Blue Cross Blue Shield

Anthem Blue Cross and Blue Shield refuses to pay for gender-conversion surgery for a Cincinnati library employee, saying it is not covered under the library's policy, according to a lawsuit.

(John Kuntz, cleveland.com)

WASHINGTON -- A Cincinnati woman today sued the Cincinnati public library and the corporate parent of Anthem Blue Cross and Blue Shield for refusing to cover her sex-reassignment surgery.

The insurer's refusal violates the Affordable Care Act's guarantee of coverage for medically necessary treatment, and the employer's requirement under federal law to treat employees equally, regardless of gender, says Rachel Dovel's lawsuit, filed in U.S. District Court in Cincinnati.

If the case proceeds, it could be the first establishing or denying an insurer's requirement to cover transgender surgery under the Affordable Care Act, better known as Obamacare.

There has been other litigation over other transgender rights, however. Those include a legal settlement that established a right for some California inmates to get state-paid gender-conversion surgery. Local government-based requirements for schools to honor students' gender identity in bathroom choice are working their way through courts across the country.

"We may be the first because most insurers and most employers cover the service," said Jennifer Branch, a partner at Gerhardstein & Branch, a Cincinnati law firm that handles civil liberties cases exclusively. The firm's other clients have included Jim Obergefell, whose demand that his gay marriage be legally recognized helped establish gay marriage rights across the country with a landmark 2015 U.S. Supreme Court decision.

Chris Rice, a representative of the Public Library of Cincinnati and Hamilton County, declined comment, saying he had not seen the court filing and could not discuss a matter in litigation. But Anthem Blue Cross and Blue Shield said in a statement late Monday that the company fully complies with Obamacare's requirements, suggesting any denial of coverage for Dovel's surgery was a result of the library's insurance-buying decisions.

"We're sensitive to the issues raised by Ms. Dovel in this case," said Anthem spokesman Jeff Blunt. "All of Anthem's health plans are fully compliant with the Affordable Care Act and they have been reviewed and approved by appropriate state regulators. As is the industry standard, coverage for transgender surgery is available as an optional rider, or add-on coverage, that employers may purchase."

Here's what the case is about.

The background:

Dovel, 34, was born male and had the name Nathan until after a diagnosis in 2014 of gender dysphoria, or severe and unremitting emotional pain due to incongruity with the sex assigned or assumed at birth, according to the lawsuit.

She began hormone therapy, which was covered by insurance, and started changing her outward appearance. In 2015, she changed her name from Nathan Bradley Dovel to Rachel Katrina Dovel.

To that point, the library treated her well, said Dovel, a 2005 University of Toledo graduate who works in the library's catalog and processing department. But the library, where she has worked nearly 11 years, balked when it came to the next stage of Dovel's treatment.

The insurer's and employer's decision:

Her doctors said sex-reassignment surgery was medically necessary to treat her gender dysphoria, the lawsuit says. But Anthem Blue Cross Blue Shield, the public name of the corporate entity Community Insurance Company, said sex-reassignment surgery is not covered under the library's group policy.

Dovel learned "that the library's insurance policy allows coverage for surgical procedures when medically necessary but categorically excludes "[s]ervices and supplies related to sex transformation and/or the reversal thereof . . . regardless of origin or cause," the lawsuit says.

Dovel appealed to the library's board of trustees and asked the board to update its coverage with a rider to its insurance policy. The board's minutes show that in June, the trustees voted not to.

The medical rationale:

If Dovel had needed foot surgery instead, the insurer and employer would have covered it, Dovel said in a phone interview from her lawyers' offices.

And the library's policy would cover an orchiectomy for a non-transgender male employee who was diagnosed with testicular cancer, or a vaginoplasty for a non-transgender female employee who was diagnosed with Mayer-Rokitansky-Kuster-Hauser syndrome, the lawsuit says.

Surgery to treat gender dysphoria is necessary too, Dovel and her lawyers said. "The sex reassignment surgery is a procedure that is both medically necessary and consistent with well-established standards of care for the treatment of gender dysphoria," the lawsuit says.

Dovel told cleveland.com that "I just want the library to support its queer employees. Specifically, I would like the library to support its trans employees by recognizing that we have legitimate medical needs and they should be treated fairly."

The alleged rights violations:

Failing to do so violates federal employment anti-discrimination law, the lawsuit says, because the law forbid discrimination in compensation, terms, conditions, or privileges of employment.

It also violates Dovel's constitutional right to equal protection under the 14th Amendment, and it violates the Affordable Care Act, the lawsuit says. That's because Obamacare prohibits discrimination in any health program that receives federal money.

Anthem sells Obamacare health insurance policies in Ohio and receives federal compensation. Therefore, its treatment of patients under employer-provided policies is covered under that law, the lawsuit says.

What's next:

Dovel has scheduled surgery in November at the Pappillon Gender Wellness Center near Philadelphia. She said the costs of her surgery will be about $21,000, not counting travel and room and board, and she'll face considerable debt if the insurer and library don't change their minds.

They have 60 days to respond to the lawsuit.

Dovel wants a jury trial, compensatory damages and a court order than bans the library from maintaining insurance coverage that denies transition-related care. She also wants the court to ban Anthem from selling such coverage.