By Lindsey Dawson, Matthew Rae, and Jennifer Kates
KFF, November 30, 2020
Background
The legal and policy landscape regarding protections based on sexual orientation and gender identity in health care and other areas has shifted markedly in the last decade. Most recently, on June 15, 2020 in Bostock vs. Clayton County, the Supreme Court of the United States ruled that, under Title VII of the Civil Rights Act of 1964, it is unlawful sex discrimination for an employer (with at least 15 employees) to fire an employee because of their sexual orientation or gender identity. It is likely that this ruling will have implications for employers’ decisions regarding health insurance coverage for employees with same-sex spouses, among other areas of employment.
Conclusion
These findings indicate that access to employer coverage for same-sex spouses is increasing in the U.S., though it still is less than access to opposite sex spousal coverage. Coverage varies substantially by employer size, with employees at small firms having less access while those at the largest firms have almost uniform access to this benefit. In some cases, lack of access could be a policy decision, though that appears to be on the decline, with smaller shares of firms saying explicitly that they do not offer same-sex spousal coverage. Moreover, it is likely that the Bostock decision will have further implications for same-sex spousal coverage, with more firms being required to offer this benefit under the sex protections in Title VII. However, Title VII nondiscrimination protections do not apply to the 5% of employees at firms with less than 15 employees. Further, the Bostock court cautioned that employers could potentially secure religious liberty exemptions from extending sex protections to encompass sexual orientation and gender identity and it is yet to be seen how such exemptions interact with Title VII.
Comment:
By Don McCanne, M.D.
Most people agree that everyone should have health care coverage, but there is considerable disagreement on the role that government should play in ensuring coverage for all. In today’s example, coverage for same-sex spouses is not assured in employer-sponsored plans. Why should we have any policies that would exclude individuals from coverage if the goal is to cover everyone?
Tens of millions of Americans do not have health care coverage today, not to mention tens of millions more who have inadequate coverage. We can fix this with one single policy: cover absolutely everyone with a national health program – a single payer improved Medicare for All.
Why do we keep beating around the bush? Let’s do it.
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