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Fourth and Eleventh Circuit Affirm Healthcare Must Cover Gender-Affirming Care

In Lange v. Houston County, Georgia, Anna Lange worked for the county sheriff. Assigned as male at birth, Lange was diagnosed with gender dysphoria, a condition caused by “the incongruence between one’s gender identity and their sex assigned at birth.” Her doctor prescribed gender-affirming surgery. However, Houston County's health plan denied coverage for Lange's planned surgery to match her body to her gender identity. The plan excluded "[d]rugs for sex change surgery" and "'[s]ervices and supplies for a sex change and/or the reversal of a sex change.”

The Supreme Court held discrimination based on transgender status is sex-based discrimination in Bostock v. Clayton County. Thus, the Eleventh Circuit concluded the health plan’s exclusion was a facially discriminatory policy violating Title VII. It created a blanket exclusion for gender-affirming surgery, which will only impact transgender individuals. Health insurance is a benefit within Title VII’s protection for “compensation, terms, conditions, or privileges of employment.”

Similarly, the Fourth Circuit considered two cases presenting the following question — Do healthcare plans that cover medically necessary treatments for some diagnoses but bar those same medically necessary treatments for diagnoses unique to transgender patients violate federal law? North Carolina expressly excluded treatment related to sex changes or modifications. West Virginia's Medicaid covered gender-affirming care but not gender-affirming surgery. However, the plan did cover surgical procedures like mastectomies for diagnoses other than gender dysphoria. The plaintiffs in both cases were denied coverage under these plans. The circuit court held exclusions for transgender procedures discriminated against these individuals based on sex and gender identity. The U.S. Department of Health and Human Services issued a final rule prohibiting health programs receiving federal assistance from blanket exclusions and restrictions for gender-affirming care.