En Banc Eleventh Circuit: Title VII Does Not Require Insurance Plans to Cover ‘Sex Change Surgery’

As I expected, the en banc Eleventh Circuit soundly ruled yesterday (in Lange v. Houston County) that a county’s health-insurance plan that excludes coverage for “sex change surgery” does not facially violate Title VII. The vote was 8 to 5.

Judge Andrew Brasher, who dissented from the original panel’s addled ruling, wrote the majority opinion for seven judges. Brasher systematically dismantles the plaintiff’s argument that the county’s insurance plan facially discriminates based on a protected characteristic. The plan does not discriminate on the basis of sex as it “does not pay for a sex change operation for anyone regardless of their biological sex.” The plan does not discriminate on the basis of transgender status because, like the law at issue in the Supreme Court’s recent decision in United States v. Skrmetti, it classifies “based on medical use.” And so on. (See pp. 8-16.)

In addition to joining Brasher’s majority opinion, Judge Kevin Newsom wrote a brief concurrence.

Judge Robin Rosenbaum (an Obama appointee) concurred in the judgment on the ground that Skrmetti “binds us in this case,” but she argues that the Court in Skrmetti misapplied its 2020 ruling in Bostock v. Clayton County and wrongly relied on Geduldig v. Aiello (1974).

The five dissenters expressed their views across three opinions.