Can Your Boss Tell Your Spouse 'Tough Luck' on Healthcare?

A small reminder on the ongoing need for equality outside the Provincetown HRC store.

Managed Care Magazine recently published an article on employer-sponsored health insurance and same-sex couples. The piece noted that in the wake of the Supreme Court's decision to legalize same-sex marriage nationwide, insurers must recognize the same-sex spouses of beneficiaries. However, author Joseph Burns contends, this does not mean that employers must offer these benefits to employees in same-sex marriage at all.

In other words, a boss can tell employees in an opposite-sex marriage that their spouse is eligible for benefits, but deny those benefits to employees in same-sex marriages.

True? Probably. If the absurdity of the Kentucky court clerk denying same-sex couples marriages licenses teaches us anything, it's that even when something seems pretty obviously unconstitutional, there are always stubborn individuals who will try it anyway.

So an employer certainly could give opposite-sex spouses of employees benefits and not same-sex spouses. But the latter group of employees would probably sue, and they'd probably (eventually) win.

There is growing case law (the most recent from the Equal Employment Opportunity Commission) supporting the idea that existing laws banning sex discrimination at work should apply to instances of discrimination based on sexual orientation. And there are a number of theories that lead to this conclusion, such that even though not all will work in every court, the chances of winning these cases are growing.

Under some courts' reasoning, if an employer would give spousal benefits to a guy named Joe's partner Jane, but would not do so if Joe was a woman, that's straightforward discrimination on the basis of sex. Some courts are also recognizing that, since sex stereotyping is also illegal under Supreme Court precedent, discrimination on the basis of sexual orientation is illegal on this theory, too. It's a centuries-old stereotype that men should be partnered with women, and women should be partnered with men, so employers who make policies based on this stereotype are thus breaking the law.

But until these cases make their way through the courts - or Congress just passes a direct law to ban discrimination against LGBT people -- there will still be uncertainty in these issues.

The Obama administration can do more to make sure same-sex couples get access to care. In the five years since Congress passed the Affordable Care Act, the administration has yet to get its act together and issue regulations to define what "sex-based discrimination" means in Section 1557 of the law.

I first broke the news back in April 2014 that the Department of Health and Human Services intended to deny gays, lesbians, and bisexuals equal protection under this regulation. Some in the "Big Gay" industry were quick to jump to their defense. Interviewed by the Huffington Post, a spokesperson for the National Center for Lesbian Rights who recently took a job with the administration said that this was "reflects our interpretation" of how the regulations would turn out. It certainly felt like a slap in the face (and a pandering to their friends at HHS) for those of us who were pushing for equality under a legal theory that has been increasingly embraced by the courts.

As the clock ticks down on the Obama administration and its mixed record of courage on LGBT issues, those in our community are left to wonder if some of these legal questions will be answered in our favor by the time a new administration takes office in January 2017. Then again, maybe we're better off waiting.

You can learn more about your rights with respect to healthcare with the Healthcare Bill of Rights project.

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