Florida’s defense of a 2023 law restricting pronouns that transgender teachers can use to identify themselves could be aided by an appeals-court ruling Tuesday in a Georgia case involving a transgender sheriff’s deputy.
U.S. District Judge Mark Walker last month sided with Hillsborough County teacher Katie Wood and a Lee County teacher, identified as Jane Doe, in finding that the pronoun law discriminates in violation of what is known as Section VII of the Civil Rights Act of 1964. That section bars employment discrimination because of a person’s “race, color, religion, sex, or national origin.”
But Walker put his ruling on hold because the full 11th U.S. Circuit Court of Appeals was considering a lawsuit focusing on Section VII. A transgender Houston County, Ga., sheriff’s deputy filed that lawsuit after she was denied coverage under a county health-insurance policy for surgery related to gender dysphoria.
Walker wrote last month that the outcome of the Georgia case, which is known as Lange v. Houston County, could be “determinative” in the Florida teacher case.
“Judicial economy demands that this court (Walker) decline to issue an injunction or try the issue of damages at this juncture and stay this case pending resolution of the en banc rehearing in Lange,” he wrote, using a term for a rehearing by the full appeals court.
On Tuesday, the sharply divided appeals court ruled against the Georgia deputy, Anna Lange. While the circumstances of the cases are different — the use of pronouns and a health-insurance exclusion — Judge Nancy Abudu, in a dissenting opinion, pointed to potentially far-reaching effects of the majority ruling.
“The majority opinion effectively sanctions employment discrimination against transgender people,” Abudu’s dissent said.
The Florida law requires teachers to use pronouns that align with their sex assigned at birth. As an example, Walker wrote last month, the law led Wood, a transgender woman, to erase her pronouns and title on a classroom whiteboard and begin using the title “Teacher” instead of “Ms.” with her students.
Walker wrote that the state law “alters the terms and conditions of plaintiffs’ employment. Compliance … means plaintiffs, transgender teachers, are forbidden from using their preferred pronouns and titles with students. Noncompliance can result in disciplinary violations, which in turn can lead to suspension or revocation of plaintiffs’ teaching certifications or termination.”
“Therefore, because compliance with (the law) is a condition of plaintiffs’ employment, and because (the law) discriminates based on sex with respect to the terms and conditions of plaintiffs’ employment, it violates Title VII,” Walker wrote.
But on Tuesday, the appeals court, in an 8-5 decision, turned down Lange’s arguments under Title VII. Judge Andrew Brasher wrote the majority opinion, which was joined fully by Chief Judge William Pryor and Judges Kevin Newsom, Elizabeth Branch, Britt Grant, Robert Luck and Barbara Lagoa. Judge Robin Rosenbaum wrote a concurring opinion in which she said she felt bound by a recent U.S. Supreme Court ruling that upheld a Tennessee prohibition on treatments such as puberty blockers for transgender minors.
In addition to Abudu, Judges Jill Pryor, Adalberto Jordan, Embry Kidd and Charles Wilson dissented.
The majority opinion, in part, said that while the health-insurance plan “does not cover sex change surgeries, it does not treat anyone differently based on a protected characteristic” and that the exclusion is “not facially discriminatory under Title VII.”
Brasher wrote that the county’s policy “does not pay for a sex change operation for anyone regardless of their biological sex. … Lange is a natal man. If Lange were instead a natal woman who wanted a female-to-male sex change, the insurance policy would not pay for it. Or if Lange were a natal woman who sought coverage for the same male-to-female sex change that Lange received (perhaps for a male dependent), the county’s policy would operate in the same way — it would deny coverage. Nothing about the policy exclusion turns on whether the county’s employee is a man or woman.”
“The county’s plan draws a line between certain treatments, which it covers, and other treatments, which it does not,” the opinion said. “That line may or may not be appropriate as a matter of health care policy, but it is not facial discrimination based on protected status.”
In his decision last month, Walker said he would hold a status conference after the appeals court ruled in the Georgia case. As of Wednesday morning, such a conference had not been scheduled, according to an online docket.
Walker last year also issued a preliminary injunction to block enforcement of the pronoun law against Wood because he said it violated her First Amendment rights. But a divided panel of the Atlanta-based appeals court on July 2 overturned the injunction.
That did not resolve other arguments, such as the Title VII issue. Also,the state and the plaintiffs have made equal-protection arguments that remain unresolved.
–Jim Saunders, News Service of Florida
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