Appeals Court Says States Must Fund Transgender Surgeries

Eight Democrat-nominated judges shoved transgender surgery closer to becoming a constitutional right via their decision Monday in a federal appeals court.

No Democrat-nominated judges voted with the six Republican-nominated judges who strenuously denounced the court’s decision, further demonstrating how transgenderism has quickly become a litmus test for ambitious progressives in the Democratic Party.

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The majority decision in the Fourth Circuit federal appeals court said existing constitutional rules forbidding sexual discrimination also forbid denials of transgender surgeries in state-run healthcare programs.

Any denial of the surgeries cannot be enforced without first deciding if the patient is male or female by checking their biology and asking for their “gender identity,” the court said. Judge Roger Gregory wrote that the determination of male or female status would be “obviously discriminatory” because:

The exclusions cannot function without relying on direct — not just proxy-based — [sex and gender] discrimination … While the exclusion may apply to everyone, for many treatments, it is only relevant to transgender individuals.

The billionaire-backed supporters of transgenderism say the federal government must enforce the wishes of people who say their unverifiable sense of “gender identity” is more important than their male or female sex — whether in sports, bathrooms, workplaces, or civic awards. Transgender people comprise less than one percent of the population, and their political demands would prevent the remaining 99 percent of Americans from recognizing that the two sexes have different but complementary needs and preferences.

A small share of adults who claim to be transgender undergo genital surgery. However, a significant number of older teenagers and 20-something youths undergo irreversible surgeries amid a chaotic, diversified culture.

President Joe Biden and nearly all elected Democrats are enforcing that transgender ideology, partly because progressives and the Democratic Party want to champion minorities. In contrast, President Donald Trump and most Republicans are denouncing the ideology’s very unpopular hostility toward the innate difference between the complementary female and male sexes.

The court’s decision may be reviewed by the Supreme Court. However, the conservative majority on the Supreme Court is reluctant to take hot-button issues until the nation’s appeals courts issue contradictory declarations.

The decision is the first decision by any of the 13 Courts of Appeals around the nation. The Court of Appeals for the Fourth Circuit is dominated by liberal judges and settles legal disputes in Maryland, North Carolina, South Carolina Virginia, and West Virginia.

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The six Republican-nominated judges on the court argued the majority’s decision was an overreach of judicial power, ignored states’ right to prioritize medical spending, and was too trusting of transgender advocates.

States “have chosen to cover treatment for some, but not all, diagnoses, while making treatment for those covered diagnoses available to all on an [sexually] equal basis,” said a dissent written by Judge Julius Richardson and signed by five other judges:

The majority may disagree with this choice. But by castigating it as illicit discrimination, the majority imposes its own vision of what “must be” upon the states. This is not law — it is [judge-imposed] policy, plain and simple.

The Republicans continued:

The purpose of the [federal] Medicaid Act is not to provide all attainable medically necessary services but to provide medical services for the Medicaid population as a whole, so far as feasible. And neither the statute nor its regulations prohibit states from limiting coverage, so long as those limits are reasonable and consistent with the objectives of the Act.

…

Today’s result is a victory for plaintiffs but a defeat for the rule of law. To reach its holding, the majority misconstrues the challenged policies and steamrolls over the careful distinctions embedded in Equal Protection doctrine. It finds unlawful discrimination where there is none, stripping the states of their prerogative to create health-insurance and Medicaid systems that serve the best interests of their overall populations.

Judge Marvin Quattlebaum wrote a dissent joined by three other judges that criticized the majority’s disregard of scientific evidence about the validity and safety of transgender claims:

[The] majority makes two evidentiary missteps. It improperly affirms the exclusion of Dr. [Paul] Hruz’s expert testimony about gender dysphoria. And it improperly declares statements from the DSM-5 and the WPATH Standards to be facts. Individually and combined, these missteps improperly stack the deck, effectively ignoring the fairminded debate about the medical necessity and efficacy of the treatments the plaintiffs seek.

The court’s endorsement of transgender claims comes as many foreign countries step back from their early support for transgender surgeries.

In the United Kingdom, for example, the Cass report has completely changed the U.K.’s debate over transgenderism. But it has been downplayed by U.S. establishment media, aside from a few op-eds. “Hilary Cass is the kind of hero the world needs today,” wrote David Brooks, an op-ed columnist at the New York Times:

She writes in her report, “The option to provide masculinizing/feminizing hormones from age 16 is available, but the review would recommend extreme caution.” She does not issue a blanket, one-size-fits-all recommendation, but her core conclusion is this: “For most young people, a medical pathway will not be the best way to manage their gender-related distress.”

In the fourth circuit, Judge Harvie Wilkinson wrote a third dissent, asking, “Why the dash to create a substantive Fourteenth Amendment right to transgender surgery and treatment underwritten by the State?” He continued:

Had the majority’s result been reached through the democratic process, it would have been perceived as the product of a process in which many good people of many varied views had had their voices heard. But even those who most passionately approve of the outcome here must recognize that those who do not approve have been ever so wrongly denied their rightful say.

…

The majority, however, sees things differently. It arrogates to itself the authority to tell States how to draft insurance policies covering state employees on state healthcare plans. This is a breach of our federal system. It is an intrusion upon the residual powers that the Constitution guarantees to the States. It is a usurpation of the prerogatives of fifty sovereigns, supplanting difficult judgments on issues in their very infancy with an ill advised, self-assured ukase of our own.

“Those [citizens] who wear no [judicial] robe must not be shunted to the sidelines,” Wilkinson wrote.

The case is Kadel vs. Folwell, in the U.S. Court of Appeals for the Fourth Circuit, No. 22-1721.