UPDATE: En Banc 11th Circuit Correctly Interprets Title VII Not to Compel Insurer-Provided Health Insurance Excluding Parallel Procedures to Cover “Sex Change” Surgeries

In October 2024, we filed with the en banc Eleventh Circuit Court of Appeals an amicus brief explaining why Title VII poses no issues for an employer whose health insurance declines to cover both other psychologically-driven surgical treatments for body dysmorphia and “sex change” surgery. The argument necessarily addressed the correct interpretation of the Supreme Court’s Bostock decision, which we also addressed in amicus briefing to the Supreme Court in Skrmetti.

Now, the en banc Eleventh Circuit has ruled, largely recapping our analysis (and citing in support of that reasoning where the Supreme Court, in Skrmetti, clarified Bostock as we proposed). You can read the full decision, along with concurrences and dissents, below.

The circuit majority understands Title VII–after Bostock–to continue to make the signature feature of a Title VII sex-discrimination claim the differential treatment of men and women because of their sex. Here, the county treated no one differently than it would have treated anyone else of another sex. “On the contrary, the plan excludes coverage for a suite of medical procedures that change the appearance of a person’s sex organs–regardless whether the goal is to differ from, or align with, natal sex.” As a result, the majority found no Title VII violation.

These courts have chosen to channel Bostock constructively, consistently with the opinion’s own perfectly coherent approach to Title VII’s text.

There’s a lot more here, much of it (in the majority and the concurrences) insightful.*

* – Concerning the dissents, perhaps the less said the better.  Judge Jill Pryor, in the main dissent, insists she better understands the Supreme Court’s Bostock decision than did its author.  Judge Wilson (who authored the rejected COA panel opinion) takes this opportunity to relitigate the related issues on which his colleagues refused his misreading of Bostock years ago in Adams.  Judge Abudu (across more pages than both of them, combined, with no colleagues in agreement) takes a different route: (a) misreading Bostock; (b) ignoring the SCOTUS majority’s explanation of Bostock in Skrmetti; (c) claiming that Justice Barrett’s Skrmetti concurrence requires “an exploration” of the “immutab[ility]” of “whiteness” (which, taken seriously, would stop the equal protection clause from barring racial discrimination); and (d) flaming amici like ourselves for accurately describing both the facts of the case and the positions of the Biden Administration.