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On September 30, Alabama Attorney General Steve Marshall and the attorneys general for Florida and Georgia submitted an amicus brief to the Court of Appeals for the Eleventh Circuit asking them to reverse an earlier decision in the case Anna Lange v. Houston County, Georgia.
In May, a three-judge panel reaffirmed a district court’s decision that health plans excluding coverage for gender-affirming care is illegal discrimination.
When the panel issued its decision, Lange called it a “win not just for me, but for all transgender Southerners who deserve equal access to life-saving transition-related care.” An employee of the Houston County sheriff’s department since 2006, Lange was diagnosed with gender dysphoria in 2017.
However, when she sought to use her health insurance to cover a vaginoplasty her healthcare providers had deemed necessary, the request was denied. The sheriff’s office health plan has specific exceptions for “[d]rugs for sex change surgery” and “[s]ervices and supplies for a sex change and/or the reversal of a sex change.”
The district court found, and the initial appeals court panel affirmed, that these exclusions violated Title VII of the Civil Rights Act of 1964. But the Eleventh Circuit has decided to rehear the case en banc, with all twelve judges instead of the initial panel of three.
As part of its decision to rehear the case, the panel’s earlier ruling that the district court was correct has been vacated. Oral argument in Lange v. Houston County will now be heard by the full Eleventh Circuit in February.
In a press release, Marshall claimed that if the ruling is allowed to stand, it would have “negative consequences for employers by imposing greater liability and reduced clarity on how far the law extends.” He said he’s “confident that the full court will agree and overturn this irrational decision.”
The brief the three states submitted argues that health plans not covering gender-affirming surgeries is not a violation of Title VII because the surgery Lange was denied coverage from is not comparable to surgeries that are covered for other employees, namely vaginoplasties for women who have experienced childbirth.
“Whether the employee is male or female, the county’s insurance plan excludes coverage for sex-change surgeries,” the brief states.
They additionally argue that the logic behind Lange’s case would require employer-provided health plans to cover abortion and erectile dysfunction drugs like Viagra.
Gabriel Arkles, the co-interim legal director for Advocates for Trans Equality, told APR that “this case is about upholding the promise of Bostock and Title VII—ensuring equal treatment in the workplace for everyone, including trans people, and guaranteeing that all employees have access to equitable healthcare coverage.”
One of A4TE’s predecessor organizations, the Transgender Legal Defense & Education Fund, was responsible for filing the initial lawsuit on Lange’s behalf.
“The panel’s decision marks the first time a federal appellate court has ruled that Title VII prohibits discriminatory exclusions in employee health benefit plans that specifically target trans people,” Arkles explained. “It is disheartening to see states advocating for the right to discriminate against their own employees and deny necessary healthcare to their citizens.”
“Yet, the mandate of Title VII is clear – employers cannot discriminate in health benefits on the basis of sex, including through exclusions aimed at trans healthcare,” he continued. “That’s what the district court ruled, that’s what the panel affirmed, and that’s what the en banc court should uphold as well.”
In recent years, conservative states and politicians have repeatedly attempted to limit access to gender-affirming care, especially for minors, and occasionally have sought to ban it outright.
Rhetoric from conservative groups like Moms for Liberty and popular accounts like Libs of TikTok often includes unsubstantiated and extreme allegations that transgender children have been “groomed.” While on the campaign trail, Republican presidential nominee Donald Trump baselessly claimed that children “[go] to school and [come] home a few days later with an operation.”
A ban on gender-affirming care for minors is currently in effect in Alabama and SB129, the law passed this year that banned DEI at Alabama public universities, also sought to restrict bathroom access by assigned sex at birth. Legislation that would have defined “female” and “male” by reference to reproductive anatomy was considered but not passed in the state legislature during this year’s session.
Bans and restrictions on gender-affirming healthcare are currently still being challenged in lawsuits across the country. The Supreme Court will be hearing United States v. Skrmetti, a case about whether bans on gender-affirming care are constitutional, in its upcoming session.
