Gender-affirming care allows individuals to align their outward, physical traits with their inner gender identity. This care can include a range of social, psychological, behavioral, and medical treatments to help individuals develop harmony between their mental, social, emotional, and physical states. This type of care is recognized as medically necessary by major medical organizations, including the American Medical Association and the American Academy of Pediatrics. Yet, a recent uptick in transphobic legislation has threatened the trans community’s right to gender-affirming healthcare. This dangerous trend serves as an invitation for violence and threats against members and allies of the LGBTQ+ community. In the following, we explore how employees are resisting the recent rise in transphobic sentiment by challenging limits on access to gender-affirming care.
Overview of Loe v. Texas
On July 12, 2023, five Texas families, three medical professionals, and two organizations representing health professionals across the state filed a lawsuit against Texas. The lawsuit, Loe v. Texas, challenges Senate Bill (S.B.) 14, which bars transgender youth from accessing, and medical professionals from performing, gender-affirming care in the state. By denying transgender individuals access to medical treatment, S.B. 14 contradicts important Supreme Court precedent in Price Waterhouse v. Hopkins and Bostock v. Clayton County, which establish that discrimination against transgender citizens constitutes gender discrimination.
S.B. 14 requires the Texas Board of Medicine to revoke the medical licenses of physicians who continue to provide this crucial gender-affirming care. Many medical providers and families have been forced to move out of Texas to access proper healthcare in response. This exodus has worsened an existing pediatric specialist shortage in Texas. American Academy of Pediatrics, https://www.aap.org/en/advocacy/pediatric-subspecialty-shortages-fact-sheets/ (last visited Mar. 4, 2024). On August 15 and 16, 2023, plaintiffs in Loe v. Texas sought an injunction, requesting that the court pause the implementation of S.B. 14. Following the hearing, Judge Maria Cantú Hexsel permanently blocked the implementation of S.B. 14. Judge Cantú Hexsel stated that S.B. 14 violates the rights of transgender children and their families to seek appropriate medical care and also violates doctors’ ability to follow “well established and evidence based” medical guidelines. Judge Cantú Hexsel’s ruling noted that S.B. 14 forced Texas physicians to break their medical oaths; she concluded that S.B. 14 both put patients in danger and prevented physicians from providing the best medical care for their transgender patients.
On August 25, 2023—only one week after Judge Cantú Hexsel blocked S.B. 14—Texas Attorney General Ken Paxton filed an accelerated appeal to the Texas Supreme Court seeking to overturn Judge Cantú Hexsel’s decision. Paxton’s appeal automatically stopped the injunction, consequently leading to the reinstatement of S.B. 14 on September 1. Plaintiffs continue to urge the Texas Supreme Court to veto this bill from inflicting further harm on transgender youth, their families, and their healthcare providers. To stay updated on the rights of transgender youth in Texas, click here.
Overview of Lange v. Houston County, Georgia
Recent litigation in Georgia may also, separately, impact how transgender employees access gender-affirming healthcare. In October 2019, Houston County Sheriff’s Deputy Anna Lange filed a civil suit against both her previous supervisor and her previous employer for discriminating against her by denying insurance coverage for the gender-affirming care she had been prescribed. Houston County selected an insurance plan which covered procedures when prescribed for gender-affirming care (e.g. vaginoplasties, mastectomies, etc.); however, the County deliberately opted out of covering gender-affirming care for non-binary and trans employees. In contrast, the County allowed coverage when those same procedures were required by cis gender individuals. For example, the County covered breast cancer patients’ mastectomies, but not a mastectomy being used to affirm an individual’s gender identity.
On May 13, 2024, the 11th Circuit of the U.S. Court of Appeals in a 2-1 decision found that Houston County violated Title VII by “denying coverage for gender-affirming care to a transgender employee because the employee is transgender.” Lange v. Houston Cnty., Georgia, No. 22-13626, 2024 WL 2126748 (11th Cir. May 13, 2024). The ruling upheld the decision of the United States District Court for the Middle District of Georgia that had previously found Houston County’s actions to be discriminatory under Title VII of the 1964 Civil Rights Act, citing Bostock v. Clayton County. This is an encouraging decision, as it interprets federal employment law to protect transgender employees from discrimination based on one’s conformity with gender norms.
Employee Advocacy
Transphobia can take many forms, but it has the same intention: to marginalize transgender and nonbinary individuals in their ability to publicly and freely live their lives, especially with respect to their access to healthcare and employment. Loe v. Texas and Lange v. Houston County exemplify how employers have attempted to prevent their employees from taking part in receiving or providing gender-affirming healthcare.
State laws may violate federal laws if they are used to discriminate against employees based on their gender identity. This is particularly clear in Loe v. Texas, where S.B. 14 specifically bans medical treatment for transgender adolescents but not for “precocious puberty or ‘a medically verifiable genetic disorder of sex development,’” drawing a clear line between transgender adolescents seeking gender-affirming medical care and adolescents seeking medical treatment for other purposes. The State of Texas, et al., Appellants, v. Lazaro Loe, et al. Appellees., 2023 WL 8527125, at *11. By distinguishing between transgender patients seeking gender-affirming treatment and cisgender patients seeking the same treatment, Texas and other states imposing similar bans may violate anti-discrimination protections on the basis of gender. These laws also impact employees who support gender-affirming care in their work. Physicians who treat transgender and nonbinary adolescents through gender-affirming care in states where it is banned risk losing their medical license and, in some circumstances, jailtime.
Workplace policies that intentionally exclude services for transgender and nonbinary employees violate federal anti-discrimination laws. In Lange v. Houston County, Houston County did not use the guise of an anti-trans law to shield their transphobic practices, however, they upheld a false notion that certain procedures categorized as gender-affirming care were more expensive when provided to transgender employees than to cisgender employees. This draws attention to another route employers may use to deny services to their transgender and nonbinary employees.
What does this mean for employees and their employers? For transgender and nonbinary employees who live in states that have or are considering restrictive legislation, Loe v. Texas provides glimpses of the potential claims and protections they may have. For employees who do not live in these states, Lange v. Houston County highlights how to hold one’s employer accountable for transphobic work policies. While every experience is unique, these lawsuits lay out a roadmap for transgender individuals and their allies to utilize if they have experienced similar mistreatment at work. To do this, it is essential to understand what legal protections exist. Federal anti-discrimination laws, including Title VII, protect employees on the basis of sex and gender identity. State anti-discrimination laws may also protect employees depending on what specific protections are enacted.
Regardless of whether there are transgender or nonbinary employees currently at a workplace, the company should ensure a safe and supportive work environment by providing ways to ask questions and voice concerns. Employers who provide a secure and accessible path towards information and services related to gender-affirming healthcare can alleviate any trepidation their employees may experience. Learning how to access gender-affirming care and if it is covered under an employer’s insurance plan can be a daunting task, especially in states that are actively proposing legislation against this care.
As legislatures and politicians continue to introduce policies that restrict the ability of individuals to express themselves freely and comfortably, it is important that we examine the ramifications of these restrictions and the legality of their enactment. Employers should recognize that legislation that harms an employee’s identity may hinder the development of an efficient and effective workplace. In the face of challenges and discriminatory legislation, employers have a legal responsibility to establish a safe and comfortable environment for all employees no matter their gender identity.
This article is authored by Sanford Heisler Sharp partner Christine Dunn, senior legal assistants Serena Bernal and Madison Zucco and legal intake and operations specialists Erin Simard and Mary Duggan. Sanford Heisler Sharp is a national civil rights and social justice law firm known for its experience in employment rights. Visit www.sanfordheisler.com to learn more.