Eleventh Cir. Seems Split on Employee Plan Trans Care Exclusion

The judges of the Eleventh Circuit were split at oral argument Tuesday on whether a Georgia county’s employee health plan excluding coverage for “sex change” surgery facially discriminates against transgender employees.

The case involves one of today’s hottest issues—whether provisions that treat transgender and cisgender individuals differently in the workplace, health care, schools, and sports violate federal discrimination laws.

Questions and comments from various judges suggested that each has his or her own idea about how the case should come out, making it highly unlikely that the full panel decision will be unanimous.

The judges’ disagreement came out most clearly when discussing the claimed reasons for the exclusion and its application to individuals transitioning back to their sex assigned at birth, as well as those seeking gender-affirming surgery in the first instance.

Patrick Lail, representing Houston County, Ga., insisted the exclusion isn’t facially discriminatory under Title VII because it applies to the procedure sought, not the person seeking it.

“There’s no disparate treatment issue here because” the exclusion doesn’t “identify particular people,” he said.

But then why exclude coverage for “a sex change operation?” one judge asked. “That makes it more complicated for you to argue that it’s not about transgender people,” he said.

Another judge, however, said the exclusion applies equally to all plan members because, though it applies to employee dependents who seek coverage, though it wouldn’t apply to cisgender employees themselves seeking the procedure he said.

“Exactly yes, that’s right,” Lail said. “It’s the same package benefit to all comers,” he said.

Bostock Problem

Keying in on Lail’s argument that the exclusion singles out procedures, not people, one judge noted that the more he brought up the surgery’s purpose “the more you run into Bostock,” referring to the Supreme Court’s watershed decision extending Title VII’s protections to transgender people.

Insisting the exclusion rests on the type of procedure—vaginoplasty versus vaginal reconstruction—doesn’t solve the issue, Jill Grant, representing plaintiff Anna Lange, agreed.

The two procedures involve different techniques, but that doesn’t advance the county’s argument that the sex change coverage exclusion isn’t discriminatory because the plan still can’t make a decision to apply the exclusion without knowing the patient’s sex at birth, she said.

The county’s plan administrator denied Lange coverage because of her sex at birth, Grant said. The deputy sheriff therefore lost a benefit of her employment just because she is transgender. That’s a Title VII violation, Grant said.

An exclusion for people who’ve had gender-affirming surgery, then decided to return to their birth sex, just “doubles down” on the discrimination, Grant said in response to judges’ questions. It doesn’t cancel out the plan’s discriminatory effect, she said.

Transgender people are self-identifying, one judge said. A “detransitioner” has decided they’re not transgender after all, meaning the plan exclusion applies equally to transgender and nontransgender plan members, the judge responded.

Lail also said the cost of covering gender-affirming surgery justified the exclusion. But that doesn’t fly in light of Supreme Court precedent holding otherwise, Grant said.

In any event, there’s evidence that the surgery wouldn’t cost the county that much extra, one judge said.That evidence relates to much bigger plans that cover many more employees than the county’s plan, Lail said.

An extensively briefed question—whether Bostock applies only to hiring and firing decisions, not other privileges of employment—didn’t come up during arguments.

A. Barrett Bowdre, of the Alabama Attorney General’s Office, argued on behalf of states that supported the county’s claims.

Lail is with Elarbee Thompson Sapp & Wilson LLP. Grant is with Willkie Farr & Gallagher LLP.

The case is Lange v. Houston Cty, Ga., 11th Cir. en banc, No. 22-13626, oral arguments 2/4/25.