVISED &

REISSUED: September 4, 2020

I.

Purpose of Bulletin and Revisions

The purpose of the March 23, 2016 version of this Bulletin was to provide guidance

regarding implementation of the Delaware Gender Identity Nondiscrimination Act of 2013 (S.B.

97; 79 Del. Laws Ch. 47) (the Gender Identity Nondiscrimination Act), which was signed into law

on June 19, 2013.

The purpose of revising and reissuing this Bulletin is to:

• Reinforce that the Gender Identity Nondiscrimination Act continues to apply to

prohibit discrimination in the provision of insurance in any way based on an

individual’s gender identity; and

• Confirm that, notwithstanding the issuance of a Federal Final Rule discussed

below (the 2020 Rule), the Department interprets Section 1557 of the Patient

Protection and Affordable Care Act (ACA) to prohibit discrimination on the basis

of an individual’s gender identity

to apply to

prohibit discrimination in the provision of insurance in any way based on an

individual’s gender identity; and

• Confirm that, notwithstanding the issuance of a Federal Final Rule discussed

below (the 2020 Rule), the Department interprets Section 1557 of the Patient

Protection and Affordable Care Act (ACA) to prohibit discrimination on the basis

of an individual’s gender identity.

Accordingly, the Department will continue to hold regulated persons and entities

accountable for maintaining nondiscriminatory policies or practices, and to require them to make

coverage determinations on a nondiscriminatory basis.

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II.

Non-discrimination provisions in Delaware’s Insurance Code

The Gender Identity Nondiscrimination Act added nondiscrimination protections to two

provisions of the Delaware Insurance Code. When these amendments are read together, they

unequivocally prohibit the denial, cancellation, termination, limitation, refusal to issue or renew,

or restriction, of insurance coverage or benefits thereunder on the basis of a person’s gender

identity or transgender status, or because the person is undergoing gender transition:

• Section 2304(22) of the Unfair Trade Practices Act, 18 Del.C. Ch. 23, as amended by

the Gender Identity Nondiscrimination Act makes it an unlawful practice for any

insurance company licensed to do business in Delaware to discriminate in any way

based on an individual’s gender identity

a person’s gender

identity or transgender status, or because the person is undergoing gender transition:

• Section 2304(22) of the Unfair Trade Practices Act, 18 Del.C. Ch. 23, as amended by

the Gender Identity Nondiscrimination Act makes it an unlawful practice for any

insurance company licensed to do business in Delaware to discriminate in any way

based on an individual’s gender identity. The Gender Identity Nondiscrimination Act

defines “gender identity” to mean “a gender-related identity, appearance, expression or

behavior of a person, regardless of the person’s assigned sex at birth;” and

• Section 2304(13)(b) of the Unfair Trade Practices Act prohibits unfair discrimination

between individuals of the same class and of essentially the same hazard in the amount

of premiums, policy fees or rates charged for any policy or contract of health insurance

or in the benefits payable thereunder, or in any of the terms or conditions of such

contract, or in any other manner whatsoever.

These provisions apply to both the availability of health insurance coverage and to the

provision of health insurance benefits.

III.

The Federal Affordable Care Act, the 2016 Rule and the 2020 Rule

Section 1557 of the ACA, Pub. L. No. 111-148, 124 Stat. 119 (codified at 42 U.S.C. §§

18001-18122 (2010)), prohibits discrimination on the basis of sex in any health program or activity

receiving federal funds or that the United States Department of Health and Human Services (HHS)

administers, or by any entity established under the ACA, including health insurance marketplaces

and all health insurance plans offered by insurers that participate in those marketplaces.

In 2016, HHS issued guidance and a subsequent final rule under Section 1557 of the ACA

(the 2016 Rule) confirming that the sex nondiscrimination protections of such section of the ACA

encompass protection against discrimination on the basis of gender identity and sex stereotypes

h insurance marketplaces

and all health insurance plans offered by insurers that participate in those marketplaces.

In 2016, HHS issued guidance and a subsequent final rule under Section 1557 of the ACA

(the 2016 Rule) confirming that the sex nondiscrimination protections of such section of the ACA

encompass protection against discrimination on the basis of gender identity and sex stereotypes.

The 2016 Rule established comprehensive anti-discrimination protections in HHS’s Section 1557

implementing regulations that are coextensive with Delaware’s anti-discrimination protections and

created a federal enforcement scheme to counter discrimination in the health care context that

operated in parallel to Delaware’s enforcement schemes.

Thereafter, on June 19, 2020, HHS published the 2020 Rule, entitled Nondiscrimination in

Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,

160 (June 19, 2020) (to amend and be codified at 45 C.F.R. pt. 92) which:

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• Purports to strip health care rights statutorily guaranteed by Section 1557 from

transgender people, women and other individuals seeking reproductive health care or

with pregnancy-related conditions, LEP individuals, individuals with disabilities, and

other individuals experiencing discrimination (due to the narrowed scope of coverage

of insurance plans); and

• Newly exempts many private employer-based plans, Medicare Part B plans, and the

Federal Employee Health Benefits program from Section 1557’s scope, except with

respect to plans such insurers offer on the ACA exchange or that receive federal

funding, like Medicaid plans

ilities, and

other individuals experiencing discrimination (due to the narrowed scope of coverage

of insurance plans); and

• Newly exempts many private employer-based plans, Medicare Part B plans, and the

Federal Employee Health Benefits program from Section 1557’s scope, except with

respect to plans such insurers offer on the ACA exchange or that receive federal

funding, like Medicaid plans.

Although some may interpret the 2020 Rule to allow regulated persons and entities to roll

back or reduce certain nondiscrimination protections they previously understood to be required by

the ACA, this Bulletin reiterates that discrimination in any way on the basis of gender identity or

sex stereotypes in the provision of insurance is illegal in Delaware because of the protections

afforded Delawareans by the Gender Identity Nondiscrimination Act and Section 1557 of the

Affordable Care Act.

Two recent Court decisions inform the Department’s position:

1) The United States Supreme Court confirmed in Bostock v. Clayton County, 140 S. Ct.

1731 (2020), that the prohibition on sex discrimination under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. prohibits discrimination based on sexual

orientation or gender identity because “it is impossible to discriminate against a person

for being homosexual or transgender without discriminating against that individual

based on sex.”

2) Following the Bostock ruling, the United States District Court for the Eastern District

of New York granted a stay of the repeal of the portions of the 2016 Rule, and enjoined

the portions of the 2020 Rule relating to discrimination on the basis of sex, finding that

such portions of the 2020 Rule are “contrary to Bostock and, in addition, that HHS did

act arbitrarily and capriciously in enacting them.” Accordingly, the court granted

plaintiffs’ application for a stay and preliminary injunction to preclude such portions

of the 2020 Rule from becoming operative and enforceable. See Walker and Gentili v

ng to discrimination on the basis of sex, finding that

such portions of the 2020 Rule are “contrary to Bostock and, in addition, that HHS did

act arbitrarily and capriciously in enacting them.” Accordingly, the court granted

plaintiffs’ application for a stay and preliminary injunction to preclude such portions

of the 2020 Rule from becoming operative and enforceable. See Walker and Gentili v.

Azar, Case No. 20-CV-2834 (FB)(SMG) (August 17, 2020).

IV.

Discrimination on the basis of gender identity continues to be illegal in Delaware

The Department continues to interpret the above provisions of Federal and State law to:

• Prohibit the denial, cancellation, termination, limitation, refusal to issue or renew, or

restriction, of insurance coverage or benefits thereunder because of a person’s gender

identity or transgender status, or because the person is undergoing gender transition.

This includes the availability of health insurance coverage and the provision of health

insurance benefits;

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• Prohibit insurance companies from denying, excluding, or otherwise limiting coverage

for medically necessary services, as determined by a medical provider in consultation

with the individual patient, based on the individual patient’s gender identity if the

service would be covered for another individual under such contract of insurance;

• Qualify as a violation of the Unfair Trade Practices Act any blanket policy exclusion

for gender dysphoria, gender identity disorder, medically necessary surgeries or other

treatments related to gender transition or related services because it is discrimination

based on gender identity, including blanket policy exclusions that would exclude

medically necessary treatments related to gender transition because they are not

approved for that specific use by the United States Food and Drug Administration; and

• Qualify as a violation of the Unfair Trade Practices Act the imposition of different

premiums or rates for insurance coverage based on an insured’s gender

gender identity, including blanket policy exclusions that would exclude

medically necessary treatments related to gender transition because they are not

approved for that specific use by the United States Food and Drug Administration; and

• Qualify as a violation of the Unfair Trade Practices Act the imposition of different

premiums or rates for insurance coverage based on an insured’s gender identity.

Benefits for conditions related to an insured’s gender identity should be available on

an equivalent basis as coverage provided for any other health condition by basing

coverage decisions on medical necessity, as determined by a medical provider in

consultation with the individual patient, and not based on a person’s gender identity.

This assures that insureds have equal access to benefits under a contract of insurance

regardless of their gender identity.

The Department further expects that determinations of medical necessity, eligibility, and

prior authorization requirements for diagnoses related to an insured’s gender identity will continue

to be based on current medical standards established by nationally recognized transgender health

medical experts. The failure to recognize such standards in making such determinations qualifies

as a violation of the Unfair Trade Practices Act.

The requirements of this Bulletin also apply to qualified health plans offered through

Delaware’s Health Insurance Marketplace operated through the Federally Facilitated Exchange

State Partnership Option under the ACA, and to plans offering Essential Health Benefits in

accordance with Delaware’s Essential Health Benefits benchmark.

The Department specifically notes that Delaware’s Essential Health Benefits benchmark

plan for plan years 2016-2020 contains an exclusion for surgical benefits for “change of sex

surgery,” except to correct a congenital defect

ed Exchange

State Partnership Option under the ACA, and to plans offering Essential Health Benefits in

accordance with Delaware’s Essential Health Benefits benchmark.

The Department specifically notes that Delaware’s Essential Health Benefits benchmark

plan for plan years 2016-2020 contains an exclusion for surgical benefits for “change of sex

surgery,” except to correct a congenital defect. Insurers should not consider that benchmark to

supersede this Bulletin or State law and the Department reiterates, as stated elsewhere in this

Bulletin, that such a blanket exclusion constitutes a violation of the Unfair Trade Practices Act.

The Department will continue to take administrative or legal action against any insurance

company licensed to do business in Delaware that fails to comply with the Unfair Trade Practices

Act, as amended by the Gender Identity Nondiscrimination Act, or other State law.

As of the date this Bulletin first became effective, new insurance policy forms filed by

insurers will be disapproved by the Department if they exclude or limit coverage based on an

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insured's gender identity. Provisions of other Delaware laws regarding procedures and processes

for appeal and review of denials of coverage, benefits, or adverse determinations apply.

The Department will not be promulgating a regulation to implement the Gender Identity

Nondiscrimination Act at this time. This Bulletin and the enacted statutory provisions shall provide

adequate guidance for compliance.

Any questions, comments, or requests for clarification about this bulletin should be emailed

to consumer@delaware.gov.

This Bulletin shall be effective immediately and shall remain in effect unless withdrawn or

superseded by subsequent law, regulation or bulletin.

Trinidad Navarro

Delaware Insurance Commissioner