In Lange v. Houston County, Georgia, (11 Cir., Sept. 9, 2025), the U.S. 11th Circuit Court of Appeals, sitting en banc, in an 8-5 decision, held that a county's employee health insurance plan is not facially discriminatory under Title VII by reason of its exclusion of coverage for "sex change surgery." The case generated 8 opinions spanning 108 pages. The majority opinion relied in large part on the U.S. Supreme Court's decision in United States v. Skrmetti. The majority said in part:
The Supreme Court’s reasoning in Skrmetti applies equally here. The County’s policy does not pay for a sex change operation for anyone regardless of their biological sex....
Neither the Supreme Court nor this Court has held that transgender status is separately protected under Title VII apart from sex. And Bostock did not add transgender status, as a category, to the list of classes protected by Title VII. To the contrary, the Court expressly denied that it was answering any question other than “whether an employer who fires someone simply for being . . . transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex’” within the meaning of Title VII’s plain terms....
Although the plaintiffs’ claim in Skrmetti arose under the Equal Protection Clause, the Court expressly held that the state statute at issue did not discriminate based on transgender status under the same Title VII precedents that we must apply here....
In short, the County’s plan does not facially violate Title VII. 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.
Judge Newsome filed a concurring opinion, saying in part:
I write separately simply to emphasize that I don’t take either Skrmetti or today’s en banc opinion to collapse the separate analyses that apply to claims under Title VII and the Fourteenth Amendment’s Equal Protection Clause....
Judge Rosenbaum filed an opinion concurring in the judgment
... I haven’t found a meaningful way to distinguish Houston County’s healthcare plan—which excludes from coverage certain surgeries, but only if they involve (in the words of the plan) a “sex change” (a procedure one would have only to address gender dysphoria)—from the law at issue in Skrmetti. So Skrmetti requires me to conclude that the plan doesn’t classify by sex.
I say this with deep regret for three reasons. First, ... the record compellingly reveals that Houston County precludes sex-affirming surgeries for discriminatory reasons..... Second, most respectfully, Skrmetti’s conclusion that the law there didn’t discriminate by sex or transgender status ... conflicts with decades of Title VII jurisprudence.... And third, Skrmetti’s determination that the law there didn’t discriminate by sex or transgender status ... effectively imports the reasoning of Geduldig v. Aiello ... into Title VII jurisprudence. But Congress expressly amended Title VII to reject the holding and reasoning of Geduldig....
Judge Jill Pryor, joined by Judges Jordan, Abudu, Kidd and Wilson, filed a dissenting opinion, saying in part:
The majority opinion concludes that the County health plan’s exclusion of medical care related to a “sex change” does not discriminate based on sex or transgender status because it merely “draws a line between certain treatments, which it covers, and other treatments, which it does not.” ... This is the exact same reasoning that both Congress and the Supreme Court rejected for Title VII claims....
The Skrmetti majority’s discussion of Bostock does not bind us. No Title VII claim was before the Supreme Court. Skrmetti therefore did not and could not decide whether an employer’s insurance plan that bases coverage of medical treatments on sex or transgender status violates Title VII. Nor did Skrmetti address the use of equal protection precedent in the Title VII context in commenting on Bostock.... Although we do not take lightly Supreme Court dicta, we simply are not free to follow it in the face of binding Supreme Court authority to the contrary. After all, “[t]he Supreme Court has told us, over and over again, to follow any of its decisions that directly applies in a case, even if the reasoning of that decision appears to have been rejected in later decisions and leave to that Court ‘the prerogative of overruling its own decisions.’”...
Judge Abudu filed a dissenting opinion, saying in part:
I write separately to acknowledge the ongoing cultural war in which this Court, like courts before us, has had to participate. Our role is to ensure that, regardless of religious, political, or other ideologies, the law applies equally to all. The majority’s decision, unfortunately, undermines that goal and sets us up for yet another episode in our Circuit’s legal history where the majority just gets the outcome wrong, and the short- and long-term implications of its flawed decision cannot be ignored....
The majority reaches its conclusion without acknowledging the elephant in the room—transgender rights have come to the forefront of debate in recent years, shining a necessary light on areas of society still rife with discrimination....
... [L]ike the early work of eliminating explicit sex- and gender based distinctions in the law, we only are tasked with reading Houston County’s healthcare exclusions to decide whether they, on their face, treat Deputy Lange worse because she is transgender, i.e., that her sex was the “but-for cause” of Houston County’s decision to deny her medical coverage. The healthcare exclusions do just that....
Judge Wilson, joined by Judges Abudu and Kidd, filed a dissenting opinion, saying in part:
... Because the majority manipulates Bostock’s but-for test to obfuscate the discrimination apparent on the face of the plan, I dissent....
Georgia Recorder reports on the decision.
