Eleventh Circuit Rules that Insurance Plan’s Exclusion of Gender-Affirming Care Does Not Facially Violate Title VII

Brett Whitley, Associate

            On September 9, 2025, the Eleventh Circuit Court of Appeals considered a transgender woman’s lawsuit[1] against her employer, the Sheriff’s Office of Houston County, Georgia (the “County”).  The lawsuit alleged that the County’s healthcare plan (the “Plan”) discriminated based on sex due to it excluding gender-affirming surgery from coverage. The Eleventh Circuit Court of Appeals held that the Plan did not violate Title VII of the Civil Rights Act of 1964 (“Title VII”) on its face, giving employers in Colorado an insight as to what the Tenth Circuit Court of Appeals could decide in similar cases that their transgender employees may bring against them.

Recap of Lange

            Anna Lange, a transgender woman, was a deputy with the Houston County (the “County”) Sheriff’s Office in Georgia.  In 2017, Lange began to obtain gender-affirming treatment, such as hormone therapy, and the Plan covered this treatment.  Her doctor eventually determined gender affirming surgery was medically necessary, so Lange sought to have her health insurance plan through the County cover the costs of her gender affirming surgery.  However, Lange’s request for coverage for the gender-affirming surgery was denied pursuant to the Plan excluding “drugs for sex change surgery” and “services and supplies for a sex change and/or the reversal of a sex change.”  As a result, Lange filed claims against the Sheriff’s Office and the County and requested relief under Title VII.

            The lower court ruled in Lange’s favor on the Title VII claim, finding that the Plan’s exclusion of services and supplies for a sex change was facially discriminatory as a matter of law and specifically, that Lange’s gender was inextricably tied to the Plan’s denial of coverage for the gender-affirming surgery.  The lower court leaned on the United States Supreme Court’s decision in Bostock v. Clayton County, Georgia, where the Court held that an employer violates Title VII, which makes it unlawful to discriminate against an individual because of that individual’s sex, by firing an individual for being homosexual or a transgender person.[2]  Specifically, in Bostock, the Court reasoned that “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”

            The Sheriff’s Office appealed the lower court’s ruling in favor of Lange, but a three-judge panel from the Eleventh Circuit Court of Appeals, in 2024, agreed with the lower court, explaining that a blanket denial of gender-affirming surgery punished transgender employees based upon their perceived gender non-conformity.  However, despite the three-judge panel affirming the lower court’s decision, the full Eleventh Circuit voted to rehear the case en banc and directed the parties to brief a single issue: whether the County’s health insurance policy facially violated Title VII. 

            In a reversal of the three-judge panel’s 2024 ruling, the Eleventh Circuit held that the Plan’s exclusion of gender-affirming surgery did not facially violate Title VII. The Eleventh Circuit reasoned that because the Plan excluded gender-affirming surgery for all individuals, regardless of natal sex, the Plan did not discriminate based on one’s transgender status, which seemingly comports with the Court’s reasoning in Bostock cited above. 

The Tenth Circuit Has Not Directly Ruled on Whether the Denial of Gender-Affirming Care Coverage Violates Title VII

            The absence of precedent from the Tenth Circuit Court of Appeals, which covers Colorado, means that an employee bringing a similar suit as Lange would be the case that determines the Tenth Circuit’s stance on the issue of whether such denials of coverage violate Title VII.  The most recent case from the Tenth Circuit that addresses discrimination on the basis of one’s transgender status is Tudor v. Southeastern Oklahoma State University,[3] which held that discrimination against a transgender university professor violated Title VII, but this case focused on employment decisions regarding tenure and termination, not healthcare coverage.  Consequently, it is reasonable to anticipate that when/if the day comes where a transgender employee brings a case similar to Lange, the Tenth Circuit may rely on, or at least consider, Lange when making its ruling.   

Employer Considerations

            A recent study from the University of California, Los Angeles, reports that at least 2.8 million Americans identify as transgender, making it likely that transgender adults occupy a notable portion of the workforce.[4] Consequently, it is likely that Colorado employers will encounter a situation where a transgender employee brings claims against it for the same or similar reasons that Lange did in her case.  Lange is informative for what could happen in the Tenth Circuit, although if there are Circuit Court splits on the issue raised in Lange, upon appeal, the United States Supreme Court would make the final decision.  In preparation for a Lange-like lawsuit, employers should review their health plans and policies to understand how policies or plans excluding gender-affirming care are applied and, if challenged, may use the Lange decision in defense of a lawsuit.  Campbell Litigation is available to assess employers’ healthcare plans to determine their compliance with Title VII in light of Lange.

[1]Lange v. Houston County, Georgia, --- F.4th --- (2025).

[2] 590 U.S. 644 (2020).

[3] 13 F.4th 1019 (10th Cir. 2021).

[4] https://williamsinstitute.law.ucla.edu/subpopulations/transgender-people/.