Multiple States Rebuked for Denying Transgender Health Care
With increasing frequency, federal courts are ruling in favor of plaintiffs who challenge state-law restrictions on the availability or coverage for medications and treatments sought by transgender patients. Two major appellate decisions have favored trans employees whose state employers sought to exclude their care from their health plans for apparently ideological reasons. Other states have attempted to block or restrict treatments for trans patients with legislation, only to find those measures invalidated by courts.
One unifying theme of these cases is their reliance on Justice Gorsuch’s 2020 majority opinion in the Bostock v. Clayton County, when the Supreme Court ruled that employers could not discriminate against employees on the basis of their sexual orientation or gender identity. Bostock interpreted the Civil Rights Act of 1964 as prohibiting the termination of employees solely because they are homosexual or transgender.
These rulings come at a time when gender-affirming surgeries are becoming increasingly widespread. Between 2016 and 2019, for example, the number of procedures performed in the U.S. nearly tripled. Other treatments, such as hormone replacement therapy and puberty blockers, have also become more commonly prescribed for the treatment of gender dysphoria.
State and Local Governments Cannot Exclude Transgender Health Care
A few recent decisions from the 11th Circuit Court of Appeals, the Fourth Circuit Court of Appeals, and a federal district court in Tallahassee are illustrative of how federal courts are approaching gender-affirming care.
11th Circuit Holds Denial of Gender-Affirming Care Sex-Based Discrimination
A panel of judges from the Eleventh Circuit Court of Appeals recently upheld a ruling in favor of Anna Lange, a trans woman working as a sheriff’s deputy in Georgia, who sued her employer for failing to cover her gender-affirming surgery. The lower court had found that the county government’s refusal to cover Lange’s prescribed procedure was a form of sex-based discrimination that violated the Civil Rights Act. Lange was awarded $60,000 in damages, and her employer was enjoined from excluding gender-affirming care from its insurance policy.
Although the lower court’s decision and injunction applied only to Lange’s employer, the decision in Lange v. Houston County found that the challenged policy was facially discriminatory and creates precedent for the rest of the state and for the other states of the Eleventh Circuit, Florida and Alabama.
Fourth Circuit Prohibits States From Excluding Gender-Affirming Care
Earlier this year, the Fourth Circuit Court of Appeals upheld rulings against two states, North Carolina and West Virginia, which also sought to deny their employees health insurance coverage for transgender care. In a divided opinion, the appeals court ruled that each state’s policies were clearly discriminatory because they covered certain procedures for other conditions but denied coverage for the same procedures for the treatment of gender dysphoria.
This appellate court went beyond the Civil Rights Act to find that the exclusion of care was also a violation of the Fourteenth Amendment’s Equal Protection Clause. This decision, Kadel v. Folwell, combined the appeals from two similar district court cases and also also sets a precedent for the other states of the Fourth Circuit. These include Maryland, South Carolina, and Virginia.
In both of these cases, the government employers cited the high costs of gender-affirming surgeries and other treatments for gender dysphoria as proposed nondiscriminatory reason for excluding coverage. Those assertions lacked evidence, however, as the procedures are rare and were shown to have negligible impact on the costs to the health plans. Ironically, investigative journalists revealed that these government employers spent millions of dollars on private attorneys to unsuccessfully exclude care that would cost far less.
These wide-reaching rulings follow more narrow results in Alaska, where a federal district court reached a similar conclusion in 2020, and in Arizona, where the governor changed the state’s health care plan by executive order to remove an exclusion on gender-affirming care.
Florida Ruling Invalidates DeSantis Anti-Trans Law
In another key ruling for transgender rights, a federal court in Tallahassee invalidated state laws that restricted access to hormones and other medications used in transgender health care. Finding that the restrictions violated the Fourteenth Amendment’s Equal Protection Clause, the presiding judge noted that the restrictions were rooted in “discriminatory animus” and compared discrimination against transgender people to racism and misogyny.
These 2023 laws had been a centerpiece of Florida Governor Ron DeSantis’ legislative agenda, and they were touted during his brief presidential campaign. Anti-trans statements from DeSantis and other Florida lawmakers helped to doom the law by making it clear that the restrictions had nothing to do with legitimate regulation of medicine. The judge called the restrictions “an exercise in politics, not good medicine” and noted that the restricted treatments were endorsed by multiple medical associations.
Although the Florida court was not bound by the results from cases in other jurisdictions, its ruling was consistent with those of courts that struck down similar laws in Arkansas and Ohio.
Protections for Transgender Healthcare Remain Uncertain
It is unclear how any of these cases might fare if they are successfully appealed to the U.S. Supreme Court, which could reverse the course of this growing legal trend. Transgender rights activists may have had good reason to be optimistic in 2020 after the Bostock ruling, a high-water mark for LGBTQ+ rights at the nation’s highest court.
However, just two years (and one new Justice) later, the Supreme Court showed that it was willing to eliminate rights. The nation’s highest court ended the constitutional right to seek an abortion in Dobbs v. Jackson Women’s Health Organization, overruling protections that had lasted nearly fifty years.
Since then, advocacy groups have been wary of how SCOTUS might rule on transgender rights should the issue return to a court increasingly viewed as partisan. Republicans in numerous state governments, expecting friendly treatment from the courts, have enacted laws – like the one struck down in Florida — that restrict transgender rights and healthcare access. The first of those laws will reach the Supreme Court in the 2024-25 term, as the highest court just agreed to hear an appeal from a Sixth Circuit ruling that reinstated a ban on hormone replacement therapy and puberty blockers for minors in Tennessee.
Although less than one percent of the U.S. population (about 1.5 million people) identifies as transgender, disputes about the rights of transgender people fuel headlines and political rhetoric. Those affected by these policies will watch the upcoming SCOTUS term closely to see whether their access to health care and right to seek treatment will be protected in ruling that affirms Bostock or see their rights evaporate in a Dobbs-like reversal.
Related Resources:
- Spouses, College Grads Among Those Who Would Benefit from Biden's Immigration Measures (FindLaw’s Law and Daily Life)
- States Challenge Accommodations for Workers Who Have Abortions (FindLaw's Federal Courts)
- Equal Protection Under the Fourteenth Amendment (FindLaw's Learn About the Law)