In Pritchard v. Blue Cross Blue Shield of Illinois, (9th Cir., Nov. 17, 2025), the U.S. 9th Circuit Court of Appeals remanded to the district court a suit contending that Blue Cross, when acting a third-party administrator for a health care plan of a religious organization, is liable under the anti-discrimination provisions of the Affordable Care Act for enforcing the employer's religious-based exclusion of coverage for gender dysphoria. The court held that ERISA does not require plan administrators to administer terms of the plan that are illegal. It also held that Blue Cross cannot not invoke RFRA as a defense because neither its religious exercise, nor that of its employees, officers or shareholders are impacted by its paying for treatment for gender dysphoria. Also, it held that RFRA does not apply to suits in which the government is not a party. However, the court remanded the case so that the district court could reconsider whether the policy exclusions discriminate on the basis of sex in light of the Supreme Court's recent decision in United States v. Skrmetti.
Judge Rawlinson filed a concurring opinion saying in part:
... I part company with the majority’s analysis that goes beyond a discussion of the Supreme Court’s holding in Skrmetti and a remand for the district court to apply Skrmetti in the first instance.
Out Smart reports on the decision.
