NC Family Staff | June 7, 2023 | SHARE: 
“Gender dysphoria is a serious condition, and all individuals struggling with it deserve compassionate, evidence-based care. Disregarding the science and the harms is not compassionate. The evidence from the last decade suggests that today’s common gender transition interventions are at best experimental and at worst deeply harmful. Policymakers in West Virginia and North Carolina are entitled to act accordingly.”
These are the words of 21 attorneys general who recently filed an amicus brief in support of North Carolina State Treasurer Dale Folwell. State Treasurer Folwell has been in a lawsuit over whether North Carolina’s State Health Plan should cover “gender treatments” like puberty blockers, cross-sex chemicals, and “gender-transition” surgeries. In 2019, several state employees sued Folwell claiming that the exclusion of these procedures from the State Health Plan discriminated against them based on sex and “transgender status.” Folwell initially sought legal counsel from NC Attorney General Josh Stein, but Stein (now a Democratic gubernatorial candidate and potential opponent of Folwell who has also announced a run for Governor as a Republican) rejected that request. Folwell maintained his position but lost in Federal District Court, and then appealed to the Fourth Circuit Court of Appeals. The attorneys general of 21 states filed this brief to offer support for Folwell’s stand against the State Health Plan covering experimental gender procedures and irreversible “gender-affirming” surgeries.
The lawsuit began in 2019 when state employees who identify as transgender and their families sued State Treasurer Folwell for excluding procedures from the State Health Plan “leading to or in connection with sex changes or modifications.” The employees claimed this exclusion violated the Fourteenth Amendment, the Civil Rights Act of 1964, and the Affordable Care Act by discriminating based on sex. These individuals were seeking puberty blockers, cross-sex hormone chemicals, and other gender procedures through the State Health Plan to address anxiety or depression from gender dysphoria.
Folwell sought to dismiss the action, arguing that the Plan discriminated based on diagnosis—gender dysphoria—rather than sex or so-called transgender status. The District Court disagreed, citing Fourth Circuit precedent to find that excluding these procedures from the Plan “facially” discriminates based on sex and transgender status. As a result, the Court placed a higher burden on Folwell to prove that excluding these procedures from the State Health Plan is substantially related to an important North Carolina interest. This higher burden on states is a result of U.S. Supreme Court rulings redefining sex to include “sexual orientation” and “gender identity.”
Folwell’s action is supported by the attorney’s general May 25th friend of the court brief, which emphasized the importance of NC’s interest in excluding these harmful procedures from the State Health Plan. Citing last summer’s historic Dobbs decision that reversed Roe v. Wade, the brief noted that “making policy decisions in an area of scientific uncertainty is a core, sovereign, democratic function” that states should retain. The brief also pointed out the District Court’s error in suggesting gender procedures are “well-established and medically necessary.” Instead, as the brief indicates, the evidence is lacking for these procedures being medically necessary or life-saving. The brief lists several sources from countries that permitted similar procedures and then reversed course when their harms were revealed.
The brief also notes that while “the purported benefits of chemical and surgical interventions are hypothetical . . . unfortunately, the side effects are not.” Premature mortality, sterilization, interference with brain development, loss of bone density, hypertension, and high suicide rates after chemical or surgical intervention are just some of the physical side effects of these procedures listed by the brief.
This brief supports Folwell’s contention that taxpayers should not pay for these experimental gender procedures through the State Health Plan. Moreover, it shows the State’s important interest in protecting people with gender dysphoria from these irreversible procedures. This case—Kadel v. Folwell—is currently before the Fourth Circuit Court of Appeals, where oral arguments are expected to be heard by all 15 circuit judges in September.
Andrew T. Bailey Attorney General State of Missouri
Sean D. Reyes Attorney General State of Utah
Jason S. Miyares Attorney General Commonwealth of Virginia
Steve Marshall Attorney General State of Alabama
Treg Taylor Attorney General State of Alaska
Tim Griffin Attorney General State of Arkansas
Ashley Moody Attorney General State of Florida
Christopher M. Carr Attorney General State of Georgia
Theodore E. Rokita Attorney General State of Indiana
Brenna Bird Attorney General State of Iowa
Kris W. Kobach Attorney General State of Kansas
Daniel Cameron Attorney General Commonwealth of Kentucky
Jeff Landry Attorney General State of Louisiana
Lynn Fitch Attorney General State of Mississippi
Austin Knudsen Attorney General State of Montana
Michael T. Hilgers Attorney General State of Nebraska
Drew H. Wrigley Attorney General State of North Dakota
Dave Yost Attorney General State of Ohio
Gentner Drummond Attorney General State of Oklahoma
Alan Wilson Attorney General State of South Carolina
Ken Paxton Attorney General State of Texas
