By James Erdman
Christian Action League
January 26, 2023
Should state health plans be forced to cover gender-reassignment surgery, hormone therapy and other treatments demanded by people who have chosen to embrace a gender opposite of the one they were born with? That’s the question before a three-judge panel of the 4th U.S. Circuit Court of Appeals which heard oral arguments in the case of Kadel v. Folwell in Richmond, Virginia, on Wednesday.
“Our prayer is that common sense prevails and that the state health plan is not forced to fund these unnecessary, elective surgeries,” says the Rev. Mark Creech, executive director of the Christian Action League.
Although there is no indication of when their ruling might be announced, some media reports have characterized the panel as sharply divided on the issue, with Judge Roger Gregory, a Bill Clinton appointee, siding with transgender activists; George W. Bush appointee Judge G. Steven Agee, agreeing with the state; and Judge Albert Diaz, a Barack Obama appointee, virtually mum during this week’s arguments.
A lower court had ruled that the state was violating the rights of transgender employees by refusing to cover health care related to gender transition, but John Knepper, the state’s attorney, pointed out that the denial of coverage applied to specific procedures and not explicitly to transgender people.
“Every beneficiary in North Carolina’s state health plan receives coverage for the same health risk,” Knepper said. “This is no less true for plaintiffs who are transgender. They receive the same coverage for every health risk.”
His argument seemed to gain traction with Agee, who compared the case to a 1974 ruling (Geduldig v. Aiello) that upheld a state disability system’s right to refuse to cover pregnancy-related disabilities. Because of that court ruling, plaintiffs would have to show discriminatory intent to win this case, the judge said.
“You may be able to show there is a disproportionate impact (on transgender people), but that’s not sufficient,” he told Tara Borelli of Lambda Legal, who argued the case for the plaintiffs, a group of former state employees who say they have been discriminated against.
The push by transgender activists to get their gender-reassignment surgeries funded by the state health plan is not new. Former State Treasurer Janet Cowell and the health plan board voted in late 2016 to include surgical and hormonal treatments for gender dysphoria. But when Republican treasurer Dale Folwell took office in 2017 he put a stop to the coverage, triggering the lawsuit. Last June, the state employee health plan was forced to resume coverage of so-called “gender affirming treatments” after U.S. District Judge Loretta Biggs declared the refusal of coverage unconstitutional.
The case was appealed and is the first of its kind to reach a federal appellate court. Even so, North Carolina is not alone in working to keep sex-change surgeries out of its health plan. At least 15 other states exclude coverage in their employee health plans.
North Carolina’s health insurance plan provides coverage for more than 750,000 teachers, state employees, retirees, lawmakers and their dependents.