Steve Marshall leads Eleventh Circuit brief challenging decision to require employers to pay for workers' sex-change operations

September 30, 2024 - Montgomery – Alabama Attorney General Steve Marshall (R) filed an amicus brief with the full Eleventh Circuit Court of Appeals asking the court to overturn a district court's decision that would require employers to offer healthcare coverage to their employees that will pay for an employee's sex-change operation or face liability under Title VII of the Civil Rights Act of 1964.

That decision was initially affirmed in a 2 to 1 decision by a three-judge panel of the Eleventh Circuit. Marshall, on behalf of 23 states, urged the court to convene en banc so all 12 active judges could rehear the case. The Eleventh Circuit granted that request, vacated the panel opinion, and will hear oral argument in February.

"The question for the Eleventh Circuit is whether an employer's health insurance plan must pay for a male employee's sex-change surgery simply because the plan pays for a mother to receive reconstructive surgery following childbirth," said AG Marshall. "To state the obvious: the two treatments are not the same, and it is not unlawful discrimination to treat the two procedures differently. The states within the Eleventh Circuit-Alabama, Florida, and Georgia-are steadfast in our opposition to the district court's rewrite of Title VII, which would have negative consequences for employers by imposing greater liability and reduced clarity on how far the law extends. We are confident that the full court will agree and overturn this irrational decision."

In the case, Lange v. Houston County, Georgia, an employee sought a sex-change operation to transition from male to female. The employer's insurance provider refused to pay for the elective procedure. The employee then sued under Title VII, which prohibits discrimination in the workplace on the basis of race, color, religion, sex, or national origin. A divided panel of the Eleventh Circuit found in the employee's favor and ruled that the employer could be held liable for violating Title VII because sex change procedures were not covered under the plan.

If the courts ultimately find in favor of the transgenders, then the cost of everyone's insurance will go up as insurers will pass the costs on to the rest of the customers and more employers will seek to drop healthcare coverage altogether.

Alabama led the brief along with Florida and Georgia, the other two states in the Eleventh Circuit whose employers would be directly covered by the appellate court's decision.

Whichever side loses at the Eleventh Circuit will likely appeal the ruling to the U.S. Supreme Court.

Steve Marshall became Alabama Attorney General in 2017. He has since been elected in 2018 and re-elected in 2022. He is term limited from running for a third consecutive term.