USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 1 of 27
[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-13626 ____________________
ANNA LANGE, Plaintiff-Appellee, versus HOUSTON COUNTY, GEORGIA, HOUSTON COUNTY SHERIFF CULLEN TALTON, in his official capacity,
Defendants-Appellants,
HOUSTON COUNTY BOARD OF COMMISSIONERS, et al.,
Defendant. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 2 of 27
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Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 5:19-cv-00392-MTT ____________________
Before WILSON, JILL PRYOR, and BRASHER, Circuit Judges. WILSON, Circuit Judge: This appeal requires us to determine whether a health insur- ance provider can be held liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for denying coverage for gen- der-affirming care to a transgender employee because the employee is transgender. We hold that it can. The district court did not err in finding that Defendants-Appellants Houston County, Georgia (Houston County) and the Houston County Sheriff (collectively, Defendants) violated Title VII in discriminating against Plaintiff- Appellee Anna Lange, nor did it abuse its discretion in granting a permanent injunction. Thus, we affirm the district court. I. FACTUAL AND PROCEDURAL BACKGROUND Houston County provides a health insurance plan to its own employees, as well as employees of the Houston County Sheriff’s Office via a decades-long intergovernmental arrangement between USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 3 of 27
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both entities (hereby, the Health Plan). 1 The largest share of em- ployees covered by the Health Plan are enrolled via this partnership with the Sheriff’s Office. The Health Plan covers “medically nec- essary” services, including office visits, doctor services, prescription drugs, surgical supplies, inpatient hospital care, and inpatient pro- fessional services, such as surgery and general anesthesia. A sur- gery is considered medically necessary if there is a “significant func- tional impairment and the procedure can be reasonably expected to improve the functional impairment.” Houston County sets the benefit terms, decides what changes are to be made to the Health Plan, determines member deductibles and premiums, and provides services to all enrollees. Houston County also advises the Sheriff’s Office regarding the costs of the Health Plan and issues arising from employee plan participation. Anna Lange is a transgender woman. She was assigned a male sex at birth, but her internal knowledge of herself has always been that she is female. In 2006, she began working for the Sheriff’s Office with Cullen Talton serving as the Sheriff. Throughout most of her life, including her time employed with the Sheriff’s Office, she experienced symptoms of gender dysphoria. Gender dysphoria is a condition that causes feelings of discomfort and distress be- cause of the incongruence between one’s gender identity and their
1 The Health Plan is a self-funded or an Administrative Services Only plan ad-
ministered by Anthem Blue Cross Blue Shield. Anthem Blue Cross Blue Shield serves as Houston County’s third-party administrator and administers claims using funds provided by Houston County and employee contributions. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 4 of 27
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sex assigned at birth. As the district court notes, if left untreated, people with gender dysphoria are more vulnerable to developing other health concerns including, but not limited to, anxiety, depres- sion, and suicidality. Lange was formally diagnosed with gender dysphoria by a healthcare provider in 2017. The next year, Lange informed the Sheriff’s Office that she was transgender and would be living as a woman. Following her formal diagnosis, Lange’s healthcare pro- viders started her on a treatment plan to align her physical charac- teristics with her gender identity. The plan comprised of hormone therapy and gender-affirming surgery, both of which are shown to alleviate symptoms of gender dysphoria. In 2018, her healthcare providers determined that a vaginoplasty—a surgical procedure to feminize her genitals—was medically necessary. Lange turned to her health insurance to cover her medically necessary surgery. However, Lange’s request for coverage was de- nied based on the Health Plan’s exclusion of “[d]rugs for sex change surgery” and “[s]ervices and supplies for a sex change and/or the reversal of a sex change” (together, the Exclusion). Lange filed an appeal with Anthem. She also sent a letter to Houston County requesting to resolve the dispute via a negotia- tions process—which went unanswered. Shortly after the letter was sent, Anthem denied her appeal. Lange then attended a public meeting with the Houston County Board of Commissioners re- questing that the Exclusion be removed, to no avail. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 5 of 27
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Lange subsequently filed claims against Houston County with the Equal Employment Opportunity Commission. She then sued Houston County and the Sheriff of Houston County in the Middle District of Georgia. In addition to seeking relief under Ti- tle VII, Lange sought relief under Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Equal Pro- tection Clause of the United States Constitution. After discovery, the parties filed cross-motions for summary judgment on all claims. The district court granted summary judgment to Defend- ants on Lange’s ADA claim; granted summary judgment to Lange on the Title VII claim; and denied summary judgment on the Equal Protection claim with respect to Houston County. 2 In granting summary judgment to Lange on the Title VII claim, the district court found the Exclusion facially discriminatory as a matter of law. The Title VII claim then proceeded to trial, and a jury awarded Lange $60,000 in damages. After trial, the district court entered an order declaring that the Exclusion violated Title VII and permanently enjoined the Sheriff and Houston County from any further enforcement or application of the Exclusion.
2 The ADA and Equal Protection claims are not before us on appeal. The par-
ties agreed to proceed to trial of Lange’s equal protection claim pending reso- lution of Defendants’ present appeal. On September 6, 2022, the district court issued an order declaring the case, as to the equal protection clause claim, set for trial in February 2023. The parties subsequently agreed to a continuance of that trial. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 6 of 27
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Once the injunction was entered, Defendants timely appealed and moved for a stay pending appeal in the district court. After considering Defendants’ motion, Lange’s response, and supplemental briefings, the district court denied Defendants’ motion for a stay pending appeal. 3 II. STANDARD OF REVIEW This court reviews a district court’s grant of summary judg- ment de novo, “viewing all evidence and drawing all reasonable in- ferences in favor of the non-moving party.” State Farm Mut. Auto. Ins. Co. v. Spangler, 64 F.4th 1173, 1178 (11th Cir. 2023). “Summary judgment is appropriate only ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). The decision whether to grant or deny permanent injunctive relief is reviewed by this court for an abuse of discretion. Barrett v. Walker Cnty. Sch. Dist., 872 F.3d 1209, 1221 (11th Cir. 2017). The relevant underlying legal determinations are reviewed de novo. Id.
3 While this litigation was pending in the district court, this court issued its en
banc decision in Adams v. School Board of St. Johns County, 57 F.4th 791 (11th Cir. 2022). The district court subsequently directed the parties to “supplement their briefs to address what effect, if any, Adams ha[d] on Defendants’ motion to stay injunctive relief.” Defendants argued that although Adams involved neither similar facts nor the same statutory claims, it may be read as persuasive authority. Plaintiff argued that Adams neither altered the merits analysis nor the balance of the equities. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 7 of 27
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III. DISCUSSION Defendants argue that the district court erred in holding that: (1) the Exclusion violates Title VII; and (2) Houston County is liable under Title VII as an agent of the Sheriff's Office. Defend- ants also assert that the district court abused its discretion in grant- ing a permanent injunction. We will address each argument in turn. a. Title VII Facial Discrimination To determine whether the district court erred in finding the Exclusion facially discriminatory, we begin with an analysis of Title VII discrimination before turning to the statute’s offered protec- tions. Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Generally, discrimination in the Title VII context occurs when an employer intentionally treats an employee worse than other similarly situated employees. Bostock v. Clayton Cnty., 590 U.S. 644, 657–58 (2020). Where an employer’s policy or prac- tice discriminates against a protected characteristic, no further proof of disparate intent is needed. See id. at 667; see also Int’l Un- ion, United Auto., Aerospace & Agric. Implement Workers v. Johnson Con- trols, Inc., 499 U.S. 187, 199 (1991) (holding that “[w]hether an em- ployment practice involves disparate treatment through explicit USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 8 of 27
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facial discrimination does not depend on why the employer dis- criminates but rather on the explicit terms of the discrimination”). The Supreme Court clarified in Bostock that “discrimination based on . . . transgender status necessarily entails discrimination based on sex” as prohibited under Title VII. 4 590 U.S. at 669. This is because an employer who discriminates based on transgender status is intentionally treating that employee differently “because of their sex.” Id. at 660–61 (emphasis added) (“[H]omosexuality and transgender status are inextricably bound up with sex. . . . [T]o
4 On April 29, 2024, the U.S. Equal Employment Opportunity Commission
issued updated enforcement guidelines on workplace harassment, including sex-based discrimination under Title VII. The guidelines were published to “provide clarity to the public regarding existing requirements under the law or agency policies” and describe sex-based harassment as follow: [S]ex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual ori- entation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun incon- sistent with the individual’s known gender identity (misgen- dering); or the denial of access to a bathroom or other sex-seg- regated facility consistent with the individual’s gender identity. U.S. Equal Emp. Opportunity Comm’n, EEOC-CVG-2024-1, Enforcement Guidance on Harassment in the Workplace (2024). USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 9 of 27
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discriminate on these grounds requires an employer to intention- ally treat individual employees differently because of their sex.”). Applying Bostock’s reasoning to the facts in this case, we con- clude that the district court was correct in finding that the Exclu- sion violated Title VII. There is no genuine dispute of fact or law as to whether the Exclusion unlawfully discriminates against Lange and other transgender persons. 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 gen- der-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. 5 This find- ing is further supported by our court’s decision in Glenn v. Brumby, where we held that an individual may not “be punished because of his or her perceived gender-nonconformity.” 663 F.3d 1312, 1319 (11th Cir. 2011). In denying coverage for the vaginoplasty, Houston County deprived Lange of a benefit or privilege of her
5 See also Kadel v. Folwell, -- F.4th --, 2024 WL 1846802, at *14 (4th Cir. Apr. 29,
2024), recognizing that: Just as cisgender people would not seek any treatment for gen- der dysphoria, they would not seek certain surgeries for gen- der-affirming purposes. For instance, a cisgender woman would never seek a hysterectomy, oophorectomy, or vaginec- tomy for gender-affirming reasons because, for her, those sur- geries are not gender-affirming. Nor would a cisgender man ever seek an orchiectomy or penectomy for gender-affirming reasons because, for him, those surgeries are not gender-af- firming. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 10 of 27
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employment by reason of her nonconforming traits, thereby un- lawfully punishing her for her gender nonconformity. See id. at 1317. The dissent suggests that the plan is not discriminatory be- cause “it does not draw a line between procedures transgender peo- ple need and procedures that other people need.” Brasher Dissent at 8. According to the dissent, “the plan draws a line between sex- change operations and other operations.” Id. But this kind of line drawing is precisely what makes the plan discriminatory. By draw- ing a line between gender-affirming surgery and other operations, the plan intentionally carves out an exclusion based on one’s transgender status. Lange’s sex is inextricably tied to the denial of coverage for gender-affirming surgery. Defendants maintain that Lange’s discrimination claim should be defeated because she was able to secure other transition- related care under the Health Plan. This argument reflects a mis- understanding of existing law and precedent. The language of Ti- tle VII is clear: the statute prohibits discrimination with respect to one’s compensation. 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has explicitly held that insurance is a benefit within Title VII’s “compensation, terms, conditions, or privileges of employ- ment.” Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 682 (1983). Insurance coverage conditioned upon one’s protected status therefore violates Title VII. An employer is not shielded from liability when it engages in discriminatory practices concerning some treatment and not others. Each instance of USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 11 of 27
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discrimination presents an independent violation. Bostock, 590 U.S. at 662. If we were to find otherwise, Title VII would be rendered obsolete. The Exclusion is a facially discriminatory policy, and its harmful effects are not mitigated by the existence of other nondis- criminatory policies. We therefore affirm the district court’s find- ing that the Exclusion is facially discriminatory in violation of Title VII. b. Title VII Liability We now consider whether Houston County is liable as an employer under Title VII. Houston County requests that we de- ploy a narrow reading of the statute, and that even if there is a find- ing of discrimination, it should not be held liable because it is not an employer as defined by Title VII. In light of circuit precedent, we decline to cabin our interpretation of the statute in this way. Title VII’s definition of employer includes any government, governmental agency, partnership or association, or any agent of such an entity. 42 U.S.C. § 2000e(a)–(b). This definition is liberally construed, and courts may consider the “totality of the employ- ment relationship” in determining whether an entity is an em- ployer. Peppers v. Cobb Cnty., 835 F.3d 1289, 1297 (11th Cir. 2016). “Where the employer has delegated control of some of the em- ployer’s traditional rights, such as hiring or firing, to a third party, the third party has been found to be an ‘employer’ by virtue of the agency relationship.” Williams v. City of Montgomery, 742 F.2d 586, 589 (11th Cir. 1984) (per curiam) (quotations omitted). USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 12 of 27
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Here, the delegation at issue concerns the provision of health insurance. The Supreme Court has made clear that “there is no reason to believe that Congress intended a special definition of discrimination in the context of employee group insurance cov- erage.” City of L.A., Dep’t of Water & Power v. Manhart, 435 U.S. 702, 710 (1978). Health insurance is squarely a benefit within Title VII’s “compensation, terms, conditions, or privileges of employment.” Newport News Shipbuilding, 462 U.S. at 682. Further, the Supreme Court has held that providers must consider discriminatory im- pacts when designing plan coverage. See Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (holding that “[t]he saving of welfare costs can- not justify an otherwise invidious classification”), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974). The dissent describes Houston County’s health insurance plan as “just a cheap plan.” Brasher Dissent at 8. But costs savings do not excuse discrimination, nor may they be used to circumvent liability under Title VII. See Newport News Shipbuilding, 462 U.S. at 685 n.26. Regardless, the district court found that Houston County had not considered “any cost information prior to deciding not to consider Lange’s request to remove the Exclusion.” Lange v. Hous. Cnty., 608 F. Supp. 3d 1340, 1348, 1355 (M.D. Ga. 2022). The district court consequently did not err in holding Hou- ston County liable under Title VII. The administration and provi- sion of health insurance was delegated from the Sheriff’s Office to Houston County. A delegation of this kind is directly in line with our decision in Williams. 742 F.2d at 589. In accepting such a USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 13 of 27
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delegation, Houston County qualified themselves as an agent and employer under Title VII, and therefore assumed liability stem- ming from this delegated role. Houston County argues that we should not read too much into this delegation, contending that the Sheriff’s Office is simply “taking advantage” of an existing health insurance plan. While this may be the reason underlying the partnership, it does nothing to absolve Houston County of agency liability. Thus, we affirm the district court’s determination finding Houston County liable under Title VII. c. Permanent Injunction Finally, we review the district court’s order permanently en- joining Houston County and the Sheriff from further enforcement or application of the Exclusion for an abuse of discretion. See Bar- rett, 872 F.3d at 1221. In granting a permanent injunction, the dis- trict court may grant relief if the plaintiff has shown that: (1) [the plaintiff] has suffered an irreparable injury; (2) remedies available at law, such as monetary dam- ages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is war- ranted; and (4) the public interest would not be dis- served by a permanent injunction. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 14 of 27
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AcryliCon USA, LLC v. Silikal GMBH & Co., 46 F.4th 1317, 1327 (11th Cir. 2022) (quoting Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008)) (alteration in original). After reviewing the briefs, and having the benefit of oral ar- gument, we find that Defendants have failed to show that the dis- trict court abused its discretion in entering a permanent injunction. The record supports finding that Lange met most, if not all, of the criteria outlined above. We address each factor in turn. First, given our finding that the district court did not err in concluding that the Exclusion violates Title VII, an irreparable in- jury is found in the Exclusion’s plain discrimination against Lange because she is transgender. Second, Lange’s Title VII claim demon- strates that monetary damages would not cure the live discrimina- tion and injury presented by the Exclusion. The district court has equitable discretion to choose an appropriate remedy, and appro- priately enjoined the enforcement or application of a policy found to be unlawful under statute. Third, the district court’s well-rea- soned order demonstrates that it did not abuse its discretion in as- sessing the balance of hardships. For example, Houston County alleged that the costs of gender-affirming surgeries would be bur- densome. However, because Lange established an injury resulting from a facially discriminatory policy, the district court aptly deter- mined that cost savings cannot justify such a policy. We therefore find that the district court sufficiently considered the balance of hardships and was well-reasoned in finding that Lange had estab- lished that they weighed in her favor. Fourth and finally, there is no USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 15 of 27
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evidence in the record to support the contention that the public interest would be disserved by this injunction. The district court did not abuse its discretion in granting a permanent injunction. IV. CONCLUSION For these reasons, we affirm the district’s well-reasoned opinion finding Houston County and the Sheriff of Houston County liable under Title VII, and we affirm the district court’s sub- sequent order enjoining further enforcement or application of the Exclusion. AFFIRMED. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 16 of 27
22-13626 BRASHER, J., Dissenting 1
BRASHER, Circuit Judge, dissenting: The majority opinion says the question here is whether an employer-provided health insurance policy may deny coverage “to a transgender employee because the employee is transgender.” The answer to that question, the majority opinion concludes, is “no.” I agree with that proposition as far as it goes. But it doesn’t go very far in this case. The reason is that the employer-provided health insurance plan here does not deny coverage to anyone be- cause he or she is transgender. The alleged problem with this plan is that it excludes coverage for sex change surgeries, not that it de- nies coverage to transgender people. On the face of this policy, it doesn’t treat anyone differently based on sex, gender nonconform- ity, or transgender status. Because this policy does not facially dis- criminate, I respectfully dissent. I.
Sergeant Anna Lange was born a male but, after being diag- nosed with gender dysphoria in 2017, began to identify as a woman. According to one of Lange’s expert witnesses, gender dys- phoria is a “serious medical condition” that creates “an intense and persistent discomfort” with one’s biological anatomy. Most transgender individuals seek some level of medical services in con- nection with their diagnoses. Those services range from mental health counseling to hormones, all the way up to a sex change sur- gery. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 17 of 27
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As a treatment for gender dysphoria, Lange sought to have male-to-female sex change surgery. Sex change surgeries are a suite of medical procedures that can vary in their purpose, cost, and complexity. They may include “[c]hest reconstruction surgery”; “[g]enital reconstruction surgeries” such as “penectomy (removal of the penis), orchiectomy (removal of the testes), vaginoplasty, cli- toroplasty, and/or vulvoplasty”; and other surgeries such as “facial feminization surgery, liposuction, lipofilling, voice surgery, thyroid cartilage reduction, gluteal augmentation . . . , and hair reconstruc- tion, among others.” Some of these procedures can be performed on either bio- logical sex, but some procedures are specific to biology. For exam- ple, as explained by Lange’s doctor, a natal man’s “vaginoplasty” will be very different from a natal woman’s. For a natal man to undergo a vaginoplasty, “the testicles will be removed, the urethra will be shortened, and the penile and scrotal skin will be used to line the neovagina, the space between the rectum and the prostate and bladder.” Additionally, the patient must undergo an “extensive regimen of post-surgery dilatation to prevent the closure of the ne- ovagina.” The same can be said when comparing a natal woman’s phalloplasty—the construction of a neopenis—with a phalloplasty a natal man may undergo. A health insurance company’s medical guidelines explain that a natal woman’s phalloplasty “involves re- moval of the uterus, ovaries, and vagina, and creation of a neophal- lus[] and scrotum with scrotal prostheses,” which “is a multistage reconstructive procedure.” USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 18 of 27
22-13626 BRASHER, J., Dissenting 3
As a sergeant with the Houston County Sheriff’s Office, Ser- geant Lange participates in the county’s health insurance plan, which contains several coverage exclusions. In total, the plan ex- cludes coverage for 68 medical categories and 29 pharmaceutical categories. Excluded categories include dental and vision care, elec- tive abortions, contraceptives, hearing aids, fertility treatment, and oral surgeries. Since at least 1998, the plan has excluded “drugs,” “[s]ervices[,] and supplies for a sex change and/or the reversal of a sex change.” The plan also contains other provisions that would likely prohibit a patient from receiving certain sex-change-type sur- geries. For example, the plan does not cover cosmetic surgeries or medically necessary surgeries to treat sexual dysfunction. The plan’s sex change exclusion is consistent with the pat- tern in the rest of the insurance plan: it covers medically necessary treatments but excludes particularly expensive, top-of-the-line pro- cedures. For example, although it covers various treatments for obesity, the plan excludes coverage for bariatric surgery. Similarly, for a gender dysphoria diagnosis, the plan covers basic treatments like hormone replacements from an endocrinologist and sessions with a psychotherapist, but it does not cover surgery. When the insurer that administers the County’s plan denied coverage for a sex change operation, Lange sued the County under Title VII for discrimination “because of sex.” The district court held that there was a genuine dispute of fact about why the County’s plan excluded sex changes from its coverage. But the court held USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 19 of 27
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that this factual dispute did not matter because it believed the County’s insurance plan violated Title VII on its face. Accordingly, the district court granted summary judgment for Lange and per- manently enjoined the exclusion for sex change surgeries from the County’s insurance plan. The County appealed. II.
Lange has sued the County for disparate treatment under Title VII, which makes it unlawful for an employer to deny fringe benefits because of an employee’s sex. See Newport News Shipbuild- ing & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983). To succeed on this Title VII cause of action, Lange must prove that the County had a “discriminatory intent or motive” for its actions. Ricci v. DeStefano, 557 U.S. 557, 577 (2009). One way to prove discrimina- tory intent is the existence of a “formal, facially discriminatory pol- icy requiring adverse treatment of employees with [] [a protected] trait.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). In other words, a facially discriminatory policy is almost always enough by itself to demonstrate discriminatory intent. See Int’l Union, United Auto. Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991). Lange argues, and the majority holds, that excluding sex change operations on the face of this policy necessarily means that the County is intentionally discriminating against transgender peo- ple because of sex. I disagree. Although the policy does not cover sex change surgeries, it doesn’t treat anyone differently based on sex, gender nonconformity, or transgender status. Lange may be USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 20 of 27
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able to prove a Title VII claim with more evidence or on a different theory of liability, but Lange’s intentional discrimination claim can- not succeed on the face of this policy alone. A.
I’ll start in the same place the majority opinion does—with Bostock v. Clayton County, 590 U.S. 644 (2020). In Bostock, the Court held that Title VII prohibits firing an employee “simply for being” transgender. Id. at 681. The Court explained that “[i]f [an] [] em- ployer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Id. at 659– 60. In light of this understanding of sex discrimination, the Court reasoned that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Id. at 660. Turning to the County’s insurance plan, the challenged ex- clusion doesn’t fit Bostock’s rubric because nothing about the exclu- sion turns on Lange’s sex. Unlike the employees in Bostock who were fired because they identified with a gender different from their natal sex, this health insurance plan does not deny medical coverage to participants “simply for being . . . transgender.” Id. at 681. To be akin to Bostock, the policy would have to deny some or all coverage to transgender people. But it doesn’t. The County’s insurance plan covers transgender people and provides treatments for gender dysphoria. Lange’s sex is not relevant to the County’s USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 21 of 27
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insurer at all. All that matters is whether Lange is asking the insurer to pay for the constellation of medical procedures known as a “sex change.” There is also no serious argument that the plan—on its face—relies on gender stereotypes. As the Supreme Court ex- plained in Price Waterhouse v. Hopkins, 490 U.S. 288 (1989), discrim- ination based on gender stereotypes is unlawful sex-based discrim- ination. See id. at 251–52. We, likewise, have held that the law pro- hibits “not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expec- tations defined by gender.” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011). But this insurance plan has nothing to do with ste- reotypes. The exclusion for sex change surgery is consistent with other exclusions for treatments for sexual dysfunction, cosmetic surgery, bariatric surgery, and the like. And the exclusion applies equally to sex change reversals. If the plan discriminated against par- ticipants because of gender stereotypes, it would cover procedures to align a participant’s physical characteristics with those of his or her natal sex. Instead, the plan refuses to pay for a suite of medical procedures whether the goal is to align with natal sex or differ from natal sex. Although Bostock was a monumental decision in antidiscrim- ination 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. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 22 of 27
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B.
Given that coverage under the plan doesn’t turn on any in- dividual’s sex, transgender status, or gender stereotype, how can Lange claim that it does? Lange makes two arguments to transform an exclusion that, on its face, does not turn on an individual’s sex into one that facially discriminates against transgender people. Nei- ther argument works. 1.
Lange’s primary argument is that the policy facially discrim- inates against transgender people because transgender people are the only people who would want a sex change operation and be- cause it denies coverage for those operations. The majority like- wise says that the policy facially discriminates against transgender people because “Health Plan participants who are transgender are the only participants who would seek” sex change surgery. The syl- logism goes like this: some transgender people want a sex change operation as a treatment for gender dysphoria; those are the only people who would want a sex change operation; the policy doesn’t cover sex change operations; therefore, the policy facially discrim- inates based on transgender status. Assuming Lange is factually correct that only transgender people would want sex change surgery, that doesn’t mean the plan discriminates because of sex. An employer discriminates under Ti- tle VII when it treats an employee differently than it would without the employee’s protected trait. So the Supreme Court has held that USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 23 of 27
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an employer cannot give its female employees a benefit package better than the package it offers to its male employees. See Newport News Shipbuilding & Dry Dock Co., 462 U.S. at 676. It’s the compari- son—e.g., what is provided to males versus what is provided to fe- males—that tells us whether a health insurance policy is facially discriminatory. Under that understanding of discrimination, this plan doesn’t discriminate. Title VII doesn’t guarantee employees cover- age for any particular medical procedure, and this plan is not espe- cially generous in its coverage. The plan covers transgender people and gender dysphoria. Although it excludes one treatment for gen- der dysphoria, it also excludes coverage for all sorts of similar things such as expensive surgeries, cosmetic procedures, and all treatments for sexual dysfunction. The upshot is that the plan doesn’t seem to provide the equivalent of a sex change surgery to anyone. It’s not discriminatory; it’s just a cheap plan. The majority opinion says that it doesn’t matter that the in- surance plan covers transgender people and gender dysphoria be- cause an employer “is not shielded from liability when it engages in discriminatory practices concerning some treatment and not others.” But the majority is missing the point. The point is that, on the face of the plan, it does not draw a line between procedures transgender people need and procedures that other people need. Instead, the plan draws a line between sex-change operations and other operations. That the plan covers transgender people and gen- der dysphoria raises a reasonable inference that there is a “but for” USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 24 of 27
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cause other than transgender status for the plan to decline coverage for sex change operations. But, more to the point here, it unequiv- ocally establishes the absence of facial discrimination against transgender people or transgender-related treatments. There are three additional problems with conflating this pol- icy—an insurance policy that denies coverage for a single treat- ment for gender dysphoria—with a policy that facially discrimi- nates against transgender people because of sex. First, this view of the law doesn’t equalize fringe benefits— it treats certain people more favorably than others. Under the ma- jority’s view, an insurance policy can exclude coverage for obesity. It can decline to cover cosmetic procedures to hide scars and repair mastectomies. It can even decline to cover expensive, life-saving cancer treatment. But an employer-provided insurance plan must always cover every treatment for gender dysphoria. There is no basis in the text of Title VII for that result. Second, the majority’s reasoning effectively eliminates “dis- parate impact” as a separate theory of liability. For various reasons, Lange is proceeding here under a disparate treatment theory, which is why the claim requires a showing of discriminatory intent. But we have developed an entire body of law—disparate impact—to address claims about certain facially nondiscriminatory employ- ment policies that harm members of a protected class. See e.g., EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1273–74 (11th Cir. 2000). That body of law requires, among other things, an evalua- tion of an employer’s legitimate business reasons for adopting the USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 25 of 27
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policy. See id. at 1275; 42 U.S.C. § 2000e–2(k)(1)(A)(i). But that body of law is unnecessary under the majority’s reasoning—if an em- ployer’s policy uniquely affects members of a protected class, a court can just declare it facially discriminatory. Third, the Supreme Court rejected very similar reasoning in Young v. United Parcel Services, 575 U.S. 206 (2015), to that employed by the majority here. There, a pregnant UPS driver challenged the company’s policy of providing light-duty accommodations to some disabled employees but not to pregnant women. See id. at 211–12. After her doctor restricted her from lifting more than twenty pounds, the driver asserted that, because UPS accommodated cer- tain disabled persons with lifting restrictions, the company must also accommodate her. See id. at 214–17. The driver’s logic was sim- ilar to Lange’s—because she did not receive a benefit similar to some “workers with nonpregnancy-related disabilities” under the company policy, “that is the end of the matter, she must win.” Id. at 210, 221. But the Court in Young disagreed with that reasoning, explaining that it “doubt[ed] that Congress intended to grant preg- nant workers an unconditional most-favored-nation status.” Id. at 222. Instead of declaring such a policy facially invalid, the Court explained that it had to inquire into whether “the employer has a legitimate, nondiscriminatory, nonpretextual reason” for the pol- icy. Id. For all these reasons, we can’t say that an insurance plan fa- cially discriminates because of sex just because it does not cover a single treatment for gender dysphoria. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 26 of 27
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2.
I’ll move now to Lange’s second argument, which the ma- jority opinion does not directly address. Title VII’s “simple test” asks “whether the evidence shows treatment of a person in a man- ner which but for that person’s sex would be different.” City of L.A., Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (internal quotation marks omitted); see also Bostock, 590 U.S. at 659–60 (“[I]f changing the employee’s sex would have yielded a different choice[,] . . . a statutory violation has occurred.”).Trying to identify that kind of differential treatment on the face of the plan, Lange says that the plan would cover certain procedures that are part of a sex change operation (e.g., a vaginoplasty) if Lange were a natal woman but does not cover those procedures only because Lange is a natal man. Although this argument may be sound as a matter of law, it fails on the facts. The record reflects that the constellation of pro- cedures that are needed for a male-to-female sex change are unique and not medical procedures that a natal woman could ever un- dergo. As Lange’s expert explained, the male-to-female sex change procedure requires that a person’s “testicles [] be removed, the ure- thra [] be shortened, and the penile and scrotal skin [] be used to line the neovagina, the space between the rectum and the prostate and bladder.” Moreover, even if a natal woman could undergo these same procedures, other exclusions in the plan would deny coverage to the extent those procedures were prescribed to im- prove her appearance or treat sexual dysfunction. USCA11 Case: 22-13626 Document: 79-1 Date Filed: 05/13/2024 Page: 27 of 27
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To be clear, I’m not saying that a health insurance plan doesn’t discriminate so long as it treats both men and women equally as groups. The Supreme Court has rejected that proposi- tion. See Bostock, 590 U.S. at 663–65. Instead, the point is that, on the face of this policy, Lange’s sex was not the “but for” cause of the insurance company’s treatment. The insurer didn’t refuse to cover any procedure for Lange as a natal man that it would have covered if Lange were a natal woman. Unlike in Bostock in which the employer had to know the employee’s sex to know how it would treat the employee, the insurer here doesn’t need to know Lange’s sex to decide whether the policy provides coverage. III.
For this policy to facially discriminate against transgender people, coverage under the policy must turn on sex, a gender ste- reotype, or transgender status. It doesn’t. That doesn’t necessarily mean Lange loses this lawsuit; it just means that Lange cannot es- tablish unlawful discrimination on the face of the policy alone. Be- cause the exclusion is not facially discriminatory under Title VII, I would reverse the district court’s grant of summary judgment, va- cate the permanent injunction, and remand for further proceed- ings.