Appeals Court Says State Health Policies Excluding Transgender Surgeries Violate Constitution

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by Tyler Durden
Tuesday, Apr 30, 2024 - 11:00 PM

Authored by Sam Dorman via The Epoch Times,

The U.S. Court of Appeals for the Fourth Circuit ruled against two state-level health policies that exclude so-called “gender-affirming” treatments, teeing up potential review by the U.S. Supreme Court...

Judge Roger Gregory, an appointee of Presidents Bill Clinton and George W. Bush, wrote in his majority opinion that the policies’ exclusion of surgeries such as vaginoplasties for certain diagnoses violated the Equal Protection Clause of the 14th Amendment.

“The coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest,” he said.

The 8–6 decision affirmed lower court decisions against West Virginia’s Medicaid policy and the North Carolina State Health Plan for Teachers and State Employees. Both aimed to preclude coverage of procedures or treatments pursuant to attempts at changing one’s gender.

During oral arguments in September, at least two judges said it’s likely the case will eventually reach the U.S. Supreme Court.

Judge Gregory’s opinion rejected the idea that the policies didn’t discriminate on the basis of gender identity merely because they focused on diagnoses rather than individuals experiencing that condition.

“Appellants argue that the district courts’ equal-protection analyses were flawed because, they say, the exclusions distinguish on the basis of diagnosis,” he said.

He added that “in this case, discriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex.”

Later in the opinion, Judge Gregory wrote that “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it. The excluded treatments aim at addressing incongruity between sex assigned at birth and gender identity, the very heart of transgender status.”

He later added that in “addition to discriminating on the basis of gender identity, the exclusions discriminate on the basis of sex.”

Certain gender-affirming surgeries that could be provided to people assigned male at birth and people assigned female at birth are provided to only one group under the policy. Those surgeries include vaginoplasty (for congenital absence of a vagina), breast reconstruction (post-mastectomy), and breast reduction (for gynecomastia).”


Judge Gregory’s opinion encountered three separate dissents, including one in which Judge Harvie Wilkinson, an appointee of President Ronald Reagan, argued “the science behind gender dysphoria care is far from settled.”

He suggested the majority overstepped its authority in encroaching on state decisions about health care.

“Providing the best possible care to adults and youth struggling with gender dysphoria is a challenging task for our States,” he said.

“But it is one that they are entitled to perform without premature judicial interference.”

Andrea Picciotti-Bayer, director of the Conscience Project, said in a statement to The Epoch Times that the decision “cries out for reversal from the Supreme Court.”

She warned that Judge Gregory’s reasoning “surely will be cited in attempts to force private insurance plans to do the same.”

Judge Marvin Quattlebaum, an appointee of President Donald Trump, said the majority “improperly” declared statements from the Diagnostic and Statistical Manual of Mental Disorders and the World Professional Association for Transgender Health “to be facts.”

“Individually and combined, these missteps improperly stack the deck, effectively ignoring the fair-minded debate about the medical necessity and efficacy of the treatments the plaintiffs seek,” he added.

Lambda Legal, which challenged both states’ policies, declared victory.

“We are pleased with the Court’s decision, which will save lives. It confirms that discriminating against transgender people by denying critical medical care is not only wrong but unconstitutional,” Lambda Legal Senior Counsel Tara Borelli said in a press release.

“No one should be denied essential health care, but our clients in both cases were denied coverage for medically necessary care prescribed by their doctors just because they’re transgender.”