On September 9, 2025, the Eleventh Circuit Court of Appeals held in Lange v. Houston County that a plan that did not cover gender affirming surgery did not violate Title VII of the Civil Rights Act of 1964 (Title VII).
Background
The plaintiff in the case worked for the defendant as a deputy sheriff. They are transgender and sought gender affirming surgery (as well as the drugs, services, and supplies that went along with it). However, the defendant's plan did not cover those products or services.
The plaintiff filed suit alleging that the plan violated Title VII because it discriminated based on sex. Title VII makes it unlawful for a covered employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” Since health coverage is a privilege of employment, a health plan cannot discriminate based on sex.
The district court ruled in favor of the plaintiff and issued a permanent injunction prohibiting the defendant's plan from excluding sex change surgery from coverage. When the Eleventh Circuit took the case initially, a three-member panel of the appellate court affirmed the district court. However, the appellate court decided to revisit the case en banc (which means all the judges would consider the case, not just a three-member panel). As a result, the Eleventh Circuit reversed its initial ruling, lifted the injunction, and remanded the case back to the district court for further proceedings.
The Court's Analysis
The plaintiff cited the Supreme Court's 2020 decision in Bostock v. Clayton County in support of their contention that the policy exclusion discriminates based on sex. The Bostock case applied a test to determine whether such discrimination exists: change one thing at a time and see if the outcome changes. The plaintiff argued that the exclusion would not have applied if one thing had been different: if they had been female, then the exclusion would not have applied. The district court and the three-member panel of the Eleventh Circuit agreed with the plaintiff's application of this test and ruled in favor of the plaintiff.
However, the new en banc decision relied upon a more recent Supreme Court decision. In 2024, the Court ruled in United States v. Skrmetti that a law did not violate the Equal Protection Clause of the 14th Amendment when it prohibited the use of certain treatments for gender dysphoria but did not prohibit the use of those same treatments for other conditions. The Court reasoned that a law that does not prohibit conduct for one sex that it permits for the other does not discriminate based on sex. If a male participant was denied those treatments to treat gender dysphoria, that same male participant would not be denied those treatments for other conditions.
Although the Court's decision dealt with violations of the 14th Amendment, the Eleventh Circuit applied that reasoning here. The defendant's policy excluded coverage for these treatments from everyone, not just male participants seeking gender affirming care. The Eleventh Circuit reasoned that since the exclusion applied to everyone, regardless of sex, it did not discriminate based on sex.
Employer Takeaway
This case is just the most recent example of the fluid legal status of gender-related treatments, products, and services. Although the Eleventh Circuit issued its ruling based on the application of a recent Supreme Court decision, there is no guarantee that other appellate courts will look at this the same way. Due to the legal uncertainty involved, employers should consult with their lawyer if they wish to make changes to their health plans involving gender-related treatments, products, and services.
Read the full case: Lange v. Houston County (USCourts.gov)