An Unwarranted Judicial Attack on a Christian Group

On Tuesday, the en banc Eleventh Circuit held that Title VII does not require employers to cover “sex change” operations. A sheriff’s deputy sought to force a county’s health plan to pay for a transitioning vaginoplasty, a surgery that involves removal of male genitalia and creation of a neovagina. The Eleventh Circuit rejected this claim, applying the Supreme Court’s decision in United States v. Skrmetti to hold that a plan that does not pay for “sex change” operations, regardless of sex or whether the operation is for transitioning or detransitioning, comports with Title VII. Echoing Skrmetti, the majority emphasized that the plan discriminated based on the purpose of the procedure, not sex or transgender status. Judge Robin Rosenbaum concurred in the judgment, agreeing that Skrmetti dictated the result.

Though several judges filed dissents, one sticks out. Judge Nancy Abudu wrote a solo dissent “to acknowledge the ongoing cultural war in which this Court, like courts before us, has had to participate.” Of course, the majority participated in no culture war, specifically explaining that the county’s “line may or may not be appropriate as a matter of health care policy, but it is not facial discrimination based on protected status.” Judge Abudu, on the other hand, argued that “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 areas of society still rife with discrimination.” The relevance of this “elephant” to the legal question before the Court is unclear, but Judge Abudu nonetheless accused the majority opinion of serving as “fodder for those who oppose legal rights for transgender people” (capitalization omitted) and moving “the needle back in the ongoing struggle for basic human dignity.”

In particular, Judge Abudu said that “the majority provides more traction for ‘extratextual considerations’” from those “opposed to transgender equality.” With no citation here to the majority’s opinion, it is difficult to discern the nature of this concern, and one may wonder whether a goal of “transgender equality” is itself an “extratextual consideration.” At any rate, Judge Abudu zeroed in on one amicus brief, filed by me on behalf of the Christian Employers Alliance (and not cited by any other opinion), stating that it “reveal[s] 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 procedure 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.’” The disdain is palpable. However, one’s personal beliefs that promote “transgenderism” do not change the language of Title VII or Bostock’s holding and guidance. [Citation omitted]

Where to begin? First, the brief does not use the term “transgenderism,” which Judge Abudu defined via GLAAD as “a term opponents of transgender equality use to imply that being transgender is an ideology.” (Judge Abudu later relied on the International Journal of Transgenderism.) More importantly, the relevant argument — truncated by Judge Abudu but presented in full below — had nothing to do with personal beliefs and everything to do with the logic eventually adopted by the Supreme Court in Skrmetti, the Eleventh Circuit majority, and Judge Rosenbaum’s concurrence:

If the panel were right that the County’s exclusion is sex discrimination, then a plan would also discriminate by covering transitioning hormones — say, testosterone for females to look more “masculine” — and refusing to cover testosterone for males who want to look more “masculine.” Same goes for any number of other implants, augmentations, enhancements, and drugs. And it would violate Title VII to fail to cover “sex change reversals.” Panel Op. 6 (Brasher, J., dissenting). In essence, the panel’s logic means that any procedure related to gender transition gets special (and universal) coverage, regardless of why or how the procedure is used. See id. at 9; see also En Banc Amicus Brief of Alabama et al. 12–18 (showing that the same logic would apply to all treatments tied to sex); contra Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 259 (1981) (explaining that Title VII “does not demand that an employer give preferential treatment”).

All this is nonsense. That sex-change operations “are themselves sex-based” does not make every regulation pertaining to them discriminatory. Eknes-Tucker, 80 F.4th at 1228 (“treatments for gender dysphoria are different for males and for females because of biological differences between” them). Slicing off a male’s genitals is not the same procedure as correcting a female’s congenital absence of a vagina. Giving a female testosterone to transition is not the same procedure as giving testosterone to a male to treat hypogonadism (or to win the Tour de France). Contra the district court, a mastectomy “for cancer treatment” is not the same procedure as removing a woman’s healthy breasts “for sex change.” Lange, 608 F. Supp. 3d at 1358.

These realities are presumably why the panel (and the [Biden Administration]) made no effort to identify an analogous “other operation[]” (or “same treatment”) covered by the County’s plan. Panel Op. 10; United States Panel Br. 10–11.

Judge Rosembaum used the same analogy, pointing out that Skrmetti requires distinguishing a female who “could get a mastectomy if they had breast cancer” from a female “with unwanted breast tissue inconsistent with their gender identity” who could not get a mastectomy. There was no “disdain” for any group here, and “nonsense” obviously refers to a line of illogic. Judge Abudu had no apparent response to the point other than recasting it as a villainous personal attack against transgender people.

Speaking of palpable disdain, Judge Abudu returned to the Christian Employers Alliance in two more footnotes, suggesting that the organization is questioning the “very existence” of transgender people because of its “religious convictions ‘that male and female are immutable realities defined by biological sex.’” Judge Abudu darkly warned that the group “does not hide its goal to stop ‘gender-transition mandates’” that “coerce . . . employers and healthcare providers to either pay or perform gender-transition surgeries, procedures, counseling, or other treatments . . . in direct violation of their deeply-held religious beliefs.”

Put aside that a substantial majority of Americans of all religious persuasions agree with Justice Ginsburg’s view from the Virginia Military Institute decision that “physical differences between men and women” are “inherent,” “enduring,” and “cause for celebration.” It is true that the Christian Employers Alliance has sincerely-held religious beliefs about participating in gender transition operations. Those beliefs are protected by the First Amendment, state and federal Religious Freedom Restoration Acts, and Title VII itself, which is why the District of North Dakota granted the group a permanent injunction against several related Biden administration rules.

The apparent suggestion that legal arguments from such groups should be dismissed — or that statutes should be interpreted in a way that deprives these groups of “fodder” — because their religious beliefs may be out of step with a judge’s personal vision of “transgender equality” is remarkable. In fact, the Constitution forbids official expressions of hostility to religion. The same day Judge Abudu issued her dissent, the Second Circuit found a likely violation of this First Amendment protection from statements no different in kind than Judge Abudu’s unwarranted aspersions on the Christian Employers Alliance. To use Judge Abudu’s words, quoting Bostock, “all persons are entitled to [the] benefit” of the law — regardless of religious belief.