At the time, Lange said her court win was a victory “for all transgender Southerners who deserve equal access to life-saving transition-related care.” It was the first time a federal appellate court concluded that it is unlawful for an employer to discriminate against transgender people in an employee health plan, according to the Transgender Legal Defense and Education Fund, which helped Lange in the case.
On Thursday, the 11th Circuit vacated the decision, after a majority of its 12 judges voted for the case to be reconsidered by the full court.
The 11th Circuit is considered to be one of the most conservative federal appellate courts in the country, in large part because Trump was able to appoint six of its current judges. Chief Judge William H. Pryor Jr. was appointed by former President George W. Bush.
The two judges who ruled in Lange’s favor in May are among the court’s five Democratic appointees.
Houston County and its sheriff asked for the case to be considered by the full court, after losing their appeal of a Georgia federal trial judge’s ruling in Lange’s favor. They argued that the county’s health plan “excludes coverage for sex change surgeries for anyone — no matter their sex or gender identity.”
“In fact, the health plan covered Anna Lange’s endocrinologist visits, hormones, and other treatments for her gender transition; only her request for sex change surgery was denied,” the county and sheriff told the 11th Circuit in their June request for a rehearing. “This shows that coverage depends on the treatment requested, not who is requesting it.”
Lange had argued, and the courts had agreed, that the county’s policy to deny coverage for gender transition surgery violated the Civil Rights Act, which prohibits sex-based employment discrimination, among other things.
11th Circuit Judge Charles R. Wilson, a Bill Clinton appointee, wrote in the panel’s May ruling that “there is no genuine dispute of fact or law as to whether the (policy) exclusion unlawfully discriminates against Lange and other transgender persons.”
“Because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status,” Wilson wrote.
He cited a landmark U.S. Supreme Court ruling in another Georgia case holding that “discrimination based on . . . transgender status necessarily entails discrimination based on sex.”
Georgia, Florida, Alabama and 20 other states supported the rehearing petition by Houston County and its sheriff, telling the 11th Circuit in June that the panel’s decision conflicts with U.S. Supreme Court precedent. The ruling, if not corrected, would “drastically expand (Civil Rights Act) liability far beyond what the statute allows and create chaos for employers,” the states said.
“Because the (county) plan’s classification turns on diagnosis, not gender identity or sex, it is hard to say who the county’s insurance plan treated Lange ‘worse than,’” the states wrote in a court filing.
Lange, who has worked for the Houston County Sheriff’s Office since 2006, came out as a transgender woman in 2017 and was diagnosed with gender dysphoria. Her doctor, two psychologists and a surgeon recommended that she undergo gender transition surgery.
After the county and sheriff denied coverage for the surgery, Lange sued them in 2019. She had the surgery after a federal judge in Macon ruled in 2022 that coverage could not be denied.
Lange and her lawyers have criticized the county and sheriff for allegedly spending more than $2 million fighting the case, saying gender transition surgery “costs orders of magnitude less.”
In September 2022, a jury in Macon awarded Lange $60,000 in damages on her discrimination claim under the Civil Rights Act. A trial on a separate claim against the county under the Equal Protection Clause of the U.S. Constitution has been on hold pending the appellate court’s ruling.
The 11th Circuit has yet to set a date for rehearing the case.
