Employer's Religious Refusal to Cover Gender Dysphoria in Its Health Plan May Violate Title VII, But Not ADA

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....

Federal Court Certifies to Michigan Supreme Court Questions on Michigan's Abortion Discrimination Ban

In Right to Life of Michigan v. Nessel, (WD MI, July 10, 2026), two pro-life organizations, Right to Life of Michigan and Pregnancy Resource Center, brought a 1st Amendment challenge to 2023 amendments to Michigan's Elliot-Larsen Civil Rights Act. Among other things, those amendments expanded the definition of sex discrimination to include discrimination on the basis of the termination of a pregnancy. The state moved to dismiss the complaint claiming that there is no realistic threat of enforcement against these organizations. The court, in a 63-page opinion, concluded that whether there is a realistic threat of enforcement depends on how several provisions of the Act are interpreted. Therefore, it certified to the Michigan Supreme Court five interpretive questions on the applicability of the Act to organizations like plaintiffs.

The court said in part:

Defendants argue that ELCRA is narrow; in their view, the statute only prohibits discrimination against employees whose “medical history includes an abortion.”.... 

Plaintiffs, on the other hand, argue that ELCRA is broad. In their view, the statute not only prohibits adverse action based on the employee’s decision to terminate a pregnancy but rather extends as far as protecting employees that “advocat[e] on behalf of someone else’s right to” terminate a pregnancy..... Effectively, then, the statute would prohibit them from taking any adverse action against anyone who expresses pro-choice beliefs.  

The questions that the court certified include whether the Act prohibits pro-life organizations from refusing to recruit, hire or employ, or recruit as volunteers, not only those who have had an abortion, but also those who advocate for abortion; those who associate with people who have received an abortion; or those who express pro-choice viewpoints? It also asked the same questions as to the ban on discrimination by public accommodations. Finally, it asks about excluding abortion coverage from health care packages.

The court issued a preliminary injunction to preserve the status quo while the Michigan Supreme Court is considering the certified questions. The court observed:

If the Michigan Supreme Court concludes that ELCRA covers all of Plaintiffs’ conduct, they are likely to succeed on the merits of their expressive association claim....

If the Michigan Supreme Court finds that ELCRA does not apply to plaintiffs’ conduct, Plaintiffs still achieve a favorable result....

Michigan Advance reports on the decision.

EEOC Says Federal Agencies May Base Restroom Access on Biological Sex

 In a February 26 press release, the EEOC announced:

The U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 today to approve a federal sector appellate decision adjudicating an appeal regarding access to intimate spaces, including bathrooms and locker rooms, in federal workplaces under Title VII of the Civil Rights Act of 1964, as amended....

 “Today’s opinion is consistent with the plain meaning of ‘sex’ as understood by Congress at the time Title VII was enacted, as well as longstanding civil rights principles: that similarly situated employees must be treated equally,” said EEOC Chair Andrea Lucas. “When it comes to bathrooms, male and female employees are not similarly situated. Biology is not bigotry.”

When adjudicating appeals of alleged employment discrimination in the federal sector, the EEOC applies longstanding precedent, including relevant Supreme Court decisions, to the facts of the case. In this case, however, such precedent does not exist, as federal courts have not determined whether Title VII requires employers to permit trans-identifying employees to access bathrooms and other intimate spaces otherwise reserved for the opposite sex. In the absence of authoritative court precedent, the EEOC used the traditional tools of statutory construction, turning first to the ordinary meaning of the statute’s text and ensuring that the decision is further anchored by the Supreme Court’s precedents in comparable areas of law.

In applying the traditional tools of statutory construction, the EEOC found that Title VII permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces; and permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite sex-facilities. Today’s opinion overturns a prior EEOC federal sector appellate decision (Lusardi v. Department of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (2015)) with respect to the portion of that opinion addressing a federal employee’s access to an opposite-sex bathroom based on “gender identity.”

As with all of the EEOC’s appellate decisions adjudicating federal agency employment discrimination complaints, this decision applies only to federal agencies subject to the EEOC’s administrative complaint process for federal employees. It does not apply to private sector employers, nor does it bind any federal court.

The Agency's action approved a 23-page Federal Sector Appellate Decision, Selina S. v. Driscoll, (EEOC Federal Sector Appeal, Feb. 26, 2026), a case brought by a civilian employee of the Army.

9th Circuit Remands Discrimination Suit Against Third-Party Health Plan Administrator

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.

UK Supreme Court Interprets Meaning of "Sex" In UK's Equality Act as Biological Sex

In For Women Scotland Ltd. v. The Scottish Ministers, (UK SC, April 16, 2025), the United Kingdom Supreme Court held that considering the interaction of the Gender Recognition Act 2004 with the Equality Act 2010, the terms "woman", "man", and "sex" in the Equality Act refer to biological sex.  The Equality Act gives separate protection to persons who have undergone or are proposing to undergo sexual reassignment. The court explains the limited question it is deciding:

24. ... [A] person who is aged at least 18 can apply for a GRC [Gender Reassignment Certificate] under the GRA 2004. Section 9(1) of that Act provides that when a full GRC is issued to a person the person’s gender becomes “for all purposes” the acquired gender so that if the acquired gender is the female gender, the person’s sex becomes that of a woman....

25. The central issue on this appeal is whether references in the EA 2010 to a person’s “sex” and to “woman” and “female” are to be interpreted in the light of section 9 of the GRA 2004 as including persons who have an acquired gender through the possession of a GRC. 

26. The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex. This appeal addresses the position of the small minority of trans people who possess a full GRC....

The court summarized its ruling in part as follows:

265.... (xii) Gender reassignment and sex are separate bases for discrimination and inequality. The interpretation favoured by the EHRC and the Scottish Ministers would create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a GRC [Gender Reassignment Certificate] greater right than those who do not. Those seeking to perform their obligations under the Act would have no obvious means of distinguishing between the two sub-groups to whom different duties were owed, particularly since they could not ask persons whether they had obtained a GRC.... 

(xiii) That interpretation would also seriously weaken the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations.... 

(xiv) There are other provisions whose proper functioning requires a biological interpretation of “sex”. These include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and others.... 

(xv) Similar incoherence and impracticability arise in the operations of provisions relating to single-sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty, and the armed forces....

The UK Supreme Court also issued a 4-page Press Summary of the Court's 88-page Opinion. And CBS News reports on the decision.

Ecclesiastical Abstention Doctrine Requires Dismissal of Sex Discrimination Claim by Pastor Applicant

In Turman v. Abyssinian Baptist Church, (SD NY, March 31, 2025), a New York federal district court held that the ministerial exception doctrine requires dismissal of a state-law sex discrimination and breach of contract suit in which plaintiff contends that she was not advanced to the final round of the application process to become a senior pastor because she is a woman. The court rejected plaintiff's claim that the church had waived the ministerial exception defense when it included a non-discrimination statement in the notice and job description for the senior pastor position. The court said in part:

To be sure, one might question the propriety of an organization holding itself out as an equal opportunity employer and reaping the public relations benefits of that self-description, only to turn around and say that it is immune from liability under antidiscrimination statutes when someone alleges that the organization has unlawfully discriminated.  But in this case specifically, mindful of the presumption against waiver and having carefully evaluated the antidiscrimination statement on the job posting, the Court concludes that the statement on the job posting does not clearly demonstrate that Abyssinian waived its First Amendment rights....

... [E]mployment discrimination claims against churches require special solicitude.  By their very nature, these claims routinely pose a substantial entanglement concern.  Accordingly, courts routinely apply the ministerial exception to bar them at the motion to dismiss stage....

... There is no way for this Court to resolve Dr. Marshall Turman’s employment discrimination claim without becoming entangled with Abyssinian’s ecclesiastical innerworkings....

Dr. Marshall Turman “cannot evade the ministerial exception by asserting a contract claim based upon the same underlying facts as her statutory discrimination claims,”....  The ministerial exception, therefore, bars Dr. Marshall Turman’s contract claim, and it is dismissed....

Dr. Marshall Turman also seeks to hold Grant, as the chairperson of the Pulpit Search Committee, individually liable for employment discrimination....  But because the ministerial exception prevents this employment discrimination suit from proceeding against Abyssinian, it also requires this Court to dismiss the claims against Grant.  That is, because the First Amendment prohibits religious organizations from being sued under antidiscrimination laws regarding ministerial roles, it similarly prohibits those organizations’ agents from being sued under the same laws.....