Victory for common sense and equality in North Carolina with landmark trans healthcare ruling

Trans state employees can sue North Carolina for failing to cover gender-affirming treatments in its health insurance plan, the Fourth Circuit has ruled.

Six state employees filed the lawsuit in 2019 accusing the North Carolina State Health Plan of discrimination against them or their children.

The health plan covers nearly 750,000 teachers, state employees, retirees, current and former lawmakers, state university personnel, community college personnel, hospital staff members and their dependents.

But it categorically denies coverage for gender dysphoria treatments such as counselling, hormone therapy and related surgical care.

The plaintiffs argued that the state had violated the Affordable Care Act by discriminating against its transgender employees – and on Wednesday (1 September) the court agreed with them.

“We have previously noted what should by now be uncontroversial: ‘Just like being cisgender, being transgender is natural and is not a choice.’ Nor is someone’s transgender status a ‘psychiatric condition’ that implies any impairment in judgment, stability, reliability, or gender social or vocational capabilities,” wrote chief appellate judge Roger Gregory.

His 36-page opinion states: “Discrimination is not always obvious. A policy may appear facially neutral, but nonetheless be discriminatory by design or applied in a discriminatory fashion. … Plaintiffs argue that that is the case here, … and the Court agrees.

“The characteristics of sex and gender are directly implicated; it is impossible to refer to the Exclusion without referring to them. … In short, the Exclusion facially discriminates on the basis of gender, and heightened scrutiny applies.”

The news that trans state employees would have their day in court was celebrated by the Transgender Legal Defence and Education Fund (TLDEF), which represented the plaintiffs with Lambda Legal.

“We commend the court for denying North Carolina’s attempt to dismiss this important lawsuit on behalf of transgender state employees and their families,” said TLDEF executive director Andy Marra.

“North Carolina has failed its trans employees and their families who, like all people, have pressing health needs at certain times in their lives. Especially now, it is vital to listen to doctors and not spread misinformation or rely on junk science.

“All mainstream medical associations, including the American Medical Association, recognise that transition-related care is safe, effective, and medically necessary.”

The state defendants had claimed “sovereign immunity” from the suit under the 11th Amendment. However, the court found that North Carolina waived immunity because it accepted federal financial assistance for the plan.

The groundbreaking ruling affirms a district court decision that denied the state’s motion to dismiss the case last year, and marks the first time a federal appellate court has ruled that “sovereign immunity” does not protect state entities from liability under Affordable Care Act if they receive federal funding.