On September 9, 2025, the Eleventh Circuit Court of Appeals issued its much-anticipated opinion in Lange v. Houston County, holding that a health plan’s exclusion for gender affirming surgery does not violate Title VII of the Civil Rights Act of 1964 (“Title VII”) for discrimination on the basis of sex.

Background

Anna Lange, a transgender woman and deputy at the Houston County, Georgia Sheriff’s Office, challenged her health plan’s coverage exclusion for drugs, services, and supplies for gender reassignment surgery. She alleged the coverage exclusion violated Title VII because it was facially discriminatory on the basis of sex.

Title VII makes it unlawful for a covered employer to discriminate with respect to “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Employer-provided health coverage has long been considered a “privilege of employment” for purposes of Title VII.  Accordingly, if an employer provides group health coverage to its employees, that coverage cannot discriminate based on a protected characteristic, such as sex.

In 2022, Lange won her Title VII argument on summary judgment in the U.S. District Court for the Middle District of Georgia. Her employer, Houston County, appealed the decision to the Eleventh Circuit Court of Appeals. In May of 2024, a divided Eleventh Circuit panel upheld the lower district court’s decision that the challenged health plan exclusion discriminated against Lange on the basis of sex. Relying on the Supreme Court’s 2020 opinion in Bostock v. Clayton County, the three-judge Eleventh Circuit panel held “because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status” in violation of Title VII.

The Eleventh Circuit’s Recent Ruling

In August 2024, the Eleventh Circuit vacated its earlier panel decision and voted to rehear Lange’s case en banc (by the full court).

Last week, that en banc court reversed its prior decision and held the challenged coverage exclusion for gender affirming surgery did not facially violate Title VII. Specifically, the en banc court reasoned the coverage exclusion did not discriminate because the coverage denials were based on the medical condition for which the procedure was requested, not the plaintiff’s sex or transgender status. In other words, the health plan’s exclusion was not discriminatory because it applied equally to all employees regardless of their sex or transgender status.

In reaching this conclusion, the Eleventh Circuit relied heavily on the Supreme Court’s recent decision in United States v. Skrmetti.  In Skrmetti, the Supreme Court held a Tennessee law did not discriminate based on sex or transgender status when it disallowed certain hormone therapy treatments for gender dysphoria in minors but permitted the same treatments for other medical conditions. While Skrmetti involved the Equal Protection Clause of the Fourteenth Amendment and not Title VII, the Eleventh Circuit nonetheless found that the Supreme Court’s Skrmetti ruling controlled. In so holding, the Eleventh Circuit noted that the Skrmetti decision involved an extensive discussion and interpretation of Bostock (a Title VII case), and the Supreme Court’s analysis of Bostock applied. Simply put, the Eleventh Circuit interpreted the Skrmetti ruling to reach both the Equal Protection Clause of the Fourteenth Amendment and Title VII.

Recommendations

This recent Eleventh Circuit decision heralds a narrowing view of when health plan exclusions for gender-affirming care are deemed to be unlawfully discriminatory. Other circuits are likely to weigh in on this legal issue, and it remains to be seen whether they will follow the Eleventh Circuit’s reasoning.  Notably, at least one district court addressing a similar health plan exclusion for gender affirming care for minors post-Skrmetti has reached a different conclusion from the Eleventh Circuit, albeit in the context of Section 1557 of the Affordable Care Act, not Title VII.

Employers should give careful consideration to any plan design changes based solely on the Eleventh Circuit’s decision in Lange.  Other legal challenges may still apply to blanket exclusions for gender-affirming care.

Because this area of law is rapidly developing, we recommend employers contact their SGR benefits counsel with any questions about how this recent decision may impact them, particularly if the employer’s health plan covers employees in multiple different states and federal jurisdictions.