23 state AGs look to overturn gender-affirming surgery ruling

North Carolina Attorney General Josh Stein refused to defend the state in a similar case

Alabama Attorney General Steve Marshall was joined by 22 other states in an amicus brief looking to overturn a ruling that requires employer health insurance to cover gender-affirming care. (Patrick Semansky / AP Photo)

RALEIGH — Nearly half of the nation’s attorneys general have joined an amicus brief led by Alabama Attorney General Steve Marshall that seeks to overturn a ruling by the 11th Circuit that employer health insurance must cover gender-affirming care or face liability under Title VII of the Civil Rights Act of 1964.

“This case calls out for correction by the full Eleventh Circuit. It is hard to overstate how radical the panel’s decision is,” said Marshall in a press release. “With its interpretation of a federal statute meant to require equal treatment in the workplace, the court fundamentally transformed Title VII to require favored treatment for employees who identify as transgender by mandating coverage for any number of treatments or operations such an employee could want.

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“The court’s rewrite of Title VII will produce wide-ranging consequences for employers, who now face both greater liability and diminished clarity over how far the law extends. The Court must correct this decision.”

In addition to Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Montana, Missouri, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Texas, Tennessee, Utah, Virginia and West Virginia signed onto the amicus brief.

North Carolina did not join the brief, and Attorney General Josh Stein refused to defend the State Health Plan in a similar case settled earlier this year.

“Four years ago, the State Health Plan and the UNC Systems were sued for not covering sex-transition operations. I asked North Carolina Attorney General Josh Stein to represent us in the litigation known as the Kadel case,” said N.C. State Treasurer Dale Folwell in a statement to North State Journal. “He refused us while, at the same time, representing the UNC Systems eventually coming to an undisclosed settlement with the plaintiffs.

“North Carolina is not joining 23 other states in filing an amicus brief in an appeal of a federal court decision taking away the right of employers to make responsible decisions about what health benefits they cover, because AG Stein isn’t doing his job. If he had been, we would be joining the other states in this common sense amicus.”

In the North Carolina case against the State Health Plan brought by transgender individuals and their parents, U.S. District Judge Loretta Biggs ruled in spring 2022 that refusal to cover gender-affirming treatments violated the equal protection clause of the Constitution and Title VII of the Civil Rights Act on the basis of sex. Biggs ordered the State Health Plan to resume offering “medically necessary services for the treatment of gender dysphoria,” which had terminated after 2017.

The ruling by Biggs was appealed, and 21 state attorneys general filed an amicus brief backing a reversal of the Biggs ruling.

This May, the 4th U.S. Circuit Court of Appeals ruled 8-6 upholding previous rulings against the cases involving North Carolina’s state employee health plan and West Virginia’s Medicaid coverage of gender-affirming surgery.

In a press release following the 4th Circuit ruling, Folwell said the court’s decision was in “direct conflict” with other decisions from federal appeals courts and hoped the U.S. Supreme Court will take up the issue.

A recent June 11 ruling by a federal judge in Florida found that state’s ban on gender-affirming care for minors, as well as some for adults, to be unconstitutional and blocked enforcement of the law pending a jury trial.

About A.P. Dillon 1341 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_