ACR Project Files Amicus Brief with En Banc 11th Circuit on Inapplicability of Title VII to Decision by Employer Providing Health Insurance Not Covering Any Psychologically-Driven Surgical Treatments for Body Dysmorphia to Also Not Cover “Sex Change” Surgeries

The ACR Project filed an amicus brief with the en banc U.S. Court of Appeals for the 11th Circuit,* addressing the merits of the Title VII case addressing whether an employer providing health insurance that does not cover other psychologically-driven surgical treatments for body dysmorphia must cover “sex change” surgery.  You can see the full brief, below.

Setting

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

In this case, that fight unfolded in a fight over a county’s employee 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.

Earlier, we submitted amicus briefing asking the en banc court to reconsider the panel’s divided opinion.  After the en banc court agreed, we submitted the related merits brief, which you can see below.

Our Brief

As we argue in the brief, the en banc 11th Circuit should reverse, because:

1. The lower court’s conclusion that Bostock straightforwardly decides this case is wrong.
2. Bostock’s reasoning requires reversal where, as here, a challenged policy treats no one differently because of sex.
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. Failure to reverse would deepen an existing circuit split on the wider reading of Bostock.  The lower court’s action conflicts with the en banc 11th Circuit’s Adams opinion from December 2022.  Indeed, it sides with sister courts’ mistaken jurisprudence, even after the Supreme Court appears to have unanimously rejected the same broad, gnostic reading of Bostock in Dep’t of Educ v. La., 2024 U.S. LEXIS 2983 (2024).

We advised the en banc court to rein in the lower court’s rogue opinion.

* – For complete accuracy, we filed a motion for for leave to file an amicus brief, with that amicus brief attached as an exhibit.