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December 15, 2025
In Lange v. Houston County, 152 F.4th 1245 (11th 2025), Anna Lange, a transgender woman and deputy at the Houston County, Georgia Sheriff’s Office, sought coverage for a medically necessary surgery (vaginoplasty) through the county’s employer-provided health insurance. Although Title VII of the Civil Rights Act of 1964 (“Title VII”) does not directly regulate insurance policies, if a covered employer provides health insurance, its policy cannot discriminate based on a protected characteristic. Title VII makes it unlawful for a covered employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C.S. § 2000e-2(a)(1).
The County’s insurance policy excluded coverage for “drugs for sex change surgery” and “services and supplies for a sex change,” and the insurer denied Lange’s request. Lange, who suffers from gender dysphoria—a psychiatric diagnosis that refers to the psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity—argued that the plan’s exclusion facially discriminates because of sex in violation of Title VII.
Procedural History
In 2022, the United States District Court of the Middle District of Georgia concluded that the County’s insurance policy violated Title VII on its face, granted summary judgement for Lange, and permanently enjoined the exclusion of gender-affirming surgery from the County’s insurance policy.
The County appealed, and a divided three-judge panel in the Eleventh Circuit affirmed the district court in 2024. The Eleventh Circuit then voted to take the case en banc and asked the parties to brief whether the insurance policy at issue, which covers medically necessary treatments for certain diagnoses but bars coverage for Lange’s gender-affirming surgery, facially violates Title VII. The Court found that it did not.
Lange’s Arguments and the Court’s Rejection of Each
Lange made four arguments that the plan’s exclusion facially discriminates because of sex and violates Title VII: (1) the policy discriminates on the basis of sex; (2) the County’s plan discriminates based on transgender status because it does not cover treatments for gender dysphoria to the same extent that it covers treatments for other conditions; (3) the insurance plan facially discriminates based on sex stereotypes, and Title VII forbids treating employees differently because of sex-based stereotypes about men or women; and (4) the plan’s exclusion facially violates Title VII because it penalizes a person for transitioning.
The Court rejected Lange’s arguments, citing to the sex discrimination test outlined in Bostock v. Clayton County, 140 S. Ct. 1731 (2020) and relying on United States v. Skrmetti, 145 S. Ct. 1816 (2025). Under Bostock, courts apply a simple test for sex discrimination—change one thing at a time and see if the outcome changes. If changing the employee’s sex would have yielded a different choice by the employer, then the employer has discriminated based on sex.
The Court reasoned that the County’s policy does not pay for a gender-affirming operation for anyone regardless of their biological sex; thus, nothing about the policy exclusion turns on whether the County’s employee is a man or woman. The Court, however, did not take into consideration the critical takeaway from Bostock—that Title VII’s prohibitions on sex discrimination extend to sexual orientation, gender identity, and gender expression.
In Skrmetti, the Court held that a Tennessee law was not discriminatory based on sex under the Equal Protection Clause when it disallowed certain treatments for gender dysphoria in children but allowed those treatments for other medical conditions (“the law does not prohibit conduct for one sex that it permits for the other.”). Skrmetti, 145 S. Ct. at 1831.
Further, the Court concluded that the County’s plan does not facially discriminate based on transgender status. Like the law at issue in Skrmetti, the County’s policy is a “classification based on medical use.” The Court reasoned that the plan does not say, for example, that transgender employees must pay more than nontransgender employees or that transgender employees or their dependents receive reduced benefits.
The Court also stated that the plan exclusion is not based on stereotypes because if the plan discriminated against participants because of gender stereotypes, it would presumably cover procedures to align a participant’s physical characteristics with those of his or her biological sex. But it does not do that. On the contrary, the plan excludes coverage for a suite of medical procedures that change the appearance of a person’s sex organs—regardless whether the goal is to differ from, or align with, “natal sex.”
The Court’s Decision
The Court held that the insurance policy was not facially discriminatory under Title VII. The Court reversed the district court’s judgment, vacated the permanent injunction, and remanded for further proceedings.
Dissenting Opinions
Notably, multiple dissenting opinions were issued. Judge Nancy Gbana Abudu’s dissent takes direct aim at the political landscape in which the majority’s opinion was written, including a section titled, “The Majority Opinion Serves as Fodder for Those Who Oppose Legal Rights for Transgender People.” Judge Abudu stated that “instead of extending [ ] progress to all sex-and gender-based classifications, our Court instead is imposing that lower-class citizenship to a new category – transgender people.” Lange, 152 F.4th at 1284. Judge Abudu continues: “Instead of embracing a legal tradition (and mandate) of upholding the law to ensure all people are treated equally, or that any treatment is not rooted in a discriminatory purpose or practice, the majority opinion temporarily moves the needle back in the ongoing struggle for basic human dignity. Accordingly, I respectfully dissent.” Id. at 1291.
Judge William H. Pryor, Jr.’s dissent argues that the majority of the Court got the analysis wrong:
Under Title VII “it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex.” Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). And Title VII “protect[s] all individuals from sex discrimination.” Newport News [Shipbuilding & Dry Dock Co. v. E.E.O.C.], 462 U.S. [669,] 681 (1983). So Supreme Court precedent dictates that excluding from coverage healthcare that only transgender individuals can require constitutes sex-based discrimination in violation of Title VII. The fact that the exclusion here applies equally to individuals the majority calls “natal men” who are transgender and to “natal women” who are transgender does not make the exclusion neutral under Newport News.
Id. at 1278.
Judge Charles R. Wilson’s dissent puts it bluntly: “But for her transgender status, Sergeant Anna Lange’s medically necessary surgery would have been covered by her employer’s health insurance plan. Due to facially discriminatory coverage exclusions, it was not. Because discrimination against transgender people is outlawed by Title VII, I dissent.” Id. at 1290.
Employer Takeaways
The meaning of “sex” as a protected characteristic under Title VII, especially how it relates to transgender rights, continues to be a frequently litigated issue. Employers should continue to monitor the legal challenges concerning these issues in the workplace. Employees should consult with an attorney if they have questions about Title VII or other workplace concerns. Rubin, Fortunato & Harbison is here to help.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
