The Eleventh Circuit struck down a win Tuesday for a transgender sheriff's deputy who sued a Georgia county health plan after it refused to pay for gender-affirming surgery, saying the challenged coverage exclusion did not violate federal anti-discrimination law.

Houston County, Georgia, argued before the Eleventh Circuit that its coverage exclusions didn't discriminate because the purpose of a vaginoplasty was different depending on whether a person was using the procedure for gender-affirming reasons. (iStock.com/Thomas Stone) The en banc appellate court ruled 7-5 in favor of Houston County, Georgia, and its sheriff, who sought en banc review after a panel sided with Anna Lange, a law enforcement veteran and Houston County employee since 2006, in a 2-1 decision in May.

In an opinion for the full court's majority authored by U.S. Circuit Judge Andrew L. Brasher, the appellate court said that the county's employee health plan policy exclusions for "sex change" surgery, medications and related procedures did not violate Title VII of the Civil Rights Act.

"Although the plan does not cover sex change surgeries, it does not treat anyone differently based on a protected characteristic," the panel's majority said.

The appellate court reversed a Georgia district court's judgment from October 2022 in favor of Lange and vacated a permanent injunction ordered the same year that had prevented the county from excluding coverage for Lange's vaginoplasty. The panel also remanded the case back to district court for further proceedings.

While the appeal was pending, the trial court had specifically directed processing of any claims for Lange's previously denied vaginoplasty, denying in March 2023 a last-minute attempt by the county and Talton to avoid coverage while the appeal was pending.

During en banc arguments on Feb. 4, judges appeared to back reversal of the panel's decision favoring Lange. Some judges appeared to favor the county's argument that its exclusions didn't discriminate because the purpose of a vaginoplasty was different depending on whether a person was using the procedure for gender-affirming reasons. The state of Alabama also argued in support of Houston County during en banc proceedings.

The county argued a vaginoplasty to transition a person from one gender to another differed fundamentally from a vaginoplasty performed on a person assigned female at birth for something like reconstruction following an accident, which would be covered. The county also confirmed for the court that the plan's surgery exclusions would apply — and coverage would be denied — to a person assigned female at birth seeking to undo a previous gender-affirming surgery and transition from male back to female.

In Tuesday's majority opinion, the appellate court said that the Georgia district court had misinterpreted the U.S. Supreme Court's landmark 2020 decision in Bostock v. Clayton County , which banned employment discrimination on the basis of sexuality and gender identity under Title VII, as supporting Lange's case.

The 11th Circuit majority said the nation's highest court had shot down Lange's interpretation of Bostock when it upheld Tennessee's ban on gender-affirming care for minors in United States v. Skrmetti.

The appellate majority said justices in Skrmetti upheld Tennessee's ban as not discriminating based on sex because neither sex nor transgender status was the reason that gender-affirming care for minors was prohibited under the law. Justices instead determined the state's law banned care based on age and diagnosis, regardless of sex.

"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," the en banc majority opinion said.

Along with the majority opinion, U.S. Circuit Judges Kevin C. Newsom and Robin S. Rosenbaum wrote concurring opinions.

The decision also contains three dissenting opinions, with U.S. Circuit Judge Jill Pryor's opinion joined by U.S. Circuit Judges Adalberto Jordan, Nancy G. Abudu, Embry J. Kidd and Charles R. Wilson.

In Judge Pryor's dissent, the en banc court's minority said the appellate court had erred in relying on precedent interpreting the U.S. Constitution's equal protection clause to uphold a health plan exclusion as complying with Title VII.

The Supreme Court "definitively held more than four decades ago that such line drawing is impermissible in Title VII cases when the dividing line is a medical condition that impacts employees differently based on sex," Pryor's dissent said.

U.S. Circuit Judge Abudu also penned a separate dissenting opinion, along with U.S. Circuit Judge Wilson. Circuit Judge Wilson's dissenting opinion was also joined by U.S. Circuit Judges Abudu and Kidd.

All active judges on the Eleventh Circuit sat on the panel, as well as Senior U.S. Circuit Judge Charles R. Wilson, who was a member of the original three-judge panel.

Jill Grant of Willkie Farr & Gallagher LLP, an attorney for Lange, expressed dismay with the decision in a statement Wednesday.

"While we are deeply disappointed in the court's decision, we remain focused on vigorously fighting for Anna's right to medically necessary healthcare and will continue to do so as the case proceeds," Grant said.

"We are pleased with the court's decision. However, as the matter remains ongoing, we cannot comment on pending litigation," Houston County Board of Commissioners Chairman Dan Perdue said in an email.

A representative for the state of Alabama didn't immediately respond to a request for comment.

Houston County is represented by Sharon P. Morgan, R. Read Gignilliat, William D. Deveney and Patrick L. Lail of Elarbee Thompson Sapp & Wilson LLP.

Lange is represented by Gabriel Arkles, Ezra Cukor, Shayna Medley, Seran Gee, and Kelly Parry-Johnson of Advocates For Trans Equality, by Kevin M. Barry of Quinnipiac University, by Kenneth E. Barton III and M. Devlin Cooper of Cooper Barton & Cooper LLP and by Catherine Fata, Jill Kaden Grant, Amanda M. Payne and Wesley R. Powell of Willkie Farr & Gallagher LLP.

The case is Anna Lange v. Houston County, Georgia, et al., case number 22-13626, in the U.S. Court of Appeals for the Eleventh Circuit.