Transgender Deputy to Defend Health Plan Coverage at 11th Cir.

A Georgia county that denied health plan coverage for a sheriff deputy’s gender-affirming surgery will try to convince a federal appeals court that its policy didn’t amount to sex-based employment discrimination.

The US Court of Appeals for the Eleventh Circuit will hear a case Tuesday in Atlanta brought by Houston County and its sheriff, Cullen Talton, who are appealing a lower court’s decision that the county’s exclusion of coverage for the surgery and related medication violated Title VII of the 1964 Civil Rights Act.

The litigation is part of the broader dispute spreading throughout US courts over policies restricting gender-affirming health care for transgender people, including a pair of cases heard in September by the full US Court of Appeals for the Fourth Circuit that dealt with coverage exclusions under North Carolina’s state employee health plan and West Virginia’s Medicaid program.

The Eleventh Circuit case has caught the attention of several civil rights organizations, including the Anti-Defamation League and the National Women’s Law Center, as well as the US Department of Justice, all of which filed briefs supporting the deputy’s position.

A health plan denying gender-affirming care “facially discriminates based on sex because it denies medical care only when the care is provided to align an individual’s sex characteristics to match their gender identity, instead of their sex assigned at birth,” the Justice Department argued in its amicus brief, filed at the Eleventh Circuit earlier this year.

A long-time deputy in the sheriff’s office, Anna Lange, sued and won a partial victory in 2022, when a federal judge in Macon, Ga., found the county’s exclusion for care sought by transgender employees was discriminatory. The US District Court for the Middle District of Georgia ordered the county to pay for Lange’s vaginoplasty and issued a permanent injunction requiring the county to drop its health plan exclusions for gender-affirming care.

The county’s health plan administrator told the county that the total price tag for gender reassignment surgeries could reach $186,100 but the genital vaginoplasty that Lange sought was estimated to cost $25,600, according to the district court decision. Lange had already paid $6,800 out of pocket for breast augmentation prior to the lower court’s decision, because she expected that the county would refuse to pay for it.

The county argued in its briefs before the Eleventh Circuit that Lange wasn’t entitled to summary judgment because there remained factual disputes at the district court level about the extent to which treatments related to her gender dysphoria were covered. Her mental health care and hormones were covered, but the health plan excluded “sex change surgery,” the county said, arguing this policy didn’t fit with the lower court’s finding of facial discrimination and categorical exclusion of all gender-affirming care.

"[T]he fact that some care is covered is consistent with the Health Plan’s treatment of other healthcare,” according to the county’s Eleventh Circuit brief. “As just one example, the Health Plan covers various medically necessary treatments for participants suffering from obesity but excludes lap-band surgery.”

Major employers are increasingly covering gender-affirming care in their health plans.Amazon.com Inc., Bank of America Corp., and Starbucks Corp. all specify on their websites that they cover this care for employees.

But a Center for American Progress report in 2021 outlined various forms of discrimination that transgender employees still widely face in US workplaces, including frequent denial of coverage for specific treatments.

Transgender-Specific Exclusions

The county’s health plan “pays for mastectomies when medically necessary for cancer treatment but not when mastectomies are medically necessary for sex change surgery,” US District Judge Marc T. Treadwell wrote in his June 2022 opinion granting Lange partial summary judgment. “And the plan pays for hormone replacement therapy medically necessary for the treatment of menopause, but not hormone replacement therapy medically necessary for ‘sex change.’”

“The undisputed, ultimate point is that the Exclusion applies only to transgender members, and it applies to Lange because she is transgender,” he added.

The judge based the decision heavily on the US Supreme Court’s 2020 ruling in Bostock v. Clayton County, Ga., in which the court found workplace discrimination based on a person’s sexual orientation or gender identity was prohibited under Title VII’s protections against sex-based bias.

In addition to counsel for Lange and Houston County, a US Justice Department attorney will participate in the Eleventh Circuit arguments.

The latest legal disputes over LGBTQ+ rights extend beyond employment discrimination, ranging from state laws barring transgender athletes from school sports to bans on providing gender-affirming treatment to minors.

The Eleventh Circuit recently allowed Alabama’s ban on puberty blockers for minors to take effect, as did the Sixth Circuit for similar restrictions in Kentucky and Tennessee. Those decisions conflict with the Eighth Circuit’s ruling upholding an injunction against an Arkansas law limiting treatments for transgender minors, likely teeing the issue up for the US Supreme Court.

An attorney for Houston County filed a supplement last month arguing the Eleventh Circuit’s decision in the Alabama puberty blocker case supports the county’s position that its health plan policy doesn’t equate to sex discrimination.

Scheduled to hear Houston County’s Eleventh Circuit appeal are Judge Andrew L. Brasher, a Trump appointee, alongside colleagues appointed by Obama and Clinton, respectively, Judges Jill A. Pryor and Charles R. Wilson.

Patrick L. Lail of Elarbee, Thompson, Sapp & Wilson LLP in Atlanta is set to argue for Houston County.

David Brown of the Transgender Legal Defense and Education Fund is scheduled to argue for the deputy, and Anna M. Baldwin is set to present the Justice Department’s argument.

The case is Lange v. Houston County, Ga., 11th Cir., No. 22-13626, oral arguments scheduled 11/14/23.