- Missouri and 23 other states filed a brief this week with the US Supreme Court supporting North Carolina's appeal involving State Health Plan coverage of medical treatments sought primarily by transgender people.
- The 4th US Circuit of Appeals split 8-6 in April in tossing out North Carolina's ban on sex-change surgeries and other treatments.
- State Treasurer Dale Folwell's office oversees the Health Plan. He issued a statement Friday thanking the states for supporting his appeal to the nation's highest court.
Twenty-four states filed a brief this week supporting North Carolina and West Virginia in their appeals to the US Supreme Court. The states seek to a reverse a federal Appeals Court ruling forcing taxpayer-funded health plans to cover medical treatments sought mainly by transgender people.
“We appreciate the support nearly half of the states have shown by filing an amicus brief urging the US Supreme Court to review the Fourth Circuit Court of Appeals’ decision,” North Carolina State Treasurer Dale Folwell said in a prepared statement Friday. Folwell’s office oversees the State Health Plan.
“Our position remains unchanged,” Folwell added. “State governing bodies are best equipped to evaluate health care coverage that provides the greatest good to the highest number of people. They, and not the courts, are the proper place to make such decisions.”
In an 8-6 ruling delivered on April 29, the 4th US Circuit Court of Appeals tossed out the North Carolina State Health Plan’s ban on covering sex-change surgeries and other treatments. The ruling covered a similar ban in West Virginia.
“Do healthcare plans that cover medically necessary treatments for certain diagnoses but bar coverage of those same medically necessary treatments for a diagnosis unique to transgender patients violate either the Equal Protection Clause or other provisions of federal law? We hold that they do,” wrote Judge Roger Gregory for the court majority.
Missouri Attorney General Andrew Bailey led a coalition of 24 states filing a friend-of-the-court brief Monday challenging that decision. Other states supporting the appeal are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wyoming.
The states note “their strong interest in preserving the democratic prerogative of States to make decisions ‘in areas fraught with medical and scientific uncertainties,’” according to their brief.
“The Fourth Circuit’s decision threatens this democratic prerogative. Right in the very first sentence, the court errs — badly — in a way that taints the rest of its analysis. It concludes that gender transition interventions (such as puberty blockers, cross-sex hormones, and irreversible surgeries) are ‘medically necessary.’ To the contrary, just a few weeks before the Fourth Circuit’s decision, a four-year, four-hundred-page, comprehensive review conducted by the United Kingdom’s National Health Service concluded that the evidence for gender transition interventions is ‘remarkably weak,’ with ‘no good evidence on the long- term outcomes of interventions,’” the states’ brief argued.
“In light of this Court’s precedent recognizing that States have wide authority in areas of medical uncertainty, this Court should permit the States appropriate latitude to respond to these scientifically unsettled issues,” the state brief argued.
The American Civil Rights Project filed a separate brief Thursday supporting North Carolina and West Virginia’s appeal.
“The Court of Appeals’ discovery of constitutional mandates for public insurance to cover elective surgery is simply the latest reductio ad absurdum in a series of Fourth Circuit Court of Appeals decisions redefining ‘sex’ to mean ‘not sex,’” ACRP lawyers wrote. “Together these decisions model the inevitably-incoherent outcomes of the court’s misreading of Bostock, which it takes to be a license for an arbitrary and freewheeling replacement of ‘sex’ with ‘gender’ wherever it suits judges across the legal system.”
Bostock refers to the 2020 US Supreme Court decision that banned employment discrimination based on sexuality or gender identity.
Folwell’s lawyers filed a petition with the US Supreme Court on July 26.
“For decades, the North Carolina State Health Plan for Teachers and State Employees has chosen to exclude coverage for treatments ‘leading to or in connection with sex changes or modifications.’ That exclusion is one of many in the Plan, which also excludes coverage for cosmetic services, experimental treatments, surgery for psychological or emotional reasons, and more,” Folwell’s lawyers wrote. “Each of those choices is designed to ensure that the Plan can provide the best possible coverage for all 740,000 of its members at a reasonable cost.”
“In the decision below, the en banc Fourth Circuit concluded that North Carolina’s coverage choices violate the Equal Protection Clause and permanently enjoined the State from excluding coverage for sex-change treatments,” the Supreme Court petition continued. “That decision is seriously flawed. North Carolina’s exclusion of coverage for sex-change treatments does not draw any classifications based on any protected trait. It distinguishes between medical treatments.”
The 4th Circuit decision “deviates” from tradition, Folwell’s lawyers wrote. “The decision deepens a conflict among the courts of appeals about whether laws targeting sex-change treatments trigger heightened scrutiny. The decision is egregiously wrong, and the question presented is profoundly important.”