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Following the U.S. Supreme Court's June 18, 2025 decision in United States v.Skrmetti upholding Tennessee's law regulating gender-affirming care for minors, appellate courts continue to grapple with related transgender healthcare issues. As a result, employer-sponsored health plans continue to seek clarity on whether federal anti-discrimination laws mandate coverage for transgender healthcare access. On September 9, 2025, the full U.S. Court of Appeals for the Eleventh Circuit issued an en banc decision in Lange v. Houston County that may further guide employer health plans, and Supreme Court review remains possible.
The U.S. Supreme Court upheld a Tennessee law banning gender-affirming care for minors with their decision in United States v. Skrmetti. Accordingly, the U.S. Court of Appeals for the Eighth Circuit, sitting en banc, revived a similar Arkansas law in August, and the U.S. Court of Appeals for the Tenth Circuit refused to block a comparable Oklahoma law.
However, on the same date as the Eighth Circuit decision, a Washington federal district court judge ruled that an exclusion from coverage for gender-affirming chest surgery for minors in a Premera Blue Cross-administered employer-provided health plan violated the Affordable Care Act (ACA). U.S. District Judge Thomas S. Zilly ruled that the coverage exclusion constituted sex discrimination, which the ACA specifically forbids. In so ruling, the judge explicitly distinguished the Supreme Court's decision in U.S. v. Skrmetti from the case against Premara.
In the meantime, employers are navigating unsettled law on whether federal nondiscrimination requirements permit exclusions for gender-affirming care. Plan participants may challenge restrictions under statutes such as ACA §1557 and Title VII. Courts are distinguishing between state laws that restrict available care and federal nondiscrimination mandates that still apply to employer plans.
The full Eleventh Circuit heard arguments earlier this year in a reexamination of a 2-1 panel decision that found in favor of sheriff's deputy Anna Lange, who is transgender. The panel majority ruled that a Georgia County health plan exclusion for gender-affirming care was unlawful. If the Eleventh Circuit upholds the panel's decision, the case may clarify what healthcare employer-sponsored health plans must provide. During arguments, the full Court appeared amenable to overturning the panel's previous ruling.
At the same time, employers may increasingly argue in discrimination cases involving gender affirming care exclusions that their exclusions stem from age and diagnosis, not sex. Relying on Skrmetti, employers could be successful in defending certain exclusions. However, the Supreme Court's decision in Bostock v. Clayton County, which bans employment discrimination based on sex and gender identity under Title VII, is also applicable to the case. These two opposing decisions could result in differing results around the country, which creates uncertainty and difficulties for insurance plans, at least until the Supreme Court chooses to step in.
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