Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—D.N.H.: Employer fails in bid to exclude expert’s gender dysphoria-related testimony, (Jan 9, 2026)

By Kathleen Kapusta, J.D.

The employer argued, among other things, that the expert’s qualifications were insufficient because she is not a medical doctor and does not have a bachelor’s degree in biology.

A manufacturing employer was denied its motion to exclude certain expert testimony offered by its employee, a transgender woman, in her lawsuit alleging claims under Title VII and the ADA based on the employer’s refusal to provide her with health insurance coverage for gender-affirming care. The federal court in New Hampshire found the expert, a licensed clinical and forensic psychologist, was qualified even though she was not a medical doctor, her opinions were reliable despite having never examined or met with the employee, and those opinions could help a jury better understand gender dysphoria (Bernier v. Turbocam, Inc., No. 23-cv-523-LM-AJ (D.N.H. Jan. 7, 2026)).

The employee began working for the manufacturer of flow path components for the aerospace and turbo machinery industries in June 2019. A little over a year later, the employee, who had been born with male sexual anatomy, began presenting as a woman in public, changed her legal name to Lillian, started hormone therapy, and updated her driver’s license to reflect her new name and gender identity.

Change in health insurance plans. At the time she began receiving hormone therapy in late 2020, the employer’s health insurance plan covered transgender health services. In January 2021, however, it switched to a self-funded plan. In determining the plan’s scope of coverage, the employer decided to align it with its mission statement, which provides that the company “exists as a business for the purpose of honoring God, creating wealth for its employees, and supporting Christian service to God and people” and that “we hold ourselves accountable to God’s law expressed in the Bible.”

Exclusion for gender dysphoria treatment. Accordingly, the self-funded plan excluded coverage for “Gender dysphoria treatment, including but not limited to, counseling, gender reassignment surgery or hormone therapy and related preopoerative [sic] and postoperative procedures, which, as their objective, change the person’s sex and any related complications.” This exclusion, the company owner explained, was because “male and female” are “immutable” and “God will not allow the use of Turbocam’s resources, including its health plan, to assist employees in erasing or obscuring their sex.”

The employee learned of the exclusion in October 2021 when she called the company’s claims administrator regarding a scheduled vaginoplasty consultation. When the company refused to grant her an exception from the exemption, she cancelled the consultation. The company also denied her request to cover mental health counseling for gender dysphoria.

Expert report. In her subsequent lawsuit asserting claims under Title VII and the ADA, the employee retained the services of an expert, a licensed clinical and forensic psychologist who specializes in the diagnosis, treatment, and management of people with gender dysphoria. In her expert report, she opined that gender dysphoria has a physiological and biological basis, pointing to evidence that transgender women have brain compositions that differ from cisgender men and women. She also noted scientific studies showing a co-occurrence of gender dysphoria in families, with an especially high rate of co-occurrence among identical twins, “even when reared apart.” Further, she stated, the scientific and medical community believes that gender dysphoria is caused by hormonal discrepancies during the intrauterine sexualization periods of the brain and genitals.

She also discussed the necessity of various medical and surgical treatments for gender dysphoria, explaining that without treatment, gender dysphoric individuals may experience a range of potentially debilitating psychological symptoms, including suicidality.

Qualified. Moving to exclude the expert’s opinion that the employee’s gender dysphoria “is a physiological condition that results from a physical impairment” and “hormonal and surgical treatments, including those treatments [the employee] has received or wants to receive, are medically necessary to treat [her] gender dysphoria,” the employer first argued that she was unqualified to offer them. Disagreeing, the court noted that she has written portions of medical texts regarding the etiology of gender dysphoria, has participated in research regarding the same, and has substantial experience and familiarity with the research methodology underlying the studies supporting the existence of gender dysphoria’s physiological etiology.

She has also helped author standards of care for the treatment of gender dysphoria and has treated over 3,000 transgender patients. While the employer pointed to the fact that she is not a medical doctor and does not have a bachelor’s degree in biology, the court explained that it could consider her full range of practical experience and academic training and a medical degree is not always a prerequisite for offering medical testimony. And here, said the court, she “has substantial experience, training, and knowledge with respect to the etiology and treatment of gender dysphoria, and her lack of a medical degree, or a bachelor’s in biology, does not preclude her from offering opinion testimony on these subjects.”

Reliability. The employer next argued that the expert’s opinions were unreliable because she relied on a “cherry-picked” selection of “outdated and weak” studies with small sample sizes while ignoring new studies using more reliable methods that arrive at conclusions undermining her own conclusions. But that critique, said the court, goes to the weight of her testimony, not its admissibility. Further, the court was satisfied that her “opinion on the etiology of gender dysphoria was based on a principled view, understanding, and synthesis of a sufficient quantity of peer-reviewed medical and scientific studies and publications.”

Nor was the court persuaded by the employer’s contention that the expert mischaracterized and exaggerated the studies upon which she relied. For example, the employer pointed out, while she claimed that one study she cited found a 33 percent likelihood of both twins being transgender even when reared apart, she failed to note that this figure related only to male identical twins and failed to acknowledge that for female identical twins, the likelihood of both being transgender was 23 percent. Once again, the court found these critiques went to her “preciseness” and “credibility,” not to the admissibility of her testimony.

As to the employer’s assertion the expert could not reliably opine on the necessity of medical treatment for the employee because she never examined or met with her, the court noted that her report did not opine on the necessity of any medical treatments for the employee specifically but rather stated her understanding that the employee was receiving specified treatments and explained what these treatments generally accomplish for gender dysphoric individuals.

Relevance. Finally, the court rejected the employer’s claim the expert’s opinions on the etiology and treatment of gender dysphoria should be excluded because they are irrelevant to any issue in the case. Specifically, it argued that her opinion on the physiological or biological basis for gender dysphoria is irrelevant to whether the employee’s gender dysphoria is a “physical... impairment” as that phrase is used in the ADA and her opinion on the proper treatment on gender dysphoria generally is irrelevant because she cannot opine on whether the employee requires any particular medical treatment.

But her opinion on how various medications and procedures treat gender dysphoria, said the court, may help the jury to understand the employee’s specific course of treatment even if the expert offers no opinion as to whether the employee’s providers were correct in setting up her specific treatment regime. In addition, the court continued, her opinion on the cause of gender dysphoria can help the jury better understand that condition even if it does not definitively prove that the employee’s gender dysphoria is a physical impairment within the meaning of the ADA. For all of these reasons, the court denied the employer’s motion to exclude.

The case is No. 23-cv-523-LM-AJ.

Judge: McCafferty, L.

Attorneys: Bennett H. Klein (GLBTQ Legal Advocates & Defenders) for Lillian Bernier. James Conde (Boyden Gray) for Turbocam, Inc.

Companies: Turbocam, Inc.

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