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.”
