Lange worked in the Houston County Sheriff’s Office and was promoted to Sergeant. Initially, Lange presented as male. A few years later, Lange was diagnosed with gender dysphoria.
In 2017, Lange began presenting as female and changed her legal name to align with her gender identity.
Lange met with the Sheriff and the County’s personnel director to tell them that she was transgender and inform them of her transition plans. She also requested permission to wear a female uniform at work and present herself as a female in the office. Sheriff Talton granted Lange’s requests. During a meeting chaired by the Sheriff, Lange came out to her co-workers. The Sheriff acknowledged that Lange’s transition was a sensitive and serious subject.
Anna Lange, a transgender woman and Sergeant in the Houston County Sheriff’s Office was denied health insurance coverage for medically necessary care for the treatment of gender dysphoria based on an exclusion in her health insurance plan for services and supplies for a sex change. The plan would have covered such care, however, if it were provided for some other medically necessary purpose. Houston County provided and administered the plan for Sheriff’s Office employees on behalf of the Sheriff’s Office.
As part of her transition, Lange made her appearance more female over time. She began hormone replacement therapy under the care of an endocrinologist, and she underwent surgery to feminize her chest. Lange personally paid for the costs of the surgery because she knew that the County’s Health Plan would not cover it.
As one of the next steps in Lange’s treatment for gender dysphoria, and on the recommendation of her endocrinologist, two psychologists, and a surgeon, Lange sought genital surgery. The procedure qualified as “medically necessary” under Anthem Blue Cross Blue Shield’s guidelines, and thus, Anthem initially told Lange that it would be covered under her health insurance plan.
However, the County official responsible for the plan’s administration later consulted with the County’s insurance broker and worked with Anthem to ensure that the exclusion of coverage for gender-affirming care would apply under the plan. Consequently, Lange’s pre-authorization request for her procedure was denied based on the plan’s benefit exclusion for “sex reassignment surgery.”
According to a long-standing informal intergovernmental arrangement, the Houston County Sheriff’s Office offers its employees healthcare coverage by permitting them to enroll in Houston County’s health insurance plan. The plan is self-funded, meaning that the County’s third-party administrator, Anthem Blue Cross Blue Shield, pays employees’ and dependents’ medical claims using funds provided by the County and obtained through employee contributions. The plan contains a number of benefit exclusions. As relevant here, it excludes coverage for “services and supplies for a sex change and/or the reversal of a sex change” and “drugs for sex change surgery.”
Following the enactment of the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010), which, among other things, bars sex discrimination in health programs and activities receiving federal financial assistance, 42 U.S.C. 18116(a), Anthem recommended that the County remove these exclusions from the plan.
The County rejected Anthem’s recommendation and chose to retain the exclusions.
Title VII bars a covered employer from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s * * * sex.” 42 U.S.C. 2000e-2(a)(1). This prohibition on sex discrimination includes discrimination on the basis of gender identity.
Title VII defines the term “employer” to include not only state governments, governmental agencies, and political subdivisions but also “any agent” of such an entity. 42 U.S.C. 2000e(a) and (b).
Lange filed suit in the Middle District of Georgia against the County and Sheriff Talton. Lange alleged that the exclusion of coverage in the County’s health insurance plan for gender-affirming surgery and related medication violates Title VII “by intentionally providing lesser terms of compensation to employees * * * who are seeking a gender transition.”
The parties cross-moved for summary judgment on Lange’s Title VII claim, and the district court held that the plan’s exclusion of coverage “facially discriminates” based on sex. The court found that the challenged exclusion denies coverage for certain procedures and drugs only when they are related to gender-affirming surgery. For example, the plan “pays for mastectomies when medically necessary for cancer treatment,” but it denies coverage “when mastectomies are medically necessary for gender-affirming surgery.” Similarly, “the plan pays for hormone replacement therapy medically necessary for the treatment of menopause, but not hormone replacement therapy medically necessary for an employee’s gender-affirming care.
Thus, given the “undisputed” fact that the challenged provisions of the plan deny coverage “only [for] transgender members,” the court held that the plan facially discriminates based on sex.
The district court held that the defendant’s arguments to the contrary lacked merit. For example, the court rejected the defendants’ contention that the health insurance plan does not discriminate based on transgender status but rather based on whether a transgender individual wants gender transition surgery. As the court pointed out, this argument simply confirmed that transgender employees cannot get medically necessary treatment for gender-affirming medical care because they are transgender.” The court also found unpersuasive defendants’ argument that a plan only facially discriminates if it completely excludes coverage for transgender care.
As the court stated pointedly, “Title VII does not exempt ‘partial’ violations.”
The district court also held that Lange had properly named the County as a defendant because it had acted as the Sheriff’s agent for purposes of Lange’s Title VII challenge. Specifically, the County had performed “function[s] traditionally exercised by an employer”—namely, providing a health insurance plan to employees of the Sheriff’s Office, administering the plan, and denying claims based on exclusions in the plan—and it had done so “on behalf of the Sheriff.” Accordingly, as defendants had not argued that the exclusion of coverage was otherwise justified under Title VII, the district court entered summary judgment in Lange’s favor on the issue of whether the defendants’ plan violated Title VII.
Anna Lange v Houston County, Georgia, et al.—United States Court of Appeals
The issue was whether an employer-sponsored health insurance plan that denies coverage for medically necessary gender-affirming care but covers that same care when provided for other medically necessary purposes facially discriminates based on sex in violation of Title VII.
Summary of Argument
As the Supreme Court explained in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the term “discriminate” refers to a “difference in treatment or favor” for an employee. This prohibition on sex discrimination extends to employer-sponsored health insurance plans. Health insurance and other fringe benefits are compensation, terms, conditions, or privileges of employment under Title VII. And there is no reason to believe that U.S. Congress intended a special definition of discrimination in the context of employee group insurance coverage.
Under these principles, where an employer’s health insurance plan covers certain medically necessary procedures and medications except when they constitute gender-affirming care—for example, medical care that treats a diagnosis of gender dysphoria—the plan facially discriminates based on sex and violates Title VII. In such a situation, the plan conditions coverage based on whether a procedure or drug is provided to alter an individual’s sex characteristics to match their gender identity and not their sex assigned at birth. In doing so, the plan “unavoidably discriminates against persons with one sex identified at birth and another today.”
Many courts agree. Multiple district courts have concluded that exclusions of coverage for gender-affirming care, where such care would otherwise be covered if provided for other medically necessary reasons, violate Title VII’s prohibition on sex discrimination.
Other courts have reached similar conclusions under Section 1557 of the ACA, which bars sex discrimination in health programs and activities receiving federal financial assistance, 42 U.S.C. 18116(a), and under the Equal Protection Clause of the Fourteenth Amendment.
While an employer has discretion to decide which healthcare benefits it offers to enrollees, once it chooses to provide certain benefits, it may not dole them out in a discriminatory way.
Title VII contains no statutory or regulatory carve-outs permitting employers to deny health insurance benefits for otherwise-covered medical care simply because the care is provided to treat an employee’s gender dysphoria.
When a sheriff’s deputy in Houston County sought surgery as part of her gender transition, local officials refused to change the department’s health insurance plan to cover it, citing cost as the primary reason.
What is Gender Dysphoria?
According to the Mayo Clinic, Gender dysphoria is the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics. Gender dysphoria may also cause significant distress that affects how you function in social situations, at work or school, and in other areas of life. Gender dysphoria might cause adolescents and adults to experience a marked difference between inner gender identity and assigned gender that lasts for at least six months. The difference is shown by at least two of the following:
- A difference between gender identity and genitals or secondary sex characteristics, such as breast size, voice, and facial hair. In young adolescents, there is a difference between gender identity and anticipated secondary sex characteristics.
- A strong desire to be rid of these genitals or secondary sex characteristics or a desire to prevent the development of secondary sex characteristics.
- A strong desire to have the genitals and secondary sex characteristics of another gender.
- A strong desire to be or to be treated as another gender.
- A strong belief in having the typical feelings and reactions of another gender.
According to the APA, people who are transgender may pursue multiple domains of gender affirmation, including social affirmation (e.g., changing one’s name and pronouns), legal affirmation (e.g., changing gender markers on one’s government-issued documents), medical affirmation (e.g., pubertal suppression or gender-affirming hormones), and/or surgical affirmation (e.g., vaginoplasty, facial feminization surgery, breast augmentation, masculine chest reconstruction, etc.). Of note, not all people who are transgender will desire all domains of gender affirmation, as these are highly personal and individual decisions.
It is important to note that gender identity is different from gender expression. Whereas gender identity refers to one’s psychological sense of gender, gender expression refers to how one presents to the world in a gendered way. For example, in much of the U.S., wearing a dress is considered a “feminine” gender expression, and wearing a tuxedo is considered a “masculine” gender expression. Such expectations are culturally defined and vary across time and culture. One’s gender expression does not necessarily align with their gender identity. Diverse gender expressions, much like diverse gender identities, are not indications of a mental disorder.
Gender identity is also different from sexual orientation. Sexual orientation refers to the types of people to which one is sexually attracted. As with people who are cisgender (people whose sex assigned at birth aligns with their gender identity), people who are transgender have a diverse range of sexual orientations.
Transgender Challenges and Complications
Transgender people suffer from high levels of stigmatization, discrimination, and victimization, contributing to negative self-image and increased rates of other mental health disorders. Transgender individuals are at higher risk of victimization and hate crimes than the general public. Suicide rates among transgender people are markedly higher than the general population.
In the following years, the Middle Georgia county paid a private law firm nearly $1.2 million to fight Sergeant Anna Lange in federal court — far more than it would have cost the county to offer such coverage to all of its 1,500 health plan members, according to expert analyses.
“It was a slap in the face, really, to find out how much they had spent,” said Lange, who filed a federal discrimination lawsuit against the county. “They’re treating it like a political issue, obviously, when it’s a medical issue.”
Transgender Law Enforcement Officer Denied Medical Coverage for Gender Dysphoria and Filed a Lawsuit
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