Back in May 2024, I highlighted an addled ruling by an Eleventh Circuit panel majority (in Lange v. Houston County) that held that Title VII requires that an employer provide health insurance for “sex change surgery” if it provides health insurance for other “medically necessary” services.
As Judge Andrew Brasher explained in his dissent, the county health plan at issue excludes coverage for all sorts of “medically necessary” but expensive procedures. The insurance plan provides the same coverage to everyone, so it doesn’t “facially discriminate” against individuals who identify as transgender. That means that the plaintiff, in order to prove a violation of Title VII, would, at the very least, have to show that the county intended to discriminate on the basis of transgender status—something that she had not shown and that would be difficult to reconcile with the plan’s provision of other treatments for gender dysphoria. (I say “at the very least” because it is far from clear that the theory of Bostock provides any protection against intentional discrimination on the basis of transgender status in the context of health-plan coverage.)
The Eleventh Circuit granted en banc rehearing and held oral argument yesterday. I listened this morning to the oral argument of the recording (available here). It was a through-the-looking-glass experience to hear some of the cockamamie questions asked by the judges (all Democratic appointees) who were inclined to invalidate the exclusion.
The judges who I expect will rule for the county poked all sorts of holes in the plaintiff’s argument. A couple of examples: The exclusion applies as well to a detransitioner who no longer identifies as transgender, so it’s false to state that it applies only to transgender individuals and only to enforce gender conformity. A vaginoplasty for medical reasons is much less complicated than a vaginoplasty done as part of a “sex change” surgery.
There is no reason, though, that the court’s ruling should hinge on these lesser defects in the plaintiff’s case.
The en banc court should rule clearly, along the lines of Judge Brasher’s panel dissent, that the county’s insurance plan doesn’t facially discriminate on the basis of transgender status. Fortunately, it seems very likely that it will do so, if only by a 7-to-6 vote.