On September 9, 2025, in Anna Lange v. Houston County, Georgia, et. al., the U.S. Court of Appeals for the Eleventh Circuit held that the denial of coverage for gender-affirming surgery was not discriminatory. This decision directly departed from the court’s 2-1 ruling by a three-member panel in 2024, which held that such an exclusion was, on its face, a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It also conflicted with other recent federal court opinions that have construed the exclusion of gender affirming care as unlawful.1
Background
The plaintiff, a transgender woman, has served as a deputy with the Houston County Sheriff’s Office in Georgia since 2006. In 2017, the plaintiff began openly presenting as female in the workplace. As an employee of the Sheriff’s Office, the plaintiff was enrolled in the County’s health insurance plan. As part of her gender-affirming treatment, the plaintiff underwent hormone therapy, consulted with an endocrinologist, and received psychological care—all of which were covered under the County’s plan. When the plaintiff later sought gender-affirming surgery, however, coverage was denied pursuant to the County’s express exclusion for gender-affirming procedures (the insurance plan excluded “[d]rugs for sex change surgery” and “[s]ervices and supplies for a sex change and/or the reversal of a sex change…”).
As a result of the exclusion and denial, the plaintiff filed a charge of discrimination against Houston County with the Equal Employment Opportunity Commission and then filed suit in the Middle District of Georgia. The plaintiff alleged that the health insurance plan’s exclusion constituted discrimination on the basis of gender identity, which was a form of unlawful sex discrimination under Title VII. The district court agreed with this premise, granting summary judgment in the plaintiff’s favor, and issuing a permanent injunction to prohibit enforcement of the applicable exclusion.
The County appealed, and although a three-judge panel affirmed the district court’s decision in 2024, the full court voted to rehear the case en banc. The en banc court directed the parties to brief a single issue: whether the County’s health insurance policy—which provided coverage for medically necessary treatments for certain diagnoses but excluded coverage for sex reassignment surgery—facially violated Title VII. The court held it did not.
Opinion
The Eleventh Circuit published a 108-page en banc opinion that effectively reversed the three-judge panel’s prior decision. In sum, the court held that the applicable exclusions did not constitute sex discrimination under Title VII because the exclusion was applied uniformly, regardless of a person’s sex or gender identity.
In reaching its conclusion, the majority relied heavily on the Supreme Court’s recent opinion in United States v. Skrmetti, 145 S. Ct. 1816 (2025), which upheld Tennessee’s ban on gender-affirming care for minors. Although Skrmetti’s analysis focused on arguments raised under the Fourteenth Amendment’s Equal Protection Clause, the majority held that the same logic could be applied to Title VII. Just as the challenged Tennessee law did not discriminate based on a person’s transgender status due to its uniform application, the court reasoned here that the County’s policy did not discriminate based on gender identity or “biological sex.”
The court also declined to consider Bostock v. Clayton County, which construed Title VII to cover both sexual orientation and gender identity, as persuasive.
Impressions
The Lange decision was not rendered in a vacuum. While the previous administration had issued an executive order requiring the federal government to interpret Title VII as protecting against discrimination based on gender identity (see Executive Order 13988), that order was rescinded in January 2025 with Executive Order 14168, which declines to acknowledge sex and gender beyond an immutable characteristic assigned at conception or a biological “binary.”
Recommendations
- Consult with your benefits counsel to evaluate whether there are any express protections or exclusions in employer-sponsored benefit plans relating to gender identity and gender affirming care to then determine the best path forward.
- Stay informed about evolving state laws and regulations, which may require changes to applicable health and benefit plans.
- Review current employment policies to assess whether any provisions conflict with your organization’s initiatives regarding equity and/or equal treatment in the workplace.
Footnotes
1 See, e.g., Fletcher v. Alaska, 443 F. Supp 3d 1024 (D. Alaska 2020); Doe v. City of Philadelphia, No. 24-0468, 2024 WL 3634221 (E.D. Pa. Aug. 2, 2024); L.B. v. Premera Blue Cross, 781 F. Supp 3d 1128 (W.D. Wash. 2025).
