A Georgia county that lost a legal challenge to a provision of its health plan that bars coverage for gender-affirming surgery has asked the full Eleventh Circuit to revisit the decision, arguing that an opinion last month wrongly found the policy discriminates against transgender people, rather than being isolated to a single procedure.

In their petition for en banc review Monday, Houston County and Sheriff Cullen Talton said a three-judge panel had misread the U.S. Supreme Court's 2020 decision Bostock v. Clayton County, which banned discrimination on the basis of sexuality and gender identity under Title VII of the 1964 Civil Rights Act.

Bostock, the county argued, would have been applicable if the county had refused to grant any health coverage to a transgender employee, which was plainly not the case for Deputy Anna Lange, who was denied coverage for gender-affirming surgery.

"The county's health plan does not do that. Throughout her employment with the Sheriff's Office, Lange has participated in the plan under the same terms, conditions, and limitations as all other participants," the county said.

The county urged the full appellate circuit to look to the dissenting opinion of U.S. Circuit Judge Andrew Brasher, who wrote in May, "On the face of this policy, it doesn't treat anyone differently based on sex, gender nonconformity, or transgender status."

The county's petition for review comes a few weeks after an Eleventh Circuit panel ruled in favor of Lange, a longtime deputy who transitioned her gender while working for the sheriff's office. After initially filing suit in 2019, Lange was largely successful on her discrimination claims, with a jury awarding her $60,000 in emotional damages in 2022.

The county, meanwhile, appealed U.S. District Judge Marc Treadwell's granting of an injunction blocking the provision that denies coverage for gender-affirming surgery. Before the Eleventh Circuit, attorneys for the county argued that the policy applies to the procedure, not the person.

"You've got transgender people on each side of this line, and the line is drawn at whether you want surgery or not, not whether you're transgender or not," Elarbee Thompson Sapp & Wilson LLP's Patrick Lail argued at oral arguments last November.

The panel, however, didn't bite, with U.S. Circuit Judges Charles Wilson and Jill Pryor ruling the policy was plainly discriminatory.

"In denying coverage for the vaginoplasty, Houston County deprived Lange of a benefit or privilege of her employment by reason of her nonconforming traits, thereby unlawfully punishing her for her gender nonconformity," the opinion said.

On top of its purported misreading of Bostock, the county argued Monday that the opinion conflicted with the Eleventh Circuit's own ruling in Adams v. School Board of St. Johns County, which grappled with whether sex-based discrimination and discrimination against transgender people were one and the same.

"This court answered that question in the negative, holding that such 'a policy can lawfully classify on the basis of biological sex without unlawfully discriminating on the basis of transgender status,'" the county argued.

"The record in this case shows that most of Lange's non-surgical treatments for her transition were covered by the plan and that not all transgender individuals need and/or desire surgery," the county added. "…Thus, two categories of plan participants result: (a) those who want surgery and (b) those who do not. Because transgender individuals are included in both categories, the exclusion is not facially discriminatory."

Counsel for Lange didn't immediately respond to a request for comment Tuesday.

Lange is represented by Kenneth E. Barton III and M. Devlin Cooper of Cooper Barton & Cooper, Wesley R. Powell, Jill K. Grant, Catherine E. Fata and Amanda M. Payne of Willkie Farr & Gallagher LLP, David Brown and Gabriel Arkles of the Transgender Legal Defense & Education Fund Inc. and Kevin M. Barry of the Quinnipiac University School of Law Legal Clinic.

Houston County and its sheriff are represented by R. Read Gignilliat, Sharon P. Morgan, Patrick L. Lail and William D. Deveney of Elarbee Thompson Sapp & Wilson LLP.

The case is Anna Lange v. Houston County, Georgia, et al., case number 22-13626, in the U.S. Court of Appeals for the Eleventh Circuit.