(Central Square) — North Carolina Treasurer Dale Fowell is appealing a recent federal court order requiring the state’s health plan to fund sex-reassignment surgeries, even though the plan will cover the services in the meantime.
Folwell announced Wednesday that the state health plan will not impose exclusions on benefits for gender reassignment, changes or related care to comply with a June 10 order by U.S. District Court Judge Loretta Biggs in Cadell v. Fowell.
“We clearly disagree with the judge’s order, which is essentially an assumption of responsibility for determining the benefits of the sex reassignment surgery plan.” “We are also disappointed that the court decided to stop the case from being tried by a jury of North Carolina residents,” Fowell said. “However, I have always said that if the legislature or the courts tell me we need to provide sex reassignment surgeries and treatment, I will.”
The recent ruling stems from a 2019 lawsuit by the Lambda Legal Defense and Education Fund and the Transgender Legal Defense & Education Fund on behalf of several current and former state employees and their dependents.
The plan — which insures more than 750,000 teachers, state employees, governors, legislators, state university employees, retirees and non-Medicare dependents — included an exclusion for surgery and hormone treatment “related to a diagnosis of gender dysphoria,” which dates back to the 1990s.
Under Fowell’s predecessor, the health plan board chose not to enforce the exclusion for a year, from December 2016 to 2017, pending federal regulations that never materialized. Folwell asked Attorney General Josh Stein to represent the state health plan, but he declined, Folwell said.
The plaintiffs argued that transition services are “medically necessary services” and denying coverage for gender dysphoria is discriminatory. Biggs agreed that the exclusion from the health plan “discriminates on the basis of sex and transgender status in violation of the Equal Protection Clause of the U.S. Constitution and discriminates on the basis of sex in violation of Title VII” of the federal Civil Rights Act, according to Winston-Salem Journal.
Biggs wrote that “Defendants have presented no admissible evidence to rebut that these treatments were ‘medically necessary,’ and it appears that both (the state health plan) and Blue Cross agree that they would have been covered in the absence of on shutdown.
“Defendants’ contention that gender confirmation care is ineffective and unnecessary is simply not supported by the record,” Biggs wrote, according to the news site.
“Defendants … are ordered to restore coverage for ‘medically necessary services’ for the treatment of gender dysphoria,” the order reads. “The question of damages is reserved for trial.”
“We believe the judge’s order is legally incorrect; therefore, it is now on appeal to the United States Court of Appeals for the Fourth Circuit,” according to a statement from Folwell.
Folwell argues that excluding gender dysphoria from the state health plan is about cost savings and benefit maximization, not discrimination.
“Since my first day in office, we have been trying to reduce health care costs for those who teach, protect and otherwise serve,” he said. “We are fighting the hospital cartel to bring transparent pricing to our members so they actually understand what they are paying for healthcare. The Board rightly seeks to reduce costs and limit spending to those benefits that benefit the most members. This case has always been about protecting the Board’s authority to maintain the Plan for current, future and retired members and nothing else.”