Eleventh Circuit Says Health Plan’s Gender-Affirming Surgery Exclusion Not Discriminatory on Its Face

Quick Hits

• The Eleventh Circuit ruled that a county health insurance plan’s exclusion of gender-affirming surgery did not violate Title VII, interpreting protections for LGBTQ+ individuals narrowly.
• The court concluded that the plan’s policy was not facially discriminatory since it applied equally to all employees regardless of sex.
• A dissenting opinion argued that the ruling improperly relied on a precedent that should not apply to Title VII discrimination cases involving medical conditions that impact employees differently based on sex.

Background

In Lange v. Houston County, Georgia, a transgender woman who served as a deputy in the Houston County Sheriff’s Office alleged that the county health insurance plan violated Title VII on its face because it discriminated on the basis of sex and penalized individuals for being transgender after being denied health insurance coverage for a gender-affirming procedure under an exclusion for “sex change surgery.”

However, in a divided en banc opinion, the Eleventh Circuit rejected such arguments, finding that the county employee health insurance plan did not violate Title VII since it excluded procedures for both male and female employees (for either a male-to-female transition or a female-to-male transition) and did not otherwise discriminate based on “transgender status.”

“The County’s plan draws a line between certain treatments, which it covers, and other treatments, which it does not. That line may or may not be appropriate as a matter of health care policy, but it is not facial discrimination based on protected status,” the Eleventh Circuit en banc majority wrote.

Title VII and Discrimination on the Basis of Sex or ‘Transgender Status’

The sheriff’s deputy had argued the exclusion discriminated on the basis of sex under the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgia, which held that Title VII prohibits an employer from firing workers for being gay or transgender.

However, the Eleventh Circuit interpreted Bostock narrowly in the context of the Supreme Court’s more recent June 2025 ruling in United States v. Skrmetti, which held that a Tennessee law prohibiting gender-affirming care for minors did not violate the Equal Protection Clause of the Fourteenth Amendment. There, the Supreme Court noted that in Bostock it had “reasoned that Title VII’s ‘because of’ test incorporate[d] the traditional but-for causation standard” for analyzing unlawful sex discrimination, whereby courts will “change one thing at a time and see if the outcome changes.”

“The Supreme Court’s reasoning in Skrmetti applies equally here,” the Eleventh Circuit stated. “The County’s policy does not pay for a sex change operation for anyone regardless of their biological sex.”

Moreover, the court stated that the county’s plan did not unlawfully discriminate based on transgender status,” as the plan’s coverage reflected a “‘classification based on medical use’” and “would cover the procedures that make up a sex change for other purposes, such as treatment for cancer or reconstructive surgery following a car accident, whether or not the employee who needed those procedures was transgender.”

The court pointed out that the Supreme Court has not “held that transgender status is separately protected under Title VII apart from sex,” reading the Bostock decision narrowly as applying only to the question of “‘whether an employer who fires someone simply for being … transgender’” has violated Title VII.

Even if transgender status were separately protected, the Eleventh Circuit majority stated, the plan still did not facially discriminate based on transgender status because sex was not the “but-for cause” as to why the county employee was not covered. The plan did not specifically penalize transgender individuals by making them pay more or by denying other covered treatments to transgender employees, the court reasoned.

The court rejected the argument that the plan discriminated based on gender stereotypes, finding it excluded coverage “regardless [of] whether the goal [was] to differ from, or align with, natal sex.” Finally, the appellate court found that the plan did not unlawfully penalize individuals transitioning, as it simply “decline[d] to extend a benefit—namely, coverage for sex change operation,” a benefit it “declined to everyone.”

However, a dissenting opinion of five judges argued the majority had improperly relied on Skrmetti since it was an Equal Protection Clause case and Title VII does not permit the sort of “line drawing” between certain covered and uncovered treatments that the plan engaged in when it involves “medical condition[s] that “impact[] employees differently based on sex.”

Next Steps

The Lange decision is significant, at least pertaining to whether a coverage exclusion for gender-affirming surgery is discriminatory on its face in the Eleventh Circuit. However, the Eleventh Circuit expressly did not address the issue of whether the health plan exclusion lacked a legitimate justification, noting that the district court had determined that the “County’s reason for the policy was a matter of genuine dispute and could not be resolved at summary judgment.”

Moreover, while this decision might foreclose an argument that this type of exclusion is facially discriminatory under Title VII in the Eleventh Circuit, there are other theories that employees could use to challenge similar exclusions. Employers may want to carefully review their health benefit plans prior to making any changes. This is especially relevant for employers that have locations and employees in multiple states, where there may be conflicting case law.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group will continue to monitor developments and provide updates on the Diversity, Equity, and Inclusion Compliance, Employee Benefits and Compensation, and Employment Law blogs as additional information becomes available.

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