In an 8-5 ruling, a federal appeals court has rejected a transgender deputy’s claim that his county employer discriminated against him by refusing to pay for sex-change surgery.
The appellate court’s decision reverses a lower court ruling that the County health insurance plan’s exclusion of these operations discriminates on the basis of sex.
Although the plan does not cover sex-change surgeries, it does not treat anyone differently based on a protected characteristic, the court concluded.
The lawsuit was brought by Anna Lange, a biological male and deputy at the Houston County, GA, Sheriff’s Office. Following a diagnosis of gender dysphoria, Lange began to “identify” as a woman and sought male-to-female sex-change surgery, requesting that the County’s health insurance policy pay for it. However, the policy excludes coverage for sex-change surgery, so the insurer denied his request.
Lange then sued for discrimination under Title VII of the Civil Rights Act of 1964. Title VII makes it unlawful for a covered employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
The district court sided with Lange and permanently blocked the exclusion of sex-change surgery from the County’s insurance policy.
On the County’s appeal, a divided three-judge panel of the Eleventh Circuit affirmed the district court ruling. The court then voted to hear the case again en banc to consider whether the policy violates Title VII.
This time, the full-court panel held that it does not. Writing for the majority, Judge Andrew Brasher, a Trump appointee, concluded that Lange’s Title VII claim is foreclosed by the U.S. Supreme Court’s recent ruling in U.S. v. Skrmetti.
In Skrmetti, as we reported here, the Court upheld Tennessee’s ban on “gender-affirming” care for minors, because the law doesn’t discriminate based on sex. Its restrictions are based on age and use, treating both sexes equally. Nor does the ban discriminate against transgender individuals, the Court ruled, because it doesn’t classify based on transgender status.
While Skrmetti was decided under the Equal Protection Clause, the Supreme Court’s reasoning applies equally to Lange’s Title VII claim, Judge Brasher wrote.
Lang relied on Bostock v. Clayton County, where the Supreme Court held that an employer who fires an employee for being gay or transgender violates Title VII’s prohibition on discharging an individual “because of ” their sex. He argued that the plan discriminates based on sex because it would have covered the requested surgery if he were born a female and denied coverage only because he was born a male.
Judge Brasher disagreed. Lange’s interpretation of Bostock is precisely what the Supreme Court rejected in Skrmetti.
The County’s policy does not pay for a sex-change operation for anyone, regardless of their biological sex:
Lange is a natal man. If Lange were instead a natal woman who wanted a female-to-male sex change, the insurance policy would not pay for it. Or if Lange were a natal woman who sought coverage for the same male-to-female sex change that Lange received (perhaps for a male dependent), the County’s policy would operate in the same way—it would deny coverage. Nothing about the policy exclusion turns on whether the County’s employee is a man or woman.
Nor does the policy’s exclusion discriminate against Lange based on his transgender status: “The plan does not say, for example, that transgender employees must pay more than nontransgender employees or that transgender employees or their dependents receive reduced benefits.”
The County’s plan does not facially violate Title VII, the court concluded. It “draws a line between certain treatments, which it covers, and other treatments, which it does not. That line may or may not be appropriate as a matter of health care policy, but it is not facial discrimination based on protected status.”
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