Anna Lange v. Houston County, Georgia

22-13626 ROSENBAUM, J., Concurring in the Judgment 23 approach conflates the first and second steps of antidiscrimination analysis. First, we have to ask whether the law classifies by sex. Only then can we ask, at step two, why the law classifies by sex— whether for a legitimate reason or a discriminatory (invidious) one. The regulation's justification doesn't affect whether the law classifies by sex in the first place, though. A law justified on grounds having to do with "medical classifications" can still classify on the basis of sex, too, as I'll get to shortly. The Skrmetti Court also distinguished Justice Sotomayor's hypothetical law that classifies on the basis of menstruation from Geduldig by saying that the hypothetical law "does not regulate a class of treatments or conditions. Rather, it regulates a class of per- sons identified on the basis of a specified characteristic." Id. at 1834 n.3.

Yet the fact that a law regulates medical treatments or con- ditions doesn't necessarily insulate it logically or factually from also classifying by sex. Imagine, for instance, that besides excluding coverage for pregnancy-related disabilities, the California disability insurance plan at issue in Geduldig also excluded coverage for disa- bilities relating to uterine cancer, polycystic ovary syndrome, uter- ine fibroids, ovarian cancer, endometriosis, cervical cancer, and Turner syndrome—all medical conditions that affect only females. But at the same time, the law provided coverage for disabilities aris- ing from all other medical conditions, including prostate issues, erectile dysfunction, testicular cancer, and other conditions that only males can get. So the law denied coverage for several (and

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24 ROSENBAUM, J., Concurring in the Judgment 22-13626 only) disabilities arising from medical conditions that only females can suffer, while males enjoyed coverage for disabilities arising from any medical conditions they might have, including those that only males can present with. That's a classification on the basis of sex, even if the law also classifies on the basis of medical condi- tion.¹⁵

Or take another example. Imagine a healthcare plan that precludes treatment for or relating to circumcised penises. Cir- cumcision is a medical condition. It also happens to be a medical condition that is religiously mandated for many in Judaism and Is- lam, so it is widely shared by Jews and Muslims in comparison to members of other religions (or no religion). But just because the plan classifies by medical condition doesn't mean that it doesn't also classify by religion.

For all the reasons I've already discussed in this opinion, laws like these certainly classify by suspect classification, even though they also classify by medical condition. Cf. Bostock, 590 U.S. at 667 ("Sex wasn't the only factor, or maybe even the main factor, but it was one but-for cause—and that was enough."). And Geduldig's failure to recognize this fact caused it to incorrectly

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22-13626 ROSENBAUM, J., Concurring in the Judgment 25 conclude that the law there didn't classify on a suspect-classifica- tion basis.

D. Geduldig improperly collapses the discrete inquiries under the first and second steps of the discrimination analysis, which results in applying the wrong level of scrutiny at step two.

And that brings me to the fourth reason Geduldig is illogical:

Geduldig allowed the second part of the discrimination analysis— review of the law's reasons and its tailoring—to leach into and de- termine the first part—whether the law classifies by protected class. In particular, the Court reasoned that because covering disabilities related to pregnancy would increase the cost of California's pro- gram, the program regulated only by medical condition and not by sex. But consideration of the cost—that is, the reason why Califor- nia decided to write its disability-insurance program the way that it did—tells us nothing about whether the law classifies by sex. Ra- ther, that consideration goes to only the second part of the discrim- ination analysis: whether the state had a legitimate reason for using a sex-based classification and whether the law is appropriately tai- lored under the circumstances.

By importing the reason for the state's classification decision into the determination of whether the classification classifies on a protected basis, Geduldig collapses the discrimination analysis. And that means that Geduldig allows laws that classify on a protected- class basis—that is, laws that classify in a way that the Constitution considers especially suspect—to escape application of the correct

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26 ROSENBAUM, J., Concurring in the Judgment 22-13626 (and more exacting) level of scrutiny at the second step of the dis- crimination analysis. As a result, laws that are unconstitutional wrongly survive review.

III. Skrmetti misguidedly applied Geduldig's reasoning when it interpreted Bostock, which defines Title VII's methodology for determining whether a law discrim- inates on the basis of a protected class.

This section explains why Skrmetti binds us to uphold Hou- ston County's healthcare plan. I conclude Skrmetti requires this re- sult, even though Lange challenges the plan under Title VII, not the Equal Protection Clause, which Skrmetti was based on. Skrmetti does so because it imports Geduldig's reasoning into Title VII anal- ysis in cases like this one, even though both Congress and the Su- preme Court previously have told us that Title VII rejects Geduldig's reasoning. Still, because the Court chose that path, I'm obligated to follow it today.

A. Skrmetti requires us to uphold Houston County's healthcare plan.

I begin by explaining why Skrmetti requires us to uphold Houston County's healthcare plan. As a reminder, the law at issue in Skrmetti prohibited the administration of gender-affirming drugs to minors whose birth-assigned sex did not match their gender identity. See 145 S. Ct. at 1826-27. The Court concluded that the law didn't classify on the basis of sex or transgender status. Id. at 1829-34.

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22-13626 ROSENBAUM, J., Concurring in the Judgment 27 In reaching that conclusion, the Court anchored its analysis in Geduldig's reasoning. See id. at 1833. It said that the law there

"divide[d] minors into two groups: those who might seek puberty blockers or hormones to treat the excluded diagnoses, and those who might seek puberty blockers or hormones to treat other con- ditions." Id. But, the Court continued, transgender individuals fall into both groups. Id. Then the Court compared its analysis of the law to Geduldig's analysis of the insurance plan at issue there. It reasoned, "[A]lthough only transgender individuals seek treatment for gender dysphoria, gender identity disorder, and gender incon- gruence—just as only biological women can become pregnant— there is a 'lack of identity' between transgender status and the ex- cluded medical diagnoses." Id.

After applying Geduldig to conclude that the Skrmetti law didn't classify on a suspect-classification basis, the Court devoted a separate section of its opinion to responding to arguments that Bos- tock, a Title VII case, required a different answer. See id. at 1834-

35. The Court concluded Bostock did not. Id. It began by assuming without deciding that Bostock's analysis could apply in the Equal Protection Clause context. Id. at 1834. Next, the Court said it was applying Bostock. See id.

The Court noted that Bostock "reasoned that Title VII's 'be- cause of' test incorporates the traditional but-for causation stand- ard, which 'directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.'" Id. (quoting Bostock, 590 U.S. at 656). To apply this test, the Court used

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28 ROSENBAUM, J., Concurring in the Judgment 22-13626 the example of a transgender boy who seeks testosterone to treat his gender dysphoria—something the law prohibited a healthcare provider from administering to him. Id. The Court observed that changing his biological sex from female to male "would still not permit him the hormones he seeks because he would lack a quali- fying diagnosis for the testosterone . . . ." Id. Yet "if he had such a diagnosis," the Court went on, "he could obtain the testosterone regardless of his sex or transgender status." Id. Based on this dis- cussion, the Court concluded that, "[u]nder the reasoning of Bos- tock, neither [the transgender boy's] sex nor his transgender status is the but-for cause of his inability to obtain testosterone." Id. As for the possibility that sex or transgender status might be one of multiple but-for causes, the Court ruled that out. See id. at 1835. To do so, the Court used an example of a "girl with un- wanted facial hair inconsistent with her sex," and a diagnosis of hir- sutism (male-pattern hair growth). Id. The Court explained that a healthcare provider could prescribe her puberty blockers or hor- mones to make her appearance more consistent with her birth-as- signed gender if she had a diagnosis of male-pattern hair growth. Id. But if she were a boy, the Court said, that would "not automat- ically change the operation of [the Skrmetti law]." Id. To show why, the Court pointed to two different medical diagnoses: gender dysphoria and precocious puberty. Id. Under the law, a boy couldn't get puberty blockers if his diagnosis was gender dysphoria instead of hirsutism, but he could if it was precocious puberty. Id. So, the Court concluded, "sex is simply not a but-for cause of [the Skrmetti law's] operation." Id.

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22-13626 ROSENBAUM, J., Concurring in the Judgment 29 Under Skrmetti's version of Bostock's reasoning, we could consider the example of a birth-assigned male with undesired en- larged breast tissue inconsistent with their sex, who was diagnosed with gynecomastia. That person could receive a breast reduction or mastectomy under Houston County's healthcare plan. But if they were a birth-assigned female with unwanted breast tissue in- consistent with their gender identity, that would "not automati- cally change the operation of [the healthcare plan]." Skrmetti, 145 S. Ct. at 1835. Rather, that birth-assigned female could get a mas- tectomy if they had breast cancer that warranted it. But they couldn't if they wanted the mastectomy to confirm their gender identity.

I just don't see a way to distinguish Skrmetti's application of Bostock from the healthcare plan at issue here. And because the Court had to undertake its Bostock analysis to respond to arguments that Bostock required a different outcome than the Court reached under Geduldig, I think we are bound by the Court's Bostock appli- cation in Skrmetti. In fact, had the Court determined in Skrmetti that Bostock required a different answer than Geduldig did, the Court would have had to strike down the Skrmetti law, unless it also concluded that Bostock's analysis didn't govern Equal Protec- tion Clause cases. But of course, Bostock's analysis does control Ti- tle VII cases.

To be sure, Skrmetti's conclusion that Bostock demands the same answer as Geduldig seems to conflict with Newport News's treatment of Geduldig's logic in the Title VII context. But because

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30 ROSENBAUM, J., Concurring in the Judgment 22-13626 of Skrmetti, a conflict in Title VII law now exists between Newport News's reasoning and Bostock's, when it comes to the specific area of transgender individuals and medical diagnoses. When, as here, two binding precedents that are relevant to a dispute before us con- flict, we must follow the one that "has direct application" to the case. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) ("We reaf- firm that '[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which di- rectly controls, leaving to this Court the prerogative of overrul- ing its own decisions.'" (citation omitted and emphasis added)). I don't think I can say Newport News "has direct application"

to this case, compared to Bostock. Newport News involved preg- nancy-related discrimination, and the Court considered it under the Pregnancy Discrimination Act. Bostock, in contrast, does di- rectly apply here: it specifically involved and analyzed claims of sex-discrimination on the basis of transgender status. And the Court in Skrmetti changed how we do the Bostock test, at least in the specific context of analyzing laws involving transgender indi- viduals and medical diagnoses. Though I think this was misguided, it also binds us in this case.

B. Skrmetti incorrectly construed Bostock.

Most respectfully, it seems to me that Skrmetti departed from what Bostock demands because Skrmetti relied on Geduldig. Skrmetti inadvertently imported Geduldig's reasoning—at least

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22-13626 ROSENBAUM, J., Concurring in the Judgment 31 when it comes to challenges that an employer discriminated on the basis of gender-dysphoria treatments—into the Title VII context. To explain, we must zoom in on Bostock. Bostock's founda- tional principle teaches that to discern sex discrimination under Ti- tle VII, "our focus should be on individuals, not groups." Bostock,

590 U.S. at 658. And that principle drove the outcome in Bostock. There, the Court considered, among other things, whether an individual gay man suffers sex discrimination when his em- ployer discriminates against him because he's attracted to males. See Bostock, 590 U.S. at 653. When we change the employee's sex, they become a female attracted to males, and their employer takes no issue. So Bostock recognizes that the employer's change in ac- tion happens "because of" the employee's sex. And under Bostock, our individual male suffered sex discrimination. See id. at 660. But something else happens when we apply this test; of ne- cessity, "[a]long the way, we change his sexual orientation too (from homosexual to heterosexual)." Id. at 671. The gay "man" is now not only not a "man" but also no longer "gay." Rather, this hypothetical person is now a "heterosexual woman" because this person is a woman attracted to men. We previously labeled this individual a gay man. But when we change his sex, a new label definitionally applies—heterosexual woman. We can't change the gay man's sex without changing the more general corresponding label that describes him—"homosexuality" is not an accurate de- scriptor anymore, for the hypothetical attracted-to-men female comparator.

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32 ROSENBAUM, J., Concurring in the Judgment 22-13626 To put it simply, when we describe this prospective plaintiff at the individual level, we'd say he is (1) a man, who is (2) attracted to men, and therefore (3) he's also gay. Bostock counsels us to change just one thing, so all we change is his sex—and therefore that makes the hypothetical comparator (now a woman attracted to men) straight. So the Bostock test changes a male attracted to males into a female attracted to males, even though doing so makes it no longer accurate to call our individual "gay."

The Court could have fashioned a different test in Bostock. It could have instructed us that to change the sex of a gay male, keeping all else constant, we change him into a gay female. That way, the general demographic description of the person would stay constant. But the Court expressly rejected that approach. See id. Why? Because a gay female is not the female version of the gay individual man. Besides being female, the gay female has a sec- ond trait the gay male doesn't: she's attracted to females, but he's attracted to males. So her experience doesn't describe our prospec- tive plaintiff as an individual nor inform whether he has been dis- criminated against as an individual. All it does is preserve the cor- rect general, group-level descriptor—calling the comparator "gay."

The more general "gay" label takes into account two more specific things, of course—that our plaintiff is a man, and that he's attracted to men. So if we tried to define the comparator on the basis of retaining this higher-level characteristic of homosexuality, we'd ef- fectively take away what makes our prospective plaintiff who he is, as an individual—someone attracted to men. Put differently, we'd

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22-13626 ROSENBAUM, J., Concurring in the Judgment 33 be changing two things about him as an individual, just to fit him into this bigger "group" of same-sex-attracted people. But Title VII doesn't care about group experience—it cares that no individual bears the brunt of sex discrimination in their unique experience. In trying to grow a forest, the test Bostock re- jected misses the individual trees. But the Bostock test doesn't; it instructs us that when we change the sex of our person experienc- ing sex discrimination, we need to describe him with sufficient spec- ificity to capture his individualistic experience—changing only one thing at a time. We can't just change a generic gay male into a gay female. We need to describe the gay male specifically—as a man who's attracted to men—and then change his sex. To summarize, Bostock creates its own new three-step test. First, we describe the person alleging discrimination at the correct level of specificity. At step one, we swap out the label "gay" from a gay male and describe him in greater detail—he's a male attracted to males. Then, at step two, we identify his comparator by chang- ing his sex, so he becomes a female attracted to males. Now, at step three, we can redescribe the comparator with any general la- bels that might help us understand who this new person is. And it turns out, our new person's not a gay female but a heterosexual female. We've found the person of the opposite sex whose experi- ence most closely mirrors him as an individual. The level of generality at which we describe the person fac- ing discrimination (i.e., the more general descriptor, "a gay man,"

or the more specific one, "a male attracted to males"), changes how

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34 ROSENBAUM, J., Concurring in the Judgment 22-13626 we do the analysis. And we need to adopt the level of specificity that Bostock itself did.

Faithfully applying Bostock's test to Skrmetti's facts yields an answer opposite to the one that Skrmetti reached. Let's consider Skrmetti's example of a male who has unwanted facial hair. Zoom- ing out to a higher level of generality, we give him the general label of a male seeking gender-dysphoria treatment. But we can't jump to step two and change his sex, without doing step one where we first describe him with sufficient specificity. A male seeking gen- der-dysphoria treatment doesn't become a female seeking gender- dysphoria treatment. A female seeking gender-dysphoria treat- ment is a person who needs treatment to develop more masculine features. She isn't the female version of the male seeking gender- dysphoria treatment, who needs to develop more feminine fea- tures.

So at step one, we exchange our individual male's general label of a male seeking gender-dysphoria treatment and instead de- scribe him more specifically—he's a male with unwanted facial hair. Then, at step two, we identify his comparator by changing his sex, so he becomes a female with unwanted facial hair. Now, at step three, we can redescribe this comparator using any general labels that might help us understand who this new person is. And it turns out that our new person's a female with hirsutism, not gen- der dysphoria. We've found the person of the opposite sex whose experience most closely mirrors our male as an individual.

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22-13626 ROSENBAUM, J., Concurring in the Judgment 35 As under Bostock, the level of generality at which we describe the person facing discrimination (i.e., the more general descriptor,

"a male with gender dysphoria," or the more specific one, "a male with unwanted facial hair") changes the outcome of the analysis. And Bostock requires us to adopt that more specific level of gener- ality.

Under Bostock, it doesn't matter that if our individual male's diagnosis had been precocious puberty, he could've received treat- ment as a male. But see Skrmetti, 145 S. Ct. at 1835 (reasoning the opposite). Our hypothetical individual experiencing gender dys- phoria doesn't have "precocious puberty." That condition de- scribes a separate individual who is irrelevant to the analysis of this individual with gender dysphoria. The fact that another male doesn't experience discrimination and can get the treatment our individual seeks doesn't change that our individual has experienced unlawful discrimination.

That's what Bostock teaches us. Imagine an employer who fires an individual gay male only because that male is married to another male, but the employer would not have fired the male if he remained unmarried. Under Bostock, that employer violates Ti- tle VII just as much as if it fired all gay males because it would have tolerated a female's marriage to a male. It doesn't matter that the employer doesn't fire all gay males because the employer discrim- inated against our individual male on the basis of sex. Cf. Bostock,

590 U.S. at 659 ("It's no defense for the employer to note that, while he treated that individual woman worse than he would have

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36 ROSENBAUM, J., Concurring in the Judgment 22-13626 treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex." (emphasis in original)). In the same way, an employer can't deny employment op- portunities to pregnant women just because it treats non-pregnant women fairly, despite the principles of Geduldig. See Newport News,

462 U.S. at 678. Nor, when we do Bostock's three steps correctly, will we find the female version of our hypothetical male is a female with facial hair who somehow lacks any medical diagnosis. But see Skrmetti,

145 S. Ct. at 1834 (reasoning that the comparator "would lack a qualifying diagnosis"). That misapplies step three. At step one, we recognize a male seeking gender-dysphoria treatment is a male with male-pattern facial hair he seeks to remove to make his face more feminine. We then do step two, and he becomes a female with male-pattern facial hair she seeks to remove to make her face more feminine. And now, we do step three and redescribe her at the general level. She's not a person with no medical diagnosis, for which she needs treatment. The person we have described specifi- cally would be described more generally at step three as a woman with hirsutism. That's the diagnosis she'd walk out of the doctor's office with. But that's not something that we've changed; that's a descriptor that's inherently had to change, when we change just her sex and nothing else. Cf. Bostock, 590 U.S. at 671 ("Along the way, we change his sexual orientation too (from homosexual to hetero- sexual)."). And her employer covers treatment for her condition of

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22-13626 ROSENBAUM, J., Concurring in the Judgment 37 hirsutism. So the employer denied treatment to our original indi- vidual male only because he was male.

Bostock demands we drop the more general labels (i.e., someone who meets the definition of "gay," or whose condition means the definition of "gender dysphoria") at step one, so that we can capture the individual experience (i.e., attending to the specifi- cally applicable component parts of those definitions). And when we find, as here, that the female parallel to the individual male with gender dysphoria would have access to the treatment the original male wants, that individual male has experienced sex discrimina- tion.¹⁶The employer's actions towards any person other than the

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38 ROSENBAUM, J., Concurring in the Judgment 22-13626 exact parallel female individual with hirsutism are irrelevant. No ifs, ands, or buts: if an employer treats an individual differently than it would if his sex were different, it has violated Title VII. construction of a vagina. And at step three, this new person seems like a fe- male seeking a "sex-change reversal." But that's the result of two subtle errors at steps two and three.

First, at step two, when we change our individual male to a female, we have to actually change this person into a female—change their birth-assigned sex. That means we can't retain the genitalia this person had at birth. So the female comparator doesn't have a penis from birth. Otherwise, for example in Bostock itself, the court should have described a "gay man" as a male with a penis with which he has sexual relations with males, who, at step two becomes a female with a penis with which she has sexual relations with males. And at step three, we would be left with a comparator who is not female but intersex. (Though Bostock's implications for intersex individuals are outside the scope of this opin- ion, others have thoughtfully considered the issue. See, e.g., Sam Parry, Sex Trait Discrimination: Intersex People and Title VII After Bostock v. Clayton County, 97 WASH. L. REV. 1149, 1150 (2022) (observing that "[b]ecause current Title VII jurisprudence assumes there are only two sexes, the legal status of intersex people remains in limbo")).

And even if we could carry over our individual male's penis in step two, it would be inaccurate, at step three, to describe this new female with a penis as a female seeking a "sex-change reversal." That's because this seemingly inter- sex person would have had their penis at birth as our original individual male did—it would not be the result of medical construction. So at step three, we could not describe this person as seeking a "sex-change reversal." This indi- vidual seeks no "reversal" of anything. At bottom, a female seeking a "sex- change reversal" is just not a relevant comparator for a male seeking a "sex- change" operation.

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22-13626 ROSENBAUM, J., Concurring in the Judgment 39 C. Skrmetti incorrectly imports Geduldig's reasoning into Title VII cases involving transgender individuals seeking medical treatment.

That was the law until Skrmetti. But in Skrmetti, the Court determined that a male with gender dysphoria exacerbated by their facial hair growth may be denied care when a female with hir- sutism is not because males with "precocious puberty" also receive treatment. See Skrmetti, 145 S. Ct. at 1835. That is—sex discrimi- nation against an individual with gender dysphoria is permissible because other males don't experience gender dysphoria.¹⁷Skrmetti justifies discrimination against an individual because other mem- bers of the group he is a part of are spared. That's exactly counter to the principles of Bostock.

Indeed, if Bostock were decided under Skrmetti's interpreta- tion of Bostock, Bostock would have come out differently. The Court would have compared the male and female counterpart at the more general level of the "gay" label descriptor (instead of the

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40 ROSENBAUM, J., Concurring in the Judgment 22-13626 individual level of "attracted to men") and found that the employer treated both the male and female employees the same way, so it didn't discriminate on the basis of sex. See Bostock, 590 U.S. at 660.

"Why are these" cases involving gender-dysphoria treatment

"different from all the rest? Title VII's text can offer no answer."

Id. at 673.

Geduldig gave the Court the answer. It teaches that medical- related claims are different. And discrimination against individuals on the basis of sex can be justified for certain individuals with a medical condition. With Geduldig as its scalpel, Skrmetti performed surgery on Bostock and incorrectly carved out bans on treatment for gender dysphoria from Title VII's protections. As I've explained, though, Congress rejected Geduldig's rea- soning for Title VII. That is, Congress amended Title VII to ban Geduldig's logic. So if I weren't bound by Skrmetti, I'd follow my pre-Skrmetti understanding of Bostock and what I take to be the les- sons of Congress's amendment of Title VII. So I'd recognize that a policy that bars gender-dysphoria treatment is a sex-based classifi- cation. But I am an inferior-court judge duty bound to follow what I understand Supreme Court precedent to require. And on my reading, the Court went the opposite way in Skrmetti. That con- stricts me here.

IV. Conclusion

In 1976, the Supreme Court in Craig expressly articulated, for the first time, the intermediate-scrutiny framework for sex- based discrimination claims under the Equal Protection Clause. See

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22-13626 ROSENBAUM, J., Concurring in the Judgment 41

429 U.S. at 197. Indeed, Craig represented a "compromise on the standard of review to be used in sex discrimination cases," see Ken- neth L. Karst, The Supreme Court, 1976 Term—Foreword: Equal Citi- zenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 54 (1977), following earlier debates on the Court, see, e.g., Geduldig,

417 U.S. at 498 (Brennan, J., dissenting).¹⁸ Two years before any of that happened, the Court issued Geduldig. Given that the Court hadn't yet developed its modern framework for analyzing sex-discrimination claims at that time, it's especially curious to rely on Geduldig today. Indeed, Geduldig con- flicts with modern Equal Protection jurisprudence because the Su- preme Court issued Geduldig before it developed that jurispru- dence. And the Supreme Court itself has previously recognized that Congress amended Title VII because it rejected Geduldig's rea- soning.

That history may be part of why the Supreme Court itself hasn't relied on Geduldig much over the last half-century. See, e.g., Coleman, 566 U.S. at 60 n.6 (Ginsburg, J., dissenting) (noting that

"the plurality d[id] not cite or discuss Geduldig v. Aiello, perhaps

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42 ROSENBAUM, J., Concurring in the Judgment 22-13626 embarrassed by that opinion's widely criticized conclusion that dis- crimination based on pregnancy does not involve 'discrimination based upon gender as such'" (internal citations omitted)).¹⁹ In sum, it's understandable why the Supreme Court didn't rely on Geduldig for many years. Geduldig's reasoning is illogical and fatally flawed. So the Court was right to banish it. Because Skrmetti is based on Geduldig, whose application both Congress and the Court have emphatically rejected in the Title VII context (and, until Skrmetti, seemingly altogether), I respectfully urge the Su- preme Court to reconsider its continued reliance on Geduldig's rea- soning.

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22-13626 JILL PRYOR, J., Dissenting 1 J ILL PRYOR, Circuit Judge, joined by JORDAN, ABUDU, KIDD, and W ILSON, Circuit Judges, dissenting:

The Houston County employee health insurance plan we consider here excludes coverage for "[d]rugs for sex change sur- gery" and "[s]ervices and supplies for a sex change and/or the re- versal of a sex change." Doc. 155-1 at 72, 74.¹Relying on equal pro- tection precedent, the majority opinion holds that these exclusions do not discriminate based on sex or transgender status under Ti- tle VII because the plan merely "draws a line between certain treat- ments, which it covers, and other treatments, which it does not."

Majority Op. at 16. But the Supreme Court definitively held more than four decades ago that such line drawing is impermissible in Title VII cases when the dividing line is a medical condition that impacts employees differently based on sex. See Newport News Ship- building & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 678 (1983). The law has been settled on that score ever since. Yet today the majority opinion makes the same mistake in its Title VII analysis that was addressed and corrected long ago by Congress and then by the Su- preme Court—it imports equal protection reasoning into a Ti- tle VII case. Because that reasoning has no place in the case before us, I dissent.

The line the majority draws here relies on reasoning from equal protection cases. In Geduldig v. Aiello, the Supreme Court held that a state disability insurance program that excluded

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2 JILL PRYOR, J., Dissenting 22-13626 coverage for disabilities caused by pregnancy did not amount to sex-based discrimination under the Equal Protection Clause of the Fourteenth Amendment. 417 U.S. 484, 486-87, 494-95 (1974). The Supreme Court reasoned that "[t]he California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition—pregnancy—from the list of compensable disabilities." Id. at 496 n.20. Despite recog- nizing that this exclusion only impacted women, the Court ex- plained that "it does not follow that every legislative classification concerning pregnancy is a sex-based classification." Id. "The lack of identity between the excluded disability and gender" meant that the program did not classify based on sex. Id. Instead, "[t]he pro- gram divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclu- sively female, the second includes members of both sexes." Id. Therefore, the Court concluded that the program classified based on a medical condition rather than sex. Id.

But in Title VII cases, this reasoning has been rejected, first by Congress and then by the Supreme Court. After Geduldig, the Supreme Court applied its equal protection reasoning in a Title VII case, holding that exclusion of pregnancy from an employer health insurance plan did not discriminate based on sex because "[t]he [p]lan . . . is nothing more than an insurance package, which covers some risks, but excludes others." Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 138 (1976) (citing Geduldig, 417 U.S. at 494, 496-97). Congress responded by amending Title VII. It passed the Pregnancy Discrim- ination Act of 1978, including "pregnancy, childbirth, or related

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22-13626 JILL PRYOR, J., Dissenting 3 medical conditions" in the definition of discrimination "because of sex." 42 U.S.C. § 2000e(k). When a Title VII case challenging an employer health insurance plan that excluded coverage for preg- nancy next reached the Supreme Court, the Court recognized that with this amendment Congress "unambiguously expressed its dis- approval of both the holding and the reasoning of the Court in the Gilbert decision." Newport News, 462 U.S. at 678. The plan at issue covered pregnancy-related conditions for employees but not for spouses of employees. Id. at 683-84. The Supreme Court explained that by providing full medical coverage for the spouses of female employees and medical coverage except for pregnancy-related con- ditions for the spouses of male employees, the plan discriminated based on sex because it "unlawfully [gave] married male employees a benefit package for their dependents that [was] less inclusive than the dependency coverage provided to married female employees."

Id. at 684.

Importantly, the Supreme Court did not limit its disapproval of Geduldig's reasoning to pregnancy. It reasoned that in relying on Geduldig Gilbert misinterpreted Title VII, which "protect[s] all indi- viduals from sex discrimination in employment—including but not limited to pregnant women workers." Id. at 681 (emphasis in orig- inal). Since Newport News, an employer insurance plan that excludes coverage of a condition based on sex violates Title VII. After en banc oral argument in this case, the Supreme Court decided United States v. Skrmetti, 145 S. Ct. 1816 (2025). The Court considered an equal protection challenge to a Tennessee law that

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4 JILL PRYOR, J., Dissenting 22-13626 prohibited medical treatments to minors for conditions that impact only transgender individuals. Id. at 1826-27, 1830-31, 1833. Ten- nessee prohibited treatments administered for the purpose of

"[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex" or "[t]reating purported discom- fort or distress from a discordance between the minor's sex and as- serted identity." Tenn. Code Ann. § 68-33-103(a)(1). The Supreme Court held that this restriction did not discriminate based on sex because it, instead, "restricts which . . . medical treatments are available to minors . . . to treat gender dysphoria, gender identity disorder, or gender incongruence." Skremetti, 145 S. Ct. at 1830-31. It further held that the restriction of these treatments did not discriminate based on transgender status. Id. at 1833. Relying on Geduldig, the Court concluded that the Tennessee law did "not ex- clude any individual from medical treatments on the basis of transgender status but rather removes one set of diagnoses—gen- der dysphoria, gender identity disorder, and gender incongru- ence—from the range of treatable conditions." Id. The Supreme Court explained that the pregnancy exclusion in Geduldig did not discriminate based on sex because it divided the employees into two groups, "'pregnant women and nonpregnant persons,'" and

"[b]ecause women fell into both groups, the program did not dis- criminate against women as a class." Id. (quoting Geduldig, 417 U.S. at 426 n.20). It reasoned that the Tennessee law created a similar nondiscriminatory distinction. "Because only transgender individ- uals seek puberty blockers and hormones for the excluded diagno- ses, the first group includes only transgender individuals; the

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22-13626 JILL PRYOR, J., Dissenting 5 second group, in contrast, encompasses both transgender and non- transgender individuals." Id. The Supreme Court thus held that the law prohibiting medical care to treat conditions that impact transgender individuals only did not classify based on transgender status under the Equal Protection Clause. Id. at 1833-34. Today, by importing Skrmetti's equal protection reasoning into a Title VII case, the majority commits the same error the Su- preme Court did in Gilbert. The majority opinion concludes that the County health plan's exclusion of medical care related to a "sex change" does not discriminate based on sex or transgender status because it merely "draws a line between certain treatments, which it covers, and other treatments, which it does not." Majority Op. at

16. This is the exact same reasoning that both Congress and the Supreme Court rejected for Title VII claims. See Gilbert, 429 U.S. at 138 ("The [p]lan . . . is nothing more than an insurance package, which covers some risks, but excludes others."); see also Newport News, 462 U.S. at 684 ("Although Gilbert concluded that an other- wise inclusive plan that singled out pregnancy-related benefits for exclusion was nondiscriminatory on its face, because only women can become pregnant, Congress has unequivocally rejected that reasoning."). And yet the majority opinion revives that very rea- soning to conclude that an employer insurance plan excluding cov- erage for medical care that only transgender individuals need does not discriminate based on transgender status or on sex. The majority does so in the face of binding Supreme Court precedent holding that under Title VII the fact that only women

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6 JILL PRYOR, J., Dissenting 22-13626 can get pregnant makes a pregnancy-based exclusion sex-based and therefore facially discriminatory. See Newport News, 462 U.S. at 684. Likewise, the fact that only transgender individuals can require

"sex changes" renders the County's exclusion transgender-based. Under Title VII "it is impossible to discriminate against a person for being . . . transgender without discriminating against that individ- ual based on sex." Bostock v. Clayton Cnty., 590 U.S. 644, 660 (2020). And Title VII "protect[s] all individuals from sex discrimination."

Newport News, 462 U.S. at 681. So Supreme Court precedent dic- tates that excluding from coverage healthcare that only transgender individuals can require constitutes sex-based discrimi- nation in violation of Title VII. The fact that the exclusion here ap- plies equally to individuals the majority calls "natal men" who are transgender and to "natal women" who are transgender does not make the exclusion neutral under Newport News.

In Skrmetti, the majority said, "[w]e have not yet considered whether Bostock's reasoning reaches beyond the Title VII context, and we need not do so here." 145 S. Ct. at 1834. Despite expressly stating that it was not considering or deciding whether Bostock's reasoning applied to equal protection claims, the majority none- theless observed that Bostock "does not alter our analysis." Id. But Skrmetti's discussion of Bostock is utterly devoid of references to Geduldig and its equal protection progeny. See id. Because Skrmetti's analysis of Bostock implicitly relied on since-rejected reasoning from Geduldig and Gilbert, the Supreme Court has created a tension that only it can resolve.

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22-13626 JILL PRYOR, J., Dissenting 7 The Skrmetti majority's discussion of Bostock does not bind us. No Title VII claim was before the Supreme Court. Skrmetti therefore did not and could not decide whether an employer's in- surance plan that bases coverage of medical treatments on sex or transgender status violates Title VII. Nor did Skrmetti address the use of equal protection precedent in the Title VII context in com- menting on Bostock. Finally, Skrmetti did not acknowledge or dis- cuss Newport News. Although we do not take lightly Supreme Court dicta, we simply are not free to follow it in the face of binding Su- preme Court authority to the contrary. After all, "[t]he Supreme Court has told us, over and over again, to follow any of its decisions that directly applies in a case, even if the reasoning of that decision appears to have been rejected in later decisions and leave to that Court 'the prerogative of overruling its own decisions.'" Evans v. Sec'y, Fla. Dep't of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (quot- ing Tenet v. Doe, 544 U.S. 1, 10-11 (2005)); see also United States v. Davis, 785 F.3d 498, 521 (11th Cir. 2015) (en banc) (William Pryor, J., concurring) ("As judges of an inferior court, we have no business in anticipating future decisions of the Supreme Court). I believe we are bound by Newport News's holding that an employer insurance plan that excludes coverage of a condition based on sex violates Ti- tle VII, see 462 U.S. at 684, and Bostock's unequivocal statement that for Title VII purposes "discrimination based on . . . transgender sta- tus necessarily entails discrimination based on sex." 590 U.S. at 669. Because the majority relies on analysis that both Congress and the Supreme Court—interpreting Congress's action—have re- jected for Title VII claims, I respectfully dissent.

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22-13626 ABUDU, J., Dissenting 1 A BUDU, Circuit Judge, Dissenting:

I dissent from the majority opinion because the holding is contrary to Title VII's plain language, reasonable interpretation, and clear mandate to eradicate sex-based discrimination, in all its forms, in the workplace. See Bostock v. Clayton Cnty., 590 U.S. 644, 674 (2020) ("[W]hen the meaning of the statute's terms is plain, our job is at an end. The people are entitled to rely on the law as writ- ten, without fearing that courts might disregard its plain terms based on some extratextual consideration."). For the reasons stated in Judge Wilson's and Judge Jill Pryor's dissents, Houston County's decision to exclude from its employee health insurance plan coverage related to "sex change surgery" is a sex-based form of discrimination and, thus, clearly violates Title VII. As my dissent- ing colleagues discuss, the Supreme Court's recent decision in an Equal Protection Clause case, United States v. Skrmetti, 145 S. Ct. 1816 (2025), does not alter that legal conclusion.¹

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2 ABUDU, J. Dissenting 22-13626 I write separately to acknowledge the ongoing cultural war in which this Court, like courts before us, has had to participate. Our role is to ensure that, regardless of religious, political, or other ideologies, the law applies equally to all. The majority's decision, unfortunately, undermines that goal and sets us up for yet another episode in our Circuit's legal history where the majority just gets the outcome wrong, and the short- and long-term implications of its flawed decision cannot be ignored.

I. The Majority Opinion Directly Conflicts with Bostock For Deputy Anna Lange and millions of transgender peo- ple,²gender is not binary. After serving on the Houston County police force for nearly twelve years, Deputy Lange took the ex- tremely brave step of disclosing she is transgender and sought sup- port from her colleagues in making the public announcement and private transition. Instead of support, when she came out to the Sheriff, he asked, "[w]hat the hell is he [Deputy Lange] talking about[,]" exclaimed he "thought it was a joke," and said, "I don't believe in sex changes." The Sheriff then called a group meeting to discuss "a sensitive and a serious subject," where he proclaimed, "I don't believe in all this," and that what Deputy Lange did "takes big balls." Nevertheless, Deputy Lange pushed through in seeking the medical services necessary for her gender dysphoria that, but for

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22-13626 ABUDU, J., Dissenting 3 her transgender status, she would have been able to receive through the Houston County's health insurance coverage policy. Today, the majority upholds Houston County's policy and practice of denying medically necessary healthcare to an employee simply based on their sex. See Bostock, 590 U.S. at 660 ("An individ- ual's homosexuality or transgender status is not relevant to em- ployment decisions . . . because it is impossible to discriminate against a person for being homosexual or transgender without dis- criminating against that individual based on sex."). "Transgender"

is a term used to describe a person whose gender identity—a per- son's inner sense of their gender or lack thereof—differs from the sex they were assigned at birth.³Gender dysphoria, a medical con- dition recognized by every major medical association and leading world health authority,⁴refers to the "psychological distress that re- sults from an incongruence between one's sex assigned at birth and one's gender identity."⁵Left untreated, gender dysphoria can cause

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4 ABUDU, J. Dissenting 22-13626 debilitating anxiety and depression, self-harm, and increased risk of suicide.⁶Treatment for gender dysphoria includes social transition- ing, hormone therapy, and surgical procedures to align a person's sex characteristics with the person's gender identity.⁷ When, as here, an employer intentionally treats a person worse by limiting access to certain health insurance benefits be- cause they are transgender, the employer has discriminated against that person in violation of Title VII. See Bostock, 590 U.S. at 658; Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983). Houston County did not challenge Deputy Lange's medical diagnosis or that such surgery was part of a transgender person's transition, and it allowed Deputy Lange to follow the "female dress policy." However, using a binary gender construct, the majority engages in intellectual gymnastics to delay the inevitable—that transgender people are in the workplace, and they need access to medical procedures that are not uniquely performed on them, but for which transgender people are denied.

The Supreme Court's decision reversing our panel opinion in Bostock is directly on point to the issue here. The employee in https://www.psychiatry.org/patients-families/gender-dysphoria/what-is- gender-dysphoria (last visited Apr. 8, 2025) [https://perma.cc/EN7A-B94K].

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22-13626 ABUDU, J., Dissenting 5 Bostock brought a discrimination suit under Title VII alleging his employer fired him because of his sexual orientation. Although the panel acknowledged Title VII prohibits sex-based discrimination against employees, it held Title VII protections did not encompass sexual-orientation discrimination based on binding circuit prece- dent from Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (per curiam). Bostock v. Clayton Cnty. Bd. of Comm'rs, 723 F. App'x 964, 964-65 (11th Cir. 2018) (unpublished) (per curiam) ("Bostock Panel"), rev'd, 590 U.S. 644 (2020). In Blum, an employee filed a Title VII suit alleging he was discharged because of his sexual orienta- tion and ethnicity/religion, but the court held, inter alia, "[d]is- charge for homosexuality is not prohibited by Title VII . . . ." 597 F.2d at 938. The Bostock panel also relied on Evans v. Georgia Regional Hospital, 850 F.3d 1248, 1256 (11th Cir. 2017), as confirmation that Blum remained binding circuit precedent. Bostock Panel, 723 F. App'x at 964-65. In Evans, despite post-Blum Supreme Court deci- sions that interpreted Title VII to include discrimination based on the expression of nonconforming gender characteristics⁸and same- sex sexual harassment,⁹we held the employee's Title VII wrongful

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6 ABUDU, J. Dissenting 22-13626 termination claim based on her sexual orientation was foreclosed by Blum. 850 F.3d at 1256.

The Bostock panel concluded the post-Blum decisions did not clearly apply to discrimination based on sexual orientation and held it could not overrule Blum, "regardless of whether [they thought] it was wrong," unless intervening controlling precedent was is- sued. Bostock Panel, 723 F. App'x at 965. In repudiating the Bostock panel opinion, Blum, and Evans, the Supreme Court gave us just that and then some—clear precedent and a straightforward test that applies not only to sexual orientation, but also to transgender status. See Bostock, 590 U.S. at 660. The Court relied on the "ex- press terms" of Title VII and rebuked the employer's assertion that

"'no one in 1964" when Title VII was passed would have antici- pated the results of its holding, explaining "[n]ot long after the law's passage, gay and transgender employees began filing Title VII com- plaints, so at least some people foresaw this potential application."

Id. at 653, 676 (citing Smith v. Liberty Mut. Ins. Co., 395 F. Supp. 1098, 1099 (N.D. Ga. 1975) (addressing gender non-conforming claim from 1969), aff'd, 569 F.2d 325 (5th Cir. 1978); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661 (9th Cir. 1977) (addressing transgender discrimination claim from 1974)).

In this case, there is no erroneous prior precedent tying our hands. To the contrary, we have a clear rule directly on point with the case before us. Yet, despite Bostock's unambiguous directive, the majority goes through a strained analysis to avoid the plain truth that Houston County's policy violates Title VII on its face.

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22-13626 ABUDU, J., Dissenting 7 Like the panel in Bostock, the majority ignores or, at best, severely dilutes, Title VII's express terms. Therefore, the district court's grant of summary judgment should be affirmed, and the case should be remanded for further proceedings to address Deputy Lange's request for declaratory and injunctive relief, monetary damages, and attorney's fees.

II. The Majority Opinion Serves as Fodder for Those Who Oppose Legal Rights for Transgender People

The majority reaches its conclusion without acknowledging the elephant in the room—transgender rights have come to the forefront of debate in recent years, shining a necessary light on ar- eas of society still rife with discrimination. Since the start of 2025, at least 981 state and federal bills are under consideration and 121 have been passed that address the rights and restrictions placed on transgender individuals in areas such as education, healthcare, ac- cess to public facilities, artistic expression, incarceration, and the military.¹⁰Many of these bills also address transgender persons and employment issues.¹¹While no comment can be made regarding the legality of these legislative efforts, Title VII is broad, inclusive, and clearly prohibits sex-based discrimination against transgender persons in the workplace, just as it prohibits such discrimination against cisgender men and women. See Bostock, 590 U.S. at 683 (ex- plaining "[i]n Title VII, Congress adopted broad language making

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8 ABUDU, J. Dissenting 22-13626 it illegal for an employer to rely on an employee's sex when" taking an adverse employment action).

The record is clear that the same surgeries, medications, and mental health treatments that may be covered for some employees also fall under those "certain treatments" not covered for others, and the policy draws the line unequivocally based on transgender status and, therefore, sex.¹²Still, the majority concludes that

"[n]othing about the policy exclusion turns on whether the County's employee is a man or woman," and "the County's plan does not facially discriminate based on transgender status,"—es- sentially concluding that the Exclusion applies equally to all people. Maj. Op. at 10, 12. Yet, the argument that a law or policy is valid because it "applies equally to those whom it is applicable" has long been rejected as a basis to justify illegal discrimination. See McLaughlin v. Florida, 379 U.S. 184, 188-90 (1964) (rejecting this principle in striking down a ban on the cohabitation of interracial couples); Loving v. Virginia, 388 U.S. 1, 10 (1967) (same in the con- text of interracial marriage).

Instead of exercising our limited role in statutory interpreta- tion by "applying the law's demands as faithfully as we can," the majority provides more traction for "extratextual considerations"

and "overlook[s] plain statutory commands on the strength of

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22-13626 ABUDU, J., Dissenting 9 nothing more than suppositions about intentions or guesswork about expectations." Bostock, 590 U.S. at 673-74, 681, 683.¹³We need not look hard to find extratextual considerations from groups opposed to transgender equality, as the amicus briefs filed in sup- port of Houston County reveal plenty. The guise of legal analysis soon parts to reveal opposition groups' true perspective: "[a]ll this is nonsense . . . . Slicing off a male's genitals is not the same proce- dure as correcting a female's congenital absence of a vagina," and

"a mastectomy 'for cancer treatment' is not the same procedure as removing a woman's healthy breasts 'for sex change.'" Brief for Christian Employers Alliance Amicus Curiae in Support of Appel- lants at 14-15, Lange v. Houston County, Docket No. 22-12028 (11th

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10 ABUDU, J. Dissenting 22-13626 Cir. 2024).¹⁴The disdain is palpable. However, one's personal be- liefs that promote "transgenderism"¹⁵do not change the language of Title VII or Bostock's holding and guidance. "Only the written word is the law, and all persons are entitled to its benefit." Bostock,

590 U.S. at 653. Access to appropriate medical care is especially important in protecting one's bodily autonomy. Lange was denied coverage, and thus access, to medically necessary treatment by a healthcare coverage exclusion that limits an adult's control over their own body. The importance of bodily autonomy crosses political and

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22-13626 ABUDU, J., Dissenting 11 religious lines¹⁶and has been illustrated by, for example, the recent challenges to mandatory COVID-19 vaccines.¹⁷As Justice Cardozo famously proclaimed, "[e]very human being of adult years and sound mind has a right to determine what shall be done with [their] own body[.]" Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92, 93 (1914), abrogated on other grounds by Bing v. Thunig, 143 N.E.2d 3 (1957); see also Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278- 79 (1990) (recognizing the constitutional right to bodily autonomy which allows competent persons to refuse unwanted medical treat- ment). Our Constitution does not permit courts to pick and choose which people warrant protection under the law based on the per- sonal views of a subset of the population.¹⁸

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12 ABUDU, J. Dissenting 22-13626

III. The Majority Opinion Effectively Sanctions Employ- ment Discrimination Against Transgender People

Deputy Lange's life journey has not unfolded in the neat bi- nary way in which the majority opinion treats her experience and the denial of her employment benefits. As society's concepts around gender, sex, sexual orientation, and bodily autonomy evolve through time, our Court is expected to help dismantle de jure and de facto forms of discrimination based on these charac- teristics. In the area of sex and gender discrimination, social move- ments have focused on lifting cisgender women out of second- and third-class citizenship. However, instead of extending this progress to all sex- and gender-based classifications, our Court instead is im- posing that lower-class citizenship to a new category—transgender people.

Despite persistent attempts to portray the advancement of transgender rights as tantamount to the degradation of the rights of cisgender women¹⁹—in the same way propaganda encouraged raise the question of whether our caselaw has properly addressed questions around "whiteness" as an immutable characteristic. Our nation's history shows that not everyone considered "white" today was always viewed that way. Moreover, the phenomenon of mixed-raced people "passing" as white is well-documented, thus supporting the view that "whiteness" is a social con- struct. To push Justice Barrett's point further, perhaps more exploration is necessary to determine what steps should be taken to authenticate one's pur- ported "white" racial category. See generally Martha R. Mahoney, Segregation, Whiteness, and Transformation, 143 U. PA. L. REV. 1659, 1660 (1995).

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22-13626 ABUDU, J., Dissenting 13 men to believe that rights for women meant a diminishing of their own²⁰—the rights of these two groups are not and have never been mutually exclusive.²¹Title VII's protections against "an employer who intentionally treats a person worse because of sex," Bostock,

590 U.S. 658, apply equally to all genders—even those whose very existence remains a point of contention.²²Therefore, recognizing Cir. 2024) ("Across agencies, the [Biden] Administration maintains that, post- Bostock, statutes prohibiting sex discrimination must be read to cover gender- identity, even at the expense of real women and their spaces that such statutes were explicitly intended to protect." (emphasis added)); Chan Tov McNamarah, Cis- Woman-Protective Arguments, 123 COLUM. L. REV. 845, 864-68 (2023).

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14 ABUDU, J. Dissenting 22-13626 legal protections for Deputy Lange and other transgender individ- uals in the employment context tracks the reality that transgender individuals often come into the fullness of their identity while they are working adults, and if the workplace is going to be a law-abid- ing environment, it must abide by those legal protections for all of its employees.

"[T]he position of women in this country at its inception is reflected in the view expressed by Thomas Jefferson that women should be neither seen nor heard in society's decisionmaking coun- cils." Frontiero v. Richardson, 411 U.S. 677, 684 n.13 (1973) (citing M ARTIN GRUBERG, WOMEN IN AMERICAN POLITICS 4 (1968) and A LEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Reeves trans. 1948)). Even after women were granted the right to vote, "for a half century thereafter, it remained the prevailing doctrine that government . . . could withhold from women opportunities ac- corded men so long as any 'basis in reason' could be conceived for the discrimination." United States v. Virginia, 518 U.S. 515, 531 (1996) (Ginsburg, J., majority opinion) (citations omitted). However, as the role of women in society and the concept of gender evolved, so did the law, exemplified by Title VII of the landmark Civil Rights Act of 1964 at issue here that, inter alia, pro- hibited employment discrimination based on sex. 42 U.S.C. Docket No. 22-12028. Further, the American Civil Rights Project, describes gender affirming care as "psychologically-driven surgical treatments for body dysmorphia." Brief for The American Civil Rights Project Amicus Curiae in Support of Appellants at iv, Lange, Docket No. 22-12028.

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22-13626 ABUDU, J., Dissenting 15 §§ 2000e-2000e-17. In 1971, the Supreme Court in Phillips v. Martin Marietta Corp. played its part and held Title VII "requires that per- sons of like qualifications be given employment opportunities irre- spective of their sex," and concluded it may not permit different hiring policies for women and men based on each having pre- school aged children. 400 U.S. 542, 544 (1971). That said, the Phil- lips Court maintained the presumption that conflicting family obli- gations were a women-specific concern, and "if demonstrably more relevant to job performance for a woman than for a man, could arguably be a basis" for a gender-based distinction in the law. Id. Justice Marshall, concerned with this surviving presumption, explained: "I fear that in this case . . . the Court has fallen into the trap of assuming that the Act permits ancient canards about the proper role of women to be a basis for discrimination. Congress, however, sought just the opposite result." Id. at 545 (Marshall, J. concurring). That same year, over a hundred years after the ratifi- cation of the Fourteenth Amendment, the Court held for the first time that a law that discriminated against women was unconstitu- tional under the Fourteenth Amendment. U.S. C ONST. amend. XIV (ratified on July 9, 1868); Reed v. Reed, 404 U.S. 71, 76-77 (1971) (striking a state statute that mandated preference of men over

"equally entitled" women). Thereafter, the Court continued to dismantle our nation's

"long and unfortunate history of sex discrimination," that was tra- ditionally "rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage." Frontiero, 411 U.S. at 684. In Frontiero, the Court recognized

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16 ABUDU, J. Dissenting 22-13626 that although the position of women had improved, "it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena." Id. at 686 (footnotes omitted). Untangling this seemingly subtle dis- crimination meant severing our outdated and disproven concept of gender roles and capacity, and so the Court began striking discrim- inatory state and federal laws which had been based on archaic and overbroad generalizations about gender, particularly rejecting the notion that women were "destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas." Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (ci- tation omitted).

No longer was the presumption that a woman was depend- ent on a husband, less valuable in the workplace, or less likely to work a viable basis for gender-based distinctions in employment law, property rights, and access to entitlements and benefits.²³

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22-13626 ABUDU, J., Dissenting 17 Acknowledging "[w]omen's activities and responsibilities [were] in- creasing and expanding," the Court recognized that "[t]he presence of women in business, in the professions, in government and, in- deed, in all walks of life where education is a desirable, if not al- ways a necessary, antecedent is apparent and a proper subject of judicial notice." Id. at 15. As late as 1996, the Court struck down the Virginia Military Institute's categorical exclusion of women and reiterated that precedent does not allow for "a law or official policy [that] denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, partici- pate in and contribute to society based on their individual talents and capacities." United States v. Virginia, 518 U.S. 515, 532 (1996) (citations omitted).²⁴

Unfortunately, the traditional and stereotypical concepts around sex and gender are still so entrenched in our society's insti- tutions that to advance sex and gender equality means challenging more than just the laws that make explicit, facial sex- and gender- based criteria. For example, the Court began striking down laws that made distinctions based on pregnancy. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 645-46 (1974) (rejecting the "con- clusive presumption" that being pregnant made one unfit to work owned property, a husband possessed a unilateral right to dispose of such property without his wife's consent).

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18 ABUDU, J. Dissenting 22-13626 in a challenge to a policy that required teachers to take unpaid ma- ternity leave after the first trimester of pregnancy); Nashville Gas Co. v. Satty, 434 U.S. 136, 146 (1977) (striking down policy that de- nied accumulated seniority to employees returning from preg- nancy under Title VII). In interpreting the Pregnancy Discrimina- tion Act of 1978 ("PDA"), which extended Title VII protections by prohibiting discrimination based on pregnancy or pregnancy-re- lated medical conditions, the Court held discrimination based on pregnancy was discrimination based on sex and applied the PDA broadly to include an employee's spouse in the context of employ- ment benefits. Newport News, 462 U.S. at 684-85; see 42 U.S.C. § 2000e(k).

This gradual dismantling of archaic gender concepts goes beyond just their effect on women. In Mississippi University for Women v. Hogan, for example, the Court struck down a nursing school's categorical exclusion of men and concluded the policy

"tends to perpetuate the stereotyped view of nursing as an exclu- sively woman's job." 458 U.S. 718, 729 (1982). In Oncale v. Sun- downer Offshore Services, Inc., the Court held that Title VII prohibits same-sex sexual harassment even when both parties are heterosex- ual men, concluding the "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." 523 U.S. 75, 80 (1998).

Recently, and at issue here, courts have been grappling with our evolving concepts around gender within the context of sexual orientation and gender identity. For instance, the belief that a

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22-13626 ABUDU, J., Dissenting 19 heterosexual couple is the only proper foundation for marital and familial relationships and, thus, the only family construct entitled to legal protections, has shifted.²⁵In the landmark case Obergefell v. Hodges, the Supreme Court held same-sex marriage is a constitu- tional right and that "[t]he limitation of marriage to opposite-sex couples may long have seemed natural and just, but its incon- sistency with the central meaning of the fundamental right to marry is now manifest." 576 U.S. 644, 670-71 (2015). Further, as the concept of the "gender binary" continues to develop,²⁶courts also must continue to develop an effective legal framework to ad- dress discrimination in all its forms.²⁷

Nevertheless, the Supreme Court already has begun to ad- dress discrimination against transgender persons, some of our most vulnerable citizens,²⁸by extending anti-discrimination

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20 ABUDU, J. Dissenting 22-13626 frameworks to new contexts. Thus, we arrive back at Bostock, where the Court applied the existing, straightforward "but-for cause" test to hold that under Title VII, "[a]n employer who fires an individual merely for being gay or transgender defies the law."

590 U.S. at 683. Again, the Court recognized that "homosexuality and transgender status are distinct concepts from sex," but con- cluded that "sex is necessarily a but-for cause when an employer dis- criminates against homosexual or transgender employees." Id. at

661, 669.

rates for the Black transgender population (39%) and the Hispanic transgender population (48%). M. V. LEE BADGETT ET AL., LGBT POVERTY IN THE UNITED

STATES: A STUDY OF DIFFERENCES BETWEEN SEXUAL ORIENTATION AND

GENDER IDENTITY GROUPS 2, 14 (2019), https://williamsinsti- tute.law.ucla.edu/wp-content/uploads/National-LGBT-Poverty-Oct- 2019.pdf [https://perma.cc/AL9V-SZRB]. Attempted suicide rates in the transgender community are as high as 41% compared to 1.6% of the general population, and transgender children grades K-12 have reported alarming rates of harassment (78%), physical assault (35%), and sexual violence (12%). JAMIE M. GRANT ET AL., NAT'L CTR. FOR TRANSGENDER EQUAL. & NAT'L GAY & LESBIAN TASK FORCE, INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY 2-3 (2011) ("INJUSTICE AT EVERY TURN") [https://perma.cc/8WC3-D62N]; see also Nicolas A. Suarez et al., Disparities in Behaviors and Experiences Among Transgender and Cisgender High School Students—18 U.S. States, 2021, 94 ANNALS OF EPIDEMIOLOGY 113, 113-19 (2024) [https://doi.org/10.1016/j.annepidem.2024.05.004]. The unemploy- ment rate in the transgender community is at least double that of the general population, up to four times that for transgender people of color, and one-fifth of transgender people become homeless at some point because of their transgender status. GRANT, INJUSTICE AT EVERY TURN at 4, 51.

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22-13626 ABUDU, J., Dissenting 21 In Deputy Lange's case, we are not tasked with untangling hundreds of years of evolving concepts around gender and sex and their effect on transgender individuals in every conceivable context. Rather, like the early work of eliminating explicit sex- and gender- based distinctions in the law, we only are tasked with reading Hou- ston County's healthcare exclusions to decide whether they, on their face, treat Deputy Lange worse because she is transgender, i.e., that her sex was the "but-for cause" of Houston County's deci- sion to deny her medical coverage. The healthcare exclusions do just that. Consequently, the majority opinion traps transgender persons in the category of lower-class citizenship, outside of the protections afforded to cisgender individuals. However, just as "[a] prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded," Virginia, 518 U.S. at 557, so is our history of requiring all to comply with federal laws that guarantee those pro- tections.

The international community is also extending legal protec- tions to transgender persons. The United Nations Commission on Human Rights has clarified that provisions of the Universal Decla- ration of Human Rights, which states "all human beings are born free and equal in dignity and rights," include transgender persons.²⁹

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22 ABUDU, J. Dissenting 22-13626 The UN Report is not an aspirational assertion but a recognition that specific, treaty-based international human rights laws include transgender rights.³⁰For example, the Report reiterates that flow- ing from the International Covenant on Economic, Social and Cul- tural Rights³¹is the prohibition of "any discrimination in access to health care and the underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of sexual orientation and gender identity."³²Similarly, an interna- tional group of legal experts developed the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, which provide an "ex- pert exposition of international human rights law as it currently

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22-13626 ABUDU, J., Dissenting 23 applies to the grounds of sexual orientation, gender identity, gen- der expression and sex characteristics."³³The Yogyakarta Princi- ples suggest that to protect transgender persons from discrimina- tion in healthcare settings, states should ensure "gender affirming healthcare . . . costs are covered or reimbursable under private and public health insurance schemes."³⁴Since it was published in 2006 and supplemented in 2017, the Yogyakarta Principles have had widespread influence on international and state protections of transgender rights.³⁵

* * *

Instead of embracing a legal tradition (and mandate) of up- holding the law to ensure all people are treated equally, or that any

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24 ABUDU, J. Dissenting 22-13626 treatment is not rooted in a discriminatory purpose or practice, the majority opinion temporarily moves the needle back in the ongo- ing struggle for basic human dignity. Accordingly, I respectfully dissent.

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22-13626 WILSON, J., Dissenting 1 W ILSON, Circuit Judge, joined by ABUDU and KIDD, Circuit Judges, Dissenting:

But for her transgender status, Sergeant Anna Lange's med- ically necessary¹surgery would have been covered by her em- ployer's health insurance plan. Due to facially discriminatory cov- erage exclusions, it was not. Because discrimination against transgender people is outlawed by Title VII, I dissent.

I.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against "any individual" with respect to his or her "compensation, terms, conditions, or privileges of employ- ment, because of . . . sex." 42 U.S.C. § 2000e-2(a)(1). Health insur- ance benefits are "'compensation, terms, conditions, or privileges of employment.'" E.g., Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983) (quoting 42 U.S.C. § 2000e-2(a)). Title VII's "because of" language incorporates the "but-for"

causation standard. Bostock v. Clayton Cnty., 590 U.S. 644, 656 (2020). This test for impermissible discrimination is a "sweeping"

one—if an employer relies, even in part, on an employee's sex

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2 WILSON, J., Dissenting 22-13626 when deciding to take an adverse employment action, "a statutory violation has occurred." Id. at 656, 659-60. The "but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause." Id. at 656. A few facts²illustrate how Houston County's decision to ex- clude gender confirming care from its insurance plan violates Bos- tock's but-for test. The health plan covers "medically necessary"

services, including "office visits and doctor services," "diagnostic laboratory" services, "prescription drugs," "surgical supplies," "in- patient hospital care," and "inpatient professional services" includ- ing "surgery" and "general anesthesia." The plan also has sixty- eight medical exclusions and twenty-nine pharmacy exclusions. Of

2 A few additional facts help illuminate the motives behind Houston County's decision to exclude gender affirming care. During its annual renewal, Anthem, the health plan administrator, notified the County that "the exclusion for gen- der identity disorders and sex change surgery will be removed from [Anthem's

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22-13626 WILSON, J., Dissenting 3 the exclusions, two specifically carve out gender transition care³ from coverage: one excludes coverage for "[s]ervices and supplies for a sex change and/or the reversal of a sex change" (Exclusion 57) and the other "[d]rugs for sex change surgery" (Exclusion 26) (to- gether, the Exclusions). Houston County does not dispute that the Exclusions deny coverage to transgender people seeking treatment for gender dysphoria, even when it is medically necessary, and even when the plan would cover the same treatment for a cis- gender person⁴:

LANGE'S COUNSEL: Would exclusion 57 exclude a mas- tectomy sought for cancer treatment?

H OUSTON COUNTY REPRESENTATIVE: No.

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4 WILSON, J., Dissenting 22-13626 L ANGE'S COUNSEL: But would exclusion 57 prevent coverage of a mastectomy if it was used to treat gen- der dysphoria?

HOUSTON COUNTY REPRESENTATIVE: Yes.

L ANGE'S COUNSEL: Exclusion 26 would not exclude hormone replacement therapy to treat menopause?

HOUSTON COUNTY REPRESENTATIVE: No, not as I un- derstand it.

LANGE'S COUNSEL: But would exclusion 26 prevent hormone replacement therapy if used to treat gender dysphoria?

H OUSTON COUNTY REPRESENTATIVE: As I understand it, yes.

LANGE'S COUNSEL: Is mental healthcare generally cov- ered under the plan?

H OUSTON COUNTY REPRESENTATIVE: Yes.

LANGE'S COUNSEL: So it becomes not covered when it's related to transgender treatment?

H OUSTON COUNTY REPRESENTATIVE: . . . to answer your question, yes.

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22-13626 WILSON, J., Dissenting 5 Lange sought and was denied a medically necessary vagi- noplasty. If Lange had been assigned female sex at birth,⁵her med- ically necessary vaginoplasty would have been covered by the health plan. Because she was not, it was not.

The Bostock but-for test reveals that Lange's sex "play[ed] an unmistakable and impermissible role" in the coverage decision. 590 U.S. at 660. Lange (1) is a woman, (2) was assigned male sex at

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6 WILSON, J., Dissenting 22-13626 birth, and (3) is seeking a medically necessary vaginoplasty. Hou- ston County excludes this care from its health plan.⁶Changing "one thing," id. at 656, imagine someone that (1) is a woman, (2) was as- signed female sex at birth, and (3) is seeking a medically necessary vaginoplasty. This care would be covered. Therefore, Houston County's health plan "penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as fe- male at birth." Bostock, 590 U.S. at 660. Because the individual's sex is a but-for cause of the denial of coverage, the plan violates Title

VII.

While Title VII's "because of" language, operationalized through Bostock's "but-for" test, is a "sweeping" discrimination standard designed to ensure that Title VII's protected characteris- tics play no role in employment decisions, the test is still subject to different formulations. Bostock, 590 U.S. at 656. For example, take the majority's but-for analysis. First, it presents Lange, a "natal man," who sought a male-to-female sex change. The majority then hypothesizes "a natal woman who wanted a female-to-male sex change." In this hypothetical the majority changes two things, both

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22-13626 WILSON, J., Dissenting 7 the person's sex assigned at birth and the treatment they are seek- ing. This is contrary to Bostock's mandate that we "change one thing." Bostock, 590 U.S. at 656.

The majority then tries another formulation of Bostock's

"simple test." It hypothesizes "a natal woman who sought cover- age for the same male-to-female sex change that Lange received."

For starters, someone assigned female sex at birth would not seek a male-to-female sex change unless they had previously transi- tioned. This scenario would entail changing multiple variables at one time, again violating Bostock's mandate.

The majority's test then, seems to depend on the idea that the Exclusions are made nondiscriminatory by a cisgender person who would have to pay out of pocket for their transgender depend- ent's surgery. This argument defies logic. The Exclusions discrimi- nate based on sex, regardless of whether the person being discrim- inated against is an employee or the dependent of an employee. The majority's claim that "[n]othing about the policy exclu- sion turns on whether the County's employee is a man or woman"

ignores that the Exclusions themselves are impermissibly "bound up with sex." Bostock, 590 U.S. at 661. So "[a]n employer musters no better defense by responding that it is equally happy to [exclude] male and female employees" from this coverage. Id. at 662. Indeed, to apply the Exclusions, the plan administrator would have to know the purpose of the procedure—if for a "sex change" or a "sex change reversal," it is excluded, but if for some- thing else, it is covered. To determine whether the care is for a "sex

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8 WILSON, J., Dissenting 22-13626 change," "sex change reversal," or something else, the administra- tor must look at a person's sex—their sex assigned at birth, what it is now, and what they intend it to be in the future. Then, and only then, can the administrator decide whether the care is covered or not covered. So, inquiring into the purpose of the care necessarily entails inquiring into, and denying benefits based on, sex. "There is no way" to determine whether coverage will be provided "without considering [an employee's] sex" assigned at birth and then exclud- ing coverage based on that finding. Bostock, 590 U.S. at 668. The fact that Bostock's "but-for" test is subject to manipula- tion is no indication that the Exclusions are facially nondiscrimina- tory. Discrimination has been reframed in neutral terms in the past.⁷For example, in Loving v. Virginia, the Court confronted the

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22-13626 WILSON, J., Dissenting 9 argument that anti-miscegenation laws were permissible because they "punish[ed] equally" both the Black and white participants in an interracial marriage. 388 U.S. 1, 8 (1967). But the Court "re- ject[ed] the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifica- tions from the Fourteenth Amendment's proscription of all invidi- ous racial discriminations." Id. We are not the first to make this point. See United States v. Skrmetti, 145 S. Ct. 1816, 1877 (2025) (So- tomayor, J., dissenting). But it is particularly apt here, where the majority recasts sex discrimination as a neutral policy excluding

"sex change operation[s] for anyone regardless of their biological sex." Just as the illegality of a marriage under the statutes in Loving hinged on a person's race, so too here do the Exclusions hinge on a person's sex.

real military dangers which were presented, merely confuses the issue. Kore- matsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Em- pire . . . .") overruled by Trump v. Hawaii, 585 U.S. 667, 710 (2018) ("The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential au- thority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission."); but see Trump, 585 U.S. at 754 (Sotomayor, J., dissenting) ("By blindly accepting the Government's misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a super- ficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one 'gravely wrong' decision with another.").

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10 WILSON, J., Dissenting 22-13626 Courts have time and again pointed to a purported nondis- criminatory reason rather than grapple with the discriminatory terms of a statute or policy. Ignoring that the Exclusions hinge on sex is antithetical to Title VII's "momentous" message that "[a]n individual employee's sex is not relevant to the selection, evalua- tion, or compensation of employees." Id. at 660 (internal quotation marks omitted).

II.

The majority opinion relies heavily on United States v. Skrmetti, 145 S. Ct. 1816 (2025). But this reliance is misplaced. Alt- hough the Court conducted an analysis under Bostock,⁸the Court declined to address "whether Bostock's reasoning reaches beyond the Title VII context." Id. at 1834-35. And Skrmetti arose under the Equal Protection Clause, where our conception of discrimination is quite different from that under Title VII.⁹The differences begin with the text.

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22-13626 WILSON, J., Dissenting 11 The Equal Protection Clause of the Fourteenth Amendment provides: "No State shall . . . deny to any person within its jurisdic- tion the equal protection of the laws." U.S. Const. amend XIV § 1. It does not contain the phrase "because of" or any similar phrase that adopts a test of but-for causation.

Our equal protection jurisprudence has developed to "coex- ist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620, 631 (1996). The Court has never taken a but-for approach to equal protection classifications. The contrast between the stringency of the but-for test's operation and the flexibility of the Court's equal protection classifications is nowhere clearer than it is in the Court's sexual orientation discrim- ination cases.

actors, but many private actors too. In this way, Title VI reaches entities and organizations that the Equal Protection Clause does not. In other respects, however, the relative scope of the two provisions is inverted. The Equal Protection Clause addresses all manner of distinctions between persons and this Court has held that it implies different degrees of judicial scru- tiny for different kinds of classifications. . . . By contrast, Title VI targets only certain classifications—those based on race, color, or national origin. And that law does not direct courts to subject these classifications to one degree of scrutiny or an- other. Instead, as we have seen, its rule is as uncomplicated as it is momentous. Under Title VI, it is always unlawful to dis- criminate among persons even in part because of race, color, or national origin.

Id. (internal citations omitted).

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12 WILSON, J., Dissenting 22-13626 The Court has never treated sexual orientation as a form of sex discrimination, requiring heightened scrutiny, under the Equal Protection Clause. Even in decisions recognizing constitutional protections for the LGBTQ community, such as in Romer v. Evans,¹⁰ Lawerence v. Texas,¹¹United States v. Windsor,¹²and Obergefell v. Hodges,¹³the Court has consistently avoided the question of whether sexual orientation should be deemed a suspect or quasi- suspect class. Most recently, in Skrmetti, it avoided deciding whether laws classifying based on transgender status are subject to heightened scrutiny as sex discrimination. 145 S. Ct. at 1832-33. Not so under Title VII, which "requires that we focus on fairness to individuals rather than fairness to classes." L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702, 709 (1978). Title VII's

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22-13626 WILSON, J., Dissenting 13 stricter "but-for" test is "'simple but momentous': An individual employee's sex is 'not relevant to the selection, evaluation, or com- pensation of employees.'" Bostock, 590 U.S. at 660 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989)). And "it is impossi- ble to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." Id. at 660-62.

The majority opinion's argument that "'the law does not prohibit conduct for one sex that it permits for the other,'" is a group level discrimination argument that is no good under Title

VII. It is no "defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally."

Bostock, 590 U.S. at 659.

Perhaps most telling of the differences in how we conceive of discrimination under the Equal Protection Clause and Title VII is the evolution of the Court's treatment of another form of sex discrimination—pregnancy discrimination. In 1974, the Court con- sidered whether an insurance program that excluded from cover- age certain disabilities resulting from pregnancy discriminated on the basis of sex. Geduldig v. Aiello, 417 U.S. 484, 486 (1974). The Court reasoned that there was a "lack of identity" between sex and pregnancy because the plan divided participants into two groups—

"pregnant women and nonpregnant persons." Id. at 496 n.20. Be- cause women could belong to either group, there was no discrimi- nation based on sex as such. Id. Gilbert followed next, and the

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14 WILSON, J., Dissenting 22-13626 Supreme Court upheld a disability plan that excluded disabilities arising from pregnancy, relying largely on Geduldig's reasoning. General Elec. Co. v. Gilbert, 429 U.S. 125, 132-34 (1979). Today, this kind of reasoning lives on in the equal protection context. See, e.g., Adams by & through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 809 (11th Cir. 2022) (en banc). The Court in Skrmetti found that excluding medical treatments for gender dys- phoria does not discriminate on the basis of transgender status be- cause "although only transgender individuals seek treatment for gender dysphoria . . . —just as only biological women can become pregnant—there is a 'lack of identity' between transgender status"

and the exclusion of gender dysphoria treatment. 145 S. Ct. at 1833. Instead, the law at issue divided people into two groups: those that seek puberty blockers and hormones to treat gender dysphoria, which only includes transgender individuals, and those who might seek puberty blockers or hormones to treat other conditions. Id. The latter group encompasses both transgender and non- transgender individuals, so the Court concluded the law did not

"exclude any individuals on the basis of transgender status." Id. at 1833-34. Here, the majority opinion uses this reasoning to decide that the "County's plan does not facially discriminate based on transgender status" but rather "draws a line between certain treat- ments, which it covers, and other treatments, which it does not."

But this reasoning is particularly inappropriate in Title VII cases. Congress amended Title VII in response to Gilbert and "un- ambiguously expressed its disapproval" of this reasoning. Newport

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22-13626 WILSON, J., Dissenting 15 News, 462 U.S. at 678. The House and Senate Reports expressed that the Gilbert's dissenters "correctly interpreted the Act." Id. (quo- tation mark omitted). The dissenters argued that it "was inaccurate to describe the program as dividing potential recipients into two groups, pregnant women and non-pregnant persons, because in- surance programs 'deal with future risks rather than historic facts.' Rather, the appropriate classification was 'between persons who face a risk of pregnancy and those who do not.'" Id. (quoting Gil- bert, 429 U.S. 161-62 (Stevens, J., dissenting)). Applying the correct discrimination standard from the Gil- bert dissenters, transgender individuals are the only ones that face the "risk" of needing a "sex-change" or "sex-change reversal." By excluding medically necessary care if it is classified as a "sex- change" or "sex-change reversal" the health plan provides less com- plete coverage for people based on their transgender status, and therefore also based on their sex. See Bostock, 590 U.S. at 660-62. This violates Title VII.

III.

Because the majority manipulates Bostock's but-for test to obfuscate the discrimination apparent on the face of the plan, I dis- sent.

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