- The US Supreme Court is scheduled on Dec. 6 to review an appeal in a case involving the North Carolina State Health Plan's coverage of medical treatments typically pursued by transgender patients.
- A split 4th US Circuit Court of Appeals ruled in April in favor of plaintiffs challenging the State Health Plan's ban on coverage of the targeted treatments.
- State Treasurer Dale Folwell, who oversees the health plan, has asked the nation's highest court to take the case.
The nation’s highest court is scheduled to review in December an appeal in a case involving the North Carolina State Health Plan’s coverage of medical treatments typically pursued by transgender patients. Justices will decide after that review whether to take the case.
State Treasurer Dale Folwell, who oversees the State Health Plan, is appealing a decision from the full 4th US Circuit Court of Appeals. The court split, 8-6, in a ruling favoring plaintiffs who challenged a state ban on coverage of the targeted treatments.
The US Supreme Court announced Wednesday that justices will review the case on Dec. 6. The court could decide as early as the following week whether to take the case or allow the 4th Circuit decision to stand.
Folwell’s lawyers filed paperwork Wednesday with the high court. They rebutted arguments plaintiffs made in October urging Supreme Court justices to reject the case.
“The en banc Fourth Circuit held that the North Carolina State Health Plan for Teachers and State Employees violated the Equal Protection Clause by refusing to provide insurance coverage for treatments ‘leading to or in connection with sex changes,’” Folwell’s lawyers wrote. “That decision conflicts with decisions from several other circuits and is both profoundly wrong and profoundly important. It merits this Court’s review.”
The plaintiffs “come nowhere close to refuting any of those points,” the court filing continued. “They do not deny that courts are divided over whether laws that prohibit access to or restrict insurance coverage for sex-change treatments violate the Equal Protection Clause. And they have no persuasive argument that the Fourth Circuit lies on the right side of the divide. Nor do they deny that the equal-protection question is of national importance.”
The Supreme Court could consider the North Carolina case along with a Tennessee case involving that state’s ban on transgender medical treatment for minors. Or the court could hold the North Carolina case until it decides the Tennessee case titled United States v. Skrmetti.
“One way or another, the Court should not allow the Fourth Circuit’s flawed decision to be the last word on an issue that demands a sensible and uniform national answer,” Folwell’s lawyers argued.
The plaintiffs, considered respondents in the case Folwell v. Kadel, offered their arguments to the Supreme Court on Oct. 28.
“North Carolina and West Virginia administer health plans to cover medically necessary healthcare for their state employees and indigent citizens, respectively. Both plans, however, contain a targeted exception: they categorically exclude medically necessary gender-affirming care for transgender recipients,” according to the respondents’ brief. “The same treatments are available to cisgender members, including for gender-affirming reasons.”
“These exclusions have serious consequences for the States’ transgender plan members: if untreated, gender dysphoria — the condition of marked incongruence between one’s gender and one’s sex assigned at birth — can have debilitating consequences, including depression, self-injury, and even suicide,” according to the court filing.
Twenty-four states filed a brief in August supporting North Carolina and West Virginia in their appeals to the US Supreme Court. The 4th Circuit had ruled against West Virginia in a case similar to the Kadel dispute.
“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,” Folwell said in a prepared statement on Aug. 30.
“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.
“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.
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.”