Diagnosis-Based Exclusions for Gender-Affirming Surgery Are Not Facially Sex Discrimination Under Title VII: The Eleventh Circuit’s En Banc Decision in Lange v. Houston County

Diagnosis-Based Exclusions for Gender-Affirming Surgery Are Not Facially Sex Discrimination Under Title VII: The Eleventh Circuit’s En Banc Decision in Lange v. Houston County

Introduction

This en banc Eleventh Circuit decision addresses a pressing and recurring question at the intersection of employment law, employee benefits, and evolving sex discrimination doctrine: whether an employer health plan’s categorical exclusion of “sex change” surgery is facially discriminatory “because of sex” under Title VII. The plaintiff, Anna Lange, a transgender woman and longtime deputy with the Houston County Sheriff’s Office, sought insurance coverage for genital reconstruction surgery as treatment for gender dysphoria. Houston County’s self-funded plan expressly excludes “services and supplies for a sex change and/or the reversal of a sex change” and “drugs for sex change surgery,” though it covers other treatments Lange received (e.g., hormones, mental health visits) and numerous other medical categories.

After the district court granted summary judgment to Lange on the theory that the exclusion is facially discriminatory and permanently enjoined the County from enforcing it, a divided Eleventh Circuit panel affirmed. The court then granted rehearing en banc, asking a sharply focused question: does the insurance policy’s bar on coverage for “sex change” surgery facially violate Title VII? The en banc court—by majority opinion authored by Judge Brasher—said no. Citing the Supreme Court’s 2025 decision in United States v. Skrmetti and explaining how Skrmetti interprets Bostock v. Clayton County, the court held that a benefits exclusion tied to diagnosis and medical use is not, on its face, discrimination “because of sex.” The court reversed, vacated the injunction, and remanded for further proceedings limited to claims and issues not resolved by the facial challenge.

The case drew multiple separate opinions. Judge Newsom concurred, emphasizing the distinct analytical frameworks of Title VII and the Equal Protection Clause. Judge Rosenbaum concurred in the judgment only, stating that Skrmetti binds the court’s result but criticizing Skrmetti’s application of Bostock and its effective resurrection of Geduldig v. Aiello’s reasoning. Judges Jill Pryor, Abudu, and Wilson each authored robust dissents, contending that the exclusion is facially discriminatory under Title VII’s but-for test and that the majority improperly imports equal protection logic into Title VII—contrary to congressional and Supreme Court corrections in Newport News Shipbuilding v. EEOC and the Pregnancy Discrimination Act.

Summary of the Opinion

- Holding: Houston County’s plan exclusion for “sex change” surgery is not facially discriminatory under Title VII. The exclusion does not treat employees differently “because of sex”; instead, it draws a line based on the medical use/diagnosis for which the procedures are sought. The court reversed the district court’s summary judgment for Lange and vacated the permanent injunction.

- Core rationale: Applying Skrmetti’s explanation of Bostock, the majority concluded that sex (and transgender status) is not a but-for cause of the exclusion’s operation. The plan covers certain procedures for some diagnoses but not for others; it denies “sex change” surgery to everyone regardless of sex and would cover the same surgical techniques if indicated for other conditions (e.g., cancer, trauma), regardless of sex or transgender status.

- Issues not decided: The en banc court confined its review to the facial challenge. It expressly did not resolve whether the plan was adopted or maintained with discriminatory intent, an issue the district court found genuinely disputed and which remains open on remand. Nor did it decide whether transgender status is a stand-alone protected class under Title VII beyond Bostock’s holding that firing someone for being transgender is discrimination “because of sex.”

Detailed Analysis

1) Precedents and Authorities Cited and Their Roles

- Title VII framework: Title VII makes it unlawful to discriminate against any individual “with respect to compensation, terms, conditions, or privileges of employment, because of … sex.” Employer-provided health insurance is a “privilege of employment.” See Newport News Shipbuilding & Dry Dock Co. v. EEOC (1983).

- Bostock v. Clayton County (2020): The Supreme Court held that firing an employee for being homosexual or transgender is discrimination “because of sex” under Title VII. Bostock announced a but-for causation method (“change one thing at a time and see if the outcome changes”), and emphasized an individual-focused inquiry. The Eleventh Circuit majority reiterates that Bostock did not create a new “transgender status” protected class category; instead, it explained how firing on the basis of sexual orientation or transgender status is discrimination “because of sex.”

- United States v. Skrmetti (U.S. 2025): The Supreme Court upheld a Tennessee law restricting certain medical treatments for minors when used to treat gender dysphoria. The Court reasoned the law regulates medical use/diagnosis rather than classifying by sex or transgender status. Importantly for this case, Skrmetti expressly analyzed and “explained” Bostock’s logic and concluded that, under Bostock’s “change one thing” approach, neither sex nor transgender status was a but-for cause of the law’s operation. The Eleventh Circuit treats Skrmetti’s Bostock analysis as part of the holding binding on lower courts and directly translatable to the Title VII context here.

- Newport News (1983) and L.A. Dep’t of Water & Power v. Manhart (1978): Classic Title VII benefits cases. Newport News held a plan facially discriminated by affording lesser pregnancy-related benefits to spouses of male employees than to spouses of female employees and underscored Congress’s repudiation of Gilbert (see below) via the Pregnancy Discrimination Act (PDA). The dissents argue these Title VII authorities control here by analogy: a benefits exclusion that targets a condition experienced exclusively by a protected group is facially discriminatory. The majority distinguishes them by emphasizing Skrmetti’s diagnosis-based framing and Bostock’s “one-change” test.

- Geduldig v. Aiello (1974) and General Electric Co. v. Gilbert (1976): Geduldig held under equal protection that excluding pregnancy from a disability scheme was not sex discrimination; Gilbert, applying Geduldig’s logic, held likewise under Title VII. Congress reversed Gilbert through the PDA, and Newport News later recognized Congress’s rejection of both the holding and reasoning of Gilbert in the Title VII context. The concurrences/dissents argue Skrmetti stealthily revives Geduldig; the majority says this case does not turn on pregnancy nor the PDA and instead on Skrmetti’s reading of Bostock.

- Other cited authorities: Price Waterhouse v. Hopkins (1989) (sex stereotyping), UAW v. Johnson Controls, Inc. (1991) (fertility-related exclusion as facial discrimination), and equal protection cases (e.g., United States v. Virginia; Craig v. Boren), mostly to illuminate the distinct analytical tracks (as Judge Newsom stresses) and the historical landscape that the concurrences and dissents invoke in criticizing Skrmetti’s approach.

2) The Majority’s Legal Reasoning

- Framing the question: Whether the plan’s “sex change” surgery exclusion is facially discriminatory under Title VII—i.e., discriminatory “on its face” regardless of motive or justification.

- The Bostock “simple test” as interpreted by Skrmetti: The court applies Bostock’s but-for causation method through Skrmetti’s lens. If a policy denies a particular use of a medical procedure for a particular diagnosis (here, gender dysphoria-related transition), changing the plaintiff’s sex does not alter the policy’s operation: “no one” gets “sex change” surgery covered for that use. Conversely, the techniques may be covered for other diagnoses (e.g., cancer reconstruction) regardless of sex.

- Classification by medical use, not sex: The court regards the exclusion as keyed to purpose/diagnosis, not the employee’s sex or transgender status. By hypothesis, a “natal woman” seeking female-to-male transition would be denied the same as a “natal man” seeking male-to-female transition, while procedures like orchiectomy, vaginoplasty, or mastectomy remain covered when medically indicated for non-transition conditions irrespective of sex.

- Not discrimination based on transgender status: The majority underscores that neither this court nor the Supreme Court has recognized “transgender status” as a separate Title VII-protected class. Even if framed as such, Skrmetti teaches that excluding treatments for specified diagnoses is not a status-based classification: transgender individuals fall on both sides of the diagnostic line (e.g., they can obtain coverage for the same techniques for non-transition diagnoses), and nontransgender individuals can also be in the covered group for non-transition uses.

- Not sex stereotyping: A stereotype-based claim would suggest the plan aligns coverage to traditional male/female bodily norms; but the plan excludes a suite of surgeries that change sex-characteristics regardless of whether they align with or diverge from “natal sex,” defeating the inference that the exclusion rests on stereotypes about appropriate male or female presentation.

- Not a “penalty” for transitioning: The court characterizes the exclusion as a line-drawing decision about a benefit, not a surcharge or punitive measure against people who transition. It is a non-coverage rule for a particular medical purpose, applicable to all.

- Reasons and intent left for remand: The district court found a genuine dispute of material fact over intent. Because the en banc court decided only the facial discrimination question, it did not resolve whether the adoption/maintenance of the exclusion was done with discriminatory intent or whether any justification could satisfy substantive standards if intent were proven.

3) Concurring and Dissenting Views

- Newsom concurrence: Emphasizes that equal protection and Title VII use different texts, scopes, and doctrinal tools. He agrees the Title VII claim fails because Skrmetti’s exposition of Bostock forecloses it, but warns courts not to conflate Title VII’s individual-centric, toggle-like analysis with equal protection’s classification-focused, tiered scrutiny.

- Rosenbaum concurrence in the judgment: Agrees the court is bound by Skrmetti’s reading of Bostock to reject the facial Title VII claim here, but writes at length that Skrmetti misapplied Bostock and effectively re-imported Geduldig’s illogic into anti-discrimination law. She urges the Supreme Court to revisit Geduldig and the Skrmetti approach, arguing that Title VII and Congress have already rejected Geduldig-style reasoning. Her opinion also provides a detailed primer on discrimination frameworks and why diagnosis-based carve-outs can be indistinguishable from protected-class classifications in operation.

- Jill Pryor dissent: Argues that, under Newport News and Bostock, a plan that excludes a condition experienced only by a protected class is facially discriminatory under Title VII. She stresses that Skrmetti is an equal protection case; its discussion of Bostock is dicta in the Title VII context and cannot displace binding Title VII precedents rejecting the “it covers some risks but not others” defense. She would affirm the district court’s facial ruling.

- Abudu dissent: Frames the majority’s result as conflicting with Bostock’s text-driven method and warns that the decision fuels broader efforts to limit transgender rights. He underscores that the plan undisputedly covers comparable procedures for others but denies them when used to treat gender dysphoria—making sex a but-for cause in Bostock’s sense.

- Wilson dissent: Deploys Bostock’s one-change comparator method and concludes the exclusion cannot be applied without considering sex assigned at birth—i.e., it is “bound up with sex.” He also details the statutory history repudiating Gilbert and Geduldig in Title VII and faults the majority for eliding that distinction.

4) Why the Case Matters and How It Changes the Landscape

- New Eleventh Circuit rule for facial challenges: Within Alabama, Florida, and Georgia, a plan’s categorical exclusion of “sex change” surgery—drafted as a diagnosis- or purpose-based exclusion—does not, without more, facially violate Title VII. The court treats Skrmetti’s articulation of Bostock’s but-for method as binding guidance applicable to Title VII benefits disputes.

- Not the end of the road for plaintiffs: The en banc court left open intentional discrimination and other as-applied theories. The district court already found a genuine dispute over discriminatory intent at adoption/maintenance. On remand, Lange may pursue evidence of animus, pretext under McDonnell Douglas, or disparate application of the exclusion, none of which the en banc court foreclosed.

- Plan design implications: Employers in the Eleventh Circuit may view diagnosis-based exclusions for gender-affirming surgeries as less vulnerable to facial Title VII attack. But they should:

  • Ensure the exclusion genuinely turns on diagnosis/purpose and is applied consistently to all employees/dependents.
  • Maintain coverage of the same procedures for other medically necessary diagnoses, regardless of sex.
  • Avoid statements or records suggesting sex-based or anti-transgender motives in adoption or enforcement of exclusions.
  • Be mindful of other legal regimes: Section 1557 of the Affordable Care Act (for covered entities), state and local laws, and evolving EEOC enforcement positions.

- Tension in national doctrine: The decision spotlights a widening fissure over how Bostock applies outside the firing context and how (or whether) equal protection analyses should inform Title VII. The concurrences and dissents forecast Supreme Court engagement on whether Skrmetti’s diagnosis-based framework is compatible with Title VII precedents like Newport News and Johnson Controls.

- Practical litigation consequences: Plaintiffs may pivot away from facial Title VII challenges to:

  • Proving discriminatory intent in adoption/maintenance/application of plan terms.
  • Pursuing as-applied claims showing different treatment of materially similar procedures for comparable comparators.
  • Bringing claims under other statutes (e.g., ACA § 1557) where applicable, or under state civil rights laws with broader protections.

Complex Concepts, Simplified

- Facial discrimination: A policy is facially discriminatory if its terms expressly treat people differently based on a protected characteristic, regardless of motive or effects.

- As-applied/intentional discrimination: Even if a policy isn’t facially discriminatory, it can violate Title VII if the employer adopted or applied it with discriminatory intent or in a discriminatory manner.

- But-for causation (Bostock): Ask whether changing the plaintiff’s sex (and only that one variable) would change the employer’s decision. If yes, sex is a but-for cause and Title VII is violated.

- Diagnosis-based classification (Skrmetti): A rule that turns on the medical diagnosis or purpose for which a treatment is sought—rather than on the patient’s sex—is treated as a use-based classification, not a sex classification.

- Equal protection vs. Title VII: Equal protection analyzes government classifications among groups and applies tiers of scrutiny; Title VII is a statutory, individual-focused regime addressing employment discrimination. They can inform each other but remain analytically distinct.

- Geduldig/Gilbert/Newport News/PDA: Geduldig (E.P.) and Gilbert (Title VII) treated pregnancy exclusions as not sex-based. Congress passed the Pregnancy Discrimination Act, and Newport News made clear that, in Title VII, discrimination based on pregnancy is discrimination “because of sex.” The debate here is whether Skrmetti’s logic functionally reintroduces Geduldig-like reasoning when applied to Title VII issues involving gender dysphoria and medical exclusions.

- “Dicta” vs. “holding”: The majority treats Skrmetti’s Bostock analysis as necessary to the result and therefore binding. The dissents argue Skrmetti’s Title VII commentary is dicta in an equal protection case and cannot supersede on-point Title VII precedents.

Key Takeaways

  • In the Eleventh Circuit, a health plan’s categorical exclusion of “sex change” surgery is not facially discriminatory under Title VII when framed and applied as a diagnosis/purpose-based exclusion. The policy’s legality on its face turns on medical use, not employee sex, under Skrmetti’s application of Bostock.
  • The decision does not immunize employers from Title VII liability for intent-based discrimination. Evidence of discriminatory motive in adopting or applying the exclusion remains actionable and is expressly preserved for remand.
  • Substantial disagreement persists within the court about whether Skrmetti’s Bostock analysis is controlling in Title VII cases and whether it coheres with Newport News, Johnson Controls, and the PDA’s repudiation of Geduldig-styled reasoning.
  • Employers should audit benefit-plan language and administration to ensure consistent, diagnosis-based coverage decisions and avoid evidence of sex-based or anti-transgender animus. Public employers must also track equal-protection exposure under Skrmetti.
  • The opinion adds weight to a growing national split over coverage for gender-affirming care and sets the stage for further Supreme Court clarification regarding how Bostock interacts with benefits, medical-use classifications, and the boundaries between Title VII and equal protection analyses.

Conclusion

Lange v. Houston County establishes a consequential Eleventh Circuit precedent: a categorical exclusion of gender-affirming surgery, if framed as diagnosis-based and applied uniformly, is not facially discriminatory “because of sex” under Title VII. The court grounds that holding in the Supreme Court’s recent Skrmetti decision and Skrmetti’s interpretation of Bostock’s “change one thing” method. The ruling narrows one avenue for Title VII challenges to plan design while leaving the door open to intent-based claims, as well as to other statutory theories outside Title VII.

The separate opinions underscore the stakes. A majority insists that lower courts must heed Skrmetti’s explanation of Bostock and maintain the doctrinal separation between Title VII and equal protection. The concurring and dissenting opinions argue that Skrmetti’s approach misreads Bostock, reintroduces Geduldig’s rejected logic into Title VII, and conflicts with congressionally endorsed precedent like Newport News. Until the Supreme Court further clarifies Bostock’s reach in the benefits arena, employers and employees in the Eleventh Circuit must navigate this ruling’s immediate effect: facial Title VII attacks on diagnosis-based exclusions for gender-affirming surgery are unlikely to prevail, but disputes about intent, application, and other legal regimes remain very much alive.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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