21 states support Folwell, State Health Plan in transgender care case

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  • Twenty-one states, including three of North Carolina's neighbors, support N.C. State Treasurer Dale Folwell and the State Health Plan in a legal fight involving health care requested by transgender patients.
  • A friend-of-the-court, or amicus, brief from the states asks the 4th U.S. Circuit Court of Appeals to reverse a trial court decision. The trial judge ruled North Carolina's plan must fund requested treatments.
  • The full state of 4th Circuit judges is scheduled to hear the case in September.

Twenty-one state attorneys general have asked the 4th U.S. Circuit Court of Appeals to accept a friend-of-the-court brief supporting N.C. State Treasurer Dale Folwell and the State Health Plan. Folwell and the health plan are defendants in a case involving transgender health care.

Participating states include three of North Carolina’s four neighbors.

The entire group of 4th Circuit judges will hear arguments in September in a case challenging the N.C. State Health Plan’s exclusion of coverage for treatments used by transgender patients. The Appeals Court will hear that case along with a similar lawsuit involving West Virginia’s health plan.

“The States of Missouri, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, and Virginia submit this brief to explain their strong interest in preserving the prerogative of States to make decisions ‘in areas fraught with medical and scientific uncertainties,’” according to the brief filed Thursday by Missouri Attorney General Andrew Bailey. “Making policy decisions in an area of scientific uncertainty is a core, sovereign, democratic function.”

The 21 states, called “amici” in legal jargon, oppose U.S. District Court rulings forcing both North Carolina and West Virginia to fund treatment requested by transgender patients.

“The decisions by both district courts threaten this democratic prerogative,” according to the brief. “Taken together, the decisions wrongly assume that the science is settled and fully supports the routine use of puberty blocking drugs, cross-sex hormones, and surgeries to treat gender dysphoria. To the contrary, countries across Europe — the UK, France, Finland, Norway, and Sweden — have recently declared these interventions to be ‘experimental’ procedures, ‘lacking’ in evidentiary support, whose ‘risks … currently outweigh the possible benefits.’ Agencies on this side of the Atlantic have concluded the same.”

“In light of the medical uncertainty acknowledged across the globe, Amici States have taken a variety of approaches to the issue of using puberty blockers, cross-sex hormones, and surgeries to treat gender dysphoria,” the brief continued. “Some States decline to pay for these chemical and surgical interventions through state-funded healthcare programs. Some States — having compared the known, irreversible side-effects to the unknown, speculative benefits — have gone further and passed laws prohibiting these interventions in certain circumstances. Others have passed laws barring these interventions only temporarily — until policymakers obtain the benefit of more scientific studies. And still other States have allowed these interventions only after individuals have first been provided adequate counseling care and psychological support.”

“In light of Supreme Court precedent giving States wide authority in areas of uncertainty, this Court should permit the States wide latitude to respond to these scientifically unsettled issues,” the 21 states argued.

The 4th Circuit will hear the N.C. and West Virginia cases in full “en banc” hearings at some point between Sept. 19-22. Placing the cases before the full court is unusual. The 4th Circuit deals with most cases through three-judge panels.

A three-judge panel had heard oral arguments in the N.C. case titled Kadel v. Folwell in January.

“Upon a sua sponte poll of the court, a majority of judges in regular active service and not disqualified voted to rehear this case en banc. It is ordered that rehearing en banc is granted,” according to a court order issued April 12. “The parties shall file 16 additional paper copies of their briefs and appendices previously filed in this case within 10 days.”

“Sua sponte” means that the court took the action voluntarily, without a request from either party in the case.

Chief Judge Roger Gregory and Judges Albert Diaz and Steven Agee initially heard Kadel v. Folwell on Jan. 25. Gregory, who joined the Appeals Court as a recess appointment from President Bill Clinton, later secured renomination from President George W. Bush. Bush also nominated Agee, while President Barack Obama nominated Diaz.

Folwell, who oversees the State Health Plan, is working with the plan’s executive administrator to overturn a June 2022 trial court order. That order called on the plan to pay for “medically necessary services” for transgender employees and their dependent children. Those services include hormone therapy and some surgeries. A 2019 lawsuit challenged the plan’s policy denying coverage.

The plan provides medical coverage for more than 750,000 teachers, state employees, retirees, lawmakers, and their dependents. It provides counseling for gender dysphoria and other diagnosed mental health conditions. Prior to the trial court ruling, it did not cover treatment “in connection with sex changes or modifications and related care.”

The trial court ruling from U.S. District Judge Loretta Biggs prompted the State Health Plan to reinstate excluded coverage in July 2022. Coverage had been provided for a single year in 2017 before the plan adopted its challenged policy.

Biggs ruled that the plan unlawfully discriminated against transgender people. She determined that the plan violated both the equal protection clause of the Constitution and Title VII of the Civil Rights Act on the basis of sex.

Seventeen other states and Washington, D.C., filed a friend-of-the-court brief supporting the plaintiffs. Those states pay for the type of care involved in the N.C. dispute.

“We obviously disagree with the judge’s order that is, in essence, assuming responsibility for determining plan benefits for sex transition operations,” Folwell said in a July news release. “We’re also disappointed the court decided to stop the case from being heard by a jury of North Carolinians. However, I’ve always said that if the legislature or the courts tell me we have to provide for sex transition operations and treatments, I would.” 

“Since my first day in office, we’ve been trying to lower health care costs for those that teach, protect, and otherwise serve,” Folwell said. “We’ve been battling the hospital cartel to provide transparent pricing to our members so that they can actually understand what they’re paying for health care. The Board has rightly been about reducing costs and limiting spending to those benefits that do the most good for the most members. This case has always been about protecting the authority of the Board to sustain the Plan for current, future, and retired members and nothing else.” 

“I strongly respect the rule of law,” Folwell added. “So, until it is no longer in force, I must comply with the court’s order.”