Trans Surgery Case Will Test Scope of Workplace Anti-Bias Law

The scope of workplace rights that the US Supreme Court extended to transgender people in a watershed 2020 decision will get a new gloss at oral arguments at the Eleventh Circuit Tuesday, according to attorneys following the case.

All the court’s active judges will consider the issue, which is part of a litigation trend over the rights of transgender people in various aspects of life.

But this is an easy Title VII sex discrimination case, said Shayna Medley, senior litigation counsel at Advocates for Trans Equality Education Fund, one of the groups representing plaintiff Anna Lange. The US Court of Appeals for the Eleventh Circuit would have to “go out on a limb” to rule for the defendants, they said.

At issue is whether a public employer’s health plan lawfully excluded coverage for gender-affirming surgeries and related care.

In a case brought by a deputy sheriff, a split three-judge panel upheld a trial court’s ruling that Houston County, Ga.'s exclusion of that coverage violated Title VII of the Civil Rights Act of 1964, following the top court’s decision in Bostock v. Clayton County.

The Eleventh Circuit granted full-court review and vacated that decision.

The county, Sheriff Cullen Talton, and their supporters said in briefing that the panel majority went too far in interpreting Bostock.

The top court held that discrimination on the basis of gender identity or sexual orientation is discrimination “because of sex” prohibited under Title VII, but the justices limited their ruling to hiring and firing decisions, they said. It doesn’t extend to other terms and privileges of employment like health insurance coverage, they said.

‘Completely Out of Step’

Rory Gray, a senior attorney with the conservative law firm Alliance Defending Freedom, said he hopes the Eleventh Circuit “recognizes Bostock’s limits and rules in the county’s favor.” ADF isn’t directly involved in the case but represents parties supporting bans on gender-affirming care provisions in other cases.

The county’s interpretation of Bostock “is completely out of step” with Title VII and a long line of Supreme Court cases, Medley said. The Supreme Court has long said Title VII bars discrimination because of sex in employee health benefits, they said.

Bostock simply established that discrimination based on transgender status is unlawful sex discrimination, and the Eleventh Circuit is bound by that ruling, Medley said.

But the defendants argued “that the health insurance exclusions, which carve out various procedures and interventions, treat all employees the same and do not discriminate based on sex,” which is all Title VII requires, Gray said. “The county believes mandating coverage of body-altering surgeries for some but not others would treat some employees better than their peers,” he added.

Medley said it’s possible some Eleventh Circuit judges will ask about President Donald Trump‘s Jan. 20 transgender executive order. The order, however, didn’t change Title VII’s text or overrule Supreme Court precedent, so it shouldn’t dictate the outcome here, they said.

Lange was diagnosed with gender dysphoria in 2017 and informed her employer of her intent to transition to female in 2018.

The county’s employee health plan denied her request to cover a vaginoplasty despite her doctor’s determination that it was medically necessary. The plan expressly excluded paying for transition-related services, including hormone therapy, mental health counseling, and “sex change surgery.”

Lange won summary judgment on the Title VII claim in 2022, and the trial court later awarded her compensatory damages and ordered the county to ensure coverage for her care.

Cooper Barton & Cooper LLP and Willkie Farr & Gallagher LLP also represent Lange. Elarbee, Thompson, Sapp & Wilson LLP represents the defendants.

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