Lange v. Houston County, Georgia

Gender Affirming Care11th CircuitGeorgiaInsuranceTitle VIIEqual ProtectionADARehabilitation Act

Aug 16

Written By Mack Karbon

Plaintiff Anna Lange (she/her)

Eleventh Circuit Court of Appeals

On appeal from the U.S. District Court for the Middle District of Georgia

Case No. 22-13626 (11th Cir.)
Case No. 5:19-cv-00392-MTT (Dist. Ct.)

STATUS: ONGOING

LATEST UPDATES: On August 15, 2024, the Eleventh Circuit decided to reconsider the May 2024 decision of the three-judge panel, which upheld Ms. Lange’s right to seek coverage for gender-affirming care through her state-sponsored employee healthcare plan. The order also vacated the panel’s order pending the Court’s en banc decision. The ruling may now be overturned, which could gravely affect the rights of trans employees seeking to have the costs of gender-affirming care covered by employer health insurance.

The parties have filed appellate briefs. Oral arguments will be heard before the en banc court on February 4, 2025.

BACKGROUND

Anna Lange is a trans woman and seasoned Sheriff’s deputy working at the Houston County Sheriff’s Office in Houston County, Georgia. Since 1998, the state-funded healthcare plan available to employees of the Sheriff’s Office excluded from coverage “sex change” surgeries, as well as the drugs, services, and supplies used or prescribed in relation to such surgeries.

In 2016, an insurance representative for Anthem informed County officials that, pursuant to a new nondiscrimination mandate, the plan would no longer exclude medically necessary trans-related healthcare. Nonetheless, against Anthem’s recommendation, the County decided to opt-out of the nondiscrimination mandate, and the exclusion for gender-affirming care (hereafter, “the Exclusion”) remained in place. It is undisputed that cost was not a factor in the County’s decision.

Ms. Lange came out to Sheriff Cullen Talton in April of 2018. Talton initially thought that Ms. Lange was pulling a prank. After learning she was serious, Talton told Ms. Lange that he did not “believe in sex changes.” Talton allowed Ms. Lange to wear female uniforms, but warned her that she would need “tough skin” to deal with her coworkers.

Ms. Lange started hormone therapy and underwent top surgery. After conferring with her doctor, Ms. Lange subsequently decided to undergo bottom surgery. 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 County’s healthcare plan. Initially, Anthem representatives told Ms. Lange that her surgery would be covered if she could demonstrate, by producing letters from her physicians, that the operation was medically necessary. Despite submitting all the necessary paperwork, Ms. Lange’s pre-authorization was denied due to the County’s discriminatory Exclusion. Ms. Lange appealed the decision and, when that did not work, presented her case to County Commissioners during a public meeting in February of 2019. Commissioners told Ms. Lange that they were not considering any changes to the healthcare plan, and that cost was not a factor in their decision.

Ms. Lange filed charges with the EEOC and was issued a right-to-sue letter in July of 2019. It was at this point - with litigation pending - that the County, for the first time, reached out to Anthem for information on the cost of gender-affirming care. Anthem responded that such costs could total up to $186,100, but that the specific procedure Lange sought was estimated only to cost $25,600. Anthem also told the County that coverage for gender-affirming care was infrequently utilized, meaning that it would be relatively inexpensive to comply with the nondiscrimination mandate.

Nonetheless, in 2019, County Commissioners voted unanimously to keep the Exclusion in place. The County contends that it did so to keep costs down, and because it was concerned that eliminating one exclusion would lead to requests or legal actions to remove other exclusions.

Early Proceedings

Ms. Lange, with the help of the Transgender Legal Defense and Education Fund, filed a complaint against Sheriff Talton and the County in October of 2019. She alleged that the adoption and maintenance of the trans healthcare exclusion violated the Fourteenth Amendment’s Equal Protection Clause, the Georgia State Constitution, Titles I and II of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and the Rehabilitation Act.

On defendants’ motion, the district court dismissed the Title II ADA claim and the state constitution claim. The parties filed cross-motions for summary judgment on the remaining claims.

In a decision handed down on June 2, 2022, the district court found that:

There were material disputes of fact regarding the Equal Protection claim, so that issue would need to be decided at trial.
The exclusion was facially discriminatory and therefore violated Title VII.
Ms. Lange failed to show that gender dysphoria was a disability under the ADA. Specifically, she could not show that gender dysphoria was a “gender identity disorder resulting from a physical impairment.”

The decision was a massive victory for employees seeking gender-affirming care coverage through their employee healthcare plans.

After a trial, a jury awarded Ms. Lange $60,000 in damages for the distress she suffered from the Title VII violation. The district court then entered an order declaring that the Exclusion violated Title VII and permanently enjoined the Sheriff and Houston County from any further enforcement or application of the Exclusion.

Defendants appealed to the 11th Circuit. They contested both the decision granting summary judgment for Lange’s Title VII claim, and the order issuing a permanent injunction.

The county argued that it had a legitimate reason for denying coverage for gender-affirming care: keeping costs low. However, this excuse fails under even the most lenient scrutiny. As Erin Reed reported:

“The county has spent incredible amounts of money denying the plaintiff her care. As of 2023, Houston County, Georgia, had spent $1,188,701 fighting against providing health care coverage for the transgender plaintiff. This is significant: ProPublica reports that it is over three times the county’s annual physical and mental health budget. Importantly, no other employee has requested coverage for gender-affirming surgery, so fighting against coverage has significantly cost the county far more than it would have gained by simply providing the employee with that coverage.”

11th Circuit Panel Decision

On May 13, 2024, the a three-judge panel on the 11th Circuit Court of Appeals upheld the district court decision on both counts. Relying heavily on Bostock v. Clayton County - the 2020 Supreme Court case finding that discrimination on the basis of sexual orientation and gender identity constitutes sex discrimination under Title VII - the court determined 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 in the Exclusion violates Title VII 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. As the 11th Circuit decided over a decade ago in Glenn v. Brumby, an employee may not be punished because of their perceived gender-nonconformity. The Exclusion thus violates Title VII on two separate theories of sex discrimination: transgender status, and impermissible sex stereotyping.

Second, the court upheld the district court’s granting of a permanent injunction. The decision stated that, “The district court has equitable discretion to choose an appropriate remedy, and appropriately enjoined the enforcement or application of [the Exclusion] found to be unlawful under [Title VII].”

Dissent

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 argued that the Exclusion is fundamentally distinct from the kind of adverse actions at play in Bostock, which involved employees who were fired for being transgender. To be akin to Bostock, he reasoned, the Exclusion would have to deny “some or all coverage to transgender people,” which he claims is not the case here. While the Exclusion covers some treatments for gender dysphoria, he states, it simply denies coverage for “the constellation of medical procedures known as a ‘sex change.’”

Judge Brasher does not attempt to explain how denying coverage for “sex change” operations and procedures - treatments that are exclusively sought by transgender people to alleviate symptoms of gender dysphoria - does not inherently implicate sex or gender identity. As the lower court correctly pointed out in its 2022 decision, under the Exclusion, certain surgeries, like a bilateral mastectomy, would be covered to treat cancer, but not covered to treat gender dysphoria.

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UPDATE, JUNE 3, 2024: As expected, defendants petitioned the full court for review of the “radical” decision, which it alleges bestows more rights on trans individuals than are available to everyone else. Attorneys General from twenty-three conservative states have filed amicus curiae (“friend of the court”) briefs urging the court to reverse the decision.

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UPDATE: COURT ORDERS REHEARING EN BANC, VACATES PANEL DECISION

On August 15, 2024, the Eleventh Circuit GRANTED defendants’ request for a rehearing by the full appellate court. The order vacated the panel’s May 2024 decision pending a decision by the full court.

Oral arguments in this case will be heard before the en banc court on February 4, 2025.