Biden Judges Cast Deciding Votes Preventing State Health Care Plans from Excluding Gender Affirming Surgeries When Medically Necessary

Judge Toby Heytens and DeAndrea Benjamin, nominated by President Biden to the Fourth Circuit court of appeals, cast deciding votes in an 8-6 full court ruling that state health care plans in North Carolina and West Virginia cannot exclude medically necessary gender affirming surgeries for transgender patients while permitting similar treatments for others. The court held that the exclusion violates both the Constitution's Equal Protection Clause and federal statutory law, including the Medicaid and the Affordable Care Acts. The April 2024 decision was in Kadel v Folwell.

What is the background of this case?

Both North Carolina and West Virginia denied coverage to transgender individuals for gender affirming surgeries that were prescribed as medically necessary for their diagnoses of gender dysphoria. They sued their state health plans, contending that the exclusion discriminated against them "based on their sex and gender identity." The West Virginia plaintiffs also maintained that the exclusion violated the Medicaid and Affordable Care Acts.

The district courts in both cases agreed and granted summary judgment in favor of the individuals excluded from their state health care plans. The states appealed to the Fourth Circuit. The appellate court decided to consolidate the cases and hear them as a full court en banc.

How did Judge Heytens and Benjamin and the Fourth Circuit Majority Rule and Why is it Important?

Judge Roger Gregory, who was nominated both by President Clinton and George W. Bush, wrote the opinion for the 8-6 majority made possible by Judges Heytens and Benjamin. After careful review of the record and relevant precedent, Gregory wrote that the exclusions were "obviously" discriminatory based on sex and gender. Exclusion "on the basis of diagnosis is discriminating on the basis of gender identity and sex," he explained, because "gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it."

Gregory went on to hold that the states had not shown that the exclusions "serve important governmental objectives and that the discriminatory means employed are substantially related to the achievement " of these objectives, as required for a sex-based classification to withstand Equal Protection Clause review. He explained that based on the record below, the district courts had properly ruled that the exclusion is not "substantially related" to objectives proffered by the state, including protecting "public health from ineffective medicine" and saving costs. He also refuted the similar claims of the dissenting judges, led by Trump nominee Julius Richardson.

Gregory's opinion went on to affirm the ruling in the West Virginia case that the exclusion violates the Medicaid and Affordable Care Acts. He explained that the exclusion "violates" Medicaid's "availability" requirement, under which a state cannot "arbitrarily deny" a medically necessary service "because of the diagnosis, illness, or condition," as West Virginia tried to do here. He also explained, in accord with the lower court, that the exclusion violates the Affordable Care Act's "anti-discrimination mandate" because it discriminates based on sex and gender identity.

The majority opinion made possible by the deciding votes of Judge Heytens and Benjamin is obviously important to the many transgender people in North Carolina and West Virginia who seek coverage under their state health plans for medically necessary gender-affirming surgery. As the first decision by a federal court of appeals on this issue, it sets national precedent, going beyond the Fourth Circuit states of North Carolina, South Carolina, West Virginia, Virginia, and Maryland. Although the case will be appealed to the Supreme Court, at least for now it is crucial to many Americans. It also reinforces the importance of promptly confirming more fair-minded judges like Judges Heytens and Benjamin to our federal courts.

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