Court orders North Carolina, West Virginia to fund sex changes in state health care plans

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A federal court has ordered the governments of North Carolina and West Virginia to provide coverage for sex-change operations in state health care plans offered to state employees and through Medicaid.

The Fourth Circuit Court of Appeals — which has jurisdiction over North Carolina, West Virginia, South Carolina, Virginia, and Maryland — ruled in an 8-6 decision that refusing to provide coverage for transgender operations in state health care plans is discrimination “on the basis of gender identity and sex” in violation of the Equal Protection Clause.

The ruling claims policies in both states violate the Constitution and federal law. The North Carolina policy that the court found to be in violation excludes sex-change surgeries in its coverage for state employees. The West Virginia policy found to be in violation excludes sex-change surgeries in its Medicaid coverage.

According to the majority opinion, written by Chief Judge Roger Gregory, the policies in both states are based on “a gender stereotype.” He used mastectomies (operations to remove breasts) as an example, suggesting that the stereotype is “the assumption that people who have been assigned female at birth are supposed to have breasts, and that people assigned male at birth are not.”

“No doubt, the majority of those assigned female at birth have breasts, and the majority of those assigned male at birth do not,” Gregory, who was appointed by former President George W. Bush, said in his opinion. “But we cannot mistake what is for what must be.”

Several judges wrote strong dissenting opinions, including Judge J. Harvie Wilkinson III, who questioned why there is a “rush to constitutionalize” and to create a “right to transgender surgery and treatment” in the Equal Protection Clause of the 14th Amendment.

“The recurrent creation of rights so unmoored from constitutional text or history will deplete the store of public respect on which a branch devoid of sword or purse must ultimately rely,” he said.

The legal battle, however, will not end at the appellate court. West Virginia Attorney General Patrick Morrisey, who is representing his state’s policies in court, said in a statement that this decision “cannot stand” and that he intends to appeal the ruling to the United States Supreme Court. 

“We are confident in the merits of our case: that this is a flawed decision and states have wide discretion to determine what procedures their programs can cover based on cost and other concerns,” Morrisey said. “Just one single sex-transition surgery can cost tens of thousands of dollars — taxpayers should not be required to pay for these surgeries under Medicaid. Our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens.”

Just two weeks ago, the same appellate court handed West Virginia an unfavorable ruling over its law that restricts women’s and girls’ sports to only biological women and girls. Similarly, the court claimed that the law was discriminatory on the basis of gender identity. This ruling is also being appealed to the Supreme Court.

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