That’s Judge J. Harvie Wilkinson’s damning assessment of the Fourth Circuit en banc majority’s ruling today in Kadel v. Folwell. By a vote of 8 to 6, the Fourth Circuit ruled that health care plans in North Carolina and West Virginia that (in the majority’s words) “cover medically necessary treatments for certain diagnoses but bar coverage of those same medically necessary treatments for a diagnosis unique to transgender patients” violate the Equal Protection Clause. In dissent, Wilkinson asks:
Why the rush to constitutionalize? Why the dash to create a substantive Fourteenth Amendment right to transgender surgery and treatment underwritten by the State?
I’m not going to undertake here to summarize Judge Roger Gregory’s 66-page majority opinion or the 52-page principal dissent (on behalf of all six dissenters) by Judge Julius Richardson. I’ll just reiterate what I wrote two weeks ago regarding the Fourth Circuit’s bonkers ruling against a West Virginia law that bars boys from joining girls’ sports teams: The Court’s—irresponsible, in my view—failure to grant review of the Fourth Circuit’s 2020 ruling in Grimm v. Gloucester County School Board has engendered (so to speak) all this confusion.
It’s well past time for the Court to clean up the mess.
I will highlight one noteworthy aspect of Richardson’s dissent. On the understanding that the Court’s reasoning in Bostock v. Clayton County (2020) applies in the Equal Protection realm, Richardson explains that the transgender plaintiffs “cannot show that their sex or transgender status was a but-for cause of any injury they suffered.” Unlike in Bostock:
[H]ere, changing plaintiffs’ sex (or even their transgender status) would not change either state’s choice to decline coverage for the requested services. Even if we changed the biological sex of Maxwell Kadel—one of the plaintiffs below—from female to male, North Carolina would still deny Kadel coverage for a testosterone prescription. And even if we changed Christopher Fain’s biological sex from female to male, West Virginia would still deny Fain coverage for a mastectomy. So too if we changed their transgender identities. Both would still lack a qualifying diagnosis for the treatments. The only way that Kadel or Fain could get these treatments is if they had some other diagnosis (e.g., hypogonadotropic hypogonadism or cancer) that was covered. But if they had that other diagnosis, then they could obtain coverage for these treatments regardless of their sex or transgender status. Thus, a patient’s diagnosis, and not their sex or transgender status, is the but-for cause of their ability or inability to obtain coverage under both plans. [Emphasis in original.]