holding discrim- ination based on failure to conform to a gender stereotype is sex-based dis- crimination
How later courts described this case
- holding discrim- ination based on failure to conform to a gender stereotype is sex-based dis- crimination
- “[T]he . . . Fourteenth Amendment[] to the Constitution protect[s] per- sons, not groups.” (emphases in original)
- rejecting this principle in striking down a ban on the cohabitation of interracial couples
- “This narrow view of the Equal Protection Clause was soon swept away.”
Written by the judges who cited it.
The opinion
USCA11 Case: 22-13626 Document: 173-1 Date Filed: 09/09/2025 Page: 1 of 108
FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13626
____________________
ANNA LANGE,
Plaintiff-Appellee,
versus
HOUSTON COUNTY, GEORGIA,
HOUSTON COUNTY SHERIFF CULLEN TALTON,
in his official capacity,
Defendants-Appellants,
HOUSTON COUNTY BOARD OF
COMMISSIONERS, et al.,
Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:19-cv-00392-MTT
____________________
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2 Opinion of the Court 22-13626
Before WILLIAM PRYOR, Chief Judge, and JORDAN, ROSENBAUM, JILL
PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER,
ABUDU, KIDD, and WILSON, ∗ Circuit Judges.
BRASHER, Circuit Judge, delivered the opinion of the Court, in
which WILLIAM PRYOR, Chief Judge, and NEWSOM, BRANCH,
GRANT, LUCK, and LAGOA, Circuit Judges, joined.
NEWSOM, Circuit Judge, filed a concurring opinion.
ROSENBAUM, Circuit Judge, filed an opinion concurring in the judg-
ment.
JILL PRYOR, Circuit Judge, filed a dissenting opinion, in which
JORDAN, ABUDU, KIDD, and WILSON, Circuit Judges, joined.
ABUDU, Circuit Judge, filed a dissenting opinion.
WILSON, Circuit Judge, filed a dissenting opinion, in which ABUDU
and KIDD, Circuit Judges, joined.
BRASHER, Circuit Judge:
Anna Lange, a transgender woman and deputy at the Hou-
ston County Sheriff’s Office, sought a male-to-female sex change
surgery 1 and requested that the County’s employer-provided
∗ Senior Circuit Judge Wilson elected to participate in this decision pursuant
to 28 U.S.C. § 46(c).
1 The Supreme Court has held that “sex . . . is an immutable characteristic
determined solely by the accident of birth.” Frontiero v. Richardson, 411 U.S.
677, 686 (1973). We nevertheless refer to this surgical procedure as a “sex
change” because that is the terminology used by the policy and the parties.
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22-13626 Opinion of the Court 3
health insurance pay for it. But because the County’s insurance pol-
icy excludes “[d]rugs for sex change surgery” and “[s]ervices and
supplies for a sex change and/or the reversal of a sex change,” the
insurer denied Lange’s request. Doc. 205 at 3–4. Lange then sued
the County for disparate treatment because of sex under Title VII
of the Civil Rights Act of 1964, and the district court held, among
other things, that the plan’s exclusion facially discriminates because
of sex as a matter of law.
We took this appeal en banc to answer whether the insur-
ance policy facially violates Title VII. We conclude that it does not.
Many of Lange’s arguments have been rejected by the Supreme
Court. See United States v. Skrmetti, 145 S. Ct. 1816 (2025). Although
the plan does not cover sex change surgeries, it does not treat any-
one differently based on a protected characteristic. Because the ex-
clusion is not facially discriminatory under Title VII, we reverse the
district court’s judgment, vacate the permanent injunction, and re-
mand for further proceedings consistent with this opinion.
I.
Anna Lange, a natal male, has been a deputy with the Hou-
ston County Sheriff’s Office since 2006. In 2017, Lange was diag-
nosed with gender dysphoria and began to openly identify as a
woman. According to one of Lange’s expert witnesses, gender dys-
phoria is a “serious medical condition” that creates “an intense and
persistent discomfort” with one’s biological anatomy. Doc. 132-3
at 6–7. Most transgender individuals seek some level of medical ser-
vices in connection with their diagnoses. Those services range
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4 Opinion of the Court 22-13626
from mental health services, to counseling, to hormone therapy, to
sex change surgeries.
A sex change surgery is a suite of medical procedures that
can vary in purpose, cost, and complexity. It may include “[c]hest
reconstruction surgery”; “[g]enital reconstruction surgeries” such
as a “penectomy (removal of the penis), orchiectomy (removal of
the testes), vaginoplasty, clitoroplasty, and/or vulvoplasty”; and
other surgeries such as “facial feminization surgery, liposuction,
lipofilling, voice surgery, thyroid cartilage reduction, gluteal aug-
mentation . . . , and hair reconstruction, among others.” Id. at 9.
As a deputy at the Houston County Sheriff’s Office, Lange
participates in the County’s health insurance plan. Doc. 205 at 3.
That plan, in total, excludes coverage for 68 medical categories and
29 pharmaceutical categories. Among the excluded medical cate-
gories are dental and vision care, elective abortions, contraceptives,
hearing aids, fertility treatment, and oral surgeries. The plan ex-
cludes all coverage for “[s]ervices or supplies for male or female
sexual problems,” “[d]rugs to treat sexual or erectile problems,”
and treatments and drugs for “[i]nfertility.” Id. 70, 72, 74. The plan
also excludes coverage for cosmetic surgeries. And, since at least
1998, the plan has excluded “[d]rugs,” “[s]ervices[,] and supplies for
a sex change and/or the reversal of a sex change.” Id. at 72, 74.
Because the plan does not exclude coverage for all treat-
ments related to gender dysphoria, Lange took advantage of the
plan to pay for hormones, endocrinologist visits, and psychologist
visits. Lange testified to that effect, explaining that mental health
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22-13626 Opinion of the Court 5
services and “medication”—which Lange clarified includes hor-
mones—were covered, and that insurance paid “the bulk of the
charge” for Lange’s endocrinology visits. Doc. 137-3 at 49–50; Doc.
150-18, Ex. 36, at 11–12.
As additional treatment for gender dysphoria, Lange sought
a sex change surgery to alter Lange’s male genitals to appear more
like female genitals. Under this procedure, “the testicles will be re-
moved, the urethra will be shortened, and the penile and scrotal
skin will be used to line the neovagina, the space between the rec-
tum and the prostate and the bladder.” Doc. 144-1 at 7. After the
procedure, the patient must undergo an “extensive regimen of
post-surgery dilatation to prevent the closure of the neovagina.” Id.
Because no surgeon who could perform this procedure was availa-
ble where Lange lived, Lange sought this care in New York from a
specialist in sex change surgery. See Doc. 144-1 at 8 (“there’s no one
who does bottom surgery in [Lange’s] community”); 179-3 at 44–
45.
Citing the County’s exclusion, the insurer that administers
the County’s plan denied coverage for Lange’s sex change surgery.
Lange then sued the County under Title VII for discrimination be-
cause of sex. The parties disputed why the County adopted the ex-
clusion, and the district court held that the dispute was genuine.
See Doc. 205 at 21 n.11 (“Because there is a genuine dispute of ma-
terial fact as to whether the adoption and maintenance of the Ex-
clusion was done with discriminatory intent, the Court does not
reach the question of whether the Exclusion would subsequently
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6 Opinion of the Court 22-13626
survive intermediate scrutiny.”). But the district court held that the
County’s reasons for the policy did not matter under Title VII. See
id. at 27 n.15 (“Although the parties debate whether the County’s
professed desire to save money is relevant to disprove discrimina-
tory intent or to provide a legitimate nondiscriminatory reason ap-
propriate in a McDonnell Douglas analysis, that debate has no place
here.”). The district court concluded that the County’s insurance
policy violated Title VII on its face, granted summary judgment for
Lange, and permanently enjoined the exclusion of sex change sur-
gery from the County’s insurance policy.
The County appealed. After a divided three-judge panel of
this Court affirmed the district court, Lange v. Houston County, 101
F.4th 793, 798–99 (11th Cir.), reh’g en banc granted, opinion vacated,
110 F.4th 1254 (11th Cir. 2024), we voted to take the case en banc
and asked the parties to brief one question: whether the insurance
policy at issue, which covers medically necessary treatments for
certain diagnoses but bars coverage for Lange’s sex change surgery,
facially violates Title VII.
II.
“We review a district court’s grant of summary judgment de
novo, viewing all the evidence, and drawing all reasonable factual
inferences, in favor of the nonmoving party.” Baxter v. Santiago-Mi-
randa, 121 F.4th 873, 883 (11th Cir. 2024) (quotation omitted).
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22-13626 Opinion of the Court 7
III.
Health insurance is a heavily regulated industry. Congress
has enacted statutes that bar insurance companies from denying
coverage to individuals with preexisting conditions. 42 U.S.C. §§
300gg–1(a), 300gg–3(a), 300gg–4(a). Other statutes prohibit insur-
ers from charging higher rates to individuals based on their medical
history. Id. §§ 300gg, 300gg–4(b). And yet more statutes require in-
surers to cover specific conditions, treatments, and periods of hos-
pitalization. Id. § 18022(b); 29 U.S.C. §§ 1185–1185a.
Title VII, however, does not directly regulate insurance pol-
icies. Instead, Title VII makes it unlawful for a covered employer
to “discriminate against any individual with respect to his compen-
sation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). Employer-provided health insurance is a
“privilege of employment.” See Newport News Shipbuilding & Dry
Dock Co. v. EEOC, 462 U.S. 669, 682 (1983). So, if an employer pro-
vides health insurance, its policy cannot discriminate based on a
protected characteristic.
Lange has brought a disparate treatment claim against the
County under Title VII. The Supreme Court has held that Title VII
prohibits employers “from firing employees on the basis of homo-
sexuality or transgender status” when “discrimination based on ho-
mosexuality or transgender status necessarily entails discrimina-
tion based on sex.” Bostock v. Clayton County., 590 U.S. 644, 669, 680
(2020). Lange argues that the sex change exclusion in the County’s
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8 Opinion of the Court 22-13626
insurance policy violates Title VII because it reflects a “formal, fa-
cially discriminatory policy requiring adverse treatment of”
transgender employees based on sex. Hazen Paper Co. v. Biggins, 507
U.S. 604, 610 (1993). Unlike other Title VII claims, a disparate treat-
ment claim based on a facially discriminatory policy “does not de-
pend on why the [defendant] discriminates but rather on the ex-
plicit terms of the discrimination.” Automobile Workers v. Johnson
Controls, Inc., 499 U.S. 187, 199 (1991).
The question for us is whether the County’s insurance plan
facially discriminates based on a protected characteristic. Lange
makes four arguments that it does. None works. We will address
each argument in turn.
First, Lange argues that the policy discriminates on the basis
of sex. Under Bostock, we apply a “simple test” for sex discrimina-
tion—“change one thing at a time and see if the outcome changes.”
590 U.S. at 656, 671. “[I]f changing the employee’s sex would have
yielded a different choice by the employer,” then the employer has
discriminated based on sex. Id. at 659–60. Citing Bostock, Lange ar-
gues that the plan discriminates based on sex because it would have
covered the requested surgery if Lange were born a female and de-
nied coverage only because Lange was born a male. We disagree.
The Supreme Court recently rejected Lange’s interpretation
of Bostock in United States v. Skrmetti, 145 S. Ct. 1816 (2025). There,
the plaintiffs argued that a Tennessee law discriminated based on
sex when it disallowed certain treatments for gender dysphoria in
children but allowed those treatments for other medical
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22-13626 Opinion of the Court 9
conditions. The plaintiffs “urge[d]” the Court “to apply Bostock’s
reasoning” to their equal protection claim. Id. at 1834. The Court
assumed the plaintiffs were correct that Bostock’s reasoning applied
outside the Title VII context. But it held that, “[u]nder the reason-
ing of Bostock, neither [the plaintiff’s] sex nor his transgender status
is the but-for cause of his inability to obtain testosterone.” Id. at
1834.
More specifically, the Court reasoned that the law did not
classify based on sex because “the law does not prohibit conduct
for one sex that it permits for the other.” Id. at 1831. Instead, the
Court explained that the challenged law “divides minors into two
groups: those who might seek puberty blockers or hormones to
treat the excluded diagnoses, and those who might seek puberty
blockers or hormones to treat other conditions.” Id. at 1833. Thus,
“[i]f a transgender boy seeks testosterone to treat his gender dys-
phoria, [the law] prevents a healthcare provider from administer-
ing it to him”—and “[i]f you change his biological sex from female
to male, [the law] would still not permit him the hormones he
seeks.” Id. at 1834. But, if the same hypothetical child seeks testos-
terone for a qualifying diagnosis, that child could obtain the testos-
terone regardless of his sex. Id.
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. See id. at 1831 (“[N]o
minor may be administered [the prohibited drugs] to treat gender
dysphoria, gender identity disorder, or gender incongruence;
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10 Opinion of the Court 22-13626
minors of any sex may be administered puberty blockers or hor-
mones for other purposes”). Lange is a natal man. If Lange were
instead a natal woman who wanted a female-to-male sex change,
the insurance policy would not pay for it. Or if Lange were a natal
woman who sought coverage for the same male-to-female sex
change that Lange received (perhaps for a male dependent), the
County’s policy would operate in the same way—it would deny
coverage. Nothing about the policy exclusion turns on whether the
County’s employee is a man or woman.
The same is true when we consider the specific procedures
that were part of Lange’s sex change surgery. Lange’s sex change
surgery involved the removal of the testicles, the shortening of the
urethra, and the creation of a neovagina. Let’s change “one thing”
and assume Lange were a natal woman instead of a natal man:
would the insurance policy have covered any of those procedures
as part of a sex change? Again, the answer is no. Some of those pro-
cedures would be impossible for a person with a female anatomy
to undergo. See, e.g., id. at 1830 (explaining that when “a
transgender boy (whose biological sex is female) takes puberty
blockers to treat his gender incongruence, he receives a different
medical treatment than a boy whose biological sex is male who
takes puberty blockers to treat his precocious puberty”). And oth-
ers would be denied to both natal men and natal women as part of
a sex change. For example, if a natal woman needed a neovagina as
part of a sex change surgery—perhaps as a reversal of a previous
female-to-male sex change—the plan would deny coverage for that
procedure just as it denied coverage for Lange as a natal man. On
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22-13626 Opinion of the Court 11
the other hand, these procedures would be covered when required
because of medical conditions, such as cancer or injuries from a car
accident, for an employee of either sex (subject to the policy’s other
exclusions). “Under the logic of Bostock, then, sex is simply not a
but-for cause.” Id. at 1835.
Second, even if the exclusion does not discriminate based on
sex, Lange says that the County’s plan discriminates based on
transgender status because it does not cover treatments for gender
dysphoria to the same extent that it covers treatments for other
conditions. Neither the Supreme Court nor this Court has held that
transgender status is separately protected under Title VII apart
from sex. And Bostock did not add transgender status, as a category,
to the list of classes protected by Title VII. To the contrary, the
Court expressly denied that it was answering any question other
than “whether an employer who fires someone simply for being . . .
transgender has discharged or otherwise discriminated against that
individual ‘because of such individual’s sex’” within the meaning
of Title VII’s plain terms. Bostock, 590 U.S. at 681 (quoting 42 U.S.C.
§ 2000e-2(a)(1)).
But, even if this theory were viable under Title VII, the
County’s plan does not facially discriminate based on transgender
status. Again, the Supreme Court rejected a very similar argument
in Skrmetti. There, the plaintiffs argued that the Tennessee law dis-
criminated based on transgender status because it prohibited
healthcare providers from administering puberty blockers or hor-
mones to treat gender dysphoria, although it allowed them to be
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12 Opinion of the Court 22-13626
prescribed for other conditions. The Court, however, held that the
law did not “classify on the basis of transgender status.” Skrmetti,
145 S. Ct. at 1833. The Court recognized that “a key aspect of any
medical treatment” is “the underlying medical concern the treat-
ment is intended to address.” Id. at 1830. Applying that insight to
the discrimination question, the Court held that the state law did
not discriminate based on transgender status because it did “not
exclude any individual from medical treatments on the basis of
transgender status but rather remove[d] one set of diagnoses—gen-
der dysphoria, gender identity disorder, and gender incongru-
ence—from the range of treatable conditions.” Id. at 1833.
Although the plaintiffs’ claim in Skrmetti arose under the
Equal Protection Clause, the Court expressly held that the state
statute at issue did not discriminate based on transgender status un-
der the same Title VII precedents that we must apply here. This
was so, the Court explained, because “changing a minor’s sex or
transgender status does not alter the application” of the challenged
statute. Id. at 1834. The Court reasoned that, because a
“transgender boy” could “obtain the [treatment] regardless of his
sex or transgender status” if he had a “permissible diagnos[is],” id.,
the challenged law did not discriminate based on transgender sta-
tus. Id. The Court said point blank: “Under the reasoning of Bos-
tock, neither [the plaintiff’s] sex nor his transgender status is the but-
for cause of his inability to obtain” the prohibited treatment. Id.
(emphasis added).
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22-13626 Opinion of the Court 13
For all the same reasons, we likewise conclude that the
County’s plan does not facially discriminate based on transgender
status. Like the law at issue in Skrmetti, the County’s policy is a
“classification based on medical use.” Id. at 1833. The plan does not
say, for example, that transgender employees must pay more than
nontransgender employees or that transgender employees or their
dependents receive reduced benefits. See, e.g., Newport News, 462
U.S. at 684 (“[T]he husbands of female employees receive[d] a spec-
ified level of hospitalization coverage for all conditions,” but “the
wives of male employees receive[d] such coverage except for preg-
nancy-related conditions”); L.A. Dep’t of Water & Power v. Manhart,
435 U.S. 702, 705 (1978) (policy “required female employees to
make monthly contributions to the fund which were 14.84%
higher than the contributions required of comparable male em-
ployees”). Instead, as we have already explained, the County’s plan
would cover the procedures that make up a sex change for other
purposes, such as treatment for cancer or reconstructive surgery
following a car accident, whether or not the employee who needed
those procedures was transgender. See Skrmetti, 145 S. Ct. at 1834
(“[I]f he had such a diagnosis, he could obtain the testosterone re-
gardless of his sex or transgender status.”).
Our dissenting colleagues say that the Supreme Court’s ex-
tensive discussion of Bostock in Skrmetti is either distinguishable or
dicta or both. We disagree. In Skrmetti, the plaintiffs argued that,
under the reasoning of Bostock, they had been discriminated against
based on sex and transgender status. Id. at 1834. See also id. at 1874-
78 (Sotomayor, J., dissenting) (making the same argument). The
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14 Opinion of the Court 22-13626
Supreme Court’s analysis of Bostock is why the Court rejected that
argument. The Court assumed without deciding that Bostock ap-
plied to the plaintiffs’ equal protection claim and concluded that
their argument failed because, “[f]or reasons we have already ex-
plained, changing the minor’s sex or transgender status does not
alter the application of” the challenged state law. Id. at 1834. It ex-
pressly held that, “[u]nder the reasoning of Bostock” and “[u]nder
the logic of Bostock,” there was no discrimination based on sex or
transgender status for reasons that (as we have already explained)
apply equally here. Id. at 1834–35.
It is passing strange that our dissenting colleagues rely ex-
tensively on Bostock, and, at the same time, reject the Supreme
Court’s own explanation of what Bostock means.2 We have said
many times that “[t]he holding of a case comprises both the result
of the case and those portions of the opinion necessary to that re-
sult.” E.g., United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019)
(quotation marks omitted). Under that standard, Skrmetti’s holding
2 Our dissenting colleague, Judge Jill Pryor, also criticizes the Supreme Court’s
discussion of Bostock in Skrmetti as “implicitly rel[ying] on since-rejected rea-
soning from Geduldig [v. Aillo, 417 U.S. 484 (1974)] and [General Electric Co. v.]
Gilbert [429 U.S. 125 (1976)].” Of course, those cases were about pregnancy
discrimination (which is not an issue in this case), not alleged transgender dis-
crimination (which is the issue in this case, was the issue in Bostock, and was
the issue in Skrmetti). And it’s not clear how a lower court judge’s idiosyncratic
interpretation of a Supreme Court decision from four decades ago could
trump the plain language of a Supreme Court decision from four months ago.
In any event, our opinion in this case says nothing about Geduldig, Gilbert, or
the Pregnancy Discrimination Act.
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22-13626 Opinion of the Court 15
about the meaning of Bostock is binding on us unless and until the
Supreme Court says otherwise. As lower court judges, we cannot
shut our ears when the Supreme Court tells us how to apply its
precedents.
Third, Lange argues that the plan facially discriminates
based on sex stereotypes. Title VII forbids treating employees dif-
ferently because of sex-based stereotypes about men or women. See
Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). But this exclu-
sion is not based on stereotypes. Cf. Skrmetti, 145 S. Ct. at 1832 (“the
plaintiffs’ allegations of sex stereotyping are misplaced”). If the plan
discriminated against participants because of gender stereotypes, it
would presumably cover procedures to align a participant’s physi-
cal characteristics with those of his or her biological sex. But it does
not do that. On the contrary, the plan excludes coverage for a suite
of medical procedures that change the appearance of a person’s sex
organs—regardless whether the goal is to differ from, or align with,
natal sex.
Fourth, Lange argues that the plan’s exclusion facially vio-
lates Title VII because it penalizes a person for transitioning. But
this argument is simply a mischaracterization of the plan’s func-
tion. The fact that the plan excludes coverage for one treatment for
gender dysphoria is not a penalty in any sense of the word. The
plan does not, for example, impose a surcharge on employees who
have undergone a sex change. Instead, the plan declines to extend
a benefit—namely, coverage for a sex change operation. And that
benefit is declined to everyone.
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16 Opinion of the Court 22-13626
Finally, although Lange implies that the County’s policy
lacks a legitimate justification, that question is well outside the
scope of this appeal. The question here is about alleged discrimina-
tion on the face of the policy. The district court expressly held that the
County’s reason for the policy was a matter of genuine dispute and
could not be resolved at summary judgment. See Doc. 205 at 21
n.11 (holding that “a genuine dispute of material fact” exists as to
“whether the adoption and maintenance of the Exclusion was done
with discriminatory intent”). Lange did not challenge the district
court’s conclusion on appeal. The panel, of course, did not reach
the issue. See Lange v. Houston County, 101 F.4th 793, 799 (11th Cir.
2024) (holding that the policy is “facially discriminatory” and going
no further), reh’g en banc granted, opinion vacated, 110 F.4th 1254
(11th Cir. 2024). And we did not ask the parties to brief that issue
en banc—telling the parties instead to address whether the policy
“facially violates Title VII” no matter its justification.
In short, the County’s plan does not facially violate Title VII.
The County’s plan draws a line between certain treatments, which
it covers, and other treatments, which it does not. That line may
or may not be appropriate as a matter of health care policy, but it
is not facial discrimination based on protected status.
IV.
Because we conclude that the plan is not facially discrimina-
tory under Title VII, we REVERSE the district court’s judgment,
VACATE the permanent injunction, and REMAND for further
proceedings consistent with this opinion.
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22-13626 NEWSOM, J., Concurring 1
NEWSOM, Circuit Judge, concurring:
I concur. Lange’s Title VII challenge is foreclosed by the por-
tion of the Supreme Court’s recent opinion in United States v.
Skrmetti, 145 S. Ct. 1816 (2025), that addresses and explains its ear-
lier decision in Bostock v. Clayton County, 590 U.S. 644 (2020). I write
separately simply to emphasize that I don’t take either Skrmetti or
today’s en banc opinion to collapse the separate analyses that apply
to claims under Title VII and the Fourteenth Amendment’s Equal
Protection Clause. For reasons I’ll try to explain briefly, I don’t
think there would be any valid justification for doing so.
Title VII and the Equal Protection Clause have certain com-
monalities, to be sure. They share some of the same conceptual
“space” and, as relevant here, both prohibit sex discrimination in
certain circumstances. But they’re also different in some very sig-
nificant ways.
Most importantly by far, there’s the issue of text: The two
provisions use different words. The Equal Protection Clause says
that “[n]o State shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Ti-
tle VII states that “[i]t shall be an unlawful employment practice for
an employer . . . to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s race, color, religion, sex, or na-
tional origin.” 42 U.S.C. § 2000e-2(a)(1). A court’s most fundamen-
tal job is to interpret the words and phrases used in written docu-
ments—in particular, words and phrases authored by others, be
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2 NEWSOM, J., Concurring 22-13626
they the Framers, legislators, regulators, or private parties. Ideally,
the court will do so by giving those words and phrases the mean-
ings “they conveyed to reasonable people at the time they were
written.” Antonin Scalia & Bryan A. Garner, Reading Law: The In-
terpretation of Legal Texts 16 (2012). Because the Equal Protection
Clause and Title VII were adopted at different times—indeed,
nearly a full century apart—and employ different terms, their re-
spective interpretations can’t simply be merged into an undifferen-
tiated whole.
The textual differences, while paramount, are just the tip of
the iceberg—the distinctions run deep and wide:
• To start with the most obvious, the Equal Protection
Clause and Title VII have different sources: The former
is constitutional; the latter is statutory.
• The two also have different fields of operation: The
Equal Protection Clause applies to all manner of discrim-
inatory actions, but only those taken by government en-
tities, see, e.g., NCAA v. Tarkanian, 488 U.S. 179, 191 (1988);
Title VII reaches only employment-related discrimina-
tion, but applies to private entities as well as public, see,
e.g., Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 304
n.7 (1977).
• Another difference, noted by the most (in a good way)
“notorious” sex-equality advocate of her generation:
“The Equal Protection Clause . . . prohibits only inten-
tional discrimination,” while “Title VII . . . aims to
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22-13626 NEWSOM, J., Concurring 3
eliminate all forms of employment discrimination, unin-
tentional as well as deliberate.” Ricci v. DeStefano, 557
U.S. 557, 627 (2009) (Ginsburg, J., dissenting).
• Yet another: At least as implemented by the Supreme
Court, the provisions operate on different objects, so to
speak: The Equal Protection Clause focuses on classifi-
cations (race, sex, etc.) and groups (black people, white
people, men, women, etc.), see, e.g., Skrmetti, 145 S. Ct. at
1828–29, whereas in a Title VII case, the court’s “focus
should be on individuals, not groups,” Bostock, 590 U.S. at
658; see also L.A. Dep’t of Water & Power v. Manhart, 435
U.S. 702, 709 (1978) (observing that Title VII “requires
that [courts] focus on fairness to individuals rather than
fairness to classes”).
• One more: At least under current law, the two provisions
entail different doctrinal frameworks. If a court applying
the Equal Protection Clause concludes, for instance, that
a state statute or policy classifies on the basis of sex, it
must then march through a multi-part heightened-scru-
tiny analysis in order to determine whether a violation
has occurred. See, e.g., United States v. Virginia, 518 U.S.
515, 531–34 (1996). Title VII, by contrast, is effectively a
toggle: If a court concludes that an employer’s action
discriminates on the basis of sex, it is verboten per se.
See, e.g., Bostock, 590 U.S. at 659.
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4 NEWSOM, J., Concurring 22-13626
So, the Court is quite right to reject Lange’s Title VII claim—
the portion of Skrmetti that explains Bostock requires as much. But
to be clear, at least as I see things, the analyses that govern chal-
lenges brought under Title VII and the Equal Protection Clause re-
main separate—as they must, for both textual and doctrinal rea-
sons.1
1 In his dissent, Judge Wilson seems to agree that Title VII and equal-protec-
tion challenges should be adjudged according to their own respective stand-
ards and that reviewing courts shouldn’t conflate the two. See Wilson Dissent-
ing Op. at 10 et seq. The problem for Judge Wilson is that, as he acknowledges,
in Skrmetti—a case that arose under the Equal Protection Clause—the Su-
preme Court “conducted an analysis under Bostock.” Id. at 10. And it doesn’t
matter that the Court “declined to address ‘whether Bostock’s reasoning
reaches beyond the Title VII context,” id. (quoting Skrmetti, 145 S. Ct. at 1834–
35)—because the case before us arises squarely within “the Title VII context.”
So whether or not it was strictly necessary, or even wise, for the Skrmetti Court
to address Bostock in the course of deciding an equal-protection case, the fact
is it did so. And we can’t ignore what it said and did. See, e.g., Schwab v. Crosby,
451 F.3d 1308, 1325 (11th Cir. 2006) (“[T]here is dicta, and then there is dicta,
and then there is Supreme Court dicta.”).
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22-13626 ROSENBAUM, J., Concurring in the Judgment 1
ROSENBAUM, Circuit Judge, concurring in the judgment:
I concur in the judgment because I agree that United States v.
Skrmetti, 145 S. Ct. 1816 (2025), binds us in this case. Skrmetti held
that a Tennessee law prohibiting prescribing puberty blockers to
minors for gender-affirming purposes does not violate the Equal
Protection Clause. Skrmetti reached this conclusion because it de-
termined the law neither discriminated based on sex, nor discrimi-
nated based on transgender status since, the Court said, the law
does not classify by sex or transgender status. 1
To be sure, Lange brings a sex-discrimination claim under
Title VII, not the Equal Protection Clause. And Skrmetti is an Equal
Protection Clause case. But the first step in both Title VII and
Equal Protection Clause cases requires us to determine whether
the law or program at issue classifies on the basis of a protected
status. Though Title VII and Equal Protection Clause analyses
don’t always use the same understandings of discriminatory classi-
fications to determine the answer to that first step, Skrmetti says it
applied both understandings of discriminatory classifications and
1 More precisely, Skrmetti addressed the constitutionality of a law that “pro-
hibit[ed] a healthcare provider from ‘[s]urgically removing, modifying, alter-
ing, or entering into tissues, cavities, or organs of a human being,’ or ‘[p]re-
scribing, administering, or dispensing any puberty blocker or hormone,’ for
the purpose of (1) ‘[e]nabling a minor to identify with, or live as, a purported
identity inconsistent with the minor’s sex,’ or (2) ‘[t]reating purported discom-
fort or distress from a discordance between the minor’s sex and asserted iden-
tity.’” 145 at 1826 (internal citations omitted).
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2 ROSENBAUM, J., Concurring in the Judgment 22-13626
arrived at the same answer: the law in Skrmetti did not use a dis-
criminatory classification.
In particular, the Court held that a law that prohibited
healthcare providers from prescribing puberty blockers and hor-
mones to minors—but only for a diagnosis of gender dysphoria—
did not classify by sex or transgender status. And because a party
argued that Title VII’s methodology requires the conclusion that
the law classified by sex, Skrmetti had to consider whether it did.
Skrmetti determined that Title VII demands no such conclusion.
That binds us.
As I explain later in this opinion, I haven’t found a meaning-
ful way to distinguish Houston County’s healthcare plan—which
excludes from coverage certain surgeries, but only if they involve
(in the words of the plan) a “sex change” (a procedure one would
have only to address gender dysphoria)—from the law at issue in
Skrmetti. So Skrmetti requires me to conclude that the plan doesn’t
classify by sex.
I say this with deep regret for three reasons. First, as Judge
Wilson explains, see Wilson Op. at 2 n.2, the record compellingly
reveals that Houston County precludes sex-affirming surgeries for
discriminatory reasons. Despite this, our decision today leaves
Lange with no remedy for her disparate-treatment claim. Second,
most respectfully, Skrmetti’s conclusion that the law there didn’t
discriminate by sex or transgender status, even under Title VII’s
understanding of discriminatory classifications, conflicts with dec-
ades of Title VII jurisprudence culminating in Bostock v. Clayton
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22-13626 ROSENBAUM, J., Concurring in the Judgment 3
County, 590 U.S. 644 (2020), the opinion on which it relies. In my
view, Skrmetti incorrectly applies Bostock’s test, so it wrongly deter-
mines that the Skrmetti law did not classify by sex. And third,
Skrmetti’s determination that the law there didn’t discriminate by
sex or transgender status, even under Title VII’s understanding of
discriminatory classifications, effectively imports the reasoning of
Geduldig v. Aiello, 417 U.S. 484 (1974), into Title VII jurisprudence.
But Congress expressly amended Title VII to reject the holding and
reasoning of Geduldig, overriding the Supreme Court’s extension of
the reasoning of that case to the statute. The Supreme Court itself
recognized this in Newport News Shipbuilding & Dry Dock Co. v. Equal
Employment Opportunity Commission, 462 U.S. 669, 678 (1983) (ac-
knowledging that “[w]hen Congress amended Title VII in 1978, it
unambiguously expressed its disapproval of both the holding and the
reasoning of the Court in the [General Electric Co. v.] Gilbert[2] deci-
sion,” which had applied Geduldig’s understanding of discrimina-
tory classifications to the Title VII context (emphasis added)).
Geduldig is a fifty-one-year-old opinio non grata that the Court
had essentially exiled—even in the Equal Protection Clause con-
text—until just recently. For good reason. Most respectfully,
Geduldig’s reasoning is illogical and cannot peacefully coexist with
the Supreme Court’s discrimination jurisprudence—or even with
the concept of discrimination.
2 429 U.S. 125 (1976).
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4 ROSENBAUM, J., Concurring in the Judgment 22-13626
But Geduldig’s doctrinal shortcomings shouldn’t surprise us.
After all, the Supreme Court issued it in 1974—two years before the
Court first articulated its modern-day framework for how courts
analyze sex-discrimination claims under the Equal Protection
Clause. See Craig v. Boren, 429 U.S. 190, 197 (1976). 3 So the Court
couldn’t have designed Geduldig to be consistent with the body of
antidiscrimination law that came after it. 4
I write separately to explain how Skrmetti incorrectly im-
ports Geduldig’s reasoning into Title VII and to respectfully add my
voice to the chorus of those urging the Court to reconsider
Geduldig’s reasoning and Skrmetti. 5
3 In stating the standard, Craig held that “[t]o withstand constitutional chal-
lenge, . . . classifications by gender must serve important governmental objec-
tives and must be substantially related to achievement of those objectives.”
429 U.S. at 197. In other words, under our modern Equal Protection frame-
work, “sex-based classifications warrant heightened scrutiny.” Skrmetti, 145 S.
Ct. at 1828.
4 See Leah Litman, The Archaic Sex-Discrimination Case the Supreme Court Is Re-
viving, THE ATLANTIC (June 24, 2025), https://www.theatlan-
tic.com/ideas/archive/2025/06/supreme-court-sex-discrimination-
skrmetti/683296/ [https://perma.cc/XK4B-G6T7] (observing that “height-
ened judicial scrutiny” didn’t apply “[a]t the time Geduldig was decided”).
5 See, e.g., Skrmetti, 145 at 1880 (Sotomayor, J., dissenting) (“Geduldig was ‘egre-
giously wrong’ when it was decided . . . .” (quoting Coleman v. Court of Appeals
of Md., 566 U.S. 30, 56–57 (2012) (Ginsburg, J., dissenting))); AT&T Corp. v.
Hulteen, 556 U.S. 701, 728 n.17 (2009) (Ginsburg, J., dissenting) (collecting
sources critiquing Geduldig’s reasoning); Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 327 (1993) (Stevens, J., dissenting); Sylvia A. Law, Rethink-
ing Sex and the Constitution, 132 U. PA. L. REV. 955, 983–84 (1984) (“Criticizing
Geduldig has since become a cottage industry. Over two dozen law review
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22-13626 ROSENBAUM, J., Concurring in the Judgment 5
This concurrence proceeds in three parts. First, I summarize
how discrimination jurisprudence generally works. Then, I explain
why Geduldig clashes with that framework, is illogical even on its
own terms, and should be overturned. And last, I show how
Skrmetti wrongly applied Bostock and, in the process, imported
Geduldig’s reasoning when it determined that the law there did not
classify by sex or transgender status, even under Title VII’s meth-
odology for determining discriminatory classes.
I. The Equal Protection Clause’s Two-Step Approach to
Discrimination Law
To explain why Geduldig was wrongly reasoned, we must
think about how discrimination jurisprudence generally works.
But first, a remark on terminology: I use the phrase “dis-
crimination jurisprudence” throughout this concurrence as a short-
hand. Of course, the right to be free from discrimination has many
sources in American law. These include the Equal Protection
Clause of the Fourteenth Amendment, Title VII of the Civil Rights
Act of 1964, and more specific employment-related statutes—like
the Equal Pay Act of 1963, the Age Discrimination in Employment
Act of 1967, the Pregnancy Discrimination Act of 1978, and the
articles have condemned both the Court’s approach and the result. . . . Even
the principal scholarly defense of Geduldig admits that the Court was wrong in
refusing to recognize that the classification was sex-based . . . .”); ERWIN
CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 779 (4th ed.
2011) (“It is hard to imagine a clearer sex-based distinction [than the one in
Geduldig].”).
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6 ROSENBAUM, J., Concurring in the Judgment 22-13626
Americans with Disabilities Act of 1990, among others. So of
course, the analysis of discrimination claims isn’t identical across
statutes, 6 or between Title VII and the Equal Protection Clause.
Equal Protection Clause discrimination jurisprudence uses a
two-step analysis to determine whether a violation has occurred.
At the first step, we ask “whether a law ‘differentiate[s] on the basis
of [a suspect classification, like sex, race, national origin, or reli-
gion].’” Skrmetti, 145 S. Ct. at 1875 & n.9 (Sotomayor, J., dissent-
ing) (quoting Sessions v. Morales-Santana, 582 U.S. 47, 58 (2017)). If
so, we proceed to the second step. At step two, we consider
whether the state has met its “demanding” “burden” of showing
that a law that differentiates on the basis of a suspect classification
on its face has an “exceedingly persuasive” justification. United
States v. Virginia, 518 U.S. 515, 533 (1996).
Similarly, for a facial challenge like Lange’s, Title VII prece-
dents like Bostock “ask[] the very same question our equal protec-
tion precedents do” at step one of the analysis—namely, “whether
a law ‘differentiate[s] on the basis of gender.’” Skrmetti, 145 S. Ct.
6 That said, Congress passed many of the employment-discrimination laws
that postdate Title VII to expand some of Title VII’s protections to other
groups. See Abigail C. Modjeska, 1 EMPLOYMENT DISCRIMINATION LAW § 1:1
(3rd ed.). “Because of this historical development, the early Title VII cases
gave rise to many of the substantive doctrines that are now applied in all em-
ployment discrimination cases.” Id.; see also, e.g., Lewis v. City of Union City, 918
F.3d 1213, 1221 n.7 (11th Cir. 2019) (en banc) (“McDonnell Douglas’s burden-
shifting framework applies to claims arising under a host of federal antidis-
crimination laws.”).
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22-13626 ROSENBAUM, J., Concurring in the Judgment 7
at 1875 & n.9 (Sotomayor, J., dissenting) (quoting Sessions, 582 U.S.
at 58). If so, that’s pretty much the end of the Title VII inquiry
because “Title VII offers employers no similar opportunity [to step
two of the Equal Protection Clause framework] justify discrimina-
tion . . . .” Id. at 1875 n.9.
Importantly, both Title VII and the Equal Protection Clause
ask whether a law classifies by a protected class at the level of the
individual. See Bostock, 590 U.S. at 658 (stating that in analyzing
Title VII claims, “our focus should be on individuals, not groups”);
Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) (“[T]he
. . . Fourteenth Amendment[] to the Constitution protect[s] per-
sons, not groups.” (emphases in original)). But while the Court’s
“cases discussing constitutional principles [in the Equal Protection
context] can provide helpful guidance in th[e] statutory context” of
Title VII, the analyses aren’t entirely coextensive. See Ricci v. DeSte-
fano, 557 U.S. 557, 582 (2009) (emphasis added).
In particular, at step one of the analysis, they differ when it
comes to how each line of precedent treats Geduldig—which un-
dergirded the Supreme Court’s decision in Skrmetti.
This is significant. It means the analysis can differ in how we
answer the question whether a given law classifies on the basis of
sex. I explain this further in the next section. In Skrmetti’s Equal
Protection context, the Court embraced Geduldig’s logic. See 145 S.
Ct. at 1833–34. But in the context of Title VII, the Court—and
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8 ROSENBAUM, J., Concurring in the Judgment 22-13626
Congress, for that matter—have expressly rejected that reasoning.7
See J. Pryor Dissenting Op. at 2–3; see also Newport News, 462 U.S. at
678.
So to be sure, the analyses under the Equal Protection
Clause and Title VII aren’t identical. And this concurrence isn’t, of
course, a treatise on nondiscrimination law, nor does it intend to
serve as a comprehensive primer on all the nuanced distinctions
among different species of discrimination claims. Rather, what
matters, for our purposes, is discussing the high-level two-step
analysis that generally applies to disparate-treatment discrimina-
tion claims under (as relevant here) the Equal Protection Clause
and how the first step of that analysis differs under Title VII, even
though we ask the same question about whether a law classifies on
a suspect (or protected, in Title VII cases) classification basis in both
frameworks.
7 Perhaps it may seem unusual that the same question may generate two dif-
ferent answers in two different contexts. But sometimes that’s what the law
requires. Here, we are considering a constitutional provision (the Equal Pro-
tection Clause of the Fourteenth Amendment) and a statutory one (Title VII).
The Supreme Court gets to interpret the Constitution. See generally Marbury
v. Madison, 5 U.S. 137 (1803). But Congress can pass laws telling the Court
when it’s erred in construing Congress’s legislation—through a congressional
override. See, e.g., Deborah Widiss, Undermining Congressional Overrides: The
Hydra Problem in Statutory Interpretation, 90 TEX. L. REV. 859, 875 (2012) (ex-
plaining that congressional overrides are “a crucial mechanism of maintaining
legislative supremacy in the statutory realm”). That’s exactly what Congress
did when it amended Title VII and enacted the Pregnancy Discrimination Act:
it overrode the Supreme Court’s Geduldig reasoning as applied to the Title VII
context. See Newport News, 462 U.S. at 678.
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22-13626 ROSENBAUM, J., Concurring in the Judgment 9
With that background in mind, I zoom in on the Equal Pro-
tection framework.
As I’ve mentioned, Equal Protection Clause discrimination
jurisprudence generally employs a two-step analysis. See, e.g., Rus-
sell W. Galloway, Jr., Basic Equal Protection Analysis, 29 SANTA
CLARA L. REV. 121, 123–24 (1989). At the first step, we consider
whether the challenged program classifies on the basis of a suspect
classification—that is, a classification like sex, race, national origin,
or religion. See id.
We call them “suspect” classifications because legislatures
have historically unjustly discriminated against those groups,
simply because their members are born into them. See, e.g., id. at
133–36, 145 n.111 (“Intensified scrutiny is appropriate because, his-
torically, [protected-class members] have been the victims of dis-
crimination.”); Sessions, 582 U.S. at 62–64. But the Constitution
considers all Americans to be born equal. See, e.g., U.S. CONST.
amend. XIV, § 1; AKHIL REED AMAR, AMERICA’S CONSTITUTION: A
BIOGRAPHY 380–85 (2005). So when a law classifies on the basis of
a suspect classification, we must conduct a methodical, searching
inquiry into it to ensure that the law doesn’t violate the Constitu-
tion. See Galloway, supra, at 123–24.
That’s why the answer to the first question of Equal Protec-
tion Clause discrimination analysis—whether the law classifies by
a suspect classification—determines what we do at the second step
of the analysis. If the program doesn’t classify on the basis of a sus-
pect classification, we apply rational-basis scrutiny to the law or
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10 ROSENBAUM, J., Concurring in the Judgment 22-13626
program. And rational-basis scrutiny means the program will usu-
ally survive constitutional review because we need only hypothe-
size a rational reason for the program to uphold it. 8 We generally
trust the legislature has a good reason for classifying on these bases.
See id.
But if the program classifies on the basis of a suspect classifi-
cation, we apply heightened scrutiny in reviewing it. Depending
on the suspect classification, that level of scrutiny can be interme-
diate or strict. But either way, it is far harder for a program to sur-
vive heightened scrutiny than rational-basis review. That is, we
look with a skeptical eye towards these classifications because of
legislatures’ historical practice of unjustly discriminating on these
bases. We need to make sure that the real purpose behind the chal-
lenged law is not to treat a group of people unequally, as can often
be the case with these classifications. See id.
Because whether a program classifies on the basis of a sus-
pect classification often determines whether it can survive the sec-
ond step of the Equal Protection Clause discrimination-jurispru-
dence framework, it is critical to get the first step of discrimination
analysis right. But Geduldig didn’t. And in the process, it illogically
distorted and hopelessly confused the definition of “classification.”
8 That is not to say that rational-basis review never invalidates a law. If a law
classifies by a class that is not protected “not to further a proper legislative end
but to make them unequal to everyone else,” it will not pass rational-basis
scrutiny. Romer v. Evans, 517 U.S. 620, 625 (1996). After all, “[e]qual protection
of the laws is not achieved through indiscriminate imposition of inequalities.”
Id. (citations and quotation marks omitted).
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22-13626 ROSENBAUM, J., Concurring in the Judgment 11
As a result, Geduldig subjects laws that we should be skeptical of, in
light of our country’s history of sex discrimination, to the deference
of rational-basis review. And in fact, as I explain in the next section,
Geduldig itself does just that.
II. Geduldig’s Illogical Misapplication of Discrimination
Law
In Geduldig, the Court analyzed whether California’s disabil-
ity insurance plan violated the Equal Protection Clause. All work-
ers—both male and female—had to pay 1% of their wages into the
insurance plan. But the state defined “disability” to exclude cover-
age for “certain disabilities resulting from pregnancy.” 417 U.S. at
486.
Even though only women can get pregnant and the pro-
gram didn’t exclude coverage for any male-exclusive conditions, see
id. at 489, the Court determined that the program didn’t classify by
sex, id. at 494–97. The Court reasoned that the program “divided
potential recipients into two groups: ‘pregnant women and non-
pregnant persons,’” and “women fell into both groups[.]” Skrmetti,
145 S. Ct. at 1833 (quoting Geduldig, 417 U.S. at 496 n.20). So, the
Court concluded, “the program did not discriminate against
women as a class.” Id. Rather, the Court characterized the pro-
gram as doing no more than “remov[ing] one physical condition—
pregnancy—from the list of compensable disabilities.” Geduldig,
417 U.S. at 496 n.20. And in determining that the program didn’t
classify by sex, the Court also considered that the cost of the
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12 ROSENBAUM, J., Concurring in the Judgment 22-13626
program would increase if it covered pregnancy-related disabilities.
See id. at 493–94.
Geduldig’s classification determination is wrong for at least
four reasons.
First, it is factually incorrect to say that the program, which
excluded coverage for pregnancy-related conditions, which only fe-
males can experience, while covering male-only medical condi-
tions, did not classify by sex. 9 Indeed, in its most classic formula-
tion, a classification is based on sex when an individual assigned
female at birth is disadvantaged relative to a comparable individual
assigned male at birth (or vice versa), because of that person’s sex.10
That’s exactly what occurs when females who have sex-linked
medical conditions receive no protection while males with sex-
linked medical conditions do.
Second, Geduldig’s logic embraces historic sex stereotyping,
which flouts the purpose of antidiscrimination law. At step one,
we must decide whether a law differentiates on the basis of a sus-
pect classification because laws that do may have been driven by
sex stereotyping or other forms of discriminatory animus. And
ironically, the line Geduldig draws—on pregnancy—buys into the
9 We know that the insurance plan in Geduldig covered male-only medical con-
ditions because it covered prostatectomies, among other “disabilities . . . that
affect only or primarily [the male] sex.” See id. at 501 (Brennan, J., dissenting).
10 For ease of reading, for the remainder of this opinion, I refer to those as-
signed female at birth as “females” and those assigned male at birth as “males.”
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22-13626 ROSENBAUM, J., Concurring in the Judgment 13
exact kind of historic sex stereotyping that our antidiscrimination
jurisprudence is designed to root out.
Third, Geduldig effectively applies a special and unwarranted
exception for suspect classifications that also involve medical con-
ditions. But discrimination on the basis of medical conditions is
often a proxy for discrimination on the basis of suspect classifica-
tions. So excusing discrimination on the basis of a suspect class
merely because it also involves medical conditions allows laws that
discriminate on the basis of a suspected classification to avoid the
heightened scrutiny they deserve.
And fourth, Geduldig’s logic improperly invites courts to
consider, at step one, whether a law is justified when they should
be assessing only whether a law classifies on the basis of a suspect
classification. That undermines the courts’ ability to engage in
meaningful scrutiny at step two.
I explain each problem below.
A. Geduldig is illogically reasoned under our discrimination
jurisprudence.
First, despite Geduldig’s holding, it’s common sense that a
program that excludes coverage for female-only medical condi-
tions, but not any male-only ones, commits sex discrimination.
That remains true even if that program discriminates on the basis
of a condition not all females endure.
Many of our classic antidiscrimination cases bear this out.
For example, not all women wished or tried to attend the
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14 ROSENBAUM, J., Concurring in the Judgment 22-13626
prestigious Virginia Military Institute (“VMI”) when just 347
women inquired into attending in 1988 and 1989. See Virginia, 518
U.S. at 523. Yet even in the Equal Protection Clause context, the
Supreme Court understood and held that VMI’s program discrim-
inated against women because the school refused to consider
women for admission because they were women. See generally id.
It made no difference that not every woman wanted or had the
physical fitness to attend VMI. For purposes of finding a sex classi-
fication under the Equal Protection Clause, it was enough that VMI
refused to consider the women who did wish to attend and were
fit enough to do so, simply because they were women.
But under Geduldig’s logic, women fall into the categories of
those who wish to attend VMI and those who don’t. So Geduldig
would incorrectly conclude that VMI did not discriminate against
women under the Equal Protection Clause.
Or consider an example Justice Sotomayor raised in Skrmetti.
As she explained, “Geduldig’s reasoning may well suggest that a law
depriving all individuals who ‘have ever, or may someday, men-
struate’ of access to health insurance would be sex neutral merely
because not all women menstruate.” 145 S. Ct. at 1880 (So-
tomayor, J., dissenting). Indeed, Geduldig’s logic does demand that
conclusion. Menstruation, like pregnancy, is a condition that not
all females experience.
But obviously, a classification on the basis of menstruation
classifies by sex. It discriminates against women because only fe-
males have ever, or may someday, menstruate. So though such a
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22-13626 ROSENBAUM, J., Concurring in the Judgment 15
law doesn’t mention females expressly, it excludes most females—
and no males—from healthcare coverage. That is a sex classifica-
tion, whether or not the law expressly refers to men and women.
After all, a discriminatory law can’t skirt antidiscrimination law
simply by clever drafting that avoids employing express prohibited-
class classification in its description. See id. at 1831 (majority opin-
ion) (“Of course, a State may not circumvent the Equal Protection
Clause by writing in abstract terms.”).
Nor does it matter that not all women have ever menstru-
ated or will menstruate. That is, it makes no difference that, as in
Geduldig, women fall on both sides of the line that the challenged
law draws. The law still classifies by sex. Cf. Loving v. Virginia, 388
U.S. 1, 8 (1967) (“The mere fact of equal application does not mean
that our analysis of these statutes should follow the approach we
have taken in cases involving no racial discrimination . . . .”). The
same is true even though the hypothetical law classifies by a phys-
ical condition. When a law classifies by a characteristic or condi-
tion that is inherently, solely, and overwhelmingly experienced by
or connected with only one sex, the law classifies by sex just as
surely as if it employed the term “women” or “men.”
The rest of antidiscrimination law requires this conclusion.
Indeed, if nothing counted as discrimination unless it happened to
every member of a protected class, we couldn’t have facial discrim-
ination claims. That some members of a protected group don’t
suffer under a facially discriminatory policy doesn’t mean the
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16 ROSENBAUM, J., Concurring in the Judgment 22-13626
policy’s not facially discriminatory; it means only that the policy
hasn’t yet been applied against that person.
Consider a government employer that has a “Dress Code
and Appearance” policy. This hypothetical policy requires employ-
ees to maintain a “professional” appearance at all times. Let’s say
the policy prohibits employees from wearing ashes on their fore-
heads or donning yarmulkes, but it doesn’t prohibit the wearing of
turbans.
Now imagine an employee comes into work on Ash
Wednesday with ashes on her forehead in the sign of the cross.
And another employee wears a yarmulke to the office. The em-
ployer writes them up. Has the employer’s policy discriminated
against these workers because they’re Catholic and Jewish, respec-
tively?
On Geduldig’s reasoning, the answer is no. Not all Catholics
attend mass on Ash Wednesday and receive ashes on their fore-
heads, and not all Jews wear yarmulkes—just as not all women are
pregnant or have menstruated. No matter that everybody (for the
most part) who receives ashes on their forehead is Catholic, who
wears a yarmulke is Jewish, and who is pregnant or menstruates
was assigned female at birth.
Geduldig’s logic draws lines by requiring every member of a
protected class to actually participate in the prohibited conduct or
endure the targeted condition for the challenged program. But
that’s not how antidiscrimination law works—even under non-
Geduldig Equal Protection Clause jurisprudence. As I’ve noted, in
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22-13626 ROSENBAUM, J., Concurring in the Judgment 17
United States v. Virginia, not every woman wanted or was otherwise
eligible to attend VMI. VMI’s admission policy had no effect on
the majority of women’s lives. But the fact that the overwhelming
percentage of women (far more than who become pregnant) didn’t
suffer any harm from VMI’s policy didn’t make the policy any less
of a classification by sex or discriminatory against women.
Similarly, the law at issue in Loving v. Virginia violated the
Equal Protection Clause because it banned interracial marriages—
even though not every member of any given racial group was in
(or sought out) an interracial marriage. See 388 U.S. at 11. It didn’t
matter that people of any particular racial group existed on both
sides of the line, with some of them in interracial relationships and
some not. 11
So just because every Catholic doesn’t wear ashes on Ash
Wednesday doesn’t mean a policy targeting ash-wearers doesn’t
classify by Catholicism. Nor does the fact that not every Jew wears
a yarmulke mean a policy targeting yarmulke-wearers doesn’t dis-
criminate against Jews. Similarly, not every woman gets pregnant
or menstruates; but that doesn’t mean that laws targeting those
conditions wouldn’t classify by sex and discriminate against
women. Policies that target a protected class in this way—harming
11 True, as Skrmetti noted, Virginia’s antimiscegenation law included an ex-
press “race-based classification,” anyway. See 145 S. Ct. at 1831. But again,
antidiscrimination law does not turn on magic words or express classifications
because, “[o]f course, a State may not circumvent the Equal Protection Clause
by writing in abstract terms.” See id.
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18 ROSENBAUM, J., Concurring in the Judgment 22-13626
only people in that class, though not harming all people in that
class—can still be discriminatory.
In short, Geduldig’s reasoning is at war with our antidiscrim-
ination law. Indeed, Congress has recognized Geduldig’s logic con-
flicts with antidiscrimination law. Two years after the Court issued
Geduldig, the Court relied on Geduldig to conclude in General Electric
Co. v. Gilbert, 429 U.S 125 (1976), that an employer’s disability-in-
surance program that paid nonoccupational benefits but didn’t
cover pregnancy-related disabilities didn’t violate Title VII. Id. at
128. The Court explained its decision by assuming “that the Four-
teenth Amendment standard of discrimination is coterminous with
that applicable to Title VII,” id. at 154 n.6 (J. Brennan, dissenting);
see also id. at 412–13, and then applying Geduldig. Two years later,
Congress passed the Pregnancy Discrimination Act of 1978 12 and
amended Title VII.
The Supreme Court told us what this meant for Geduldig—
at least, as applied to the Title VII context—in Newport News. To
the point, the Court explained that, with the 1978 amendments,
Congress adopted the dissenters’ position in Geduldig. See 462 U.S.
at 683–84. So a program need not cover one group as a whole, and
not cover another group as a whole, to count as discriminatory. See
id. at 683. Differences in coverage of a smaller “magnitude” can
12 Pub. L. No. 95-555, § 1, 92 Stat. 2076, 2076 (codified at 42 U.S.C. § 2000e(k)
(2012)).
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violate Title VII. 13 Id. As a result, the Court found that the health
plan at issue in Newport News discriminated on the basis of sex be-
cause it “unlawfully [gave] married male employees a benefit pack-
age for their dependents that is less inclusive than the dependency
coverage provided to married female employees.” Id. at 684.
Not only that, but the Court noted that, through its amend-
ments to Title VII, Congress had “made clear that, for all Title VII
purposes, discrimination based on a woman’s pregnancy is, on its
face, discrimination because of her sex.” Id. In other words, classi-
fying on the basis of a physical or medical condition that is unique
to one sex is the same thing as classifying on the basis of sex.
Newport News’s reasoning seemingly inflicts a death blow on
Geduldig’s logic for two reasons. First, Geduldig’s logic effectively
requires that a program burden all members of a protected class to
“classify” on a protected basis. The health plan in Newport News, of
course, didn’t. And second, Geduldig’s logic excuses classification
on the basis of sex if it can be recharacterized on the basis of a phys-
ical or medical condition—even if only one sex experiences that
condition.
13 For example, the Court explained, “a plan that provided complete hospital-
ization coverage for the spouses of female employees but did not cover
spouses of male employees when they had broken bones would violate Title
VII by discriminating against male employees.” Id. That’s so even though
some “diagnoses” of male employees’ spouses (namely, those that don’t in-
volve broken bones) remain covered. The point was that this plan discrimi-
nated in part on the basis of sex. See id.
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20 ROSENBAUM, J., Concurring in the Judgment 22-13626
We don’t have to wonder whether the Newport News Court
knew what it was doing when it flatly rejected Geduldig’s reasoning.
Rather, the Court told us that Congress “unambiguously” rejected
“both the holding and the reasoning” of Geduldig when it passed the
Pregnancy Discrimination Act of 1978. Id. at 678 (emphasis added).
In fact, the Court emphasized, it understood that Congress did not
“limit[] the scope of the act to the specific problem that motivated
its enactment.” Id. at 679. Put simply, Geduldig no more for Title
VII jurisprudence.
And it’s not just Newport News. The Supreme Court has
taken the same tack in several of its other post-Geduldig Title VII
decisions, too. For example, the Supreme Court found that a pol-
icy was facially discriminatory when it barred all fertile women
(but not infertile women) from jobs involving lead exposure in
UAW v. Johnson Controls, Inc., 499 U.S. 187, 190–91, 198–98 (1991).
In neither Johnson Controls nor Newport News did it matter that peo-
ple within the suspect class stood on both sides of the line. See also
Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“It is clear that Con-
gress [in Title VII] never intended to give an employer license to
discriminate against some employees on the basis of race or sex
merely because he favorably treats other members of the employ-
ees’ group. . . . Title VII does not permit the victim of a facially
discriminatory policy to be told that he has not been wronged be-
cause other persons of his or her race or sex were hired.”).
At bottom, it’s simply factually incorrect to say that a law or
a program that targets the conditions or characteristics of only
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22-13626 ROSENBAUM, J., Concurring in the Judgment 21
members of a protected class does not classify by protected class,
even if it doesn’t affect each and every member of that protected
class. Congress has already rejected that reasoning, and until re-
cently, the Supreme Court had, too.
B. Geduldig’s logic embraces, rather than rectifies, historical
sex-stereotyping discrimination.
Second, Geduldig’s logic effectively embraces a historic sex-
discrimination rationale: that the fact that women can become
pregnant somehow justifies treating them less favorably. We see
this in the example of Geduldig itself.
Shortly after the Court issued its opinion, Professor
Katharine T. Bartlett recognized this irony: “That women may and
do become pregnant is the most significant single factor used to
justify the countless laws and practices that have disadvantaged
women for centuries.” Katharine T. Bartlett, Comment, Pregnancy
and the Constitution: The Uniqueness Trap, 62 CALIF. L. REV. 1532,
1532 (1974). Justice Ginsburg recognized this as well, as our anti-
discrimination jurisprudence continued to develop. See Coleman v.
Ct. of Appeals of Md., 566 U.S. 30, 56 (2012) (Ginsburg, J., dissenting)
(stating that because “pregnancy provided a central justification for
. . . historic discrimination against women,” Geduldig “was egre-
giously wrong to declare that discrimination on the basis of preg-
nancy is not discrimination on the basis of sex” (emphasis added)).
Pregnancy has long been leveraged as a means of differenti-
ating between men and women in employment, disability benefits,
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22 ROSENBAUM, J., Concurring in the Judgment 22-13626
and more.14 Indeed, employers have weaponized pregnancy as an
excuse to discriminate against women for years—and employers’
views on pregnancy have been “inextricably intertwined with
[their] ‘stereotypical views about women’s commitment to work
and their value as employees.’” Id. (citation omitted). In finding
that California’s disability-insurance program wasn’t sex-based, the
Geduldig Court ignored this history and, in effect, endorsed the
United States’s historically ingrained practice of discriminating
against women on the basis of pregnancy.
C. Geduldig illogically endorses laws that classify on the ba-
sis of a suspect classification just because they also classify
by medical condition.
Third, Geduldig’s reasoning is illogical because it gives a free
pass to laws that discriminate on the basis of suspect classifications,
if they also involve medical classifications. For instance, in Skrmetti,
the Court described Geduldig as standing for the proposition that a
law doesn’t classify by sex “by regulating a medical procedure that
only one sex can undergo unless the regulation is a mere pretext
for invidious sex discrimination.” See 145 S. Ct. at 1833. But that
14 See, e.g., Reva B. Siegel, Employment Equality Under the Pregnancy Discrimina-
tion Act of 1978, 94 YALE L.J. 929, 942 & n.63 (1985) (observing that pregnancy
is “traditionally believed to render women unfit for employment” and collect-
ing sources); Maya Manian, Commentary on Geduldig v. Aiello, in FEMINIST
JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT
185, 187 (Kathryn M. Stanchi, Linda L. Berger & Bridget J. Crawford eds.,
2016) (arguing that the Geduldig majority ignored “the long history of
women’s subordination based on their capacity for pregnancy”).
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22-13626 ROSENBAUM, J., Concurring in the Judgment 23
approach conflates the first and second steps of antidiscrimination
analysis. First, we have to ask whether the law classifies by sex.
Only then can we ask, at step two, why the law classifies by sex—
whether for a legitimate reason or a discriminatory (invidious) one.
The regulation’s justification doesn’t affect whether the law
classifies by sex in the first place, though. A law justified on
grounds having to do with “medical classifications” can still classify
on the basis of sex, too, as I’ll get to shortly.
The Skrmetti Court also distinguished Justice Sotomayor’s
hypothetical law that classifies on the basis of menstruation from
Geduldig by saying that the hypothetical law “does not regulate a
class of treatments or conditions. Rather, it regulates a class of per-
sons identified on the basis of a specified characteristic.” Id. at 1834
n.3.
Yet the fact that a law regulates medical treatments or con-
ditions doesn’t necessarily insulate it logically or factually from also
classifying by sex. Imagine, for instance, that besides excluding
coverage for pregnancy-related disabilities, the California disability
insurance plan at issue in Geduldig also excluded coverage for disa-
bilities relating to uterine cancer, polycystic ovary syndrome, uter-
ine fibroids, ovarian cancer, endometriosis, cervical cancer, and
Turner syndrome—all medical conditions that affect only females.
But at the same time, the law provided coverage for disabilities aris-
ing from all other medical conditions, including prostate issues,
erectile dysfunction, testicular cancer, and other conditions that
only males can get. So the law denied coverage for several (and
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24 ROSENBAUM, J., Concurring in the Judgment 22-13626
only) disabilities arising from medical conditions that only females
can suffer, while males enjoyed coverage for disabilities arising
from any medical conditions they might have, including those that
only males can present with. That’s a classification on the basis of
sex, even if the law also classifies on the basis of medical condi-
tion. 15
Or take another example. Imagine a healthcare plan that
precludes treatment for or relating to circumcised penises. Cir-
cumcision is a medical condition. It also happens to be a medical
condition that is religiously mandated for many in Judaism and Is-
lam, so it is widely shared by Jews and Muslims in comparison to
members of other religions (or no religion). But just because the
plan classifies by medical condition doesn’t mean that it doesn’t
also classify by religion.
For all the reasons I’ve already discussed in this opinion,
laws like these certainly classify by suspect classification, even
though they also classify by medical condition. Cf. Bostock, 590 U.S.
at 667 (“Sex wasn’t the only factor, or maybe even the main factor,
but it was one but-for cause—and that was enough.”). And
Geduldig’s failure to recognize this fact caused it to incorrectly
15 As we’ll get to soon enough, Bostock tells us that we must ask whether the
challenged program or policy classifies on the basis of sex at the level of the
individual. And so we must do that analysis at the appropriate level of gener-
ality. Of course, a program that discriminates against an individual female can
also, in practice, discriminate at a higher level of generalization—that is to say,
against all or most women, as these examples show.
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conclude that the law there didn’t classify on a suspect-classifica-
tion basis.
D. Geduldig improperly collapses the discrete inquiries under
the first and second steps of the discrimination analysis,
which results in applying the wrong level of scrutiny at step
two.
And that brings me to the fourth reason Geduldig is illogical:
Geduldig allowed the second part of the discrimination analysis—
review of the law’s reasons and its tailoring—to leach into and de-
termine the first part—whether the law classifies by protected class.
In particular, the Court reasoned that because covering disabilities
related to pregnancy would increase the cost of California’s pro-
gram, the program regulated only by medical condition and not by
sex. But consideration of the cost—that is, the reason why Califor-
nia decided to write its disability-insurance program the way that it
did—tells us nothing about whether the law classifies by sex. Ra-
ther, that consideration goes to only the second part of the discrim-
ination analysis: whether the state had a legitimate reason for using
a sex-based classification and whether the law is appropriately tai-
lored under the circumstances.
By importing the reason for the state’s classification decision
into the determination of whether the classification classifies on a
protected basis, Geduldig collapses the discrimination analysis. And
that means that Geduldig allows laws that classify on a protected-
class basis—that is, laws that classify in a way that the Constitution
considers especially suspect—to escape application of the correct
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26 ROSENBAUM, J., Concurring in the Judgment 22-13626
(and more exacting) level of scrutiny at the second step of the dis-
crimination analysis. As a result, laws that are unconstitutional
wrongly survive review.
III. Skrmetti misguidedly applied Geduldig’s reasoning
when it interpreted Bostock, which defines Title VII’s
methodology for determining whether a law discrim-
inates on the basis of a protected class.
This section explains why Skrmetti binds us to uphold Hou-
ston County’s healthcare plan. I conclude Skrmetti requires this re-
sult, even though Lange challenges the plan under Title VII, not
the Equal Protection Clause, which Skrmetti was based on. Skrmetti
does so because it imports Geduldig’s reasoning into Title VII anal-
ysis in cases like this one, even though both Congress and the Su-
preme Court previously have told us that Title VII rejects
Geduldig’s reasoning. Still, because the Court chose that path, I’m
obligated to follow it today.
A. Skrmetti requires us to uphold Houston County’s
healthcare plan.
I begin by explaining why Skrmetti requires us to uphold
Houston County’s healthcare plan. As a reminder, the law at issue
in Skrmetti prohibited the administration of gender-affirming drugs
to minors whose birth-assigned sex did not match their gender
identity. See 145 S. Ct. at 1826–27. The Court concluded that the
law didn’t classify on the basis of sex or transgender status. Id. at
1829–34.
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22-13626 ROSENBAUM, J., Concurring in the Judgment 27
In reaching that conclusion, the Court anchored its analysis
in Geduldig’s reasoning. See id. at 1833. It said that the law there
“divide[d] minors into two groups: those who might seek puberty
blockers or hormones to treat the excluded diagnoses, and those
who might seek puberty blockers or hormones to treat other con-
ditions.” Id. But, the Court continued, transgender individuals fall
into both groups. Id. Then the Court compared its analysis of the
law to Geduldig’s analysis of the insurance plan at issue there. It
reasoned, “[A]lthough only transgender individuals seek treatment
for gender dysphoria, gender identity disorder, and gender incon-
gruence—just as only biological women can become pregnant—
there is a ‘lack of identity’ between transgender status and the ex-
cluded medical diagnoses.” Id.
After applying Geduldig to conclude that the Skrmetti law
didn’t classify on a suspect-classification basis, the Court devoted a
separate section of its opinion to responding to arguments that Bos-
tock, a Title VII case, required a different answer. See id. at 1834–
35. The Court concluded Bostock did not. Id. It began by assuming
without deciding that Bostock’s analysis could apply in the Equal
Protection Clause context. Id. at 1834. Next, the Court said it was
applying Bostock. See id.
The Court noted that Bostock “reasoned that Title VII’s ‘be-
cause of’ test incorporates the traditional but-for causation stand-
ard, which ‘directs us to change one thing at a time and see if the
outcome changes. If it does, we have found a but-for cause.’” Id.
(quoting Bostock, 590 U.S. at 656). To apply this test, the Court used
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28 ROSENBAUM, J., Concurring in the Judgment 22-13626
the example of a transgender boy who seeks testosterone to treat
his gender dysphoria—something the law prohibited a healthcare
provider from administering to him. Id. The Court observed that
changing his biological sex from female to male “would still not
permit him the hormones he seeks because he would lack a quali-
fying diagnosis for the testosterone . . . .” Id. Yet “if he had such a
diagnosis,” the Court went on, “he could obtain the testosterone
regardless of his sex or transgender status.” Id. Based on this dis-
cussion, the Court concluded that, “[u]nder the reasoning of Bos-
tock, neither [the transgender boy’s] sex nor his transgender status
is the but-for cause of his inability to obtain testosterone.” Id.
As for the possibility that sex or transgender status might be
one of multiple but-for causes, the Court ruled that out. See id. at
1835. To do so, the Court used an example of a “girl with un-
wanted facial hair inconsistent with her sex,” and a diagnosis of hir-
sutism (male-pattern hair growth). Id. The Court explained that a
healthcare provider could prescribe her puberty blockers or hor-
mones to make her appearance more consistent with her birth-as-
signed gender if she had a diagnosis of male-pattern hair growth.
Id. But if she were a boy, the Court said, that would “not automat-
ically change the operation of [the Skrmetti law].” Id. To show
why, the Court pointed to two different medical diagnoses: gender
dysphoria and precocious puberty. Id. Under the law, a boy
couldn’t get puberty blockers if his diagnosis was gender dysphoria
instead of hirsutism, but he could if it was precocious puberty. Id.
So, the Court concluded, “sex is simply not a but-for cause of [the
Skrmetti law’s] operation.” Id.
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22-13626 ROSENBAUM, J., Concurring in the Judgment 29
Under Skrmetti’s version of Bostock’s reasoning, we could
consider the example of a birth-assigned male with undesired en-
larged breast tissue inconsistent with their sex, who was diagnosed
with gynecomastia. That person could receive a breast reduction
or mastectomy under Houston County’s healthcare plan. But if
they were a birth-assigned female with unwanted breast tissue in-
consistent with their gender identity, that would “not automati-
cally change the operation of [the healthcare plan].” Skrmetti, 145
S. Ct. at 1835. Rather, that birth-assigned female could get a mas-
tectomy if they had breast cancer that warranted it. But they
couldn’t if they wanted the mastectomy to confirm their gender
identity.
I just don’t see a way to distinguish Skrmetti’s application of
Bostock from the healthcare plan at issue here. And because the
Court had to undertake its Bostock analysis to respond to arguments
that Bostock required a different outcome than the Court reached
under Geduldig, I think we are bound by the Court’s Bostock appli-
cation in Skrmetti. In fact, had the Court determined in Skrmetti
that Bostock required a different answer than Geduldig did, the
Court would have had to strike down the Skrmetti law, unless it
also concluded that Bostock’s analysis didn’t govern Equal Protec-
tion Clause cases. But of course, Bostock’s analysis does control Ti-
tle VII cases.
To be sure, Skrmetti’s conclusion that Bostock demands the
same answer as Geduldig seems to conflict with Newport News’s
treatment of Geduldig’s logic in the Title VII context. But because
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30 ROSENBAUM, J., Concurring in the Judgment 22-13626
of Skrmetti, a conflict in Title VII law now exists between Newport
News’s reasoning and Bostock’s, when it comes to the specific area
of transgender individuals and medical diagnoses. When, as here,
two binding precedents that are relevant to a dispute before us con-
flict, we must follow the one that “has direct application” to the
case. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (“We reaf-
firm that ‘[i]f a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which di-
rectly controls, leaving to this Court the prerogative of overrul-
ing its own decisions.’” (citation omitted and emphasis added)).
I don’t think I can say Newport News “has direct application”
to this case, compared to Bostock. Newport News involved preg-
nancy-related discrimination, and the Court considered it under
the Pregnancy Discrimination Act. Bostock, in contrast, does di-
rectly apply here: it specifically involved and analyzed claims of
sex-discrimination on the basis of transgender status. And the
Court in Skrmetti changed how we do the Bostock test, at least in
the specific context of analyzing laws involving transgender indi-
viduals and medical diagnoses. Though I think this was misguided,
it also binds us in this case.
B. Skrmetti incorrectly construed Bostock.
Most respectfully, it seems to me that Skrmetti departed
from what Bostock demands because Skrmetti relied on Geduldig.
Skrmetti inadvertently imported Geduldig’s reasoning—at least
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22-13626 ROSENBAUM, J., Concurring in the Judgment 31
when it comes to challenges that an employer discriminated on the
basis of gender-dysphoria treatments—into the Title VII context.
To explain, we must zoom in on Bostock. Bostock’s founda-
tional principle teaches that to discern sex discrimination under Ti-
tle VII, “our focus should be on individuals, not groups.” Bostock,
590 U.S. at 658. And that principle drove the outcome in Bostock.
There, the Court considered, among other things, whether
an individual gay man suffers sex discrimination when his em-
ployer discriminates against him because he’s attracted to males.
See Bostock, 590 U.S. at 653. When we change the employee’s sex,
they become a female attracted to males, and their employer takes
no issue. So Bostock recognizes that the employer’s change in ac-
tion happens “because of” the employee’s sex. And under Bostock,
our individual male suffered sex discrimination. See id. at 660.
But something else happens when we apply this test; of ne-
cessity, “[a]long the way, we change his sexual orientation too
(from homosexual to heterosexual).” Id. at 671. The gay “man” is
now not only not a “man” but also no longer “gay.” Rather, this
hypothetical person is now a “heterosexual woman” because this
person is a woman attracted to men. We previously labeled this
individual a gay man. But when we change his sex, a new label
definitionally applies—heterosexual woman. We can’t change the
gay man’s sex without changing the more general corresponding
label that describes him—“homosexuality” is not an accurate de-
scriptor anymore, for the hypothetical attracted-to-men female
comparator.
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32 ROSENBAUM, J., Concurring in the Judgment 22-13626
To put it simply, when we describe this prospective plaintiff
at the individual level, we’d say he is (1) a man, who is (2) attracted
to men, and therefore (3) he’s also gay. Bostock counsels us to change
just one thing, so all we change is his sex—and therefore that makes
the hypothetical comparator (now a woman attracted to men)
straight. So the Bostock test changes a male attracted to males into
a female attracted to males, even though doing so makes it no
longer accurate to call our individual “gay.”
The Court could have fashioned a different test in Bostock.
It could have instructed us that to change the sex of a gay male,
keeping all else constant, we change him into a gay female. That
way, the general demographic description of the person would stay
constant. But the Court expressly rejected that approach. See id.
Why? Because a gay female is not the female version of the
gay individual man. Besides being female, the gay female has a sec-
ond trait the gay male doesn’t: she’s attracted to females, but he’s
attracted to males. So her experience doesn’t describe our prospec-
tive plaintiff as an individual nor inform whether he has been dis-
criminated against as an individual. All it does is preserve the cor-
rect general, group-level descriptor—calling the comparator “gay.”
The more general “gay” label takes into account two more specific
things, of course—that our plaintiff is a man, and that he’s attracted
to men. So if we tried to define the comparator on the basis of
retaining this higher-level characteristic of homosexuality, we’d ef-
fectively take away what makes our prospective plaintiff who he is,
as an individual—someone attracted to men. Put differently, we’d
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22-13626 ROSENBAUM, J., Concurring in the Judgment 33
be changing two things about him as an individual, just to fit him
into this bigger “group” of same-sex-attracted people.
But Title VII doesn’t care about group experience—it cares
that no individual bears the brunt of sex discrimination in their
unique experience. In trying to grow a forest, the test Bostock re-
jected misses the individual trees. But the Bostock test doesn’t; it
instructs us that when we change the sex of our person experienc-
ing sex discrimination, we need to describe him with sufficient spec-
ificity to capture his individualistic experience—changing only one
thing at a time. We can’t just change a generic gay male into a gay
female. We need to describe the gay male specifically—as a man
who’s attracted to men—and then change his sex.
To summarize, Bostock creates its own new three-step test.
First, we describe the person alleging discrimination at the correct
level of specificity. At step one, we swap out the label “gay” from
a gay male and describe him in greater detail—he’s a male attracted
to males. Then, at step two, we identify his comparator by chang-
ing his sex, so he becomes a female attracted to males. Now, at
step three, we can redescribe the comparator with any general la-
bels that might help us understand who this new person is. And it
turns out, our new person’s not a gay female but a heterosexual
female. We’ve found the person of the opposite sex whose experi-
ence most closely mirrors him as an individual.
The level of generality at which we describe the person fac-
ing discrimination (i.e., the more general descriptor, “a gay man,”
or the more specific one, “a male attracted to males”), changes how
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34 ROSENBAUM, J., Concurring in the Judgment 22-13626
we do the analysis. And we need to adopt the level of specificity
that Bostock itself did.
Faithfully applying Bostock’s test to Skrmetti’s facts yields an
answer opposite to the one that Skrmetti reached. Let’s consider
Skrmetti’s example of a male who has unwanted facial hair. Zoom-
ing out to a higher level of generality, we give him the general label
of a male seeking gender-dysphoria treatment. But we can’t jump
to step two and change his sex, without doing step one where we
first describe him with sufficient specificity. A male seeking gen-
der-dysphoria treatment doesn’t become a female seeking gender-
dysphoria treatment. A female seeking gender-dysphoria treat-
ment is a person who needs treatment to develop more masculine
features. She isn’t the female version of the male seeking gender-
dysphoria treatment, who needs to develop more feminine fea-
tures.
So at step one, we exchange our individual male’s general
label of a male seeking gender-dysphoria treatment and instead de-
scribe him more specifically—he’s a male with unwanted facial
hair. Then, at step two, we identify his comparator by changing
his sex, so he becomes a female with unwanted facial hair. Now,
at step three, we can redescribe this comparator using any general
labels that might help us understand who this new person is. And
it turns out that our new person’s a female with hirsutism, not gen-
der dysphoria. We’ve found the person of the opposite sex whose
experience most closely mirrors our male as an individual.
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22-13626 ROSENBAUM, J., Concurring in the Judgment 35
As under Bostock, the level of generality at which we describe
the person facing discrimination (i.e., the more general descriptor,
“a male with gender dysphoria,” or the more specific one, “a male
with unwanted facial hair”) changes the outcome of the analysis.
And Bostock requires us to adopt that more specific level of gener-
ality.
Under Bostock, it doesn’t matter that if our individual male’s
diagnosis had been precocious puberty, he could’ve received treat-
ment as a male. But see Skrmetti, 145 S. Ct. at 1835 (reasoning the
opposite). Our hypothetical individual experiencing gender dys-
phoria doesn’t have “precocious puberty.” That condition de-
scribes a separate individual who is irrelevant to the analysis of this
individual with gender dysphoria. The fact that another male
doesn’t experience discrimination and can get the treatment our
individual seeks doesn’t change that our individual has experienced
unlawful discrimination.
That’s what Bostock teaches us. Imagine an employer who
fires an individual gay male only because that male is married to
another male, but the employer would not have fired the male if
he remained unmarried. Under Bostock, that employer violates Ti-
tle VII just as much as if it fired all gay males because it would have
tolerated a female’s marriage to a male. It doesn’t matter that the
employer doesn’t fire all gay males because the employer discrim-
inated against our individual male on the basis of sex. Cf. Bostock,
590 U.S. at 659 (“It’s no defense for the employer to note that, while
he treated that individual woman worse than he would have
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36 ROSENBAUM, J., Concurring in the Judgment 22-13626
treated a man, he gives preferential treatment to female employees
overall. The employer is liable for treating this woman worse in
part because of her sex.” (emphasis in original)).
In the same way, an employer can’t deny employment op-
portunities to pregnant women just because it treats non-pregnant
women fairly, despite the principles of Geduldig. See Newport News,
462 U.S. at 678.
Nor, when we do Bostock’s three steps correctly, will we find
the female version of our hypothetical male is a female with facial
hair who somehow lacks any medical diagnosis. But see Skrmetti,
145 S. Ct. at 1834 (reasoning that the comparator “would lack a
qualifying diagnosis”). That misapplies step three. At step one, we
recognize a male seeking gender-dysphoria treatment is a male
with male-pattern facial hair he seeks to remove to make his face
more feminine. We then do step two, and he becomes a female
with male-pattern facial hair she seeks to remove to make her face
more feminine. And now, we do step three and redescribe her at
the general level. She’s not a person with no medical diagnosis, for
which she needs treatment. The person we have described specifi-
cally would be described more generally at step three as a woman
with hirsutism. That’s the diagnosis she’d walk out of the doctor’s
office with. But that’s not something that we’ve changed; that’s a
descriptor that’s inherently had to change, when we change just her
sex and nothing else. Cf. Bostock, 590 U.S. at 671 (“Along the way,
we change his sexual orientation too (from homosexual to hetero-
sexual).”). And her employer covers treatment for her condition of
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22-13626 ROSENBAUM, J., Concurring in the Judgment 37
hirsutism. So the employer denied treatment to our original indi-
vidual male only because he was male.
Bostock demands we drop the more general labels (i.e.,
someone who meets the definition of “gay,” or whose condition
means the definition of “gender dysphoria”) at step one, so that we
can capture the individual experience (i.e., attending to the specifi-
cally applicable component parts of those definitions). And when
we find, as here, that the female parallel to the individual male with
gender dysphoria would have access to the treatment the original
male wants, that individual male has experienced sex discrimina-
tion. 16 The employer’s actions towards any person other than the
16 The fact that the plan at issue here prohibits coverage for “sex-change rever-
sals” doesn’t show that an individual male seeking a sex-change operation
hasn’t suffered sex discrimination. We need to be careful to accurately con-
duct Bostock’s three steps. Our individual male seeking a sex-change operation
is a male seeking the construction of a vagina. This person has no history of
having undergone a procedure to medically construct a penis. So the female
version of this individual male, found at step two, also doesn’t have this history
of having medically constructed a penis. Rather, the comparator is a female
seeking the construction of a vagina with no history of having a medically con-
structed penis. Otherwise, the comparator is not the female version of the
prospective plaintiff. So at step three, it would be inaccurate to describe the
comparator as a female seeking a “sex-change reversal.” The comparator’s sex
has never been changed. A female seeking a “sex-change reversal” describes a
wholly different person from the female parallel to our individual male. And
that female’s experience is irrelevant to whether our individual has experi-
enced sex discrimination.
An eagle-eyed reader might point out that at step one, we could describe our
individual male as a male with a penis seeking the construction of a vagina.
Then at step two, we change that person to a female with a penis seeking the
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38 ROSENBAUM, J., Concurring in the Judgment 22-13626
exact parallel female individual with hirsutism are irrelevant. No
ifs, ands, or buts: if an employer treats an individual differently
than it would if his sex were different, it has violated Title VII.
construction of a vagina. And at step three, this new person seems like a fe-
male seeking a “sex-change reversal.” But that’s the result of two subtle errors
at steps two and three.
First, at step two, when we change our individual male to a female, we have
to actually change this person into a female—change their birth-assigned sex.
That means we can’t retain the genitalia this person had at birth. So the female
comparator doesn’t have a penis from birth. Otherwise, for example in Bostock
itself, the court should have described a “gay man” as a male with a penis with
which he has sexual relations with males, who, at step two becomes a female
with a penis with which she has sexual relations with males. And at step three,
we would be left with a comparator who is not female but intersex. (Though
Bostock’s implications for intersex individuals are outside the scope of this opin-
ion, others have thoughtfully considered the issue. See, e.g., Sam Parry, Sex
Trait Discrimination: Intersex People and Title VII After Bostock v. Clayton
County, 97 WASH. L. REV. 1149, 1150 (2022) (observing that “[b]ecause current
Title VII jurisprudence assumes there are only two sexes, the legal status of
intersex people remains in limbo”)).
And even if we could carry over our individual male’s penis in step two, it
would be inaccurate, at step three, to describe this new female with a penis as
a female seeking a “sex-change reversal.” That’s because this seemingly inter-
sex person would have had their penis at birth as our original individual male
did—it would not be the result of medical construction. So at step three, we
could not describe this person as seeking a “sex-change reversal.” This indi-
vidual seeks no “reversal” of anything. At bottom, a female seeking a “sex-
change reversal” is just not a relevant comparator for a male seeking a “sex-
change” operation.
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22-13626 ROSENBAUM, J., Concurring in the Judgment 39
C. Skrmetti incorrectly imports Geduldig’s reasoning into
Title VII cases involving transgender individuals seeking
medical treatment.
That was the law until Skrmetti. But in Skrmetti, the Court
determined that a male with gender dysphoria exacerbated by their
facial hair growth may be denied care when a female with hir-
sutism is not because males with “precocious puberty” also receive
treatment. See Skrmetti, 145 S. Ct. at 1835. That is—sex discrimi-
nation against an individual with gender dysphoria is permissible
because other males don’t experience gender dysphoria.17 Skrmetti
justifies discrimination against an individual because other mem-
bers of the group he is a part of are spared. That’s exactly counter
to the principles of Bostock.
Indeed, if Bostock were decided under Skrmetti’s interpreta-
tion of Bostock, Bostock would have come out differently. The
Court would have compared the male and female counterpart at
the more general level of the “gay” label descriptor (instead of the
17 It’s irrelevant under Bostock, that if we take a female with hirsutism, and turn
that person into a male, they might be a male with either “gender dysphoria”
or “precocious puberty.” But see Skrmetti, 145 S. Ct. at 1835. That might in-
form an analysis of whether an individual with hirsutism experiences sex dis-
crimination. But it says nothing, under the Bostock test, about whether a dif-
ferent individual male with gender dysphoria (due to excessive facial hair) ex-
periences sex discrimination. To figure out whether that person experienced
sex discrimination, we change that person’s sex, not the sex of the female with
hirsutism. And when we change the sex of our male with excessive facial hair,
who therefore has gender dysphoria, we always end up with a female with
excessive facial hair, who therefore has hirsutism.
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40 ROSENBAUM, J., Concurring in the Judgment 22-13626
individual level of “attracted to men”) and found that the employer
treated both the male and female employees the same way, so it
didn’t discriminate on the basis of sex. See Bostock, 590 U.S. at 660.
“Why are these” cases involving gender-dysphoria treatment
“different from all the rest? Title VII’s text can offer no answer.”
Id. at 673.
Geduldig gave the Court the answer. It teaches that medical-
related claims are different. And discrimination against individuals
on the basis of sex can be justified for certain individuals with a
medical condition. With Geduldig as its scalpel, Skrmetti performed
surgery on Bostock and incorrectly carved out bans on treatment
for gender dysphoria from Title VII’s protections.
As I’ve explained, though, Congress rejected Geduldig’s rea-
soning for Title VII. That is, Congress amended Title VII to ban
Geduldig’s logic. So if I weren’t bound by Skrmetti, I’d follow my
pre-Skrmetti understanding of Bostock and what I take to be the les-
sons of Congress’s amendment of Title VII. So I’d recognize that a
policy that bars gender-dysphoria treatment is a sex-based classifi-
cation. But I am an inferior-court judge duty bound to follow what
I understand Supreme Court precedent to require. And on my
reading, the Court went the opposite way in Skrmetti. That con-
stricts me here.
IV. Conclusion
In 1976, the Supreme Court in Craig expressly articulated,
for the first time, the intermediate-scrutiny framework for sex-
based discrimination claims under the Equal Protection Clause. See
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22-13626 ROSENBAUM, J., Concurring in the Judgment 41
429 U.S. at 197. Indeed, Craig represented a “compromise on the
standard of review to be used in sex discrimination cases,” see Ken-
neth L. Karst, The Supreme Court, 1976 Term—Foreword: Equal Citi-
zenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 54
(1977), following earlier debates on the Court, see, e.g., Geduldig,
417 U.S. at 498 (Brennan, J., dissenting).18
Two years before any of that happened, the Court issued
Geduldig. Given that the Court hadn’t yet developed its modern
framework for analyzing sex-discrimination claims at that time, it’s
especially curious to rely on Geduldig today. Indeed, Geduldig con-
flicts with modern Equal Protection jurisprudence because the Su-
preme Court issued Geduldig before it developed that jurispru-
dence. And the Supreme Court itself has previously recognized
that Congress amended Title VII because it rejected Geduldig’s rea-
soning.
That history may be part of why the Supreme Court itself
hasn’t relied on Geduldig much over the last half-century. See, e.g.,
Coleman, 566 U.S. at 60 n.6 (Ginsburg, J., dissenting) (noting that
“the plurality d[id] not cite or discuss Geduldig v. Aiello, perhaps
18 Though “[t]he ‘modern’ era [in considering sex-discrimination claims] began
with Reed v. Reed, 404 U.S. 71 (1971),” Craig represented the “compromise”
describing the Court’s modern intermediate standard for these kinds of claims.
See Karst, supra at 54 & n.297. For more on the history of the Court’s then-
developing standard for sex-discrimination claims brought under the Equal
Protection Clause, see Gerald Gunther, The Supreme Court, 1971 Term—Fore-
word: In Search of Evolving Doctrine on a Changing Court: A Model for a New Equal
Protection, 86 HARV. L. REV. 1, 29–30 (1972); see also Law, supra, at 987–88.
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42 ROSENBAUM, J., Concurring in the Judgment 22-13626
embarrassed by that opinion’s widely criticized conclusion that dis-
crimination based on pregnancy does not involve ‘discrimination
based upon gender as such’” (internal citations omitted)). 19
In sum, it’s understandable why the Supreme Court didn’t
rely on Geduldig for many years. Geduldig’s reasoning is illogical
and fatally flawed. So the Court was right to banish it. Because
Skrmetti is based on Geduldig, whose application both Congress and
the Court have emphatically rejected in the Title VII context (and,
until Skrmetti, seemingly altogether), I respectfully urge the Su-
preme Court to reconsider its continued reliance on Geduldig’s rea-
soning.
19 In fact, before Skrmetti, the Court had expressly resurrected Geduldig’s rea-
soning only twice. See Bray, 506 U.S. at 271; Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215, 216 (2022).
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22-13626 JILL PRYOR, J., Dissenting 1
JILL PRYOR, Circuit Judge, joined by JORDAN, ABUDU, KIDD, and
WILSON, Circuit Judges, dissenting:
The Houston County employee health insurance plan we
consider here excludes coverage for “[d]rugs for sex change sur-
gery” and “[s]ervices and supplies for a sex change and/or the re-
versal of a sex change.” Doc. 155-1 at 72, 74. 1 Relying on equal pro-
tection precedent, the majority opinion holds that these exclusions
do not discriminate based on sex or transgender status under Ti-
tle VII because the plan merely “draws a line between certain treat-
ments, which it covers, and other treatments, which it does not.”
Majority Op. at 16. But 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. See Newport News Ship-
building & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 678 (1983). The
law has been settled on that score ever since. Yet today the majority
opinion makes the same mistake in its Title VII analysis that was
addressed and corrected long ago by Congress and then by the Su-
preme Court—it imports equal protection reasoning into a Ti-
tle VII case. Because that reasoning has no place in the case before
us, I dissent.
The line the majority draws here relies on reasoning from
equal protection cases. In Geduldig v. Aiello, the Supreme Court
held that a state disability insurance program that excluded
1 “Doc.” numbers refer to the district court’s docket entries.
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2 JILL PRYOR, J., Dissenting 22-13626
coverage for disabilities caused by pregnancy did not amount to
sex-based discrimination under the Equal Protection Clause of the
Fourteenth Amendment. 417 U.S. 484, 486–87, 494–95 (1974). The
Supreme Court reasoned that “[t]he California insurance program
does not exclude anyone from benefit eligibility because of gender
but merely removes one physical condition—pregnancy—from
the list of compensable disabilities.” Id. at 496 n.20. Despite recog-
nizing that this exclusion only impacted women, the Court ex-
plained that “it does not follow that every legislative classification
concerning pregnancy is a sex-based classification.” Id. “The lack of
identity between the excluded disability and gender” meant that
the program did not classify based on sex. Id. Instead, “[t]he pro-
gram divides potential recipients into two groups—pregnant
women and nonpregnant persons. While the first group is exclu-
sively female, the second includes members of both sexes.” Id.
Therefore, the Court concluded that the program classified based
on a medical condition rather than sex. Id.
But in Title VII cases, this reasoning has been rejected, first
by Congress and then by the Supreme Court. After Geduldig, the
Supreme Court applied its equal protection reasoning in a Title VII
case, holding that exclusion of pregnancy from an employer health
insurance plan did not discriminate based on sex because “[t]he
[p]lan . . . is nothing more than an insurance package, which covers
some risks, but excludes others.” Gen. Elec. Co. v. Gilbert, 429 U.S.
125, 138 (1976) (citing Geduldig, 417 U.S. at 494, 496–97). Congress
responded by amending Title VII. It passed the Pregnancy Discrim-
ination Act of 1978, including “pregnancy, childbirth, or related
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22-13626 JILL PRYOR, J., Dissenting 3
medical conditions” in the definition of discrimination “because of
sex.” 42 U.S.C. § 2000e(k). When a Title VII case challenging an
employer health insurance plan that excluded coverage for preg-
nancy next reached the Supreme Court, the Court recognized that
with this amendment Congress “unambiguously expressed its dis-
approval of both the holding and the reasoning of the Court in the
Gilbert decision.” Newport News, 462 U.S. at 678. The plan at issue
covered pregnancy-related conditions for employees but not for
spouses of employees. Id. at 683–84. The Supreme Court explained
that by providing full medical coverage for the spouses of female
employees and medical coverage except for pregnancy-related con-
ditions for the spouses of male employees, the plan discriminated
based on sex because it “unlawfully [gave] married male employees
a benefit package for their dependents that [was] less inclusive than
the dependency coverage provided to married female employees.”
Id. at 684.
Importantly, the Supreme Court did not limit its disapproval
of Geduldig’s reasoning to pregnancy. It reasoned that in relying on
Geduldig Gilbert misinterpreted Title VII, which “protect[s] all indi-
viduals from sex discrimination in employment—including but not
limited to pregnant women workers.” Id. at 681 (emphasis in orig-
inal). Since Newport News, an employer insurance plan that excludes
coverage of a condition based on sex violates Title VII.
After en banc oral argument in this case, the Supreme Court
decided United States v. Skrmetti, 145 S. Ct. 1816 (2025). The Court
considered an equal protection challenge to a Tennessee law that
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4 JILL PRYOR, J., Dissenting 22-13626
prohibited medical treatments to minors for conditions that impact
only transgender individuals. Id. at 1826–27, 1830–31, 1833. Ten-
nessee prohibited treatments administered for the purpose of
“[e]nabling a minor to identify with, or live as, a purported identity
inconsistent with the minor’s sex” or “[t]reating purported discom-
fort or distress from a discordance between the minor’s sex and as-
serted identity.” Tenn. Code Ann. § 68-33-103(a)(1). The Supreme
Court held that this restriction did not discriminate based on sex
because it, instead, “restricts which . . . medical treatments are
available to minors . . . to treat gender dysphoria, gender identity
disorder, or gender incongruence.” Skremetti, 145 S. Ct. at 1830–31.
It further held that the restriction of these treatments did not
discriminate based on transgender status. Id. at 1833. Relying on
Geduldig, the Court concluded that the Tennessee law did “not ex-
clude any individual from medical treatments on the basis of
transgender status but rather removes one set of diagnoses—gen-
der dysphoria, gender identity disorder, and gender incongru-
ence—from the range of treatable conditions.” Id. The Supreme
Court explained that the pregnancy exclusion in Geduldig did not
discriminate based on sex because it divided the employees into
two groups, “‘pregnant women and nonpregnant persons,’” and
“[b]ecause women fell into both groups, the program did not dis-
criminate against women as a class.” Id. (quoting Geduldig, 417 U.S.
at 426 n.20). It reasoned that the Tennessee law created a similar
nondiscriminatory distinction. “Because only transgender individ-
uals seek puberty blockers and hormones for the excluded diagno-
ses, the first group includes only transgender individuals; the
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22-13626 JILL PRYOR, J., Dissenting 5
second group, in contrast, encompasses both transgender and non-
transgender individuals.” Id. The Supreme Court thus held that the
law prohibiting medical care to treat conditions that impact
transgender individuals only did not classify based on transgender
status under the Equal Protection Clause. Id. at 1833–34.
Today, by importing Skrmetti’s equal protection reasoning
into a Title VII case, the majority commits the same error the Su-
preme Court did in Gilbert. The majority opinion concludes that
the County health plan’s exclusion of medical care related to a “sex
change” does not discriminate based on sex or transgender status
because it merely “draws a line between certain treatments, which
it covers, and other treatments, which it does not.” Majority Op. at
16. This is the exact same reasoning that both Congress and the
Supreme Court rejected for Title VII claims. See Gilbert, 429 U.S. at
138 (“The [p]lan . . . is nothing more than an insurance package,
which covers some risks, but excludes others.”); see also Newport
News, 462 U.S. at 684 (“Although Gilbert concluded that an other-
wise inclusive plan that singled out pregnancy-related benefits for
exclusion was nondiscriminatory on its face, because only women
can become pregnant, Congress has unequivocally rejected that
reasoning.”). And yet the majority opinion revives that very rea-
soning to conclude that an employer insurance plan excluding cov-
erage for medical care that only transgender individuals need does
not discriminate based on transgender status or on sex.
The majority does so in the face of binding Supreme Court
precedent holding that under Title VII the fact that only women
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6 JILL PRYOR, J., Dissenting 22-13626
can get pregnant makes a pregnancy-based exclusion sex-based and
therefore facially discriminatory. See Newport News, 462 U.S. at 684.
Likewise, the fact that only transgender individuals can require
“sex changes” renders the County’s exclusion transgender-based.
Under Title VII “it is impossible to discriminate against a person for
being . . . transgender without discriminating against that individ-
ual based on sex.” Bostock v. Clayton Cnty., 590 U.S. 644, 660 (2020).
And Title VII “protect[s] all individuals from sex discrimination.”
Newport News, 462 U.S. at 681. So Supreme Court precedent dic-
tates that excluding from coverage healthcare that only
transgender individuals can require constitutes sex-based discrimi-
nation in violation of Title VII. The fact that the exclusion here ap-
plies equally to individuals the majority calls “natal men” who are
transgender and to “natal women” who are transgender does not
make the exclusion neutral under Newport News.
In Skrmetti, the majority said, “[w]e have not yet considered
whether Bostock’s reasoning reaches beyond the Title VII context,
and we need not do so here.” 145 S. Ct. at 1834. Despite expressly
stating that it was not considering or deciding whether Bostock’s
reasoning applied to equal protection claims, the majority none-
theless observed that Bostock “does not alter our analysis.” Id. But
Skrmetti’s discussion of Bostock is utterly devoid of references to
Geduldig and its equal protection progeny. See id. Because Skrmetti’s
analysis of Bostock implicitly relied on since-rejected reasoning
from Geduldig and Gilbert, the Supreme Court has created a tension
that only it can resolve.
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22-13626 JILL PRYOR, J., Dissenting 7
The Skrmetti majority’s discussion of Bostock does not bind
us. No Title VII claim was before the Supreme Court. Skrmetti
therefore did not and could not decide whether an employer’s in-
surance plan that bases coverage of medical treatments on sex or
transgender status violates Title VII. Nor did Skrmetti address the
use of equal protection precedent in the Title VII context in com-
menting on Bostock. Finally, Skrmetti did not acknowledge or dis-
cuss Newport News. Although we do not take lightly Supreme Court
dicta, we simply are not free to follow it in the face of binding Su-
preme Court authority to the contrary. After all, “[t]he Supreme
Court has told us, over and over again, to follow any of its decisions
that directly applies in a case, even if the reasoning of that decision
appears to have been rejected in later decisions and leave to that
Court ‘the prerogative of overruling its own decisions.’” Evans v.
Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (quot-
ing Tenet v. Doe, 544 U.S. 1, 10–11 (2005)); see also United States v.
Davis, 785 F.3d 498, 521 (11th Cir. 2015) (en banc) (William Pryor,
J., concurring) (“As judges of an inferior court, we have no business
in anticipating future decisions of the Supreme Court). I believe we
are bound by Newport News’s holding that an employer insurance
plan that excludes coverage of a condition based on sex violates Ti-
tle VII, see 462 U.S. at 684, and Bostock’s unequivocal statement that
for Title VII purposes “discrimination based on . . . transgender sta-
tus necessarily entails discrimination based on sex.” 590 U.S. at 669.
Because the majority relies on analysis that both Congress
and the Supreme Court—interpreting Congress’s action—have re-
jected for Title VII claims, I respectfully dissent.
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22-13626 ABUDU, J., Dissenting 1
ABUDU, Circuit Judge, Dissenting:
I dissent from the majority opinion because the holding is
contrary to Title VII’s plain language, reasonable interpretation,
and clear mandate to eradicate sex-based discrimination, in all its
forms, in the workplace. See Bostock v. Clayton Cnty., 590 U.S. 644,
674 (2020) (“[W]hen the meaning of the statute’s terms is plain, our
job is at an end. The people are entitled to rely on the law as writ-
ten, without fearing that courts might disregard its plain terms
based on some extratextual consideration.”). For the reasons
stated in Judge Wilson’s and Judge Jill Pryor’s dissents, Houston
County’s decision to exclude from its employee health insurance
plan coverage related to “sex change surgery” is a sex-based form of
discrimination and, thus, clearly violates Title VII. As my dissent-
ing colleagues discuss, the Supreme Court’s recent decision in an
Equal Protection Clause case, United States v. Skrmetti, 145 S. Ct.
1816 (2025), does not alter that legal conclusion.1
1 Justice Thomas saw “no reason to import Bostock’s Title VII analysis into the
Equal Protection Clause.” 145 S. Ct. at 1838 (Thomas, J., concurring). The
Bostock Court’s analysis relied on specific terms found “within the context of
Title VII,” and the Equal Protection Clause “include[d] none of th[at] lan-
guage.” Id. “That such differently worded provisions should mean the same
thing is implausible on its face.” Id. (quoting Students for Fair Admissions, Inc.
v. President & Fellows of Harvard Coll., 600 U.S. 181, 308 (2023) (Gorsuch, J.,
concurring)). Accordingly, he noted that “[e]xtending the Bostock framework
[to Skrmetti] would depart dramatically from this Court's Equal Protection
Clause jurisprudence.” Id. Similarly, we should not extend Skrmetti’s Equal
Protection Clause analysis to this Title VII context and stray from established
Title VII jurisprudence.
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2 ABUDU, J. Dissenting 22-13626
I write separately to acknowledge the ongoing cultural war
in which this Court, like courts before us, has had to participate.
Our role is to ensure that, regardless of religious, political, or other
ideologies, the law applies equally to all. The majority’s decision,
unfortunately, undermines that goal and sets us up for yet another
episode in our Circuit’s legal history where the majority just gets
the outcome wrong, and the short- and long-term implications of
its flawed decision cannot be ignored.
I. The Majority Opinion Directly Conflicts with Bostock
For Deputy Anna Lange and millions of transgender peo-
ple, 2 gender is not binary. After serving on the Houston County
police force for nearly twelve years, Deputy Lange took the ex-
tremely brave step of disclosing she is transgender and sought sup-
port from her colleagues in making the public announcement and
private transition. Instead of support, when she came out to the
Sheriff, he asked, “[w]hat the hell is he [Deputy Lange] talking
about[,]” exclaimed he “thought it was a joke,” and said, “I don’t
believe in sex changes.” The Sheriff then called a group meeting to
discuss “a sensitive and a serious subject,” where he proclaimed, “I
don’t believe in all this,” and that what Deputy Lange did “takes big
balls.” Nevertheless, Deputy Lange pushed through in seeking the
medical services necessary for her gender dysphoria that, but for
2 What Percentage of the US Population is Transgender?, USAFACTS, https://usa-
facts.org/articles/what-percentage-of-the-us-population-is-transgender (up-
dated Feb. 12, 2025) [https://perma.cc/67RE-HKBQ].
USCA11 Case: 22-13626 Document: 173-1 Date Filed: 09/09/2025 Page: 72 of 108
22-13626 ABUDU, J., Dissenting 3
her transgender status, she would have been able to receive
through the Houston County’s health insurance coverage policy.
Today, the majority upholds Houston County’s policy and
practice of denying medically necessary healthcare to an employee
simply based on their sex. See Bostock, 590 U.S. at 660 (“An individ-
ual’s homosexuality or transgender status is not relevant to em-
ployment decisions . . . because it is impossible to discriminate
against a person for being homosexual or transgender without dis-
criminating against that individual based on sex.”). “Transgender”
is a term used to describe a person whose gender identity—a per-
son’s inner sense of their gender or lack thereof—differs from the
sex they were assigned at birth.3 Gender dysphoria, a medical con-
dition recognized by every major medical association and leading
world health authority, 4 refers to the “psychological distress that re-
sults from an incongruence between one’s sex assigned at birth and
one’s gender identity.” 5 Left untreated, gender dysphoria can cause
3 Understanding Transgender People, Gender Identity and Gender Expression, AM.
PSYCH. ASS’N, https://www.apa.org/topics/lgbtq/transgender-people-gen-
der-identity-gender-expression (last updated July 8, 2024)
[https://perma.cc/JPG8-HURU].
4 Medical Association Statements in Support of Health Care for Transgender People
and Youth, GLAAD, https://glaad.org/medical-association-statements-sup-
porting-trans-youth-healthcare-and-against-discriminatory (last updated June
26, 2024) (providing a comprehensive list of domestic and international health
organizations’ recognition of gender dysphoria) [https://perma.cc/28JK-
GK8R].
5 Understanding Transgender People, Gender Identity and Gender Expression, supra
note 3; What is Gender Dysphoria, A M. PSYCH. ASS’N,
USCA11 Case: 22-13626 Document: 173-1 Date Filed: 09/09/2025 Page: 73 of 108
4 ABUDU, J. Dissenting 22-13626
debilitating anxiety and depression, self-harm, and increased risk of
suicide. 6 Treatment for gender dysphoria includes social transition-
ing, hormone therapy, and surgical procedures to align a person’s
sex characteristics with the person’s gender identity. 7
When, as here, an employer intentionally treats a person
worse by limiting access to certain health insurance benefits be-
cause they are transgender, the employer has discriminated against
that person in violation of Title VII. See Bostock, 590 U.S. at 658;
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682
(1983). Houston County did not challenge Deputy Lange’s medical
diagnosis or that such surgery was part of a transgender person’s
transition, and it allowed Deputy Lange to follow the “female dress
policy.” However, using a binary gender construct, the majority
engages in intellectual gymnastics to delay the inevitable—that
transgender people are in the workplace, and they need access to
medical procedures that are not uniquely performed on them, but
for which transgender people are denied.
The Supreme Court’s decision reversing our panel opinion
in Bostock is directly on point to the issue here. The employee in
https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-
gender-dysphoria (last visited Apr. 8, 2025) [https://perma.cc/EN7A-B94K].
6 AM. PSYCH. ASS’N, supra note 5; Gender dysphoria, MAYO CLINIC,
https://www.mayoclinic.org/diseases-conditions/gender-dysphoria/symp-
toms-causes/syc-20475255 (last visited Sept. 5, 2025) [https://perma.cc/N385-
RVY4].
7 AM. PSYCH. ASS’N, supra note 5.
USCA11 Case: 22-13626 Document: 173-1 Date Filed: 09/09/2025 Page: 74 of 108
22-13626 ABUDU, J., Dissenting 5
Bostock brought a discrimination suit under Title VII alleging his
employer fired him because of his sexual orientation. Although the
panel acknowledged Title VII prohibits sex-based discrimination
against employees, it held Title VII protections did not encompass
sexual-orientation discrimination based on binding circuit prece-
dent from Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)
(per curiam). Bostock v. Clayton Cnty. Bd. of Comm’rs, 723 F. App’x
964, 964–65 (11th Cir. 2018) (unpublished) (per curiam) (“Bostock
Panel”), rev’d, 590 U.S. 644 (2020). In Blum, an employee filed a Title
VII suit alleging he was discharged because of his sexual orienta-
tion and ethnicity/religion, but the court held, inter alia, “[d]is-
charge for homosexuality is not prohibited by Title VII . . . .” 597
F.2d at 938. The Bostock panel also relied on Evans v. Georgia Regional
Hospital, 850 F.3d 1248, 1256 (11th Cir. 2017), as confirmation that
Blum remained binding circuit precedent. Bostock Panel, 723 F.
App’x at 964–65. In Evans, despite post-Blum Supreme Court deci-
sions that interpreted Title VII to include discrimination based on
the expression of nonconforming gender characteristics 8 and same-
sex sexual harassment,9 we held the employee’s Title VII wrongful
8 Price Waterhouse v. Hopkins, 490 U.S. 228, 235, 250–51 (1989) (holding discrim-
ination based on failure to conform to a gender stereotype is sex-based dis-
crimination), superseded on other grounds by statute, Civil Rights Act of 1991,
Pub. L. 102-166, 105 Stat. 1075, as recognized in Comcast Corp. v. Nat’l Ass’n of
Afr. Am.-Owned Media, 589 U.S. 327, 337 (2020).
9 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82 (1998) (holding
“sex discrimination consisting of same-sex sexual harassment is actionable un-
der Title VII” and “[t]he prohibition of harassment on the basis of sex requires
neither asexuality nor androgyny”).
USCA11 Case: 22-13626 Document: 173-1 Date Filed: 09/09/2025 Page: 75 of 108
6 ABUDU, J. Dissenting 22-13626
termination claim based on her sexual orientation was foreclosed
by Blum. 850 F.3d at 1256.
The Bostock panel concluded the post-Blum decisions did not
clearly apply to discrimination based on sexual orientation and held
it could not overrule Blum, “regardless of whether [they thought]
it was wrong,” unless intervening controlling precedent was is-
sued. Bostock Panel, 723 F. App’x at 965. In repudiating the Bostock
panel opinion, Blum, and Evans, the Supreme Court gave us just
that and then some—clear precedent and a straightforward test
that applies not only to sexual orientation, but also to transgender
status. See Bostock, 590 U.S. at 660. The Court relied on the “ex-
press terms” of Title VII and rebuked the employer’s assertion that
“‘no one in 1964” when Title VII was passed would have antici-
pated the results of its holding, explaining “[n]ot long after the law’s
passage, gay and transgender employees began filing Title VII com-
plaints, so at least some people foresaw this potential application.”
Id. at 653, 676 (citing Smith v. Liberty Mut. Ins. Co., 395 F. Supp. 1098,
1099 (N.D. Ga. 1975) (addressing gender non-conforming claim
from 1969), aff’d, 569 F.2d 325 (5th Cir. 1978); Holloway v. Arthur
Andersen & Co., 566 F.2d 659, 661 (9th Cir. 1977) (addressing
transgender discrimination claim from 1974)).
In this case, there is no erroneous prior precedent tying our
hands. To the contrary, we have a clear rule directly on point with
the case before us. Yet, despite Bostock’s unambiguous directive,
the majority goes through a strained analysis to avoid the plain
truth that Houston County’s policy violates Title VII on its face.
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22-13626 ABUDU, J., Dissenting 7
Like the panel in Bostock, the majority ignores or, at best, severely
dilutes, Title VII’s express terms. Therefore, the district court’s
grant of summary judgment should be affirmed, and the case
should be remanded for further proceedings to address Deputy
Lange’s request for declaratory and injunctive relief, monetary
damages, and attorney’s fees.
II. The Majority Opinion Serves as Fodder for Those
Who Oppose Legal Rights for Transgender People
The majority reaches its conclusion without acknowledging
the elephant in the room—transgender rights have come to the
forefront of debate in recent years, shining a necessary light on ar-
eas of society still rife with discrimination. Since the start of 2025,
at least 981 state and federal bills are under consideration and 121
have been passed that address the rights and restrictions placed on
transgender individuals in areas such as education, healthcare, ac-
cess to public facilities, artistic expression, incarceration, and the
military. 10 Many of these bills also address transgender persons and
employment issues. 11 While no comment can be made regarding
the legality of these legislative efforts, Title VII is broad, inclusive,
and clearly prohibits sex-based discrimination against transgender
persons in the workplace, just as it prohibits such discrimination
against cisgender men and women. See Bostock, 590 U.S. at 683 (ex-
plaining “[i]n Title VII, Congress adopted broad language making
10 2025 Anti-Trans Bills Tracker, TRANS LEGIS. TRACKER, https://translegisla-
tion.com (last visited Sept. 4, 2025) [https://perma.cc/C4Z5-G9D8].
11 Id.
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8 ABUDU, J. Dissenting 22-13626
it illegal for an employer to rely on an employee’s sex when” taking
an adverse employment action).
The record is clear that the same surgeries, medications, and
mental health treatments that may be covered for some employees
also fall under those “certain treatments” not covered for others,
and the policy draws the line unequivocally based on transgender
status and, therefore, sex. 12 Still, the majority concludes that
“[n]othing about the policy exclusion turns on whether the
County’s employee is a man or woman,” and “the County’s plan
does not facially discriminate based on transgender status,”—es-
sentially concluding that the Exclusion applies equally to all people.
Maj. Op. at 10, 12. Yet, the argument that a law or policy is valid
because it “applies equally to those whom it is applicable” has long
been rejected as a basis to justify illegal discrimination. See
McLaughlin v. Florida, 379 U.S. 184, 188–90 (1964) (rejecting this
principle in striking down a ban on the cohabitation of interracial
couples); Loving v. Virginia, 388 U.S. 1, 10 (1967) (same in the con-
text of interracial marriage).
Instead of exercising our limited role in statutory interpreta-
tion by “applying the law’s demands as faithfully as we can,” the
majority provides more traction for “extratextual considerations”
and “overlook[s] plain statutory commands on the strength of
12 For example, Houston County admitted that a mastectomy for cancer treat-
ment, hormone replacement therapy to treat menopause, and mental
healthcare generally are all covered under the policy, but the exclusion would
bar coverage of each to treat a transgender employee for gender dysphoria.
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22-13626 ABUDU, J., Dissenting 9
nothing more than suppositions about intentions or guesswork
about expectations.” Bostock, 590 U.S. at 673–74, 681, 683. 13 We
need not look hard to find extratextual considerations from groups
opposed to transgender equality, as the amicus briefs filed in sup-
port of Houston County
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