The U.S. Court of Appeals for the Eleventh Circuit recently
overturned the rulings of a federal district court and an Eleventh
Circuit panel, finding that a Georgia health plan's exclusion
of coverage for gender-affirming health care violated Title VII of
the Civil Rights Act. The full appellate court ruled 7–5 that
the exclusions were non-discriminatory because the plan made no
distinctions between sexes in applying the exclusions.
The case involves Anna Lange, a veteran sheriff's deputy, who
sued her health plan under Title VII after it denied coverage for a
vaginoplasty as gender-affirming care. A Georgia district court
initially ruled in favor of Lange in October 2022 and issued an
injunction preventing the health plan from excluding Lange's
surgery from coverage. After the county attempted to avoid coverage
for the surgery while the case was pending on appeal, the district
court also specifically directed the plan to process any claims for
the previously denied surgery.
The county appealed, and a panel of the Eleventh Circuit upheld the district court's decision 2–1. The county requested a hearing en banc, and during arguments earlier this year, several judges seemed to indicate that they supported overturning the decisions of the appellate panel and district court. Some judges accepted the county's argument that the health plan exclusions didn't discriminate since the purpose of the surgery differed if the individual was seeking gender-affirming care. As the county noted, a vaginoplasty for the purposes of transitioning a person from one sex to another is different than if it is performed for reconstruction purposes following an accident. The county also confirmed that the exclusions denied coverage regardless of the biological sex of the individual.
The Eleventh Circuit's majority opinion holds that the healthcare plan exclusions do not violate the anti-discrimination provisions of Title VII based on sex, because the exclusions apply regardless of whether the plan participant is male or female. As a result, the court ruled that the plan's exclusions for "sex" change surgery, medications, and related medical procedures did not constitute discrimination.
In its majority opinion, the appellate court also noted that the district court had misinterpreted the U.S. Supreme Court's 2020 decision in Bostock v. Clayton County as supportive of Lange's case. That decision banned employment discrimination under Title VII based on sexuality and gender identity. More specifically, the Eleventh Circuit majority pointed out that the Supreme Court rejected Lange's interpretation of Bostock when it upheld a Tennessee ban on gender-affirming care for minors in the recent case of U.S. v. Skrmetti. In that case, the Supreme Court held that the law did not violate Title VII because it banned care based on age and diagnosis, not based on sex.
The Lange decision also contains three dissenting opinions, with five judges joining one of those opinions. The dissenting judges stated that the appellate court erred in relying on Skrmetti, which involved a challenge to the law under the equal protection clause of the U.S. Constitution. In contrast, this case involved a challenge to a health plan exclusion under Title VII. They also noted that more than 40 years ago the Supreme Court found that drawing a "line" based on a "medical condition that impacts employers differently based on sex" was impermissible under Title VII.
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