On March 11, U.S District Judge Loretta C. Biggs denied the state’s motion to dismiss a lawsuit brought by Lambda Legal claiming that the State Health Plan’s categorical exclusion of coverage for treatment sought “in conjunction with proposed gender transformation” or “in connection with sex changes or modifications” violates the Equal Protection Clause, Title IX, and Section 1557 of the Affordable Care Act (ACA). Kadel v. Folwell, 2020 WL 1169271, 2020 U.S. Dist. LEXIS 42586 (M.D.N.C.). The state university defendants had moved to dismiss the Title IX claim, and the State Health Plan defendants had moved to dismiss the Equal Protection and ACA claims. The plaintiffs are all current or former employees of the university defendants, or dependents of university employees, which were all enrolled in the Plan and are the parents of transgender individuals who have been diagnosed with gender dysphoria and are seeking treatment that is categorically excluded from coverage under the Plan.
The plaintiffs jointly allege that since the 1980s the Health Plan covering employees of the state university and their dependents has denied coverage for medically necessary treatment if the need stems from gender dysphoria, as opposed to some other condition. Thus, a cisgender woman’s medically necessary mastectomy would be covered, but a transgender man’s mastectomy for purpose of gender transition would not be covered. With the exception of 2017, this exclusionary policy has been in effect. Third party administrators retained by the employers to administer the plans – Blue Cross Blue Shield of North Carolina (claims administrator) and CBS Caremark (pharmaceuticals) – sell this kind of coverage to other employers, this it would be possible for the state to include such coverage using their current administrators, who are experienced in dealing with such claims.
The statutory causes of action (Title IX and ACA) would require the court to conclude that discrimination because of gender identity is covered under the statutory prohibition of sex discrimination, while the constitutional claim would require a finding that gender identity discrimination claims are actionable under the Equal Protection Clause of the 14th Amendment.
Judge Biggs turned first to the statutory claims in her analysis. She first rejected the state university’s claim that the suit should not be against them, because the state government dictates the content of their employee benefits plans. She found that the defendants “offer” the plan to plaintiffs, and “participate” (or participated) in its availability. “Indeed,” she wrote, “had University Defendants not hired Plaintiffs, they would not have been permitted to enroll in the Plan at all. The Court finds, at this stage, those facts provide a sufficient nexus between the alleged injuries the University Defendants.” Also, responding to the University’s argument that a ruling against them would not redress the plaintiffs’ claims because the defendants are bound by state policy, Biggs wrote that “there are other wahys in which a favorable ruling on Plaintiffs’ Title IX claim could give them the relief they seek. First, Plaintiffs have asked for – and ‘personally would benefit in a tangible way’ from – an award of damages.” Further, she noted, the university defendants might offer supplemental coverage beyond what the state Plan provides. She also rejected defendant’s arguments that since some of the Plaintiffs are not themselves transgender, their injuries are only indirect, because the minor plaintiffs’ “only ties” to the university are through their parents’ employment. Judge Biggs found that the parents were in this case within the class of plaintiffs protected by Title IX.
Turning to the argument that gender identity claims are not cognizable under Title IX, Biggs took note of the fact that the Supreme Court was considering whether Title VII covers gender identity discrimination claims in R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18-107, which was argued on October 8, 2019, and had not been decided yet. The defendants argued that this case should be put “on hold” until a Supreme Court ruling was issued. “Because courts in this circuit often look to Title VII when construing like terms in Title IX,” she noted, “the Supreme Court’s decision could potentially impact the viability of the Title IX claim in this case. At this time, however, this Court is left to make its own determination as to whether discrimination ‘on the basis of sex’ encompasses discrimination on the basis of transgender status,” and she noted Grimm v. Gloucester County School Board, 302 F. Supp. 3d 730 (E.D. Va. 2018) and M.A.B. v. Board of Education of Talbot City, 286 F. Supp. 3d 704 (D. Md. 2918), in which other district courts also within the 4th Circuit have ruled that such claims are covered by Title IX. Biggs wrote that she “agrees with their reasoning and follows it here.” She also noted that some other district courts in other circuits have faced similar arguments challenging transgender exclusions under state employee benefit plans, and have ruled against the employing states in those cases.
“University Defendants do not seriously contest that discrimination because of transgender status is discrimination because of sex (although State Defendants do),” she wrote. “Rather, in moving to dismiss for failure to state a claim, they simply rephrase their arguments related to standing. There is no dispute that ‘a recipient of federal funds may be liable in damages under Title IX only for its own misconduct; the parties just disagree over whether University Defendants’ conduct is sufficiently implicated in this case.” Biggs held that “at this stage” in the litigation, the plaintiffs’ allegations concerning the university defendants’ role in providing benefits to their employees are sufficient both for standing and for the Title IX claim, and denied the motion to dismiss the Title IX claim.
Turning to the ACA claim, the state defendants argued sovereign immunity. “Section 1557 does not purport to condition a state’s acceptance of federal funding on a waiver of sovereign immunity,” she wrote. “Nor does any other provision of the ACA. However, in the Civil Rights Remedies Equalization Act of 1986 (CREA), Congress explicitly stated that a state shall not be immune from suit in federal court ‘for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal assistance.” The 4th Circuit found clear congressional intent to waive the state’s sovereign immunity if they accepted money in programs that prohibit discrimination. The state’s response was that the lack of mention of gender identity or transgender status in Section 1557 shows that North Carolina did not “knowingly” waive its sovereign immunity with respect to discrimination claims on these bases. Disagreeing, Biggs wrote that the state’s potential exposure to such suits should not have been “surprising,” because “courts across the country have acknowledged for decades that sex discrimination can encompass discrimination against transgender plaintiffs. Further, as a general matter, ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,’” citing Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1999). She asserted that surely the state would agree that Title IX covers sexual harassment claims, even though the word “harassment” does not appear in the statute. “By the same token, Section 1557 need not include the precise phrasing State Defendants demand to provide sufficient notice of a condition of waiver.”
Turning to the constitutional claim, asserted against specific state officials in their official capacity, she found convincing the case law supporting heightened scrutiny for gender identity discrimination claims as being essentially sex discrimination claims. “On its face,” she wrote, “the Exclusion bars coverage for ‘treatment in conjunction with proposed gender transformation’ and ‘sex changes or modifications.’ The characteristics of sex and gender are directly implicated; it is impossible to refer to the Exclusion without referring to them. State Defendants attempt to frame the Exclusion as one focused on ‘medical diagnoses, not . . . gender.’ However, the diagnosis at issue – gender dysphoria – only results from a discrepancy between assigned sex and gender identity. In short, the Exclusion facially discriminates on the basis of gender, and heightened scrutiny applies.” And, quoting from United States v. Virginia, 518 U.S. 515 (1996), she wrote, “A policy that classifies on the basis of gender violates the Equal Protection Clause unless the state can provide an ‘exceedingly persuasive justification’ for the classification.” [Thank-you, Justice Ginsburg!] Judge Biggs found that at this stage in the litigation, “State Defendants have failed to satisfy this demanding standard” and, in fact, “the only justification presented thus far is that the Exclusion ‘saves money.’ Under ordinary rational basis review, that could potentially be enough to thwart Plaintiffs’ claim. However, when heightened scrutiny applies, ‘a State may not protect the public fisc by drawing an invidious distinction between classes of its citizens,’” quoting from Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).
Next, Judge Biggs rejected the state defendants’ argument as a ground for dismissal the plaintiffs’ failure to join the Health Plan’s Board of Trustees as a required party, as they would have to vote to make any change in the Plan that would be required to repeal the Exclusion. She found that the state defendants “share primary responsibility for the operation and administration of the Plan” so an award of declaratory, injunctive and monetary remedies against them would “give plaintiffs all the relief they seek.”
Finally, rejecting defendants’ request that the action be stayed pending the Supreme Court’s ruling in Harris Funeral Homes, Judge Biggs pointed out that “the potential harm to Plaintiffs resulting from even a mild delay is significant, as they will continue to be denied healthcare coverage for medically necessary procedures. In contrast, the ‘harm’ to Defendants of not staying this case appears to be nothing more than the inconvenience of having to begin discovery.” This is obvious. Since discovery hasn’t begun yet, there is no chance this case would be ready for a motion for summary judgment for many months, and the Supreme Court will likely rule in Harris by the end of June. “Judicial economy is, of course, a consideration,” wrote Biggs. However, this case is in its infancy, and it may be months before a decision issued in Harris – a substantial delay for those seeking to vindicate their civil rights. Given the ongoing harm to Plaintiffs and Defendants’ failure to present ‘clear and convincing circumstances’ outweighing that harm, this Court declines to exercise its discretion to stay the proceedings.”
Thus, pending motions to dismiss are all denied. As of the end of March, the defendants had not petitioned the 4th Circuit for a stay.
Counsel for plaintiffs include Deepika H. Ravi, of Harris, Wiltshire & Grannis LLP, Washington, DC; Meredith T. Brown and Tara L. Borelli, Lambda Legal Defense And Education Fund, Inc., Atlanta, GA; Noah E. Lewis, of Transgender Legal Defense & Education Fund, Inc.; Omar F. Gonzalez-Pagan, Lambda Legal Defense And Education Fund, Inc., New York, NY; and Amy E. Richardson, Wiltshire & Grannis LLP, Raleigh, NC (local counsel).