Denying Gender-Affirming Health Care Benefits to a Transgender Employee Is Sex Discrimination, the Eleventh Circuit Says
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June 17, 2024
Latest Update: See our article for details on the Eleventh Circuit’s most recent decision in this matter.
Another Update: On September 9, 2025, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc (i.e., all of the judges of the Court), overturned a prior panel ruling and held that a health insurance plan’s exclusion of gender-affirming surgery for transgender individuals was not facially discriminatory under Title VII of the Civil Rights Act of 1964. The en banc court ruled that, because the exclusion was applied uniformly to both male and female transitions, it did not discriminate on the basis of transgender status or sex. The ruling, however, leaves open the question (and therefore leaves open the possibility of a future legal challenge) of whether Houston County, Georgia had a legitimate, non-discriminatory reason for the exclusion.
Update: As we noted in our original article below, on June 3, 2024, Houston County sought a rehearing on its appeal before the full Eleventh Circuit panel of judges. On August 15, 2024, the Eleventh Circuit agreed to rehear the appeal and vacated the court’s May 13, 2024 opinion, which upheld a decision in favor of Lange, finding that a health plan coverage exclusion for gender-affirming surgery violated Title VII.
The U.S. Court of Appeals for the Eleventh Circuit recently held that a health insurance provider can be held liable under Title VII of the Civil Rights Act of 1964 for denying coverage for gender-affirming care to a transgender employee. Lange v. Houston County, et al., No. 22-13626 (11th Cir., May 13, 2024).
Factual Background
Georgia’s Houston County provides a health insurance plan to its own employees, as well as employees of the Houston County Sheriff’s Office (the Health Plan). The Health Plan is a self-funded or an Administrative Services Only plan administered by Anthem Blue Cross Blue Shield (Anthem). Anthem serves as Houston County’s third-party administrator and administers claims using funds provided by Houston County and employee contributions.
Anna Lange is a transgender woman. In 2006, she began working for the Sheriff’s Office. Throughout most of her life, she experienced symptoms of gender dysphoria, a condition that causes feelings of discomfort and distress because of the incongruence between one’s gender identity and their sex assigned at birth. Lange was formally diagnosed with gender dysphoria in 2017. The following year, she informed the Sheriff’s Office that she was transgender and would be living as a woman. Lange’s healthcare providers then started her on a treatment plan to align her physical characteristics with her gender identity. Lange’s healthcare providers determined that a vaginoplasty—a surgical procedure to feminize her genitals—was medically necessary. Lange’s request for coverage for the surgery through the Health Plan was denied. Though the Health Plan considers a surgery medically necessary if there is a “significant functional impairment and the procedure can be reasonably expected to improve the functional impairment,” Lange’s request for coverage was denied based on the Health Plan’s exclusion of “drugs for sex change surgery” and “services and supplies for a sex change and/or the reversal of a sex change” (the Exclusion).[1]
Procedural Background
Lange sued Houston County and the Sheriff of Houston County in federal court under Title VII.[2] Both parties sought judgment in their favor before trial. The court granted judgment in favor of Lange on the Title VII claim. The court found the Exclusion facially discriminatory as a matter of law. The Title VII claim then proceeded to trial, and a jury awarded Lange $60,000 in damages. After trial, the court entered an order declaring that the Exclusion violated Title VII and the court permanently enjoined the Sheriff and Houston County from any further enforcement or application of the Exclusion.
The Eleventh Circuit Affirmed the Lower Court’s Judgment in Favor of Lange
Title VII Discrimination
Generally, discrimination under Title VII occurs when an employer intentionally treats an employee worse than other similarly-situated employees. Bostock v. Clayton Cnty., 590 U.S. 644, 657–58 (2020). The Supreme Court clarified in Bostock that “discrimination based on … transgender status necessarily entails discrimination based on sex,” as prohibited under Title VII. Id. at 669. Applying Bostock to the facts of this case, the Eleventh Circuit agreed with the lower court that the Exclusion violated Title VII. No genuine dispute of fact or law existed as to whether the Exclusion unlawfully discriminates against Lange and other transgender persons. The Exclusion is a blanket denial of coverage for gender-affirming surgery. Health Plan participants who are transgender are the only participants who would seek gender-affirming surgery. Because transgender persons are the only plan participants who qualify for gender-affirming surgery, the Eleventh Circuit deemed the Health Plan to be denying health care coverage based on transgender status.
Title VII Liability
The Eleventh Circuit next considered whether Houston County is liable as an employer under Title VII. Title VII’s definition of employer includes any government, governmental agency, partnership or association, or any agent of such an entity. This definition is liberally construed and courts consider the totality of the employment relationship in determining whether an entity is an employer. “Where the employer has delegated control of some of the employer’s traditional rights, such as hiring or firing, to a third party, the third party has been found to be an ‘employer’ by virtue of the agency relationship.” Williams v. City of Montgomery, 742 F.2d 586, 589 (11th Cir. 1984). Here, the delegation at issue concerns the Sheriff’s Office’s delegation to Houston County of the provision of health insurance. Health insurance is squarely a benefit within Title VII’s “compensation, terms, conditions, or privileges of employment.” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983). Further, the Supreme Court has held that providers must consider discriminatory impacts when designing plan coverage. See Shapiro v. Thompson, 394 U.S. 618, 633 (1969). Thus, the Eleventh Circuit determined that the lower court did not err in holding Houston County liable under Title VII.
Permanent Injunction
Lastly, the Eleventh Circuit determined that the lower court did not abuse its discretion in permanently enjoining Houston County and the Sheriff from further enforcement or application of the Exclusion because Lange showed that (1) she suffered an irreparable injury; (2) remedies at law are inadequate to compensate for that injury; (3) considering the balance of hardships, a remedy in equity is warranted; and (4) the public interest would not be disserved by a permanent injunction.
Houston County Seeks a Rehearing
On June 3, 2024, Houston County sought a rehearing en banc (before the full Eleventh Circuit panel of judges). The County argues that facial discrimination exists under Title VII when a policy draws distinctions based on a protected characteristic. Here, the County argues, the Health Plan excludes coverage for sex change surgeries for anyone – no matter their sex and no matter their gender identity. The Health Plan covered Lange’s endocrinologist visits, hormones, and other treatments for her gender transition. Only her request for sex change surgery was denied. These facts, the County argues, shows that coverage depends on the treatment requested, not on who is requesting it. The County’s arguments follow the case’s dissenting opinion authored by U.S. Circuit Judge Andrew Brasher.
Employer Takeaways
We expect that this case will reach the U.S. Supreme Court and we will monitor the request for rehearing and any further appeals. Until then, the Eleventh Circuit’s decision applies to states within its jurisdiction – Alabama, Florida, and Georgia..
The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, Georgia, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
[1] During the renewal process in late 2016, Houston County’s insurance broker, who acts as a liaison between Houston County and Anthem, informed Houston County of Anthem’s “Nondiscrimination in Health Programs and Activities Rule,” which stated that “[i]n recognition of regulations issued under PPACA section 1557, the exclusion for Gender Identity Disorders and Sex Change Surgery will be removed from our plans (both Fully Insured and ASO).” Despite Anthem’s recommendation to do so, Houston County chose not to accept the nondiscrimination mandate. Accordingly, the Exclusion remained in place.
[2] In addition to seeking relief under Title VII, Lange sought relief under Title I of the Americans with Disabilities Act (ADA) and the Equal Protection Clause of the U.S. Constitution. The ADA claim, on which the lower court granted judgment in favor of Houston County before trial, and the Equal Protection claim, on which the lower court denied judgment for Houston County, were not before the Eleventh Circuit on appeal.
