Employers Cannot Deny Gender-Affirming Care to Trans Employees, Says Landmark Eleventh Circuit Decision
Plaintiff Anna Lange and her son, Riley.
On May 13, 2024, a three-judge panel for the Eleventh Circuit issued a landmark decision for transgender employees in the case of Lange v. Houston County, Georgia. The court ruled that employers may not categorically exclude coverage for gender-affirming care from employee healthcare plans. Such an exclusion violates federal law by conditioning the availability of certain healthcare treatments on an employee’s gender identity — in other words, it discriminates on the basis of sex.
Many trans people experience gender dysphoria, a medical condition defined as a marked incongruence between a person’s expressed gender and their assigned gender 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 deeply-felt sense of gender. Examples of gender-affirming care include hormone therapy, chest reconstruction, and, in this case, bottom surgery.
The Case of Anna Lange
Plaintiff Anna Lange is a trans woman and seasoned sheriff’s deputy with the Houston County Sheriff’s Office in Houston County, Georgia. Since 1998, the state-funded healthcare plan available to Sheriff’s Office employees excluded “sex change” surgeries from coverage. 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 the underlying diagnosis was gender dysphoria.
Ms. Lange came out as transgender to Sheriff Cullen Talton in 2018. Talton told Lange that he did not “believe in sex changes,” but eventually allowed Ms. Lange to wear female uniforms.
Ms. Lange started hormone therapy and underwent top surgery. After conferring with her doctor, Ms. Lange decided to pursue bottom surgery to feminize her external sex organs. Her doctor determined that this was medically necessary to alleviate the symptoms of Ms. Lange’s gender dysphoria.
Ms. Lange sought to have her bottom surgery covered by the Sheriff’s Office healthcare plan, which offers coverage for medically-necessary surgeries. However, Ms. Lange’s pre-authorization was denied due to the discriminatory exclusion. Ms. Lange filed a lawsuit against Sheriff Talton and the County claiming that the exclusion violated her right to equal treatment in the workplace. The court agreed, and found that the county’s exclusion discriminated on the basis of sex in violation of federal law. A jury awarded Ms. Lange $60,000, and the Sheriff’s Office was barred from enforcing the exclusion.
Appeal to the Eleventh Circuit
Defendants 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: keeping costs low. This was true, they argued, despite the fact that by 2023, the County had spent over one million dollars in attorneys fees fighting to keep the discriminatory exclusion in place. For context, this is more than forty-five times the cost of covering Ms. Lange’s bottom surgery.
The appellate court was not convinced, and, on May 13, 2024, upheld the district court’s decision. The appellate 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 — the provision of the Civil Rights Act that prohibits discrimination in the workplace — 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. The exclusion therefore violated Title VII on two separate theories of sex discrimination: transgender status, and impermissible sex stereotyping.
Judge Andrew Brasher dissented from the opinion, 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 claimed, was “cheap” — but not unlawful.
What Judge Brasher failed to address was the fact that unlike gender identity, a person’s weight or sexual functioning are not protected characteristics under federal law. And because transgender individuals are the only people seeking gender-affirming care, excluding coverage of gender-affirming surgeries denies trans people a privilege of their employment because they are transgender.
What Happens Next?
For now, Judge Brasher’s dissent is merely a footnote in an otherwise victorious legal battle. However, on June 3, 2024, the defendants petitioned the full court to reconsider the “radical” decision, claiming that it bestows more rights on trans individuals than are available to everyone else. Attorneys General from twenty-three conservative states have filed an amicus curiae (“friend of the court”) brief urging the court to reverse the decision. The appellate court has not yet decided whether it will reconsider the case.
Gender-affirming care is medically-necessary healthcare, and trans employees cannot be denied the right to obtain coverage for healthcare simply because they are trans. The appellate court’s ruling is an affirmation of the dignity of trans people everywhere, and it should be upheld.