Twenty-one state attorneys general have asked the 4th United States Circuit Court of Appeals to accept a friend of the court brief supporting North Carolina State Treasurer Dale Folwell and the state health plan. Folwell and the health plan are charged in a case involving transgender healthcare.
Participating states include three of North Carolina’s four neighbors.
The full panel of 4th Circuit judges will hear arguments in September in a case challenging the North Carolina state health plan’s exclusion of coverage for treatments used by transgender patients. The Court of Appeals will hear this case as well as a similar lawsuit involving the West Virginia 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 keen interest in preserving states’ prerogative to make decisions ‘in areas fraught with medical and scientific uncertainty,'” according to the brief filed Thursday by Missouri Attorney General Andrew Bailey. “Making policy decisions in an area of scientific uncertainty is a fundamental, sovereign and democratic function.”
The 21 states, known as “amici” in legalese, oppose U.S. district court rulings requiring North Carolina and West Virginia to fund treatments sought by transgender patients.
“The decisions of the two district courts threaten this democratic prerogative,” according to the brief. “Taken together, the decisions incorrectly assume that the science is established and fully supports the routine use of puberty-blocking drugs, cross-sex hormones and surgical interventions to treat gender dysphoria. On the contrary, countries in across Europe – the UK, France, Finland, Norway and Sweden – have recently declared these procedures to be “experimental”, “devoid” of evidence, whose “risks…the currently outweigh the possible benefits.” Agencies on this side of the Atlantic have concluded the same.
“In light of recognized medical uncertainty across the world, Amici States have taken a variety of approaches to the issue of the use of puberty blockers, cross-sex hormones, and surgical interventions to treat dysphoria. gender,” the memoir continues. “Some states refuse to pay for these chemical and surgical interventions through state-funded health care programs. Some states—having weighed known, irreversible side effects against unknown, speculative benefits—have gone further and adopted laws prohibiting these procedures in certain circumstances. Others have passed laws prohibiting these procedures only temporarily – until policy makers obtain the benefit of more scientific studies. And still other states have only authorized such interventions only after individuals have first received adequate counseling and psychological support.
“In light of the Supreme Court’s precedent granting states broad authority in areas of uncertainty, this Court should allow states wide latitude to answer these scientifically unresolved questions,” the 21 states argued.
The 4th Circuit will hear the NC and West Virginia cases in full “en banc” hearings sometime between Sept. 19-22. Bringing cases to the full court is unusual. The 4th Circuit handles most cases through panels of three judges.
A three-judge panel had heard argument in the NC case titled Kadel v. Folwell in January.
“Upon a spontaneous poll of the court, a majority of judges on regular active duty and not disqualified voted to rehear this matter en banc. It is ordered that a rehearing en banc be granted,” according to a court order issued on 12 April.”The parties are to file 16 additional hard copies of their previously filed briefs and schedules in this case within 10 days.
“Sua sponte” means that the court took the action voluntarily, without a request from either party to the case.
Chief Justice Roger Gregory and Justices Albert Diaz and Steven Agee initially heard Kadel v. Folwell on January 25. Gregory, who joined the Court of Appeals as a nomination during President Bill Clinton’s vacation, later secured the renomination from President George W. Bush. Bush also nominated Agee, while President Barack Obama nominated Diaz.
Folwell, who oversees the state’s health plan, is working with the plan’s executive administrator to overturn a June 2022 trial court order that called on the plan to pay for ‘medically necessary services’ for employees transgender people and their dependent children. These services include hormone therapy and some surgeries. A lawsuit in 2019 challenged the plan’s policy denying coverage.
The plan provides medical coverage to more than 750,000 teachers, state employees, retirees, legislators and their dependents. It provides counseling for gender dysphoria and other diagnosed mental health issues. Prior to the trial court’s decision, it did not cover treatment “in connection with sex reassignment or modification and related care”.
The trial court ruling by 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 policy. disputed.
Biggs ruled that the plan unlawfully discriminated against transgender people. She determined that the plan violated both the Constitution’s Equal Protection Clause and Title VII of the Civil Rights Act on the basis of gender.
Seventeen other states and Washington, DC, filed a friend of the court brief supporting the plaintiffs. These states are paying for the type of care involved in the NC dispute.
“We obviously disagree with the judge’s order which, in essence, takes on the responsibility of determining the benefits of the scheme for gender transition operations,” Folwell said in a July press release. “We are also disappointed that the court decided to prevent the case from being heard by a North Carolina jury. However, I have always said that if the legislator or the courts told me that it was necessary to provide for gender transition operations and treatments, I would do it.
“Since my first day in office, we have tried to reduce health care costs for those who teach, protect and serve,” Folwell said. “We have fought against the hospital cartel to provide transparent pricing to our members so they can truly understand what they are paying for healthcare. The Board of Directors has rightly tried to reduce costs and limit expenses to the benefits that benefit the greatest number of members. This business has always been about protecting the authority of the board of directors to support the plan for current, future and retired participants and nothing else.
“I strongly respect the rule of law,” Folwell added. “So until it is no longer in effect, I must comply with the court order.”
