UPDATE: August 19, 2024
On August 12, KCNF explained the Eleventh Circuit’s recent decision in Lange v. Houston County, which held that that employers cannot discriminate against transgender employees by categorically excluding coverage for gender-affirming care from employee healthcare plans. (See the original blog post below.) On August 15, 2024, the Eleventh Circuit granted the defendants-appellants’ request for a rehearing and vacated the panel’s May 2024 decision.
It will likely be several months, if not over a year, before the full court hands down a decision in this case. The question may ultimately land before the Supreme Court, which recently agreed to hear a case involving gender-affirming care for transgender youth.
While this new development portends an uncertain future for Title VII’s application to cases involving employee access to gender-affirming care, anyone who believes that their employer has denied access to gender-affirming care because of their gender identity should consult with an attorney to discuss which laws may apply in their jurisdiction and to their specific circumstances.
Kalijarvi, Chuzi, Newman & Fitch continues to advocate for trans and gender-nonconforming employees facing discrimination in the workplace. If you believe that your employer has denied your access to gender-affirming care because of your gender identity, KCNF may be able to help. Contact us for a consultation.
Georgia Sheriff’s Office Cannot Categorically Exclude Coverage For Gender-Affirming Surgeries, Says Landmark 11th Circuit Decision
Originally published on August 12, 2024:
In 2020, the Supreme Court ruled in Bostock v. Clayton County that gender identity and sexual orientation are protected characteristics included in the meaning of “sex” under Title VII of the 1964 Civil Rights Act. In the years since then, courts have clashed over Bostock’s application in cases involving access to gender-affirming healthcare.
The Eleventh Circuit’s recent landmark ruling in Lange v. Houston County provides both clarity and hope on this issue. On May 13, 2024, a three-judge panel for the Eleventh Circuit ruled that employers cannot discriminate against transgender employees by categorically excluding coverage for gender-affirming care from employee healthcare plans. Such an exclusion discriminates on the basis of sex by singling out transgender employees for especially bad treatment—an act, the court concluded, Title VII does not tolerate.
As a preliminary matter, many transgender people experience gender dysphoria, a medical condition defined as a marked incongruence between a person’s expressed gender (“gender identity”) and their sex assigned at birth, resulting in clinically significant distress. Gender dysphoria is often treated with gender-affirming care, a broad array of therapies and procedures that function to align one’s body with their gender identity. Examples of gender-affirming care include hormone therapy, chest reconstruction (“top surgery”), and, in this case, genital reconstruction surgery (“bottom” or “lower” surgery).
The Case of Anna Lange
Anna Lange is a transgender woman and seasoned sheriff’s deputy with the Houston County Sheriff’s Office in Houston County, Georgia. In 2017, Ms. Lange, who had been diagnosed with gender dysphoria, began receiving gender-affirming care. In 2018, her healthcare providers determined that bottom surgery was medically necessary. Following that recommendation, Ms. Lange came out as transgender to the Houston Country Director of Personnel and the sheriff and notified them of her intended surgery. She also notified them of her intention to present as female.
Ms. Lange sought to have the surgery covered by the Sheriff’s Office healthcare plan, which offers coverage for medically necessary surgeries. However, Ms. Lange’s pre-authorization was denied based on the plan’s exclusion of “[d]rugs for sex change surgery” and “[s]ervices and supplies for a sex change and/or the reversal of a sex change,” which had been in place since 1998. This meant that certain procedures—for example, a bilateral mastectomy—would be covered by insurance if obtained to treat breast cancer, but would not be covered if obtained to treat gender dysphoria.
As background, two years before Ms. Lange came out to her colleagues, the County’s insurance broker informed the County that, pursuant to a new nondiscrimination mandate, the exclusion would be removed from its plans. The County rejected the nondiscrimination mandate, and the exclusion for gender-affirming care remained in place.
In 2019, Ms. Lange filed a lawsuit against Sheriff Talton and the County claiming that the exclusion violated various laws, including her right to equal treatment in the workplace under Title VII. The court agreed with Ms. Lange and found that the exclusion violated Title VII. A jury awarded Ms. Lange $60,000, and the Sheriff’s Office was forced to lift the exclusion.
Appeal to the Eleventh Circuit
The sheriff and the County appealed to the Eleventh Circuit Court of Appeals. They argued that the exclusion was not discriminatory because gender-affirming surgeries were unavailable under everyone’s plans. Said another way, because cisgender and transgender people were equally unable to obtain coverage for “sex change” surgeries, the exclusion was sex-neutral. Defendants also claimed that there was a legitimate reason for the exclusion, which was keeping costs low.
The court was not convinced. On May 13, 2024, the court of appeals upheld the district court’s decision. The court found that “because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status.” The court further reasoned that the exclusion violated Title VII’s prohibition on sex stereotyping by conditioning the availability of an employment privilege (here, insurance coverage) on one’s conformity to gender norms, i.e., presentation consistent with one’s assigned sex at birth.
Judge Andrew Brasher dissented, stating that the exclusion “doesn’t treat anyone differently based on sex, gender nonconformity, or transgender status.” He supported this by explaining that the plan excludes “particularly expensive, top-of-the-line procedures” such as those intended to treat obesity or sexual dysfunction. The exclusion of gender-affirming surgeries, he concluded, was “cheap”—but not unlawful.
This fails to address, however, that unlike gender identity, a person’s weight or sexual functioning are not protected characteristics under federal law. And, as the majority explained, because transgender individuals are the only people seeking gender-affirming care, excluding coverage of gender-affirming surgeries denies transgender people a privilege of their employment because they are transgender.
What Happens Next?
On June 3, 2024, the sheriff and the County petitioned the Eleventh Circuit to reconsider its decision, arguing that it bestows more rights on transgender individuals than are available to everyone else. The court has not yet decided whether it will reconsider the case.
Transgender employees cannot be denied the right to obtain coverage for medically necessary healthcare simply because of their gender identity. If you believe that your employer has denied your access to gender-affirming care because of your gender identity, KCNF may be able to help. Contact us for a consultation.
This article appeared in the Daily Report on August 13, 2024.