A Transgender Roe v. Wade?

The divided Fourth Circuit rules transgender medical coverage is constitutionally protected

Gender activists are hailing an 8-6 decision by the U.S. Fourth Circuit as a Transgender Roe v. Wade. Their celebration is, however, premature. While Kadel v. Folwell is undoubtedly a landmark ruling that the Equal Rights Amendment bars state health plans from excluding medical coverage for transgender surgical procedures, one of the dissenting circuit court justices called it “imperial judging at its least defensible.” It will almost certainly be reviewed by the Supreme Court.

In the spotlight in the Fourth Circuit case were two states that had excluded covering costs “in connection with sex changes.”  West Virginia’s Medicaid plan did not pay for transgender surgical procedures. North Carolina’s insurance plan for teachers and government staff did the same.

The die was cast in the appellate court when the majority concluded that the state plans “cover mastectomies to treat cancer, but not to treat gender dysphoria…and chest-reconstruction surgery for cisgender women post-mastectomy, but not for gender dysphoria in transgender women.” The majority considered “treatments for a diagnosis unique to transgender patients” as “medically necessary treatments” and that the Constitution prohibited any coverage exclusions for transgender patients. The court’s bottom line: “The North Carolina State Health Plan and the West Virginia Medicaid Program discriminate on the basis of gender identity and sex in violation of the Equal Protection.”

Just the Facts has subscribers in over 100 countries. Many may not be familiar with the much talked about 14^th Amendment. It was ratified in 1868 in the wake of the Civil War and designed to stop states from discriminating against freed Black slaves. The Amendment gave all Blacks born in the United States citizenship as a matter of birthright. Courts have, in the 156 years since its ratification, expansively interpreted its broadly-worded second sentence: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

That language was the basis for the Supreme Court’s 1973 milestone 7-2 Roe v. Wade decision. The Roe court ruled there was a personal right to privacy implied in the 14th Amendment and that abortion was constitutionally protected.

In 2019, the same Fourth Circuit appeals court that made the Kadel ruling, had demonstrated its willingness to grant constitutional protection to gender identity. In deciding in Grimm v. Gloucester County School Board that a Virginia school district could not bar a transgender boy from using whatever bathroom he chose, the court concluded that “gender identity is a protected characteristic under the Equal Protection Clause.” The following year, the Supreme Court ruled 6-3 in its Bostock ruling that gay and transgender status was covered by the 1964 Civil Rights Act.

The Kadel ruling relies on Grimm and Bostock and expands their reach. A dissenting judge, J. Harvie Wilkinson III, summed up the potential impact of the new decision: “What plaintiffs propose is nothing less than to use the Constitution to establish a nationwide mandate that States pay for emerging gender dysphoria treatments.”

In reaching its sweeping ruling, the majority provided examples of what it concluded constitute sex discrimination in the state plans. It cited, for instance, that “women can receive coverage for a vaginoplasty to treat the congenital absence of a vagina, but transgender women cannot receive a vaginoplasty to treat gender dysphoria.”

The court did not further describe the birth condition that would require such surgery for women. It is Mayer-Rokitansky-Küster-Hauser syndrome, a rare congenital reproductive disorder defined by an underdeveloped or nonexistent uterus and vagina. When the condition affects the uterus, it means women are infertile.

The two state plans covered surgeries for genitals or breasts only if the patient had a congenital condition or there was injury or a disease. Women who were diagnosed with Mayer-Rokitansky-Küster-Hauser syndrome, would qualify for full coverage of a vaginoplasty.  Men, however, who identified as the opposite gender, would not qualify for state coverage. For men, it involves the surgical removal of the penis, testicles and scrotum and uses a skin graft from the buttocks or bowel to create a nonfunctioning pseudo-vagina.

Patients did not qualify for coverage under the state plans, as one dissenting judge wrote, “to affirm a patient’s biological sex.”

The same is true in another example cited by the majority, when the state plan “covers chest surgery for men who experience gynecomastia, but not for transgender men who experience gender dysphoria.”

Men in either state only qualify for surgical correction of gynecomastia, a hormonal imbalance that results in a swelling of breast tissue, if “they have physical symptoms, like breast pain.”  They are not covered to treat “gender dysphoria.”

The six dissenting justices understood it is not a violation of the Equal Protection Clause for state health plans to exclude coverage based on medical diagnoses.

“The Equal Protection Clause does not license judges to strike down any policy we disagree with,” said Judge Richardson, writing for the dissent. “North Carolina and West Virginia do not target members of either sex or transgender individuals by excluding coverage for certain services from their policies. They instead condition coverage on whether a patient has a qualifying diagnosis. Anyone—regardless of their sex, gender identity, or combination thereof—can obtain coverage for these services if they have a qualifying diagnosis. And no one—regardless of their sex, gender identity, or combination thereof—can obtain coverage if they lack one. There is therefore nothing about these policies that discriminate on the basis of sex or transgender status.”

The Kadel decision is dangerous for the breath of the constitutional protection it applies to gender medical procedures. It is also reckless in its embrace of the scientific certainty and safety about such procedures.

“The science behind gender dysphoria care is far from settled,” wrote Judge Wilkerson in his dissent. “Many European nations have questioned the wisdom of hormonal and surgical interventions, particularly when used to treat children…. Providing the best possible care to adults and youth struggling with gender dysphoria is a challenging task for our States. But it is one that they are entitled to perform without premature judicial interference.”

Still, the majority blew past amicus briefs that set out the extent to which the science about gender was in a state of rapidly changing flux and provided a list of recent studies that raised significant questions about the safety and long-term effects of the very surgeries the majority wants to constitutionally protect.

The Kadel ruling exposes the dangers of leaving to the courts matters that should be decided by biology and medicine. It is the latest example of the politicization of gender medicine. The Supreme Court will be the last resort for permitting state legislatures to have the power to set policies on gender dysphoria treatments. Putting it under the protection of the Constitution, as Kadel does, guarantees only that evolving evidence about gender medicine will be ignored at the peril of patients and the costs borne by taxpayers.