Opposition Brief — Dale Folwell, State Treasurer of North Carolina, et al., Petitioners v. Maxwell Kadel, et al.
Supreme Court briefOct 28, 2024
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Nos. 24-90 and 24-99
In the Supreme Court of the United States
____________________
WILLIAM CROUCH, in his official capacity as Cabinet
Secretary of the West Virginia Department of
Health and Human Resources, et al.,
Petitioners,
v.
SHAUNTAE ANDERSON, individually and on behalf of
all others similarly situated,
Respondents
____________________
DALE FOLWELL, State Treasurer of North Carolina,
et al.,
Petitioners,
v.
MAXWELL KADEL, et al.,
Respondents.
____________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
____________________
BRIEF IN OPPOSITION
____________________
SYDNEY DUNCAN
GABRIEL ARKLES
EZRA CUKOR
CATHY ZHANG
ADVOCATES FOR TRANS
EQUALITY EDUCATION FUND
520 8th Avenue, Suite 2204
New York, New York 10018
(646) 898-2205
sduncan@transequality.org
garkles@transequality.org
ecukor@transequality.org
czhang@transequality.org
TARA L. BORELLI
Counsel of Record
SASHA BUCHERT
OMAR GONZALEZ-PAGAN
NORA HUPPERT
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
1 West Court Square, Ste. 105
Decatur, GA 30030
(424) 298-7911
tborelli@lambdalegal.org
sbuchert@lambdalegal.org
ogonzalezpagan@lambdalegal.org
nhuppert@lambdalegal.org
Counsel for Respondents
(Additional Counsel Listed on Inside Cover)
KATHLEEN HARTNETT
COOLEY LLP
3 Embarcadero Center, 20th
Floor San Francisco, CA 94111
(415) 693-2000
khartnett@cooley.com
ANNA P. PRAKASH
NICHOLS KASTER, PLLP
80 South 8th Street, Suite 4700
Minneapolis, MN 55402
(612) 256-3200
aprakash@nka.com
AMY E. RICHARDSON
DEEPIKA H. RAVI
HWG LLP
1919 M Street NW, Eighth
Floor
Washington, DC 20036
(202) 730-1300
arichardson@hwglaw.com
dravi@hwglaw.com
WALT AUVIL
THE EMPLOYMENT LAW
CENTER, PLLC
1208 Market Street
Parkersburg, WV 26101
(304) 485-3058
auvil@theemploymentlawcente
r.com
DMITRIY TISHYEVICH
MCDERMOTT WILL & EMERY
LLP
One Vanderbilt Avenue
New York, NY 10017
(212) 547-5534
dtishyevich@mwe.com
i
QUESTIONS PRESENTED
North Carolina and West Virginia administer
state-sponsored health coverage plans that categorically exclude medically necessary gender-affirming
care for transgender plan members, while covering
that same care for cisgender plan members.
The questions presented are:
(1) Whether the Fourth Circuit correctly concluded
that West Virginia’s exclusion of care for transgender
plan members violates Section 1557 of the Affordable
Care Act, which provides that “an individual shall not,
on the ground prohibited under . . . title IX of the Education Amendments of 1972 . . . be excluded from participation in, be denied the benefits of, or be subjected
to discrimination under[] any health program or activity” that receives federal funds, 42 U.S.C. § 18116(a),
because such an exclusion discriminates on the basis
of sex;
(2) Whether the Fourth Circuit correctly concluded,
in the alternative, that the West Virginia plan violates
the Medicaid Act’s requirements that states administering Medicaid plans (i) make services available to
any categorically needy individual in no “less . . .
amount, duration, or scope than the medical assistance made available to any other” eligible individual,
42 U.S.C. § 1396a(a)(10)(B); and (ii) “provide . . . for
making medical assistance available” to eligible individuals, id. § 1396a(a)(10)(A); and
(3) Whether the Fourth Circuit correctly concluded,
in the alternative, that the plan exclusions violate the
Equal Protection Clause by impermissibly discriminating on the basis of sex and transgender status because the plans exclude gender-affirming care for
ii
transgender people while providing the same care to
cisgender people without an exceedingly persuasive
justification.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ......................................... i
TABLE OF CONTENTS.............................................iii
TABLE OF AUTHORITIES ........................................ v
STATUTORY AND CONSTITUTIONAL
PROVISIONS ................................................... xi
INTRODUCTION ........................................................ 1
STATEMENT............................................................... 2
A.
Factual Background ............................... 2
B.
Procedural Background.......................... 7
ARGUMENT .............................................................. 15
I.
II.
THE COURTS BELOW INVALIDATED
THE EXCLUSIONS ON
INDEPENDENT STATUTORY
GROUNDS THAT DO NOT WARRANT
THIS COURT’S REVIEW. .............................. 16
A.
The Fourth Circuit Correctly
Found a Violation of Section 1557
of the ACA............................................. 17
B.
The Fourth Circuit Correctly
Concluded That the W.V. Plan
Violates the Medicaid Act. ................... 19
C.
The Statutory Issues Present No
Circuit Splits and Do Not Merit
Review by This Court. .......................... 20
THERE IS NO REASON TO
CONSIDER THE EQUAL
iv
TABLE OF CONTENTS
(continued)
Page
PROTECTION QUESTION HERE IN
CONJUNCTION WITH SKRMETTI. ............ 22
III.
IV.
THE FOURTH CIRCUIT CORRECTLY
DECIDED THE EQUAL PROTECTION
QUESTION. .................................................... 24
A.
The Plans Impermissibly
Discriminate on the Basis of Sex. ........ 24
B.
The Plans Impermissibly
Discriminate on the Basis of
Transgender Status. ............................. 27
C.
Petitioners Attempt to Relitigate
Factual Questions, Further
Confirming That This Case Is a
Poor Vehicle for Reviewing the
Questions Presented. ........................... 30
THIS COURT’S REVIEW IS NOT
WARRANTED TO RESOLVE ANY
CIRCUIT SPLITS ON THE EQUAL
PROTECTION ISSUES PRESENTED
HERE............................................................... 32
CONCLUSION .......................................................... 34
v
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Beal v. Doe,
432 U.S. 438 (1977) .............................................. 20
Bostock v. Clayton Cnty.,
590 U.S. 644 (2020) ............................ 15, 17, 18, 25
Bowen v. Gilliard,
483 U.S. 587 (1987) .............................................. 27
Box v. Planned Parenthood of Indiana &
Kentucky, Inc.,
587 U.S. 490 (2019) ........................................ 23, 33
Brandt ex rel. Brandt v. Rutledge,
47 F.4th 661 (8th Cir. 2022) ................................. 32
Bray v. Alexandria Women's Health
Clinic,
506 U.S. 263 (1993) ........................................ 28, 29
Burrage v. United States,
571 U.S. 204 (2014) .............................................. 18
City of Cleburne, Tex. v. Cleburne Living
Ctr.,
473 U.S. 432 (1985) .............................................. 27
Dekker v. Secretary, Fla. Agency for
Health Care Admin.,
No. 23-12155 (11th Cir.) ....................................... 33
Dobbs v. Jackson Women’s Health Org.,
597 U.S. 215 (2022) .............................................. 29
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Doe v. Snyder,
28 F.4th 103 (9th Cir. 2022) ................................. 21
Druley v. Patton,
601 F. App’x 632 (10th Cir. 2015) ........................ 34
Eknes-Tucker v. Governor of Alabama,
80 F.4th 1205 (11th Cir. 2023) ....................... 32, 34
Fowler v. Stitt,
104 F.4th 770 (10th Cir. 2024) ............................. 34
Geduldig v. Aiello,
417 U.S. 484 (1974) .................................. 12, 28, 29
Gen. Elec. Co. v. Gilbert,
429 U.S. 125 (1976), superseded by
statute, Pregnancy Discrimination
Act of 1978, Pub. L. No. 95-555, 92
Stat. 2076 .............................................................. 29
Graver Tank & Mfg. Co. v. Linde Air
Products Co.,
336 U.S. 271 (1949) .............................................. 30
Grimm v. Gloucester County School
Board,
972 F.3d 586 (4th Cir. 2020), cert.
denied, 141 S.Ct. 2878 (2021) .................. 11, 27, 34
Hecox v. Little,
104 F.4th 1061 (9th Cir. 2023), cert.
pending ................................................................. 34
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Kadel v. Folwell,
2022 WL 17415050 (M.D.N.C. Dec. 5,
2022)................................................................ 10, 18
Kadel v. N. Carolina State Health Plan
for Tchrs. & State Emps.,
12 F.4th 422 (4th Cir. 2021) ................................. 18
L.W. ex rel. Williams v. Skrmetti,
83 F.4th 460 (6th Cir. 2023), cert
granted, No. 23-477 ........................................ 32, 34
Lange v. Houston Cnty.,
101 F.4th 793 (11th Cir. 2024) ............................. 30
Lawrence v. Texas,
539 U.S. 558 (2003) .............................................. 28
Mathews v. Lucas,
427 U.S. 495 (1976) .............................................. 29
Memorial Hosp. v. Maricopa Cnty.,
415 U.S. 250 (1974) ........................................ 13, 26
Mississippi Univ. for Women v. Hogan,
458 U.S. 718 (1982) .............................................. 26
N.L.R.B. v. Hendricks Cnty. Rural Elec.
Membership Corp.,
454 U.S. 170 (1981) ........................................ 30, 31
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
Naes v. City of St. Louis,
2023 WL 3991638 (8th Cir. June 14,
2023), vacated on grant of rehearing,
2024 WL 3421389 (July 12, 2024) ....................... 33
Nashville Gas Co. v. Satty,
434 U.S. 136 (1977) .............................................. 29
Nyquist v. Mauclet,
432 U.S. 1 (1977) .................................................. 29
Poe v. Drummond,
697 F. Supp. 3d 1238 (N.D. Okla.
2023)................................................................ 30, 33
Preterm, Inc. v. Dukakis,
591 F.2d 121 (1st Cir. 1979) ................................. 21
Smith v. Rasmussen,
249 F.3d 755 (8th Cir. 2001) .......................... 21, 22
Students for Fair Admissions, Inc. v.
President & Fellows of Harvard Coll.,
600 U.S. 181 (2023) .............................................. 18
The Monrosa v. Carbon Black Exp., Inc.,
359 U.S. 180 (1959) .............................................. 16
Ticor Title Ins. Co. v. Brown,
511 U.S. 117 (1994) .............................................. 16
United States v. Johnston,
268 U.S. 220 (1925) .............................................. 30
ix
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Virginia,
518 U.S. 515 (1996) ........................................ 25, 26
FEDERAL STATUTES
20 U.S.C. § 1681(a) .............................................. 15, 17
42 U.S.C. § 1396a(a)(10)(A) ................................. 14, 19
42 U.S.C. § 1396a(a)(10)(B) ................................. 14, 19
42 U.S.C. § 2000e–2(a)(1) .......................................... 17
42 U.S.C. § 18116(a) ............................................ 15, 17
The Age Discrimination Act of 1975 ......................... 17
Title VI of the Civil Rights Act of 1964 ............... 17, 18
STATE STATUTES
Tenn. Code Ann. § 68-33-103(a)(1)............................ 22
FEDERAL REGULATIONS
42 C.F.R. § 440.230(b) ......................................... 14, 20
42 C.F.R. § 440.230(c) .......................................... 14, 20
42 C.F.R. § 440.240(b)(1) ..................................... 14, 19
42 C.F.R. § 440.240(b)(2) ........................................... 19
x
TABLE OF AUTHORITIES
(continued)
Page(s)
RULES
Supreme Ct. Rule 10.................................................. 31
OTHER AUTHORITIES
Br. of Medical Amici, No. 22-1721, Kadel
v. Folwell (4th Cir.), ECF No. 49-1 ........................ 3
Healthcare Laws and Policies: State
Employee Benefits, Movement
Advancement Project,
https://www.lgbtmap.org/equalitymaps/healthcare_laws_and_policies
(last visited October 28, 2024) ............................... 4
Medicaid Coverage of TransgenderRelated Health Care, Movement
Advancement Project,
https://www.lgbtmap.org/equalitymaps/medicaid (last visited October
28, 2024).................................................................. 4
Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental
Disorders (5th ed. 2013) ......................................... 3
xi
STATUTORY AND CONSTITUTIONAL
PROVISIONS
42 U.S.C. § 18116(a) states, in relevant part:
Except as otherwise provided for in this
title (or an amendment made by this title), an individual shall not, on the
ground prohibited under . . . title IX of
the Education Amendments of 1972 . . .
be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program
or activity, any part of which is receiving
Federal financial assistance, including
credits, subsidies, or contracts of insurance.”
42 U.S.C. § 1396a(a)(10) states, in relevant part:
A State plan for medical assistance must
. . . provide—
(A) for making medical assistance available, . . .
(B) that the medical assistance made
available to any individual described in
subparagraph (A)—
(i) shall not be less in amount, duration, or scope than the medical assistance made available to any other
such individual, and
The Equal Protection Clause of the Fourteenth
Amendment provides: “No State shall . . . deny to any
person within its jurisdiction the equal protection of
the laws.”
1
INTRODUCTION
North 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. The
same treatments are available to cisgender members,
including for gender-affirming reasons. 1 These exclusions have serious consequences for the States’
transgender plan members: if untreated, gender dysphoria—the condition of marked incongruence between one’s gender and one’s sex assigned at birth—
can have debilitating consequences, including depression, self-injury, and even suicide.
The courts below found three independent reasons
to enjoin Petitioners from enforcing the plans’ exclusions. First, they concluded that the plans impermissibly discriminate on the basis of both sex and
transgender status in violation of the Equal Protection
Clause of the Fourteenth Amendment by electing to
fund the care at issue for cisgender members, but not
transgender members. Second, the lower courts held
that the plans violate Section 1557 of the Affordable
Care Act (“ACA”), the statute’s anti-discrimination
provision. And third, with respect to West Virginia’s
Medicaid plan, they concluded that the exclusions violate the Medicaid Act. Each of these rulings independently supports the injunctions entered below.
Petitioners urge this Court to grant certiorari to determine whether the exclusions violate the Equal Protection Clause, but they fail to properly account for the
People whose gender identity matches their sex assigned at
birth are referred to as cisgender.
1
2
fact that the judgments below rest on independent
statutory grounds. Those statutory holdings are casespecific, present no circuit splits and are plainly correct. Given those rulings, any decision on the equal
protection issues on which Petitioners focus would result in no relief to Petitioners. Accordingly, this case
provides an exceptionally poor vehicle for the Court to
review the equal protection claims raised in the petitions.
By the same token, Petitioners have advanced no
persuasive reason why this Court should grant certiorari in conjunction with—or hold this case pending the
outcome of—United States v. Skrmetti, No. 23-477,
which concerns an equal protection challenge to Tennessee’s ban on gender-affirming care for transgender
minors. The lower courts’ statutory rulings, which are
not worthy of review, will stand irrespective of this
Court’s resolution of the equal protection claim, so Petitioners will be enjoined from enforcing the exclusions
regardless of any equal protection ruling by this Court
in Skrmetti.
The petitions for certiorari should be denied.
STATEMENT
A.
Factual Background
1. Approximately 1.4 million people in the United
States are transgender, meaning that their gender
identity—that is, their “deeply felt, inherent sense” of
gender—does not align with the sex they were assigned at birth. Pet.App.7. Being transgender is not
a matter of choice and is a normal variation of human
3
development. CA4.JA.4402, 4462. 2 It “implies no impairment in a person’s judgment, stability, or general
social or vocational capabilities.” Br. of Medical Amici
6, No. 22-1721, Kadel v. Folwell (4th Cir.), ECF No. 491; see CA4.JA.4402, 4462.
Transgender individuals often experience gender
dysphoria, which is a serious medical condition characterized by “[a] marked incongruence between one’s
experienced/expressed gender and assigned gender”
that “is associated with clinically significant distress
or impairment in social, occupational, or other important areas of functioning” for “at least six months’
duration.” CA4.JA.4082 (citing Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
451–59 (5th ed. 2013)).
Medical experts have studied treatment for gender
dysphoria for well over half a century. CA4.JA.3075,
4555. The broader medical community—including the
American Medical Association, the Endocrine Society,
the American Psychiatric Association, and the American Psychological Association—all agree that medical
treatment for gender dysphoria is standard, safe, effective, and medically necessary. CA4.JA.4084, 4255,
4394, 4417. Meanwhile, the “denial of gender affirming care is harmful to transgender people, as it exacerbates gender dysphoria and leads to negative health
outcomes.” CA4.JA.4417; see CA4.JA.4546–57. “If untreated, gender dysphoria can cause debilitating distress, depression, impairment of function, self-mutilation to alter one’s genitals or secondary sex characteristics, other self-injurious behaviors, and suicide.”
Unless otherwise stated, all citations to the Fourth Circuit’s
Joint Appendix are to the appendix filed in Folwell v. Kadel.
Likewise, citations to the Petition Appendix refer to the appendix
filed in No. 24-99, Folwell v. Kadel.
2
4
Pet.App.7–8. In line with the medical community’s
consensus, gender-affirming care is expressly covered
in a majority of state Medicaid policies, and for employees of 24 states. See Medicaid Coverage of
Transgender-Related Health Care, Movement Advancement Project, https://www.lgbtmap.org/equalitymaps/medicaid (last visited October 28, 2024);
Healthcare Laws and Policies: State Employee Benefits,
Movement
Advancement
Project,
https://www.lgbtmap.org/equality-maps/healthcare_
laws_and_policies (last visited October 28, 2024).
To treat gender dysphoria, the medical community
follows the World Professional Association for
Transgender Health (“WPATH”) Standard of Care.
Pet.App.8–9. Those standards represent the evidencebased consensus of the medical and behavioral health
community and have been recognized nationally and
internationally as the authoritative standards of care
by major health and medical organizations, including
“the largest healthcare systems in the United States,”
“most major insurers of healthcare in the United
States, including the corporate policy for Blue Cross
and Blue Shield,” and “many Departments of Corrections, [and] the Federal Bureau of Prisons.”
CA4.JA.3565, 4158, 4253–54, 4389–90, 4464, 4544.
The WPATH Standards of Care recommend “assessment, counseling, and, as appropriate, social transition, hormone therapy, and surgical interventions to
bring the body into alignment with one’s gender identity.” Pet.App.9–10.
2. North Carolina provides healthcare coverage to
more than 740,000 state employees, retirees, and dependents through the North Carolina State Health
Plan for Teachers and State Employees (“the N.C.
Plan”). Pet.App.2. The N.C. Plan is self-funded and
5
determines what health benefits are excluded from
coverage. CA4.JA.3926, 3985; see Pet.App.5.
The N.C. Plan covers care only if it meets the Plan’s
criteria for medical necessity. Pet.App.14. Yet the
N.C. Plan excludes from coverage medically necessary
“[t]reatment or studies leading to or in connection with
sex changes or modifications and related care.”
Pet.App.2. That exclusion precludes coverage for medically necessary gender-affirming hormones and procedures for transgender people, despite coverage of the
same treatments for cisgender people. Pet.App.6;
CA4.JA.189–90. For example, the N.C. Plan covers
hormone therapy for cisgender men whose bodies do
not produce enough testosterone, but not for
transgender men. CA4.JA.3791, 3810–11. The N.C.
Plan also covers vaginoplasty (the creation or repair of
the vagina) for congenital absence of a vagina in cisgender women, but not for transgender women.
CA4.JA.3791. The same is true for a variety of other
treatments, including puberty-delaying hormone
treatment, hysterectomy (removal the uterus), and
chest reconstruction surgery. CA4.JA.3791–92, 3810–
11. 3
The cost of providing gender-affirming care is a
negligible fraction of the N.C. Plan’s budget. While the
More specifically, reimbursements under the Plan are processed
based on “procedural codes” and “diagnostic codes.” CA4.JA.185.
Procedural codes refer to the type of procedure performed, while
diagnostic codes refer to the diagnosis that is being treated. Ibid.
Approximately two dozen procedural codes are eligible for
reimbursement under the N.C. Plan unless the corresponding
diagnostic code is “F64.0 (Transsexualism) or Z87.890 (Personal
history of sex reassignment).” CA4.JA.189–90. In other words,
the N.C. Plan covers approximately two dozen procedures unless
the procedure provides gender-affirming care for transgender
individuals.
3
6
exclusion has been in effect since 1990, for one calendar year—2017—the Plan temporarily eliminated the
exclusion in response to federal regulatory guidance. 4
For that one-year period, the actual cost of gender-affirming care to the Plan? $404,609.26. CA4.JA.3799,
3812–13. By comparison, between January and August 2018, the Plan collected approximately
$2,400,000,000 in revenue, processed more than
$2,000,000,000 in claims, and had a positive cash balance of approximately $1,100,000,000. CA4.JA.3907–
18, 3918.
3. West Virginia participates in Medicaid, a federal-state program that provides health insurance to
low-income individuals and families. Pet.App.12.
West Virginia’s Medicaid program (the “W.V. Plan”) is
administered by the West Virginia Department of
Health and Human Resources, Bureau for Medical
Services, which decides which treatments are excluded from coverage. Pet.App.14.
Like the N.C. Plan, the W.V. Plan covers only medically necessary procedures. Pet.App.14. Since 2004,
the W.V. Plan has categorically denied coverage for
“transsexual surgery,” which refers to surgery intended to treat gender dysphoria, “regardless of medical necessity.” Pet.App.15. There is no indication that
the W.V. Plan relied on any medical, scientific, or economic information—or any information or reasoned
basis at all—in adopting the exclusion in 2004. Ibid.
And indeed, the W.V. Plan’s own utilization vendor
has concluded that this care can be medically necessary. Pet.App.15–16; Crouch.CA4.JA.2143–58.
In 2016, the U.S. Department of Health and Human Services
promulgated a rule prohibiting “categorical coverage exclusion[s]
or limitation[s] for all health services related to gender
transition.” Pet.App.6 n.4.
4
7
While excluding medically necessary surgeries for
transgender people, the W.V. Plan does, however,
cover the same procedures for cisgender people. For
example, the program covers vaginoplasty, mastectomy (removal of the breast), breast-reduction surgery, post-mastectomy chest-reconstruction surgery,
hysterectomy, oophorectomy (removal of the ovaries),
orchiectomy (removal of the testicles), penectomy (removal of the penis), and phalloplasty (creation or reconstruction of the penis) for medically necessary diagnoses other than gender dysphoria. Pet.App.16.
B.
Procedural Background
1. The Respondents in No. 24-99 are transgender
people or the parents of transgender people in North
Carolina who have been denied coverage for genderaffirming care under the N.C. Plan. Pet.App.7, 160.
Connor Thonen-Fleck is the son of Jason Fleck and
is enrolled in the N.C. Plan as Mr. Fleck’s dependent.
Pet.App.163. Before his medical transition, Mr. Thonen-Fleck suffered from serious, increasing distress
that jeopardized his health, education, and future.
Pet.App.162; CA4.JA.342–44. The daily anguish of being a teenage boy with a typically female chest was
unbearable. CA4.JA.344. With his family’s support
and under the guidance of a team of health care providers, Mr. Thonen-Fleck began treatment for gender
dysphoria, including hormone therapy, and ultimately
chest
reconstruction
surgery.
Pet.App.162;
CA4.JA.342–44, 349–53. But because the N.C. Plan
denied Mr. Thonen-Fleck coverage, he was forced to
delay surgery and work after school to raise money.
Pet.App.163. Mr. Thonen-Fleck and his family paid
out-of-pocket for his chest surgery, which Mr. ThonenFleck and his father have testified was “life-changing”
and “critical for [his] ongoing development and functioning as a young adult.” Pet.App.163. Because he
8
obtained medically necessary gender-affirming care,
Mr. Thonen-Fleck’s health has improved drastically
and he now feels at ease in social settings. He maintains a rigorous academic regimen and works towards
his dream of a career as a veterinarian. CA4.JA.349–
50. But he requires ongoing hormone therapy, which
the exclusion bars. CA4.JA.345.
Julia McKeown is a transgender woman and professor at North Carolina State University.
CA4.JA.376–77. She experienced “significant distress” due to gender dysphoria since childhood.
CA4.JA.376–77. Dr. McKeown’s medical provider referred her for vaginoplasty, but the N.C. Plan denied
coverage based on the N.C. Plan’s exclusion for gender-affirming care. CA4.JA.378. Unable to forgo
treatment any longer, Dr. McKeown raided her savings and retirement account to pay for surgery, which
has vastly improved her wellbeing. CA4.JA.378–79.
She requires additional gender-affirming care that the
exclusion prohibits. CA4.JA.379.
Corbyn Bunting (“Mr. Bunting”) is the transgender
son of Michael D. Bunting, Jr. JA.391–92. In 2017,
after feeling lifelong distress from his body not matching who he is, Mr. Bunting was diagnosed with gender
dysphoria and was prescribed puberty-delaying medication. JA.391–92. This treatment helped Mr. Bunting become a happy, outgoing, and personable young
man who is “comfortable in his own skin.”
CA4.JA.411. But the exclusion bars this treatment.
CA4.JA.391–92. Mr. Bunting’s parents paid out of
pocket for puberty delaying medication, but they could
only afford a form of injection treatment that carried
greater risk of side effects. CA4.JA.392. Mr. Bunting
now requires ongoing hormone therapy. Ibid.
Finally, Dana Caraway is a transgender woman
who worked for the North Carolina Department of
9
Public Safety and maintains coverage through the
N.C. Plan as a retiree. See CA4.JA.450–51. She suffered “great distress and mental anguish” due to gender dysphoria. CA4.JA.452. Ms. Caraway’s psychologist and therapist recommended gender-affirming surgery, but she could not initially afford it because of the
N.C. Plan’s exclusion. CA4.JA.454–55. Ms. Caraway
eventually withdrew funds from her retirement account to obtain the needed surgery. CA4.JA.455. She
still requires additional treatments, including further
surgery, but those treatments are not covered by the
N.C. Plan and Ms. Caraway is unable to afford them.
CA4.JA.456–57. 5
Respondents filed suit in the Middle District of
North Carolina, arguing that the N.C. Plan’s exclusion
for medically necessary gender-affirming care discriminates on the basis of sex and transgender status in
violation of both the Equal Protection Clause and the
ACA. 6 CA4.JA.17, 80–91. The parties filed cross-motions for summary judgment. Pet.App.160–61 & n.1.
The district court granted summary judgment to Respondents on their equal protection claim.
Pet.App.242. The district court permanently enjoined
Appellants from enforcing the N.C. Plan’s exclusion
and ordered that the N.C. Plan cover medically necessary services for the treatment of gender dysphoria.
Pet.App.235–37. Petitioners filed an interlocutory appeal of the district court’s injunction, which has not
been stayed.
Two additional respondents—Maxwell Kadel and Sam
Silvaine—raised equal protection claims that are now moot
because they no longer work for the State.
5
Some Respondents also raised claims under Title VII of the Civil
Rights Act of 1964, which have since been resolved and were not
on appeal before the Fourth Circuit.
6
10
While the appeal was pending, the district court
granted Respondents’ motion for summary judgment
as to the ACA claim as well. See Kadel v. Folwell, 2022
WL 17415050 (M.D.N.C. Dec. 5, 2022). The court held
that the N.C. Plan violated the ACA’s anti-discrimination provision—Section 1557—reasoning that “the exclusion ‘necessarily rests on a sex classification’ because it cannot be stated or effectuated ‘without referencing sex.’” Id. at *2 (citation omitted).
2. The Respondent in No. 24-90, Shauntae Anderson, is a transgender Medicaid participant who has
suffered from gender dysphoria since childhood.
Pet.App.17; Crouch.CA4.JA.294–95. She has been unable to access medically necessary gender-affirming
surgery due to the W.V. Plan’s exclusion of “transsexual surgery.” Pet.App.17. Being denied gender-affirming surgery is agonizing for her, and even basic
functions such as dressing, bathing, and using the restroom cause her severe distress on an ongoing, daily
basis. Anderson.CA4.JA.295–96.
Ms. Anderson filed suit in the Southern District of
West Virginia, individually and on behalf of all others
similarly situated, claiming that the W.V. Plan’s exclusion of gender-affirming surgery violates the Equal
Protection Clause, the ACA, and the Medicaid Act.
Crouch.Pet.App.160a–61a. The parties filed cross-motions for summary judgment, and the district court
granted Ms. Anderson’s summary judgment motion in
full. Crouch.Pet.App.190a. The court entered a permanent injunction, which has not been stayed.
3. Respondents in both cases appealed to the
Fourth Circuit. The court of appeals ordered the cases
to be heard together en banc and affirmed the rulings
of both district courts.
11
a. The Fourth Circuit first concluded that both
Plans’ exclusions violate the Equal Protection Clause
because they discriminate on the basis of sex and
transgender status and cannot withstand intermediate scrutiny.
With respect to sex discrimination, the court of appeals reasoned that “[c]ertain gender-affirming surgeries that could be provided to people assigned male
at birth and people assigned female at birth are provided to only one group [i.e., cisgender individuals] under the policy.” Pet.App.44. For example, “[t]hose assigned female at birth can receive vaginoplasty and
breast reconstruction for gender-affirming purposes,
but those assigned male at birth cannot.” Pet.App.44.
Likewise, “those assigned male at birth can receive a
mastectomy for gender-affirming purposes, but those
assigned female at birth cannot.” Pet.App.44; see also
Pet.App.34 (rejecting West Virginia’s factually erroneous argument that the W.V. Plan “do[es] not provide
gender-affirming treatment to anyone” because “cisgender people do receive coverage for certain genderaffirming surgeries”). The Fourth Circuit explained
that this is “textbook sex discrimination” because “we
can determine whether some patients will be eliminated from candidacy for these surgeries solely from
knowing their sex assigned at birth,” and “conditioning access to these surgeries based on a patient’s sex
assigned at birth stems from gender stereotypes about
how men or women should present.” Pet.App.44–45.
As an alternative holding, the Fourth Circuit concluded that by excluding treatments for gender dysphoria, the Plans impermissibly discriminate on the
basis of transgender status, which the court concluded
was a quasi-suspect classification. Pet.App.22–23 (citing Grimm v. Gloucester County School Board, 972
F.3d 586, 611–13 (4th Cir. 2020), cert. denied, 141
12
S.Ct. 2878 (2021)). Exclusions of coverage for “sex
change” treatments and “transsexual surgery” plainly
target gender dysphoria, which is a proxy for
transgender status. Pet.App.35. As the court noted,
it makes no difference that not all transgender people
have gender dysphoria, because “a law is not immune
to an equal protection challenge if it discriminates
only against some members of a protected class but not
others.” Pet.App.24 (citation omitted).
The Fourth Circuit rejected Petitioners’ reliance on
Geduldig v. Aiello, 417 U.S. 484 (1974)—a case where
this Court held that a state’s exclusion of disabilities
resulting from “normal” pregnancy did not offend the
Equal Protection Clause—because “Geduldig is best
understood as standing for the simple proposition that
pregnancy is an insufficiently close proxy for sex. The
same cannot be said for the inextricable categories of
gender
dysphoria
and
transgender
status.”
Pet.App.29. The court of appeals also rejected Petitioners’ argument that a classification can be a proxy
for a protected characteristic only if “no rational, nondiscriminatory explanation exists for the law’s classification.” Pet.App.42. The court explained that such
a rule incorrectly “assume[s] that the presence of a
nondiscriminatory reason means the absence of a discriminatory reason,” and it “muddle[s] the traditional
equal-protection analysis” by “asking the state-interest question twice.” Pet.App.42–43.
Finally, the court of appeals concluded that the exclusions do not withstand intermediate scrutiny because they are not substantially related to an important governmental interest. Pet.App.50. The court
rejected North Carolina’s proposed justification that
“the treatments cost too much and were not effective.”
Pet.App.51. As to cost, “[a] state may not protect the
13
public fisc by drawing an invidious distinction between classes of its citizens.” Pet.App.51 (quoting
Mem’l Hosp. v. Maricopa Cnty., 415 U.S. 250, 263
(1974)). And during the year the N.C. Plan chose to
cover this care, the cost was a miniscule fraction of the
Plan’s budget. CA4.JA.3799, 3812–13. As for effectiveness, the court of appeals determined that on the
record before it, North Carolina’s “expert testimony
. . . does not actually support [its] argument,” its “anecdotal evidence that does call into question medical
efficacy challenges only some of [Respondents’] evidence,” and “those criticisms do not support the notion
that gender-dysphoria treatments are ineffective.”
Pet.App.51. The court also rejected the West Virginia
Petitioners’ argument “that saving costs and not covering medically ineffective treatments justify the exclusion,” reasoning that the record before it did not
contain evidence as to “why the exclusion was
adopted” or whether there had been “any research or
analysis about the cost of providing access to genderaffirming care,” Pet.App.52, particularly where the
Plan’s own medical utilization vendor recognizes this
care as medically necessary, Pet.App.15–16;
Crouch.CA4.JA.2143–58. Accordingly, the Fourth
Circuit concluded that West Virginia’s “proffered rationales were created for the purposes of litigation”
and “cannot justify the policy under a heightenedscrutiny analysis.” Pet.App.52.
b. The court of appeals also affirmed the district
court’s grant of summary judgment on Ms. Anderson’s
Medicaid Act claim, which provides an alternative
ground for the injunction against enforcement of the
W.V. Plan’s exclusion. The court of appeals held that
the W.V. Plan violates the Medicaid Act’s comparability requirement—which requires a state to cover both
mandatory and optional services in sufficient
14
“amount, duration, and scope to reasonably achieve its
purpose,” while prohibiting the state from “arbitrarily
deny[ing] or reduc[ing] the amount, duration, or scope
of a required service . . . to an otherwise eligible beneficiary solely because of the diagnosis, type of illness,
or condition,” 42 C.F.R. § 440.230(b), (c); see 42 U.S.C.
§ 1396a(a)(10)(B)—by denying medical benefits to
some categorically needy individuals while providing
those same benefits to others with identical medical
needs simply by defining such services as aimed at
treating only certain medical conditions. Pet.App.65–
66.
Separately, the court of appeals also reasoned that
the W.V. Plan exclusion violates the Medicaid Act’s
availability requirement—which requires a state to
ensure that services available to any categorically
needy individual are “equal in amount, duration, and
scope for all beneficiaries within the group,” 42 C.F.R.
§ 440.240(b)(1); see 42 U.S.C. § 1396a(a)(10)(A)—for
two reasons. First, by categorically denying coverage
for a specific, medically necessary procedure, the exclusion is inconsistent with the Act’s objective to provide medical assistance to people too poor to afford it.
Pet.App.63. Second, the exclusion “arbitrarily denies
or reduces the amount, duration, or scope of a required
service to an otherwise eligible beneficiary solely because of the diagnosis, type of illness, or condition.”
Pet.App.63–64 (cleaned up).
c. Finally, the Fourth Circuit affirmed the district
court’s grant of summary judgment on the ACA claim
against West Virginia. Pet.App.67. Section 1557 of
the ACA provides that no one shall “on the ground prohibited under . . . title IX of the Education Amendments of 1972 . . . be excluded from participation in, be
denied the benefits of, or be subjected to discrimina-
15
tion under, any health program or activity” that receives federal funds. 42 U.S.C. § 18116(a); see also 20
U.S.C. § 1681(a) (Title IX) (prohibiting educational
programs receiving federal funding from discriminating “on the basis of sex”). Applying this Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020),
the Fourth Circuit concluded that the W.V. Plan’s exclusion for gender-affirming treatment for transgender patients discriminated on the basis of sex.
Pet.App.67–68.
ARGUMENT
The petitions for writs of certiorari should be denied. The Fourth Circuit enjoined enforcement of the
N.C. and W.V. Plan exclusions because those exclusions violate the Equal Protection Clause and, in the
case of West Virginia, the Medicaid Act and the ACA.
The district court has also ruled that the N.C. Plan exclusion violates the ACA. Although Petitioners focus
almost entirely on the Fourth Circuit’s equal protection holding, the lower courts’ statutory holdings are
independently sufficient to uphold the injunctions.
The injunctions will therefore remain in place regardless of any decision on the equal protection issue. And
those statutory holdings do not independently warrant
this Court’s review because they are correct and do not
implicate any circuit splits. Further, Petitioners have
not demonstrated any reason why this Court should
review the Fourth Circuit’s correct equal protection
holding in light of its review in United States v.
Skrmetti, No. 23-477.
16
I.
THE COURTS BELOW INVALIDATED
THE EXCLUSIONS ON INDEPENDENT
STATUTORY GROUNDS THAT DO NOT
WARRANT THIS COURT’S REVIEW.
The petitions primarily challenge the Fourth Circuit’s conclusion that the Plans’ exclusions violate the
Equal Protection Clause. But the underlying injunctions are supported by the lower courts’ separate conclusions that the Plans violate the ACA and the Medicaid Act. In particular, the courts below concluded
that the N.C. Plan violates the ACA, while the W.V.
Plan violates both the ACA and two separate provisions of the Medicaid Act. These statutory holdings
provide independent bases supporting the underlying
decisions enjoining Petitioners from implementing the
Plans’ exclusions.
In other words, there is no need for this Court’s review of the equal protection issues decided by the
Fourth Circuit, because regardless of the equal protection ruling, the Plans’ exclusions will continue to violate federal statute. These statutory violations provide independent bases for enjoining the States from
enforcing the Plans’ exclusions. A grant of certiorari
on the equal protection issues alone would thus be inappropriate. See Ticor Title Ins. Co. v. Brown, 511
U.S. 117, 122 (1994) (per curiam) (dismissing writ of
certiorari as improvidently granted where “it is not
clear that our resolution of the constitutional question
will make any difference . . . to these litigants”); The
Monrosa v. Carbon Black Exp., Inc., 359 U.S. 180, 184
(1959) (“While this Court decides questions of public
importance, it decides them in the context of meaningful litigation.”). And there is no reason for the Court
to grant certiorari to review these statutory questions
since they were properly decided and present no splits
between the circuit courts.
17
A.
The Fourth Circuit Correctly Found
a Violation of Section 1557 of the
ACA.
a. Faithfully applying this Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020), the
Fourth Circuit properly concluded that the W.V. Plan
violates the ACA’s anti-discrimination provision, Section 1557. Pet.App.68. Section 1557 provides, in relevant part, that no one shall “on the ground prohibited
under title VI of the Civil Rights Act of 1964, title IX
of the Education Amendments of 1972, the Age Discrimination Act of 1975, or section 794 of Title 29 [i.e.,
the Rehabilitation Act], be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any
part of which is receiving Federal financial assistance.” 42 U.S.C. § 18116(a) (citations omitted). By
incorporating these four statutory provisions, Section
1557 states that no health plan receiving federal funds
is permitted to discriminate on the basis of race, color,
and national origin (under Title VI); sex (under Title
IX); age (under the Age Discrimination Act); or disability (under the Rehabilitation Act).
The Fourth Circuit correctly concluded that the
W.V. Plan’s exclusion of treatments for gender-affirming care for transgender individuals, while including
coverage for gender-affirming care for cisgender individuals, violates Section 1557 because it discriminates
on the basis of sex. This Court’s holding in Bostock—
that Title VII prohibits discrimination against an employee for being transgender since the statute prohibits discrimination “because of . . . sex,” 42 U.S.C.
§ 2000e–2(a)(1); Bostock, 590 U.S. at 651–52—compels
this conclusion. Section 1557 thus prohibits discrimination “on the basis of sex,” 20 U.S.C. § 1681(a) (Title
IX), which includes discrimination based on
18
transgender status. Indeed, Bostock itself uses the
phrases “because of sex” and “on the basis of sex” interchangeably. See, e.g., 590 U.S. at 664–66, 680; Burrage v. United States, 571 U.S. 204, 213 (2014) (“Our
insistence on but-for causality has not been restricted
to statutes using the term ‘because of.’ We have . . .
observed that ‘[i]n common talk, the phrase “based on”
indicates a but-for causal relationship’ . . . .”); Cf. Students for Fair Admissions, Inc. v. President & Fellows
of Harvard Coll., 600 U.S. 181, 290 (2023) (Gorsuch,
J., concurring) (using Bostock’s Title VII holding to interpret Title VI).
b. In Kadel, the district court has similarly held
that—for the same reasons as articulated by the
Fourth Circuit in its holding about the W.V. Plan—the
N.C. Plan “discriminated against Plaintiffs on the basis of sex” in violation of Section 1557. Kadel, 2022 WL
17415050, at *2. The district court has not yet entered
judgment on this claim, which is why the Fourth Circuit’s decision below does not directly address whether
the N.C. Plan also violates the ACA. But given that
the en banc Fourth Circuit has already held that the
W.V. Plan violates Section 1557, if North Carolina
were to appeal the district court’s decision, the Fourth
Circuit is certain to affirm the district court’s conclusion that the N.C. Plan’s exclusion violates Section
1557. 7 Thus, even if this Court were to grant certiorari
on the equal protection conclusions below, both the
N.C. and W.V. Plan exclusions would remain unlawful
under Section 1557.
At an earlier stage of the litigation below, the Fourth Circuit
already held Respondents’ ACA claims against North Carolina
were not barred by sovereign immunity under the Eleventh
Amendment. Kadel v. N. Carolina State Health Plan for Tchrs.
& State Emps., 12 F.4th 422, 426 (4th Cir. 2021).
7
19
B.
The
Fourth
Circuit
Correctly
Concluded That the W.V. Plan
Violates the Medicaid Act.
In addition to concluding that the W.V. Plan violates Section 1557 of the ACA, the Fourth Circuit further held that the W.V. Plan violates the Medicaid Act
and its implementing regulations’ requirements of
comparability and availability. Pet.App.61–66. These
holdings provide two additional, independent bases
justifying the injunction against the W.V. Plan’s exclusions, further confirming that a grant of certiorari to
address the equal protection issues raised in the petition is unwarranted.
a. The Medicaid Act’s comparability requirement
requires a state to ensure that services available to
any categorically needy individual “shall not be less in
amount, duration, or scope than the medical assistance made available to any other” eligible individual.
42 U.S.C. § 1396a(a)(10)(B). The state must provide
services that are “equal in amount, duration, and
scope for all beneficiaries within the group.” 42 C.F.R.
§ 440.240(b)(1). The same applies to individuals in a
covered medically needy group.
42 C.F.R. §
440.240(b)(2). The Fourth Circuit correctly concluded
that the W.V. Plan’s exclusion of gender-affirming care
for transgender people violates the comparability requirement because the Plan provides relevant care for
cisgender people while not providing it for transgender
people. Pet.App.66.
b. Similarly, the Fourth Circuit properly found
that the W.V. Plan violates the Medicaid Act’s availability requirement. 42 U.S.C. § 1396a(a)(10)(A) (requiring participating states to “provide . . . for making
medical assistance available” to eligible individuals).
The Medicaid program requires participating states to
20
cover both mandatory and optional services in sufficient “amount, duration, and scope to reasonably
achieve its purpose,” while prohibiting them from “arbitrarily deny[ing] or reduc[ing] the amount, duration,
or scope of a required service . . . to an otherwise eligible beneficiary solely because of the diagnosis, type of
illness, or condition.” 42 C.F.R. § 440.230(b), (c). As
this Court has suggested, a Medicaid plan’s decision to
“exclude[] necessary medical treatment” presents a
“serious” statutory challenge to the Medicaid Act’s
availability requirement. Beal v. Doe, 432 U.S. 438,
444 (1977).
The W.V. Plan does exactly what the Medicaid Act
prohibits. On the case-specific record before it, the
Fourth Circuit concluded that certain gender-affirming care is medically necessary, but that the W.V. Plan
“bars coverage of all surgeries to treat gender dysphoria, regardless of medical necessity.” Pet.App.64 (emphasis omitted). That exclusion is inconsistent with
the Medicaid Act’s availability requirement.
C.
The Statutory Issues Present No
Circuit Splits and Do Not Merit
Review by This Court.
This Court should not review the Fourth Circuit’s
holding that excluding gender-affirming care for
transgender people violates both Section 1557 of the
ACA and the Medicaid Act. There is no circuit split on
either the application of Section 1557 of the ACA or
the Medicaid Act.
a. Petitioners make no attempt to suggest that the
circuits are split when it comes to the lower courts’
ACA holdings, and for good reason: there is no split.
The Ninth Circuit—the only other circuit to address
similar exclusion under Section 1557 of the ACA—has
concluded, like the Fourth Circuit below, that Bostock
21
applies to Section 1557’s prohibition against sex discrimination and that accordingly, Section 1557 prohibits discrimination based on transgender status. Doe v.
Snyder, 28 F.4th 103, 113 (9th Cir. 2022).
b. Likewise, the circuits are not split as to whether
state-sponsored health plans that exclude medically
necessary gender-affirming care for transgender people from coverage violate the Medicaid Act’s comparability or availability requirements. Indeed, besides
the Fourth Circuit below, no other circuit has even
opined on the issue.
Petitioners’ assertion that the Fourth Circuit’s decision conflicts with that of the First and Eighth Circuits, see Crouch Pet. 26, is meritless. In Preterm, Inc.
v. Dukakis, 591 F.2d 121 (1st Cir. 1979), the First Circuit considered a Massachusetts law limiting the expenditure of state funds for abortions unless the abortion was “necessary to prevent the death of the
mother.” Id. at 122. The First Circuit held that the
law violated the Medicaid Act’s availability requirement because it precluded coverage for “women who
will suffer damage to their health, no matter how
grievous, [so long as they] will survive without the
abortion.” Id. at 126. The court of appeals held that
this “life and death” distinction “crossed the line between permissible discrimination based on degree of
need and entered into forbidden discrimination based
on medical condition.” Ibid. If anything, that holding
supports the Fourth Circuit’s conclusion that West
Virginia’s exclusion violates the Medicaid Act’s availability requirement.
Similarly, in Smith v. Rasmussen, 249 F.3d 755
(8th Cir. 2001), the Eighth Circuit held that a state
regulation prohibiting funding for procedures treating
“gender identity disorder” was not “unreasonable, ar-
22
bitrary, or inconsistent with the [Medicaid] Act” because the record included “evidence . . . questioning
the efficacy of and the necessity for [gender-affirming
surgery].” Id. at 761. That fact-based conclusion—
which relied on the then-“current state of medical
knowledge” 23 years ago, and was based on the specific
testimony of experts before the district court, ibid.—
does not bear on West Virginia’s exclusion, which applies to gender-affirming surgeries that the courts below concluded, based on the records in these cases, are
medically necessary.
II.
THERE IS NO REASON TO CONSIDER THE
EQUAL PROTECTION QUESTION HERE
IN CONJUNCTION WITH SKRMETTI.
In United States v. Skrmetti, No. 23-477, this Court
granted certiorari to decide whether Tennessee Senate
Bill 1, which prohibits all medical treatments intended
to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to
treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,”
Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal
Protection Clause.
Petitioners’ arguments for why the Court should
additionally grant certiorari here are meritless. Petitioners first argue that certiorari should be granted
because “Skrmetti did not address the statutory questions” resolved below. Crouch Pet. 33. But that reason
disfavors a grant of certiorari. As discussed above,
there is no circuit split concerning the applicability of
the Medicaid Act or the ACA to health plans that selectively exclude coverage for medically necessary gender-affirming care. See pp. 20–22, supra. No other
circuit has even opined on the issue. See pp. 20–21,
supra. Petitioners’ argument amounts to little more
than an assertion that the Fourth Circuit’s statutory
23
decisions are wrong, which does not warrant this
Court’s review. See Box v. Planned Parenthood of Indiana & Kentucky, Inc., 587 U.S. 490, 493 (2019) (per
curiam) (noting this Court’s “ordinary practice of denying petitions insofar as they raise legal issues that
have not been considered by additional Courts of Appeals”).
Next, Petitioners rest their claim for plenary review on irrelevant distinctions between Tennessee
Senate Bill 1 and the challenged exclusions. For example, they note that “[l]aws like the one at issue in
Skrmetti can be promulgated only by state actors exercising traditional police powers over the practice of
medicine,” but “[c]overage policies can be imposed by
private and public sector health plans alike,” Folwell
Pet. 35; see also id. at 15 (distinguishing Skrmetti because “[t]his case” arises in the “distinct context of
state-funded health benefit plans”). Petitioners have
not identified any reason why that distinction matters,
nor does one exist: it has no doctrinal relevance to any
of the issues presented in these cases.
Finally, Petitioners argue that “there are strong
reasons to grant plenary review here too” because
“whatever the propriety of banning [gender-affirming]
treatments, whether and to what extent the States
must pay for them is a different and easier question.”
Folwell Pet. 14. Not so. Sex discrimination is not any
more defensible simply because the state inflicts it
through a group health plan.
Petitioners alternatively argue that these cases
should be held in light of Skrmetti. As discussed
above, however, the injunctions ordered by the courts
below are supported by independent statutory
grounds, and thus vacatur of the Fourth Circuit’s
equal-protection holding would not result in relief to
the states. See pp. 16–20, supra. And because those
24
statutory claims do not warrant this Court’s review,
the petitions should be denied altogether.
III.
THE FOURTH CIRCUIT CORRECTLY
DECIDED THE EQUAL PROTECTION
QUESTION.
Putting aside the lower courts’ independent statutory holdings invalidating the Plan exclusions under
Section 1557 of the ACA and the Medicaid Act, the petitions should be denied because the Fourth Circuit’s
Equal Protection decision is correct.
A.
The
Plans
Impermissibly
Discriminate on the Basis of Sex.
a. The Fourth Circuit correctly concluded that the
Plans’ exclusions impermissibly discriminate on the
basis of sex. This holding is compelled by the Fourth
Circuit’s conclusion that the Plans cover certain kinds
of care for cisgender people, while they exclude the
same care for transgender individuals for purposes of
gender transition. Pet.App.28, 44. Take, for example,
a vaginoplasty (creation or repair of the vagina).
“Those assigned female at birth can receive vaginoplasty . . . for congenital absence of a vagina,” while
“those assigned male at birth,” such as Ms. Anderson,
“cannot.” Pet.App.44. In other words, “when the purpose of the surgery is to align a patient’s gender
presentation with their sex assigned at birth, the surgery is covered,” but when “the purpose is to align a
patient’s gender presentation with a gender identity
that does not match their sex assigned at birth, the
surgery is not covered.” Ibid. “This is textbook sex
discrimination,” because the coverage decision depends on the sex of the patient. Ibid. The statutory
discrimination has no independent connection whatsoever to cost or medical necessity.
25
This is so because the Plans’ exclusions “cannot be
applied without referencing sex.” Id. at 45. This Court
applied precisely the same reasoning to conclude in
Bostock v. Clayton County, 590 U.S. 644 (2020), that
under Title VII, an employer discriminates on the basis of sex when it takes adverse action against an employee “for being . . . transgender.” Id. at 651–52. “It
is impossible to discriminate against a person for being . . . transgender without discriminating against
that individual based on sex,” because that discrimination necessarily flows from the lack of alignment between a person’s sex assigned at birth and that person’s sex today. Id. at 660. Similarly, as the Fourth
Circuit concluded here, the Plans’ decision to exclude
gender-affirming care for transgender individuals
while allowing it for cisgender individuals means that
“we can determine whether some patients will be eliminated” from eligibility for that care “solely from knowing their sex assigned at birth.” Pet.App.44.
In a similar vein, the Fourth Circuit was correct to
conclude that “conditioning access” to gender-affirming treatment “based on a patient’s sex assigned at
birth stems from gender stereotypes about how men or
women should present.” Pet.App.44–45. State actors
cannot exclude access to medical treatment “based on
fixed notions concerning the roles and abilities of
males and females.” United States v. Virginia, 518
U.S. 515, 541 (1996) (quotation marks omitted). Intermediate scrutiny is triggered here because by excluding coverage for gender-affirming care for transgender
patients (while allowing it for cisgender patients), the
Plans “rely on overbroad generalizations to make judgments about people that are likely to perpetuate historical patterns of discrimination”—namely, that
those assigned male at birth should live in a certain
26
way and those assigned female at birth should live in
another. Id. at 542 (cleaned up).
b. After concluding that the Plans discriminate on
the basis of sex, the Fourth Circuit easily found that
Petitioners failed to put forth an “exceedingly persuasive justification” that would otherwise be required to
justify their discriminatory treatment. See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724
(1982) (citation omitted). Petitioners failed to meet
their heavy burden of showing that the Plans’ exclusions “serve[] important governmental objectives and
that the discriminatory means employed are substantially related to the achievement of those objectives.”
Ibid. (quotation marks omitted).
For one, the Fourth Circuit correctly concluded
that as a factual matter, the justifications provided by
the W.V. Petitioners had no basis in the historical record and were “created for the purposes of litigation,”
and were thus insufficient to support the W.V. Plan’s
discriminatory practices. Pet.App.52; see Virginia,
518 U.S. at 533 (“The justification must be genuine,
not hypothesized or invented post hoc in response to
litigation.”).
Moreover, both sets of Petitioners point to the costs
of covering gender-affirming care, Folwell Pet. 33;
Crouch Pet. 22, though this Court has squarely foreclosed relying on cost savings to justify discriminatory
policies. See Mem’l Hosp., 415 U.S. at 263 (“[A] State
may not protect the public fisc by drawing an invidious
distinction between classes of its citizens.”). Any in
any event, the actual cost of eliminating the exclusions
is negligible. See pp. 5–6, supra.
Trying yet another tactic, Petitioners point to certain “efficacy” concerns they have with the subject
treatments. Crouch Pet. 22; Folwell Pet. 33. But in
27
doing so, they seek merely to relitigate the Fourth Circuit’s fact-specific conclusion that the Petitioners
failed to put forth “evidence to show that gender-dysphoria treatments are ineffective.” Pet.App.51. Petitioners do not—and cannot—explicitly challenge that
evidence-based ruling here.
B.
The Plans Impermissibly Discriminate
on the Basis of Transgender Status.
The Fourth Circuit also correctly held that—as an
alternative to its holding that the Plans impermissibly
discriminated on the basis of sex—the Plans violate
the Equal Protection Clause by discriminating on the
basis of transgender status. This holding stands independent of the Fourth Circuit’s conclusion that the
Plans impermissibly discriminate on the basis of sex
(which itself stands independent of the lower courts’
conclusion that the exclusions violate Section 1557 of
the ACA and the Medicaid Act).
This Court’s precedents confirm that transgender
status is a quasi-suspect characteristic under the
Equal Protection Clause. Transgender people have
been historically subject to discrimination. See Bowen
v. Gilliard, 483 U.S. 587, 602 (1987). They possess a
defining characteristic that bears no “relation to ability to perform or contribute to society.” City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
441 (1985) (citation omitted). As a class, they are defined as a discrete group by “obvious, immutable, or
distinguishing characteristics.” Bowen, 483 U.S. at
602 (citation omitted). And they are a “minority” and
lack “political[] power[].” Id. (citation omitted). By applying these traditional hallmarks, the Fourth Circuit
correctly concluded that transgender status is a quasisuspect class. Pet.App.22–23; see Grimm v. Gloucester
Cnty. Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020).
28
The Fourth Circuit further correctly concluded that
the Plans’ exclusions discriminate on the basis of
transgender status. As discussed in Section III.A supra, the Fourth Circuit concluded that the Plans cover
certain kinds of gender-affirming care for cisgender
people, while excluding the same gender-affirming
care for transgender individuals. Pet.App.44. This is
enough to establish discrimination on the basis of
transgender status, full stop.
The Fourth Circuit was also correct in rejecting Petitioners’ argument that the discrimination was based
on diagnosis rather than transgender status. Neither
exclusion references diagnosis, and the court’s conclusion comports with common sense: by banning treatments for “sex changes or modifications” and “transsexual surgery,” Pet.App.23–24, the Plans target
treatments exclusively when sought by transgender
people. See Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes
is a tax on Jews.”); see also Lawrence v. Texas, 539 U.S.
558, 575 (2003) (“When homosexual conduct is made
criminal by the law of the State, that declaration in
and of itself is an invitation to subject homosexual persons to discrimination.”).
In arguing otherwise, Petitioners rely heavily on
Geduldig v. Aiello, 417 U.S. 484 (1974), but as the
Fourth Circuit below concluded, that case is inapposite, see Pet.App.29–31. In Geduldig, the Court rejected an equal protection claim challenging California’s disability insurance system’s exclusion of coverage for what it labeled as “normal” pregnancies. Id. at
492. The Geduldig Court, in analyzing the relationship between the equal protection claim (discrimination on the basis of sex) and the challenged exclusion
(targeting “normal pregnancies”), found an insuffi-
29
cient connection between the two to sustain a discrimination-by-proxy argument. Geduldig thus held that
not every regulation related to pregnancy constitutes
a sex-based classification. And indeed, this Court has
only applied Geduldig to reject proxy-based arguments
where pregnancy-related issues were presented. See,
e.g., Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 136 (1976),
superseded by statute, Pregnancy Discrimination Act
of 1978, Pub. L. No. 95-555, 92 Stat. 2076; Nashville
Gas Co. v. Satty, 434 U.S. 136, 142 (1977); Bray, 506
U.S. at 271; Dobbs v. Jackson Women’s Health Org.,
597 U.S. 215, 236–37 (2022). In contrast, as the
Fourth Circuit concluded based on the record before it,
the “same cannot be said for the inextricable categories of gender dysphoria and transgender status,” because “gender dysphoria is simply the medical term relied on to refer to the clinical distress that can result
from transgender status.” Pet.App.29–30. Targeting
one is targeting the other.
Moreover, this Court’s precedents foreclose Petitioners’ impermissibly broad reading of Geduldig. Petitioners rely on the fact that the Plans’ exclusions do
not affect every transgender person to argue that the
exclusions do not discriminate on the basis of
transgender status. But this Court has repeatedly
held that a state cannot immunize itself from violating
the Equal Protection Clause by discriminating against
only a subset of a protected group. See, e.g., Nyquist v.
Mauclet, 432 U.S. 1, 3–4, 12 (1977); Mathews v. Lucas,
427 U.S. 495, 504 n.11 (1976).
30
C.
Petitioners Attempt to Relitigate
Factual
Questions,
Further
Confirming That This Case Is a Poor
Vehicle for Reviewing the Questions
Presented.
Petitioners have not asked this Court to review any
of the lower courts’ conclusions about the record or
their evidentiary rulings, nor would it be appropriate
for them to do so. See United States v. Johnston, 268
U.S. 220, 227 (1925) (“We do not grant a certiorari to
review evidence and discuss specific facts.”). And nor
do they allege that the Fourth Circuit misapplied the
well-settled summary judgment standard in affirming
the district courts below. Yet Petitioners seek to use
their petitions to challenge several of the factual conclusions upon which the lower courts’ decisions rely, in
contravention of this Court’s settled principle that it
will not “undertake to review concurrent findings of
fact by two courts below in the absence of a very obvious and exceptional showing of error.” Graver Tank &
Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275
(1949). For example, apparently unsatisfied with the
facts in the record of this case, Petitioners cite a dissent from Lange v. Houston Cnty., 101 F.4th 793, 802
(11th Cir. 2024) (Brasher, J., dissenting), for the proposition that the Fourth Circuit “assume[d] a false
equivalence between surgical procedures that are patently not the same.” Folwell Pet. 24–25; accord
Crouch Pet. 27; see also Folwell Pet. 25 (citing Poe v.
Drummond, 697 F. Supp. 3d 1238, 1262–63 (N.D.
Okla. 2023), for the same proposition as to hormone
therapy). Pointing to these sources opining on factual
issues outside the record hardly creates a genuine factual dispute in the cases below; and it certainly does
not indicate an important legal question for this Court
to consider. See N.L.R.B. v. Hendricks Cnty. Rural
31
Elec. Membership Corp., 454 U.S. 170, 176 n.8 (1981)
(dismissing a writ of certiorari as improvidently
granted where “we are presented primarily with a
question of fact, which does not merit Court review”).
Disregarding the overwhelming evidence in the
record and the fact that this Court is not the appropriate venue to air claims of “erroneous factual findings,”
see Supreme Ct. Rule 10, the Folwell Petitioners further argue that a single comment from one of their experts—claiming that “gender affirmation treatments
remain experimental and have never been accepted by
the relevant scientific community and have no known
or published error rate”—suffices to show that the discriminatory exclusion survives heightened scrutiny.
Folwell Pet. 33. But the lower courts reached the opposite conclusion based on a thorough review of the
record. See Pet.App.241 (“Plaintiffs’ doctors, their experts, every major medical association, and Defendants’ own third-party administrators all agree that, in
certain cases, gender affirming medical and surgical
care can be medically necessary to treat gender dysphoria.”); Crouch.Pet.App.178a (acknowledging the
“consensus in the peer-reviewed literature that gender
transition, including medical treatments such as hormone therapy and surgeries, improves the overall
well-being of transgender individuals”). And for good
reason—there is broad scientific consensus about appropriate and generally-accepted treatments for gender dysphoria, and the opinion of Petitioners’ expert
falls “well outside these well-accepted norms.”
CA4.JA.4165.
32
IV. THIS
COURT’S
REVIEW
IS
NOT
WARRANTED TO RESOLVE ANY CIRCUIT
SPLITS ON THE EQUAL PROTECTION
ISSUES PRESENTED HERE.
Petitioners argue that certiorari should be granted
to resolve circuit splits concerning (1) whether laws
that restrict access to or deny insurance coverage for
gender-affirming care discriminate on the basis of sex
and (2) whether transgender persons are a quasi-suspect class. But as Petitioners concede, “[t]he Court has
already granted certiorari in Skrmetti to consider
these questions in the context of bans on [gender-affirming care] for minors.” Folwell Pet. 15. There is no
reason to also grant certiorari here. See pp. 22–24, supra.
In any event, Petitioners significantly overstate the
scope and extent of the alleged splits. Petitioners’ arguments are largely based on dicta and cases that are
no longer good law, either because they have been vacated, are being reheard en banc, or are being heard
by this Court.
a. The circuits are not split as to whether “laws
that restrict access to or deny insurance coverage for
[gender-affirming care]” discriminate on the basis of
sex. Folwell Pet. 14. In fact, apart from the decision
below, none of the cases Petitioners cite even deal with
insurance coverage. See L.W. ex rel. Williams v.
Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert granted,
No. 23-477 (law prohibiting gender-affirming care for
minors); Brandt ex rel. Brandt v. Rutledge, 47 F.4th
661 (8th Cir. 2022) (law prohibiting “gender transition
procedures” for minors) (rehearing en banc granted in
the subsequent appeal of a preliminary injunction, see
No. 23-2681 (Oct. 6, 2023)); Eknes-Tucker v. Governor
of Alabama, 80 F.4th 1205, 1210 (11th Cir. 2023) (law
33
prohibiting “providing puberty blockers or cross-sex
hormone treatment” to minors).
Lower courts are still deciding equal protection
challenges to laws denying insurance coverage for gender-affirming care. See, e.g., Dekker v. Secretary, Fla.
Agency for Health Care Admin., No. 23-12155 (11th
Cir.) (considering challenges under the Equal Protection Clause, the Medicaid Act, and the ACA to a law
precluding Medicaid reimbursements for gender-affirming care). This Court should wait until a split develops before deciding whether to grant certiorari in
an appropriate case. See Box, 587 U.S. at 493 (noting
that the Court “ordinar[ily] . . . den[ies] petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals”).
Further, many of the cases Petitioners rely on are
not good law. For instance, Petitioners argue that the
Eighth Circuit’s decision in Brandt exists on one side
of the alleged split, see Folwell Pet. 15; Crouch Pet. 14,
but the Eighth Circuit has granted rehearing in the
appeal of a preliminary injunction in that case, and no
decision has issued. See No. 23-2681, Brandt v. Griffin
(8th Cir.). It is thus improper to place Brandt on any
side of an alleged circuit split. Likewise, Petitioners
repeatedly cite the Sixth Circuit’s decision in Skrmetti,
but this Court’s decision will obviously supplant that
of the court of appeals. And, confusingly, the Crouch
Petitioners rely upon a vacated opinion and a Northern District of Oklahoma decision that supposedly conflicts with the Tenth Circuit, even though Oklahoma
is within the Tenth Circuit. See Crouch Pet. 17–18
(citing Naes v. City of St. Louis, 2023 WL 3991638 (8th
Cir. June 14, 2023), vacated on grant of rehearing,
2024 WL 3421389 (July 12, 2024)); id. (citing Poe v.
Drummond, 697 F. Supp. 3d 1238 (N.D. Okla. 2023),
34
and arguing that it forms a split with Fowler v. Stitt,
104 F.4th 770, 793 (10th Cir. 2024)).
b. The circuits are not split as to whether
transgender persons are a quasi-suspect class.
The Fourth and Ninth Circuits have held that
transgender persons are a quasi-suspect class. See
Grimm, 972 F.3d 586; Hecox v. Little, 104 F.4th 1061,
1079 (9th Cir. 2024) (cert pending). The remaining circuits have not decided the issue. In Fowler v. Stitt, 104
F.4th 770 (10th Cir. 2024), the Tenth Circuit “decline[d] to decide whether transgender status is a
quasi-suspect class.” Id. at 794; see Druley v. Patton,
601 F. App’x 632, 635 (10th Cir. 2015). Likewise, in
Skrmetti, the Sixth Circuit expressed skepticism that
transgender persons are a quasi-suspect class but
stopped short of deciding the issue. See Skrmetti, 83
F.4th at 486. And in Eknes-Tucker v. Governor of Alabama, 80 F.4th 1205 (11th Cir. 2023), the Eleventh
Circuit expressed in dicta “doubt that transgender
persons constitute a quasi-suspect class,” though this
comment was not part of that court’s holding. Id. at
1230. Accordingly, there is no split that warrants this
Court’s review.
CONCLUSION
For the foregoing reasons, the petitions should be
denied.
Respectfully submitted,
SYDNEY DUNCAN
GABRIEL ARKLES
EZRA CUKOR
CATHY ZHANG
ADVOCATES FOR TRANS
EQUALITY EDUCATION FUND
520 8th Avenue, Suite 2204
New York, New York 10018
(646) 898-2205
sduncan@transequality.org
TARA L. BORELLI
Counsel of Record
SASHA BUCHERT
OMAR GONZALEZ-PAGAN
NORA HUPPERT
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
1 West Court Square, Ste. 105
Decatur, GA 30030
(424) 298-7911
35
garkles@transequality.org
ecukor@transequality.org
czhang@transequality.org
KATHLEEN HARTNETT
COOLEY LLP
3 Embarcadero Center, 20th
Floor San Francisco, CA
94111
(415) 693-2000
khartnett@cooley.com
AMY E. RICHARDSON
DEEPIKA H. RAVI
HWG LLP
1919 M Street NW, Eighth
Floor
Washington, DC 20036
(202) 730-1300
arichardson@hwglaw.com
dravi@hwglaw.com
tborelli@lambdalegal.org
sbuchert@lambdalegal.org
ogonzalez-pagan@lambdalegal.org
nhuppert@lambdalegal.org
ANNA P. PRAKASH
NICHOLS KASTER, PLLP
80 South 8th Street, Suite 4700
Minneapolis, MN 55402
(612) 256-3200
aprakash@nka.com
WALT AUVIL
THE EMPLOYMENT LAW CENTER,
PLLC
1208 Market Street
Parkersburg, WV 26101
(304) 485-3058
auvil@theemploymentlawcenter.com
DMITRIY TISHYEVICH
MCDERMOTT WILL & EMERY
LLP
One Vanderbilt Avenue
New York, NY 10017
(212) 547-5534
dtishyevich@mwe.com
Counsel for Respondents
October 28, 2024
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