In Bernier v. Turbocam, Inc., (D NH, Sept. 28, 2026), Lillian Bernier, a transgender woman, sued her employer because the company refused to provide coverage in its health plan for gender-affirming care. The president of the company and his wife are evangelical Christians who operates the company according to their religious tradition. That includes a belief that a person's sex is ordained by God and that it should not be obscured through medical treatment. The court dismissed plaintiff's claim of disability discrimination under the Americans with Disabilities Act because the Act excludes from its definition of "disability" gender identity disorders not resulting from physical impairments. However, the court refused to dismiss plaintiff's Title VII sex discrimination claim, saying in part:
Bernier argues that Turbocam adopted the exclusion (and decided not to modify it for her) because of Turbocam’s discriminatory, sex-based animus....
The record here is sufficient for a jury to find that Bernier’s sex is a but-for cause of Turbocam’s refusal to cover the care she seeks. Turbocam states that it adopted the exclusion, declined to modify it, and refused to grant Bernier an exception from it based on Turbocam’s moral disapproval of Bernier’s effort to obscure or change her sex. Further, there is evidence from which a jury could find that Turbocam’s owner harbored personal animus toward Bernier because of her transgender status....
Turbocam contends that, even if a reasonable jury could find that Bernier carried her burden of showing a Title VII violation, Turbocam is nevertheless entitled to summary judgment on Bernier’s Title VII claim because a jury would find in Turbocam’s favor on its RFRA defense.. Bernier responds that RFRA is inapplicable to lawsuits between private parties. The court agrees with Bernier, as do most of the Courts of Appeals to have considered the issue...
Because Bernier sued only after the United States Equal Employment Opportunity Commission (EEOC) issued her a right-to-sue letter, Turbocam contends that the EEOC has effectively delegated governmental enforcement authority to Bernier such that she is for all intents and purposes the “government” under RFRA.... The court is not persuaded. As a matter of law, the EEOC’s “[m]ere approval” of Bernier’s right to initiate a lawsuit does not convert Bernier into a state actor.....
Turbocam asserts that, even if it may not raise RFRA as a defense to Bernier’s Title VII claim, it may raise a defense under the Free Exercise Clause of the First Amendment. Turbocam cites no case in which a court has permitted an employer (other than a church or religious institution) to raise the Free Exercise Clause as a defense in an employment discrimination suit brought by a private plaintiff. Even assuming such a defense is available in this case, Turbocam agrees that it is subject to the test articulated by the Supreme Court in Smith.
Smith held “that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’”
...Title VII is a neutral law of general applicability.
While Bernier claims that Turbocam admits it has denied coverage to her because Turbocam opposes gender-affirming care, a reasonable jury could conclude that this does not reflect an intent to discriminate against Bernier because she is transgender.... Moreover, while there is evidence of transgender-based animus in the record, it is also undisputed that Turbocam accommodated Bernier’s name change and addressed another employee’s harassment to Bernier’s satisfaction. Construing the evidence in the light most favorable to the nonmovant, a reasonable jury could find for Turbocam on Bernier’s Title VII claim....
