Health Law Daily Wrap Up, GENERAL HEALTH CARE NEWS—11th Cir.: Transgender surgery exclusion in Georgia county’s health plan not facially discriminatory, (Sep 12, 2025)

By Todd Harrison, J.D.

“Although the plan does not cover sex change surgeries, it does not treat anyone differently based on a protected characteristic.”

A divided Eleventh Circuit, sitting en banc, determined that a Georgia county’s health insurance policy, which excluded drugs for gender affirming surgery, along with such surgeries itself, was not facially discriminatory under Title VII and reversed the district court’s judgment granting a permanent injunction enjoining the exclusion of gender affirming surgery from the county’s insurance policy. Relying largely on the Supreme Court’s discussion of Bostock in United States v. Skrmetti, the court found the policy was not discriminatory as it does not pay for gender affirming operations for anyone, regardless of biological sex. Judge Rosenbaum concurred in the judgment, but not the opinion, while five judges dissented (Lange v. Houston County, Georgia, No. 22-13626 (11th Cir. Sept. 9, 2025)).

The plaintiff in this case, a biological male, has been a deputy with the Houston County Sheriff’s Office since 2006. In 2017, she was diagnosed with gender dysphoria and began to openly identify as a woman.

Insurance plan. As a county employee, the deputy participates in the county’s health insurance plan. The plan does not cover all treatments related to gender dysphoria and excludes from coverage gender affirming surgery. As such, the plan denied coverage for the deputy’s gender affirming surgery.

Lawsuit. Subsequently, the deputy sued the county under Title VII for sex discrimination. The parties disputed why the county adopted the exclusion, and the district court held that the dispute was genuine but ultimately held that the county’s reasons for the policy did not matter under Title VII. The district court concluded that the county’s insurance policy violated Title VII on its face, granted summary judgment for the deputy, and permanently enjoined the exclusion of gender affirming surgery from the county’s insurance policy.

The county appealed, and a divided three-judge panel of the Eleventh Circuit affirmed the district court. The court voted to take the case en banc and asked the parties to brief one question: whether the insurance policy at issue facially violates Title VII.

Bostock. First, the deputy argued that the policy discriminated on the basis of sex. Citing Bostock, she argued that the plan discriminates based on sex because it would have covered the requested surgery if she were born a female and that she was denied coverage only because she was born a male. The court disagreed.

Skrmetti. The Supreme Court recently rejected such an interpretation of Bostock in United States v. Skrmetti, 145 S. Ct. 1816 (2025). There, the plaintiffs argued that a Tennessee law discriminated based on sex when it disallowed certain treatments for gender dysphoria in children but allowed those treatments for other medical conditions. The plaintiffs urged the court to apply Bostock to their equal protection claim. The Court assumed that Bostock’s reasoning applied outside of the Title VII context, but held that, “[u]nder the reasoning of Bostock, neither [the plaintiff’s] sex nor his transgender status is the but-for cause of his inability to obtain testosterone.”

More specifically, the Court reasoned that the law did not classify based on sex because “the law does not prohibit conduct for one sex that it permits for the other.” Thus, “[i]f a transgender boy seeks testosterone to treat his gender dysphoria, [the law] prevents a healthcare provider from administering it to him”—and “[i]f you change his biological sex from female to male, [the law] would still not permit him the hormones he seeks.”

This reasoning applies equally to the case at hand, explained the appellate court. The county’s policy does not pay for gender affirming surgery for anyone regardless of their biological sex. “Nothing about the policy exclusion turns on whether the County’s employee is a man or woman,” said the court. The court went on to note that the type of gender affirming surgeries sought by the employee would be covered when required because of other medical conditions, such as cancer or due to injuries sustained in an accident, for an employee of either sex, subject to the policy’s other exclusions. Thus, under Bostock, sex is simply not a but-for cause, observed the court.

Transgender status. Even if the exclusion does not discriminate based on sex, the deputy argued that 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. However, the court here noted that neither it nor the Supreme Court has held that transgender status is separately protected under Title VII apart from sex and that Bostock did not add transgender status, as a category, to the list of classes protected by Title VII.

Presuming this theory was even viable under Title VII, continued the court, the county’s plan does not facially discriminate based on transgender status. Again, the court turned to Skrmetti, wherein the Supreme Court determined that the state law did not discriminate based on transgender status because it did “not exclude any individual from medical treatments on the basis of transgender status but rather remove[d] one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions.”

For similar reasons, the court here 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 plan does not say that transgender employees are required to pay more for covered conditions or that their dependents receive reduced benefits, explained the court. Indeed, the court reiterated, the plan would cover many of the procedures used in gender reassignment surgery, such as in cases of cancer or for reconstructive surgery following a car accident, whether or not the employee who needed those procedures was transgender.

Sex stereotypes. Next, the deputy contended that the plan facially discriminates based on sex stereotypes. However, the court determined that the exclusion at issue in this case was not based on sex stereotypes.

“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,” said the court. On the contrary, the court continued, the plan excludes coverage for a suite of medical procedures that change the appearance of a person’s sex organs—regardless of whether the goal is to differ from, or align with, one’s biological sex.

Penalization. As for the deputy’s argument that the plan’s exclusion facially violates Title VII because it penalizes a person for transitioning, the court was not persuaded.

“The fact that the plan excludes coverage for one treatment for gender dysphoria is not a penalty in any sense of the word,” said the court. Instead, the plan declines to extend a benefit—coverage for a gender affirming operation—and that benefit is declined to everyone, observed the court.

Finally, although the deputy implied that the county’s policy lacks a legitimate justification, the court found his question to be well outside the scope of this appeal. The question at issue is about alleged discrimination on the face of the policy, and the county’s plan does not facially violate Title VII, concluded the court. Accordingly, the district court’s judgment was reversed, the permanent injunction was vacated, and the matter was remanded.

Rosenbaum concurrence. Concurring in the judgment but not the opinion, Judge Rosenbaum wrote separately to state that while Skrmetti binds the court in this case, it was her opinion that Skrmetti incorrectly applied Bostock’s test, so it wrongly determined that the law at issue in Skrmetti did not classify by sex. Further, she contended that Skrmetti’s determination that the law there did not discriminate by sex or transgender status, even under Title VII’s understanding of discriminatory classifications, effectively imported the reasoning of Geduldig v. Aiello, 417 U.S. 484 (1974), into Title VII jurisprudence. However, Congress expressly amended Title VII to reject the holding and reasoning of Geduldig, overriding the Supreme Court’s extension of the reasoning of that case to the statute. As such, she wrote to add her voice to the chorus of those urging the Court to reconsider Geduldig’s reasoning and Skrmetti.

Dissent. In a dissent authored by Judge Jill Pryor, joined by Judges Jordan, Abudu, Kidd, and Wilson, it was argued that Skrmetti’s discussion of Bostock was “utterly devoid” of references to Geduldig and its equal protection progeny. Further, the dissent contended that the Skrmetti majority’s discussion of Bostock was not binding on this court as there was no Title VII claim before the Supreme Court.

Judge Wilson, joined by Judges Abudu and Kidd, authored a separate dissent, as did Judge Abudu.

The case is No. 22-13626.

Judge: Brasher, A.

Attorneys: Kenneth E. Barton, III (Cooper Barton & Cooper) for Anna Lange. Sharon P. Morgan (Fisher & Phillips) for Houston County, Georgia, and Cullen Talton.

Companies: Houston County, Georgia

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