Lawyers representing the North Carolina State Health Plan are asking the 4th US Circuit Court of Appeals to throw out an injunction against the plan in a dispute over coverage for medical treatments typically sought by transgender patients.<\/p>\n
A letter<\/a> Thursday asks appellate judges to vacate the injunction in light of a US Supreme Court order<\/a> in June. The high court called on the 4th Circuit to take another look at the North Carolina case based on the ruling in United States v. Skrmetti. Justices upheld a Tennessee law banning puberty blockers and hormone therapy for transgender teens.<\/p>\n The 4th Circuit initially upheld a trial judge\u2019s injunction against North Carolina\u2019s health plan. The injunction forced the health plan to provide coverage for disputed treatments.<\/p>\n \u201cThis Court should promptly vacate the district court\u2019s injunction and remand the case to the U.S District Court for the Middle District of North Carolina,\u201d wrote lawyer Mark Jones in Thursday\u2019s letter to Nwamaka Anowi, the court clerk. \u201cThis Court should further direct the district court to deny Plaintiff\u2019s Motion for Summary Judgment, which contended that the North Carolina State Health Plan\u2019s long-standing exclusions facially discriminated in violation of the Fourteenth Amendment\u2019s Equal Protections Clause.\u201d<\/p>\n The health plan defendants \u201cperceive no daylight\u201d between the US Supreme Court\u2019s reasoning in a Tennessee case, United States v. Skrmetti, and the arguments the health plan has made \u201cthroughout the past 6 years of this litigation,\u201d Jones wrote.<\/p>\n \u201cIn Skrmetti, the Supreme Court held that \u2018[t]his Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny,\u2019\u201d Jones explained. \u201c\u2018Such an approach \u2026 would be especially inappropriate in the medical context [because s]ome medical treatments and procedures are uniquely bound up in sex.\u2019 The Supreme Court\u2019s holding is directly contrary to the opinions in this case by the district court and this Court.\u201d<\/p>\n \u201cThe Supreme Court also held that prohibiting certain medical treatments for individuals \u2018of one sex while allowing those same treatments for [individuals] of the opposite sex\u2019 is not sex discrimination when that distinction is tied to \u2018the underlying medical concern the treatment is intended to address,\u2019\u201d Jone added. \u201cPlaintiffs asserting discrimination based on sex stereotypes must first identify a classification \u2018based on sex.\u2019 \u2018A law prohibiting the administration of specific drugs for particular medical uses does not [trigger heightened scrutiny].\u2019\u201d<\/p>\n Supreme Court justices followed up the Skrmetti ruling with a June 30 decision vacating the 4th Circuit\u2019s ruling in the North Carolina case, Kadel v. Folwell.<\/p>\n \u201cIn light of the Supreme Court\u2019s order, this Court should promptly vacate the district court\u2019s injunction and remand with instructions to deny Plaintiff\u2019s Motion for Summary Judgment,\u201d Jones wrote. \u201cAlternatively, the Court should enter an Order vacating the district court\u2019s injunction and remanding this matter for further consideration in light of United States v. Skrmetti.\u201d<\/p>\n The high court\u2019s June order<\/a> called for the 4th Circuit to give the case \u201cfurther consideration in light of United States v. Skrmetti.\u201d<\/p>\n \u201cOnce the full legal process is finalized in the coming weeks, we anticipate this will lead to the State Health Plan of North Carolina re-implementing the longstanding exclusion on transition-related medical care,\u201d State Treasurer Brad Briner\u2019s office said in a news release responding to the Supreme Court\u2019s order.<\/p>\n \u201cKadel v. Folwell\u00a0has always been about one question. Do the people of North Carolina, through their elected representatives, get to ultimately manage the State Health Plan? Or can plaintiffs dictate what procedures we cover? We are gratified that the Supreme Court has agreed with our strongly held belief in the State Health Plan Board of Trustees\u2019 authority in this matter,\u201d the news release continued.\u00a0<\/p>\n Briner\u2019s office issued a June 18 news release predicting<\/a> that the Supreme Court would reverse earlier rulings against the State Health Plan in Folwell v. Kadel. That prediction was based on the court\u2019s 6-3 ruling in Skrmetti.<\/p>\n \u201cThe Court\u2019s ruling in Tennessee\u2019s equal protection case upholds our arguments in the long-running\u00a0Kadel v. Folwell\u00a0case here in North Carolina,\u201d Briner said in the news release<\/a>. \u201cIn its simplest form, this case has always been about ensuring that the State Health Plan can conduct its business in a manner that best serves the members of the Plan. We are thankful that the Supreme Court has affirmed the ability of the Plan to do just that.\u201d<\/p>\n The North Carolina case stemmed from the exclusion of \u201ctransition-related medical procedures and medications\u201d from State Health Plan coverage. The exclusion dated back to the 1990s, with a one-year exception in 2016.<\/p>\n \u201cExclusions lists are commonplace in most insurance coverage,\u201d according to the treasurer\u2019s news release. \u201cLists include the procedures and medications your health plan will not pay for in an effort to ensure that members receive high-quality care and maintain affordable health coverage. For example, the Plan\u2019s current exclusions list includes GLP-1s when used for weight loss, acupuncture, and durable medical equipment.\u201d<\/p>\n A federal trial court ordered the State Health Plan to cover the transition-related services. The full 4th US Circuit Court of Appeals split, 8-6, in an April 2024 ruling favoring plaintiffs who challenged the exclusion.<\/p>\n Then-Treasurer Dale Folwell and the State Health Plan appealed to the US Supreme Court. The goal was to preserve the plan\u2019s ability \u201cto conduct its business according to the wishes of its members,\u201d according to the treasurer\u2019s news release.<\/p>\n \u201cBased on the decision in\u00a0Skrmetti\u00a0today, it is expected the Supreme Court will issue an order in the Plan\u2019s appeal in\u00a0Kadel\u00a0reversing the decision of the 4th Circuit and remanding the case,\u201d the news release explained. \u201cIt is anticipated this order will also remove the injunction against the Plan, which would automatically and immediately reimplement the benefit exclusion and require compliance with\u00a0HB 808\/SL 2023-111<\/a>.\u201d<\/p>\n House Bill 808, approved over Gov. Roy Cooper\u2019s veto in August 2023, prohibits gender transition procedures for minors in North Carolina.<\/p>\n \u201cWhen the Supreme Court\u2019s order is issued in\u00a0Kadel, the Plan will evaluate the order and work with Aetna, Caremark, and the Plan\u2019s other vendors to guarantee the Plan is following the law,\u201d Briner\u2019s news release explained.<\/p>\n The treasurer\u2019s lawyers filed paperwork<\/a> last November with the high court. They rebutted arguments plaintiffs made in October urging Supreme Court justices to reject the case.<\/p>\n \u201cThe en banc Fourth Circuit held that the North Carolina State Health Plan for Teachers and State Employees violated the Equal Protection Clause by refusing to provide insurance coverage for treatments \u2018leading to or in connection with sex changes,\u2019\u201d the treasurer\u2019s lawyers wrote. \u201cThat decision conflicts with decisions from several other circuits and is both profoundly wrong and profoundly important. It merits this Court\u2019s review.\u201d<\/p>\n The plaintiffs \u201ccome nowhere close to refuting any of those points,\u201d the court filing continued. \u201cThey do not deny that courts are divided over whether laws that prohibit access to or restrict insurance coverage for sex-change treatments violate the Equal Protection Clause. And they have no persuasive argument that the Fourth Circuit lies on the right side of the divide. Nor do they deny that the equal-protection question is of national importance.\u201d<\/p>\n \u201cOne way or another, the Court should not allow the Fourth Circuit\u2019s flawed decision to be the last word on an issue that demands a sensible and uniform national answer,\u201d the treasurer\u2019s lawyers argued.<\/p>\n The plaintiffs, considered respondents in the case, offered their arguments<\/a> to the Supreme Court in October 2024.<\/p>\n \u201cNorth Carolina and West Virginia administer health plans to cover medically necessary healthcare for their state employees and indigent citizens, respectively. Both plans, however, contain a targeted exception: they categorically exclude medically necessary gender-affirming care for transgender recipients,\u201d according to the respondents\u2019 brief<\/a>. \u201cThe same treatments are available to cisgender members, including for gender-affirming reasons.\u201d<\/p>\n \u201cThese exclusions have serious consequences for the States\u2019 transgender plan members: if untreated, gender dysphoria \u2014 the condition of marked incongruence between one\u2019s gender and one\u2019s sex assigned at birth \u2014 can have debilitating consequences, including depression, self-injury, and even suicide,\u201d according to the court filing.<\/p>\n Twenty-four states filed a brief<\/a> in August 2024 supporting North Carolina and West Virginia in their appeals to the US Supreme Court. The 4th Circuit had ruled against West Virginia in a case similar to the Kadel dispute.<\/p>\n In an 8-6 ruling<\/a>, the 4th US Circuit Court of Appeals tossed out the North Carolina State Health Plan\u2019s ban on covering sex-change surgeries and other treatments.<\/p>\n \u201cDo healthcare plans that cover medically necessary treatments for certain diagnoses but bar coverage of those same medically necessary treatments for a diagnosis unique to transgender patients violate either the Equal Protection Clause or other provisions of federal law? We hold that they do,\u201d wrote<\/a> Judge Roger Gregory for the court majority.<\/p>\n