ACR Project Files Amicus Brief with 11th Circuit Supporting En Banc Review of Panel Decision Holding Title VII to Compel Coverage of Sex Change Surgeries

The ACR Project today filed an amicus brief with the U.S. Court of Appeals for the 11th Circuit,* supporting Houston County, Georgia’s motion for rehearing en banc of a Title VII case that threatens to deepen and confuse an existing circuit split.  You can see the full brief, below.

Setting

Some contend the 2020 Bostock opinion decided for all American employers a host of issues not before the Supreme Court.  Others contend a straight-line extension of Bostock to Title IX solved all purportedly related issues for all federal funding recipients.  According to both, post-Bostock, statutes prohibiting sex discrimination must be read to cover gender-identity.

This Case

Here, that fight unfolded through a law enforcement officer’s fight over county health insurance coverage.  The policy denies coverage for sex change surgery.  Also not covered?  “[S]ervices … meant to … change … how you look” including “treatments to … change the size, shape or look of … body features.”  The Plaintiff alleged (and both the District Court and panel-majority found) that the first of these provisions violated Title VII, by denying transgender individuals coverage for surgeries that would be covered for others–after all, the policy would pay for a woman fighting breast cancer to receive a mastectomy, but not for a woman as part of a sex change. “The Supreme Court clarified in Bostock that [all] ‘discrimination based on … transgender status necessarily entails discrimination based on sex’ as prohibited under Title VII.”  Coupling these rulings, it held it to be illegal for the county to deny coverage for sex change surgeries.

Our Brief

As we argue in the brief, the en banc 11th Circuit should rehear this case for four interrelated reasons:

1. The panel-majority’s conclusion that Bostock straightforwardly decides this case is wrong.  Bostock‘s holding is inapplicable and the Court should go en banc to prevent a flawed opinion from binding the Circuit.
2. Bostock’s reasoning strongly supports the panel-dissent’s conclusion that the Defendants have complied with Title VII.
3. The wide-berth some would give their misinterpretation of Bostock means that what happens in Vegas will not stay in Vegas.  The Court will hear about it from others seeking to extend Bostock to answer other questions unaddressed by Title VII.
4. The panel-majority’s embrace of a radical extension of Bostock’s purported, gnostic meaning deepens an existing circuit split on the wider reading of Bostock and conflicts with the en banc 11th Circuit’s Adams opinion from December 2022.  The Court cannot allow the panel-majority to side with the 4th and 7th Circuits against its own en banc court.  This fact pattern compels it to rehear the case either to correct the panel’s rogue action or to adopt it.

* – In the interest of perfect accuracy, we filed a motion for for leave to file an amicus brief, with that amicus brief attached as an exhibit.