Appeals court says Houston County, sheriff discriminated against transgender employee [The Macon Telegraph]

May 16—A federal appeals court has ruled that Houston County and the county sheriff, Cullen Talton, discriminated against a transgender employee by refusing to cover costs for gender-affirming care.

Federal courts in Middle Georgia had previously ruled that Houston County and Talton discriminated against the deputy, but the county appealed the ruling. The 11th District of the U.S. Court of Appeals upheld the previous decision Monday.

The case was initially handled by civil trial after the employee sued over the issue. A jury ruled in favor of Anna Lange, an employee at the sheriff's office, after she alleged she suffered emotional pain and mental anguish brought on by being denied medical coverage for her gender-affirming surgery.

Judge Charles Wilson, in the ruling handed down by the appeals court, said the judges determined "a health insurance provider can be held liable under Title VII of the Civil Rights Act of 1964 for denying coverage for gender-affirming care to a transgender employee because the employee is transgender."

Trans employee felt 'support' prior to health care issue

Lange filed the lawsuit against the county in October 2019. It details her experience working at the Houston County Sheriff's Office before and after her gender transition.

She began as a patrol officer in 2006 for the county where she wore men's work clothes, went by her male birth name and responded to male pronouns until early 2017, when she was diagnosed with gender dysphoria by a health care provider. She informed Talton of her transition plans to start wearing women's clothing, use her female name, go by female pronouns and be openly female at work and was met with his "unspoken support," according to the lawsuit.

The lawsuit explains that the health care coverage by Blue Cross Blue Shield given to the county's employees covers medically necessary services like doctor visits, diagnostic laboratory services, prescription drugs, surgical supplies and inpatient hospital care. The plan also includes professional services like surgery and general anesthesia.

However, it excludes services, supplies and medication if it's for a sex change, the lawsuit said.

"Excluding 'sex change' treatments is, by definition, an exclusion of gender transition treatments," Lange argued.

Lange had gone through feminizing breast surgery and hormone replacement therapy and they reduced her gender dysphoria, according to the document. With the help of her endocrinologist, two psychologists and a surgeon, she later decided to move forward with bottom surgery.

Before scheduling an appointment, she called Blue Cross Blue Shield to confirm the surgery was covered. An agent had told her it was, and they saw no exclusions, the lawsuit states. She still confirmed with the surgeon's office whether the surgery was covered, which they said it was.

However, the complaint says that when the surgeon applied to the health coverage plan to pre-authorize the surgery in 2018, they denied it, explaining that sex change services were excluded.

Lange appealed the decision but was denied. When she appealed again, Blue Cross Blue Shield never issued a response, according to the lawsuit. She even requested the county to remove the exclusions in the health plan, since they enforce and amend the qualifications for health care coverage.

However, she was told the exclusions would stay and agreed to be held responsible for any penalties, the complaint said.

In turn, Lange sued Houston County and Talton for illegal discrimination based on sex. She also sued them for violating the Equal Protection Clause in the 14th Amendment that prohibits the deprivation of any right, privilege or immunity secured by the Constitution, according to her lawsuit.

Houston County, sheriff reply to lawsuit

The county attempted to get the case dismissed, arguing they did not violate her legal rights and abided by federal and state law. They also argued "any damages that plaintiff suffered were the direct and proximate result of her own actions or inactions, including, but not limited to, assumption of relevant risks."

Talton claimed government immunity under the 11th Amendment. Chief Judge Marc Treadwell, who presided over the case before it went to appeal, disagreed with the claim since he had not proved he acted as a representative of the state, but rather used immunity as a "facial attack," according to the judge's decision.

The federal court trial lasted for two days. The jury awarded Lange $60,000 in damages. The judge also ordered Blue Cross Blue Shield to ensure they cease to enforce the exclusions against gender-affirming care and process her bottom surgery as indicated by her treating providers, according to court documents.

Houston County and Talton later requested the U.S. Court of Appeals to reverse the judge's order, arguing they have "significantly fewer financial resources to draw upon than the federal government."

The defendants asked Lange to post a bond in the amount of her surgery expenses, including drugs if she intended to go through the surgery during the appeal process, but the courts denied their request.

While the court did rule in Lange's favor, the ruling wasn't unanimous. Judge Andrew Brasher, dissenting, argued that Lange could not prove a legal violation based on the evidence she turned over.

"The reason is that the employer-provided health insurance plan here does not deny coverage to anyone because he or she is transgender," said Brasher. "The alleged problem with this plan is that it excludes coverage for sex change surgeries, not that it denies coverage to transgender people.

"On the face of this policy, it doesn't treat anyone differently based on sex, gender nonconformity, or transgender status."

While the court ruled in Lange's claim of sex discrimination, her claim for the county violating the equal protection clause is still pending trial.

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