Led by Alabama, Georgia and Florida — the three states represented by the 11th Circuit — the attorneys general of 23 states filed an amicus brief Monday supporting a Georgia county in its petition for a rehearing of Lange v. Houston County, Georgia. In the case, the 11th U.S. Circuit Court of Appeals determined Houston County had violated Title VII of the Civil Rights Act of 1964 by maintaining an exclusion in its health plan that denied coverage of gender-affirming care to an employee because of her status as transgender.
In making the decision, the 11th Circuit did not produce a “comparator” against whom discrimination could be shown, the states said, noting that “‘discriminate against’ … mean[s] treating that individual worse than others who are similarly situated.” But even similar operations performed on nontransgender individuals are for different reasons and involve a different approach due to body type, the states said.
Therefore, the 11th Circuit decision “fundamentally transforms Title VII” by concluding that because transgender people are the only plan participants who qualify for gender-affirming surgery, the denial of such treatment is therefore based on transgender status, the states argued.
“Under the majority’s approach, employer insurance plans would seemingly need to cover every possible treatment that only one sex or gender identity could or would undergo or else face liability for discriminating based on sex,” the states wrote, using erectile dysfunction medication, egg freezing and abortion as examples of treatments requiring coverage under the logic.
Attorneys general of nearly half the U.S. — from Alaska, Arkansas, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and West Virginia — joined Alabama Solicitor General Edmund LaCour Jr. in submitting the amicus brief.
Several right-leaning organizations submitted amicus briefs Monday in support of the rehearing in addition to the states attorneys general, including the Association of American Physicians and Surgeons, the Ethics and Public Policy Center and the Christian Employers Alliance.
