In Kadel v. Folwell, (4th Cir., April 29, 2024), the U.S. 4th Circuit Court of Appeals sitting en banc, in an 8-6 decision, held that an exclusion in North Carolina's state employee healthcare plan for treatment "in connection with sex changes or modifications" violates the equal protection clause. The majority held that "the coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest...." The majority held that the exclusion for "transexual surgery" in West Virginia's Medicaid program similarly violates the equal protection clause as well as the Medicaid Act. The majority in its 58-page opinion said in part:
[D]iscriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex. The coverage exclusions are therefore subject to intermediate scrutiny. They cannot meet that heightened standard.
Judge Richardson, joined by Judges Wilkinson, Niemeyer, and Quattlebaum, and joined in part by Judges Agee and Rushing, said in part:
The Equal Protection Clause does not license judges to strike down any policy we disagree with. It instead grants the states leeway to tailor policies to local circumstances, while providing a carefully calibrated remedy for truly illicit discrimination. No such discrimination appears in these cases. North Carolina and West Virginia do not target members of either sex or transgender individuals by excluding coverage for certain services from their policies. They instead condition coverage on whether a patient has a qualifying diagnosis....
Judge Wilkinson filed a dissenting opinion, saying in part:
In the era of Roe, it was substantive due process. Now it is substantive equal protection. Make no mistake. The fundamental rights prong of equal protection is what is at play here, and while constitutionally mandating state-funded transgender rights will please some, it will politicize the courts in the eyes of all as assuredly as its substantive due process predecessor did....
Some States are reluctant to fund emerging treatments until the science can tell us more. Not only is the medical data conflicting, but there is a moral caution in this case as well. Self-righteous folly has long run through us all. The Tower of Babel toppled of its own hubristic weight. Yet still we moderns strive to bend nature to desire.
Judge Quattlebaum, joined by Judges Agee, Richardson and Rushing, filed a dissenting opinion, saying in part:
In order to conclude that no legitimate, non-discriminatory reasons support denying coverage for certain treatments of gender dysphoria, the majority abandons settled evidentiary principles. Properly accounting for the record, questions about the medical necessity and efficacy of such treatments linger. And those lingering questions support the states’ coverage decisions.
NPR reports on the decision.
