By: HUB’s EB Compliance Team
Gender-affirming care continues to be a hot topic in employee benefits. HUB has written about this several times, including here, here and here. Recently, a circuit court and a federal district court have both held that previous protections for coverage for gender-affirming care are no longer in place.
The rulings do not speak to the same federal statutes, nor do they have the same technical effect (see detail below). However, both rulings clearly align with recent executive orders (Exec. Order No. 14168 and Exec. Order No. 14187) which have indicated a shift in presidential sentiment about the handling of gender-affirming care. In addition, both rulings cited a recent Supreme Court decision from October of 2024, United States v. Skrmetti. In Skrmetti, the Court ruled that a Tennessee ban on providing gender-affirming care to minors did not violate the Constitution.
Eleventh Circuit Court Decision in Anna Lange v. Houston County, Georgia
Last year, HUB wrote about the original appeals court decision in Lange v. Houston County, where the court found that the Houston County health plan violated Title VII of the Civil Rights Act of 1964 (“Title VII”) by denying coverage for Lange’s gender transition surgery. On September 9, 2025, after hearing the case again, the 11th Circuit Court of Appeals reached a different outcome.
As a reminder on the facts of the case, Houston County, Georgia provides a group health insurance plan to its own employees and to the employees of the Houston County Sheriff’s Office. The County determines the health plan benefit terms such as deductibles, premiums, and the costs of the plan. The plan covers all “medically necessary” services, which are defined as “significant functional impairment and the procedure can be reasonably expected to improve the functional impairment.” Anna Lange was formally diagnosed with gender dysphoria by a healthcare provider in 2017. Following her diagnosis, Lange’s healthcare providers started her on a treatment plan to align her physical characteristics with her gender identity. When Lange applied to the health plan to cover her medically necessary gender transition services, it denied her claims based on the plan’s exclusions. Lange appealed to the plan and to the Houston County Board of Commissioners to no avail.
In finding that the health plan violated Title VII by denying coverage for her gender transition surgery, the original court stated, “Houston County deprived Lange of a benefit or privilege of her employment by reason of her nonconforming traits, thereby un-lawfully punishing her for her gender nonconformity.” The court also stated, “The Exclusion is a blanket denial of coverage for gender-affirming surgery. … By drawing a line between gender-affirming surgery and other operations, the plan intentionally carves out an exclusion based on one’s transgender status. Lange’s sex is inextricably tied to the denial of coverage for gender-affirming surgery.”
After the original ruling, Houston County petitioned the 11th Circuit to hear the case en banc. En banc means that the entire court would hear the case and rule on it, rather than just a panel of three judges. The en banc court reached the opposite conclusion as the original court… that the exclusions under Houston County’s plan did NOT constitute discrimination on the basis of sex under Title VII. In reaching this conclusion, the court referenced the recent Supreme Court decision in Skrmetti, where the Court had ruled that because the Tennessee ban on providing gender-affirming care did not apply on the basis of gender (i.e., it applied to all minors, regardless of gender), it did not violate the 14th Amendment to the Constitution. Although Lange is related to Title VII, not the 14th Amendment, the 11th Circuit applied the same reasoning to its opinion.
In summation, the 11th Circuit Court’s new ruling is that denial of gender-affirming care in this instance was not facial sex discrimination under Title VII. The ruling’s scope is limited to the states within that circuit (Georgia, Alabama, and Florida).
Mississippi Federal District Court Vacates Updated Final ACA Section 1557 Rules on Gender Identity
Section 1557 of the ACA (Affordable Care Act) applies various federal nondiscrimination laws to the provision of healthcare. As HUB has reported on previously (see links above), how those discrimination rules apply to employers in the context of their provision of health insurance has been changed in several ways since the enactment of the ACA. However, In May of 2024, the Department of Health and Human Services (HHS) formally expanded the interpretation of Title IX of the Education Amendments of 1972 for purposes of amending the interpretation of Section 1557 of the ACA. That change under Title IX, which prevents discrimination “on the basis of sex,” expanded the definition of “sex” to include gender identity. In other words, the final implementing regulations by HHS made it clear that rules against nondiscrimination also applied to discrimination involving gender identity.
After the release of the final rules, fifteen states filed suit in the U.S. District Court for the Southern District of Mississippi to vacate the provisions of the HHS regulations that involved gender identity (Tennessee v. Kennedy). The court responded by issuing a preliminary injunction against the portions of the new rules that were related to gender identity. HHS then appealed to the Fifth Circuit Court. That court dismissed that appeal and the case was sent back to the Mississippi federal district court, with their final decision just recently issued on October 22, 2025.
In this recent decision, the court, similar to the court in the Lange case, again referenced Skrmetti in order to separate discrimination in health care due to gender identity from discrimination due to sex. On one hand, as held in Supreme Court case Bostock v. Clayton County, GA, an employer cannot discriminate “because of sex” under Title VII, and that definition includes sexual orientation and gender identity. However, the court here felt that the facts better aligned with the finding in Skrmetti instead. The court held that a person’s medical diagnosis, not their sex or transgender status, was the determining factor in assessing whether discrimination was present. In addition, the court also referenced the Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo (the seminal case that overturned the longstanding Chevron doctrine), and indicated that the meaning of “sex” for purposes of assessing discrimination should be consistent with that term’s meaning in 1972 when Title IX was enacted. In other words, gender identity would not have been included in the meaning of sex at that time, so it cannot be now either.
In summation, the Mississippi federal district court’s recent ruling is that HHS exceeded its authority by defining sex to include gender identity as it is interpreted under Section 1557 of the ACA. The ruling’s scope is nationwide to the specific rules mentioned, but is also a vacatur, so as to those specific rules created by the agency (here, HHS), they are hereby completely cancelled.
Conclusion
Both recent decisions impact the interpretation of gender identity and the coverage of gender-affirming care. The Lange decision disincentivizes further challenges to employer health plans under Title VI in the 11th Circuit, and the decision out of the Mississippi federal district court prevents the federal government from enforcing a broad rule on gender identity discrimination in covered health programs on a national level. For the time being at least then, there are fewer reasons for an employer plan to feel compelled to fully cover gender-affirming care.
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