Arguments scheduled Sept. 21 in case of NC State Health Plan and transgender care

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  • The 4th U.S. Circuit Court of Appeals has scheduled Sept. 21 for oral arguments in a case involving N.C. State Health Plan coverage of treatments used by transgender patients.
  • The Appeals Court will hold rare "en banc" hearings involving all eligible judges to consider the N.C. case and a similar dispute from West Virginia.
  • A three-judge panel had heard the N.C. case, Kadel v. Folwell, in January. Before that panel could rule, the full court decided in April to hold the en banc hearing.

The 4th U.S. Circuit Court of Appeals has scheduled Sept. 21 for oral arguments in a case challenging the N.C. State Health Plan’s exclusion of coverage for treatments used by transgender patients.

The entire group of eligible 4th Circuit judges will hear the case, Kadel v. Folwell. The N.C. case is paired with a similar legal dispute from West Virginia.

An “en banc” hearing involving all judges is rare for the Appeals Court. It usually hears cases in three-judge panels. Three judges had heard oral arguments in the Kadel case 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.

Then-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. Diaz has since succeeded Gregory as the 4th Circuit’s chief judge.

State Treasurer Dale 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.

Meanwhile, 21 states filed a brief in May supporting Folwell and North Carolina’s State 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 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.