The full bench (“en banc”) of the US Court of Appeals for the 11th Circuit on Sept. 9 rejected a challenge under Title VII of the federal Civil Rights Act of 1964 to a Georgia County’s refusal to cover gender-affirming surgery under its employee benefits plan. Eight of the judges voted to reverse a district court decision which issued a permanent injunction against the county, while five of the judges would have affirmed the lower court.
The Supreme Court’s recent decision in US v. Skrmetti was cited by the majority as requiring reversal of the decision by District Juge Marc T. Treadwell, an appointee of President Obama. A three-judge panel of the 11th Circuit voted 2-1 to affirm the district court, the dissenter being the lone Republican appointee on the panel, who wrote the opinion for the en banc majority.
When the case went to en banc review, six of the eight judges in the majority were Republican appointees, all but one of whom were appointed by President Donald Trump. An Obama appointee concurred in the judgement, in a separate opinion that was highly critical of the Skrmetti ruling and questioned its reasoning, but conceded being bound by it. The dissenters were all Democratic appointees.
The lawsuit was filed by Anna Lange, a transgender woman and deputy at the Houston County Sheriff’s Office who was hired in 2006 and was diagnosed with gender dysphoria in 2017, when she began to identify as a woman. Lange is covered by the Houston County government’s health care plan, which excludes coverage for “services or supplies for male or female sexual problems, drugs to treat sexual or erectile problems,” and treatments and drugs for “infertility.” It also excludes coverage for “cosmetic surgery” and since at least 1998, has expressly excluded coverage for “services and supplies for a sex change and/or the reversal of a sex change.”
According to the opinion for the en banc court by Trump appointee Andrew Brasher, the Houston County plan “does not exclude coverage for all treatments related to gender dysphoria,” and Lange was able to obtain coverage for the hormone treatments, endocrinologist visits, and psychologist visits incident to her gender transition. Lange took advantage of this coverage, but the plan balked at paying for surgery, which Lange intended to have in New York from a specialist in “sex change surgery” since no surgeon in the area where she lived performs such procedures. Lange claimed that the exclusion was discrimination “because of sex” in violation of Title VII, relying on the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, in which the Supreme Court held that firing somebody because of their transgender status violated the statute’s ban on sex discrimination.
District Judge Treadwell agreed with Lange that the exclusion of coverage was a facial violation of Title VII in light of the Bostock decision, and a majority of the three-judge 11th Circuit panel agreed. However, while the county’s appeal was pending before the en banc panel of the 11th Circuit, the Supreme Court issued the Skrmetti decision, which the majority of the en banc panel decided included language that cut against the District Court’s ruling.
Judge Brasher wrote that the county’s plan does not discriminate because of an individual’s sex, because the various exclusions under the plan (and it seems that there are 68 distinct exclusions in the plan) do not treat men and women differently. In particular, the ban on coverage for “sex change” operations applies equality to men and women, and in Skrmetti the Supreme Court rejected the argument that Tennessee’s ban on gender-affirming care for minors was discrimination because of sex or transgender status, because it applied across the board to both girls and boys.
“Although the plaintiffs’ claim in Skrmetti arose under the Equal Protection Clause,” wrote Brasher, “the Court expressly held that the state statute at issue did not discriminate based on transgender status under the same Title VII precedents that we must apply here. This was so, the Court explained, because ‘changing a minor’s sex or transgender status does not alter the application’ of the challenged statute.” And, he pointed out, “The Court said point blank: ‘Under the reasoning of Bostock, neither [the plaintiff’s] sex nor his transgender status is the but-for cause of his inability to obtain’ the prohibited treatment.”
Finding no facial discrimination because of sex, the en banc majority found no violation of Title VII’s sex discrimination ban.
The dissenters, in an opinion by Circuit Judge Jill Pryor, an appointee of President Obama, argued that the majority had inappropriately used the Skrmetti decision, which was based on constitutional Equal Protection doctrine, to decide this case arising under Title VII, and criticized the way the Supreme Court and the majority here had construed Bostock, in part because they relied on the reasoning of an earlier Supreme Court ruling, Geduldig v. Aiello, which Congress had overruled by adopting an amendment to Title VII.
Geduldig was a controversial ruling rejecting a constitutional challenge to a public employer’s refusal to cover pregnancy-related expenses under its employee health plan. The Supreme Court had reasoned that because many women employees never become pregnant, the exclusion could not be challenged as an instance of sex discrimination in employment, but rather was discrimination between pregnant people and non-pregnant people. Congress rejected that ridiculous reasoning by amending Title VII to declare that discrimination based on pregnancy violated Title VII’s ban on sex discrimination in employment. (Congress can’t overrule a constitutional ruling of the Court, but it can reject the application of its reasoning to a statute by amending the statute.)
If this all sounds rather complicated, it certainly is, which explains why there are several opinions from the 11th Circuit in Lange’s case: the majority opinion by Judge Brasher; a concurring opinion by Judge Kevin Newsom, a Trump appointee; an opinion concurring in the judgment but not the majority’s reasoning, by Judge Robin Rosenbaum an Obama appointee; and two dissenting opinions, by Judge Pryor and by Senior Circuit Judge Charles Wilson, a Clinton appointee who had written the opinion for the three judge panel. Each of these opinions has its own “take” on whether Title VII should be construed to ban Houston County’s exclusion of coverage.
Reverting to constitutional issues, on Sept. 4, US District Judge Victoria Marie Calvert of the Northern District of Georgia issued an opinion granting a motion for class certification and a preliminary injunction in the case of Benjamin v. Oliver, in which a group of Georgia transgender prison inmates have claimed a constitutional violation by a recently enacted Georgia statute that prohibits the use of state resources to provide hormone replacement therapies for the treatment of gender dysphoria for those incarcerated in the Georgia Department of Corrections.
Wrote Judge Calvert, “At its core, this case is no different from any case challenging prison medical care. When prison officials present expert evidence that they have made a treatment decision based on medical judgment, the Court will ordinarily defer to that reasonable exercise of judgment. But when a prisoner presents evidence that the treatment decision was based on something other than medical judgment, and backs it up with uncontroverted expert evidence that the prison’s decision put them at a serious risk of harm, the prisoner generally prevails.” She found that “the result here is straightforward,” and the evidence presented so far supported the prisoners’ claim that the ban on providing hormones for transgender inmates was a political decision that is contrary to the finding of numerous courts that depriving inmates with serious gender dysphoria of hormones violates the cruel and unusual punishment provision of the Eighth Amendment.
Judge Calvert made the following findings after reciting the medical evidence at length: “Gender dysphoria is a serious medical need; Withdrawing hormone treatment from inmates already receiving treatment constitutes disregard of a risk of serious harm; Blanket refusal to provide a medically indicated treatment cannot be justified by ‘political controversy.’”
The court rejected the state’s argument that this was a case of dueling experts, in which the state could decide to adopt expert opinion that hormone treatment was unnecessary, since “neither of the State Defendants’ experts have embraced the notion that hormone therapy is never a medically appropriate treatment for gender dysphoria,” and Judge Calvert accorded “controlling weight to the [plaintiffs’] experts’ testimony because the State Defendants do not offer any expert opinion in contrast. Plaintiffs not currently receiving hormone therapy have shown a likelihood of success on the merits as to their deliberate indifference claim based on the refusal to consider them for hormone therapy.”
This is not a final ruling on the merits, though, and the state can (and most likely will) appeal the preliminary injunction ruling to … the 11th Circuit! It will be interesting to see, in light of the en banc ruling in the Lange case, whether the 11th Circuit will similarly import language and concepts from the Skrmetti decision into its interpretation of the Eighth Amendment, similar to the way they imported Skrmetti’s constitutional ruling into an interpretation of Title VII in Lange’s case. Although the Supreme Court’s ruling in Skrmetti is technically just a ruling on whether Tennessee’s ban on gender-affirming care for minors violates the constitution’s Equal Protection Clause, the wide-ranging language of the majority opinion in Skrmetti has sent signals to lower federal courts ranging beyond that politically charged issue.
