Short And Sweet

 Because I forgot to write a morning post.

This morning’s post is about our healthcare, we are lucky here in a Blue state our healthcare has been confirmed by the Commission on Human Rights and Opportunity many time but those who live in Red states have to fight legal battles to get coverage.

Transgender health care coverage debated in marathon Fourth Circuit hearings
One circuit judge expressed concern that forcing state health programs to cover gender-affirming care could intrude on state's rights.
Courthouse News Service
By James Farrell
September 21, 2023

A debate over whether two states’ public health care policies should cover certain gender-affirming treatments took center stage Thursday in rare, back-to-back en banc hearings before the Fourth Circuit Court of Appeals in Richmond, Virginia.

For nearly three hours, an engaged panel consisting of all the Fourth Circuit’s judges heard oral arguments in two appeals out of North Carolina and West Virginia, peppering both sides with questions, with no clear consensus among them in either case.

Underpinning Thursday’s arguments in both cases was a debate over whether health care policies could separate the diagnosis of gender dysphoria from the sex and gender identity of the patients pursuing the treatment.

In the first case, Kadel v. Folwell, a federal judge ruled in 2022 that the North Carolina State Health Plan, which covers teachers and state employees, violated the Fourteenth Amendment by excluding coverage of “treatment or studies leading to or in connection with sex changes or modifications and related care.” The state appealed.

And in Fain v. Crouch, the state of West Virginia is appealing a similar decision about its Medicaid program, which covers some gender-affirming treatments but specifically excludes “transsexual surgery.”

Attorney John Knepper, representing the state of North Carolina, did not dispute that gender-affirming care could be a medically necessary treatment. Instead, he argued that no federal or state law requires the State Health Plan to cover all medically necessary treatments.

I do not know where these state lawyers went to school but they sure lack knowledge of Supreme Court ruling. Even I know that…

Supreme Court Rules: Gender Identity and Sexual Orientation Discrimination is Illegal

On June 15th, 2020, the Supreme Court ruled in a 6-3 decision that discrimination based on gender identity and sexual orientation is illegal under Title VII of the 1964 Civil Rights Act. Title VII of the Civil Rights Act of 1964 outlawed discrimination in the workplace on the basis of race, color, religion, sex, and national origin.

The decision stems from three cases in front of the Court where an individual employee in each case alleged unlawful discrimination by their employer on the basis of sex under Title VII. Two cases related to sexual orientation – Gerald Bostock was fired after participating in a gay recreational softball league for “conduct ‘unbecoming’ a county employee”, and Donald Zarda was fired days after mentioning he was gay. The third case was about gender identity – Aimee Stevens presented as male when initially hired and was fired after informing her employer she planned to live and work as a woman.

Delivering the opinion of the Court, Justice Neil Gorsuch said the Court was tasked with determining the ordinary public meaning of the terms of the statute at the time it was enacted, and the primary characteristic and term at issue and in dispute between the parties in these cases was the protected characteristic “sex”. The Court looked at what sex meant under the statute and what Title VII says about it – that the prohibition in the statute is on taking certain actions “because of” sex. As the employers in these cases suggested that Title VII is only concerned with discharges involving discrimination, the Court analyzed what discrimination meant in 1964 and determined it is roughly the same as today – that discrimination against an individual “seems to mean treating that individual worse than others who are similarly situated.” The Court further reasoned that no matter how it is analyzed, there is no way an employer can discriminate against homosexual or transgender individuals without discriminating in part based on the individual’s sex. Therefore, based on the ordinary public meaning at the time of the law’s adoption, the Court stated, “[A] straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”

But it seems like the Republican lawyer have wax stuck in their ears. Either that or they slept the class lecture on the case.

Courthouse News goes on to say,

U.S. Circuit Judge Harvie Wilkinson, a Ronald Reagan appointee, expressed particular concern in both cases about whether requiring states to cover these types of treatment would encroach on state's rights. In the North Carolina case, he doubted that courts should have the ability to determine how states cover their own employees.

It is not a “states rights” the Fourteenth Amendment says everyone must be treated equally.

“Why can’t a state decide that the money that could have been spent on coverage for transgender-related issues should instead be spent to provide greater coverage for cancer, stroke and heart attack victims?” he said.

Um… because the Constitution says you cannot discriminate.

But Chief U.S. Circuit Judge Albert Diaz, a Barack Obama appointee, agreed with Borelli’s argument that the Equal Protection Clause of the 14th Amendment would trump those concerns.

“If there’s an Equal Protection violation, then the courts should step in if there’s been discriminatory actions taken up against a particular suspect group,” Diaz said. “And it seems to me that the costs are not relevant at that point. The insurer’s decision has to comply with the law.”

Omar Gonzalez-Pagan, an attorney from Lambda Legal who accompanied Borelli during arguments on Thursday told Courthouse News that it was a day of fair hearings. The court notably did not grapple with the necessity or evidence behind gender-based care, he said. Rather, it remained focused on the issues and legal theories.

Why does it seem like conservative judges have blinders on, they only see what they want to see.