Eleventh Circuit Panel’s Sex-Change Confusion

Published May 14, 2024

National Review Online

Transgender claims sure make judges stupid.

Just last month, a Fourth Circuit panel majority made a ludicrous error in claiming that a West Virginia law that bars boys from joining girls’ sports teams discriminates on the basis of gender identity, and a deeply divided en banc Fourth Circuit concocted a constitutional right to have health plans cover transgender surgery.

Yesterday, an Eleventh Circuit panel majority issued an addled ruling (in Lange v. Houston County) that Title VII requires that an employer provide health insurance for “sex change surgery” if it provides health insurance for other “medically necessary” services.

Let’s start with this question: As Judge Andrew Brasher points out in dissent, Houston County’s health plan excludes coverage for all sorts of “medically necessary” procedures. Why is it okay for it to exclude coverage for other procedures—e.g., vision care, bariatric surgery for obesity—but not for sex-change surgeries? Why would sex-change surgeries have some privileged status?

One possible answer to that question would be that Title VII, as interpreted by the Supreme Court in Bostock v. Clayton County, prohibits discrimination on the basis of transgender status but not on other bases such as poor eyesight or obesity. But that answer would require showing that the health plan’s exclusion of sex-change surgeries reflects an intent to discriminate on the basis of transgender status.

As Judge Brasher explains, far from reflecting such an intent, “The plan’s sex change exclusion is consistent with the pattern in the rest of the insurance plan: it covers medically necessary treatments but excludes particularly expensive, top-of-the-line procedures.” Indeed, “for a gender dysphoria diagnosis, the plan covers basic treatments like hormone replacements from an endocrinologist and sessions with a psychotherapist.” So how can the plan be deemed to discriminate on the basis of transgender status when the coverage it provides for gender dysphoria is similar to the coverage it provides for other conditions?

In his majority opinion, Judge Charles R. Wilson (joined by Judge Jill A. Pryor) blows past this fundamental problem. In affirming the district court’s grant of summary judgment to the transgender employee, Wilson maintains that the health plan’s exclusion of sex-change surgeries somehow suffices to establish that the County imposed the exclusion “because the employee is transgender.” (Wilson’s emphasis.) It doesn’t matter that there is no evidence that the County acted with such an intent:

The Exclusion is a blanket denial of coverage for gender-affirming surgery. Health Plan participants who are transgender are the only participants who would seek gender-affirming surgery. Because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status.

Wilson purports to be “[a]pplying Bostock’s reasoning to the facts in this case.” But what Bostock in fact holds is that Title VII is violated “[i]f the employer intentionally relies in part on an individual employee’s sex when deciding to discharge [or otherwise penalize] the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer.” (Emphasis added.) By “changing the employee’s sex,” the Court is of course not referring to imposing a sex-change operation on the employee. It instead means that Title VII is violated when an employee’s sex is a “but-for cause” of an employer’s adverse action. The way of showing that the employee’s sex is a “but-for cause” is to show that the employer would not have acted unfavorably against an employee of the opposite sex. As Bostock puts it:

[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. [Emphasis added.]

Lange, the plaintiff in this case, is a man who identifies as female. So, applying Bostock, Wilson would need to show that the health plan would have covered a sex-change surgery for Lange if Lange were a woman. But it clearly wouldn’t have, so Wilson’s reliance on Bostock utterly fails. In short, Wilson’s assertion that “Lange’s sex is inextricably tied to the denial of coverage for gender-affirming surgery” is dead wrong.

As Brasher soundly sums things up:

Although Bostock was a monumental decision in antidiscrimination law, it doesn’t dictate a ruling in favor of every transgender plaintiff who sues over any employment policy. The employer here isn’t doing anything remotely like the employer in Bostock. Neither the reasoning nor the result in Bostock supports Lange.

The en banc Eleventh Circuit should vacate this ruling forthwith, and the Supreme Court needs to grant certiorari soon in one of these cases to clear up the confusion that is befogging many lower-court judges.

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

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