Filing by 21 states backs reversal of ruling in State Health Plan sex transition lawsuit

RALEIGH — State Treasurer Dale Folwell welcomed the filing of an amicus brief by 21 states in the case involving a court decision ordering the N.C. State Health Plan to pay for sex transition surgeries and procedures. 

The State Health Plan is a division of the Department of State Treasurer that provides health care coverage to almost 740,000 state employees, including teachers, retirees, lawmakers, state university and community college personnel, and their dependents. 

“Our main priority is to provide coverage that does the most good for the highest number of people with the finite resources we have available,” Folwell said in the press release. “Plan trustees are responsible for maintaining and preserving the financial stability of the State Health Plan. We cannot be everything for everyone. The 21 states support the position that health benefits should be determined by those closest to the situation, and they point out the current disagreement about the effectiveness of these medical treatments.” 

The states filing the amicus brief are Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah and Virginia. All 21 attorneys general from those states are, like Folwell, Republicans. 

The key claims in the 30-page amicus brief are that chemical and surgical interventions cannot be assessed separately from the conditions to be treated, health authorities across the globe consider the gender transition interventions at issue here to be “experimental” and unproven, and unlike puberty blockers, cross-sex hormones and surgeries, counseling care enjoys widespread support and has no physical side effects. 

“The purported benefits of chemical and surgical interventions are hypothetical,” wrote the attorneys general. “Unfortunately, the side effects are not. They are both known and severe. Premature mortality. Sterilization. Interference with brain development. Loss of bone density. Hypertension. Shockingly high suicide rates after chemical or surgical intervention.” 

“Gender dysphoria is a serious condition, and all individuals struggling with it deserve compassionate, evidence-based care,” the amicus brief states in its conclusion. “Disregarding the science and the harms is not compassionate. The evidence from the last decade suggests that today’s common gender transition interventions are, at best, experimental and, at worst, deeply harmful. Policymakers in West Virginia and North Carolina are entitled to act accordingly.”  

In the final line, the amicus brief states, “The Court should reverse the judgments of both district courts and rule in favor of the States.” 

The amicus brief was filed with the U.S. Court of Appeals for the Fourth Circuit in the Kadel v. Folwell case, which began in 2019. The State Health Plan (SHP) was sued over a “temporary benefit to pay for surgical and hormonal treatments related to gender dysphoria had expired,” according to Folwell’s release. 

The same 21 states have also filed an amicus brief on behalf of the state of West Virginia after a federal District Court in that state said that the state’s Medicaid program could not deny coverage for gender dysphoria treatment that includes surgery. 

In his release, Folwell notes that the exclusion of those procedures and treatments is “decades-old” and has been in place under every state treasurer “since the 1990s.” 

The treasurer also said he sought legal representation from Attorney General Josh Stein, who refused the request. 

In June 2022, U.S. District Court Judge Loretta Biggs, an Obama-era appointee, found the exclusion of the treatments “discriminatory” and ruled in favor of the plaintiffs. That ruling was appealed and will be heard in September before the full 4th Circuit Court of Appeals. 

Folwell’s appeal argues Biggs deprived the SHP of a jury trial and substituted her decision in place of the Plan’s Board of Trustees’ authority to make coverage decisions. 

Per the press release, the State Health Plan has “expended about $356,000 during the first four months of 2023 on treatments for approximately 270 individuals” since Biggs issued her order. Additionally, the State Health Plan is “on track to exceed $1 million in expenditures” for 2023. 

About A.P. Dillon 1071 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_