A Transgender Roe v. Wade‪?‬ Just the Facts with Gerald Posner

Gender activists are hailing an 8-6 decision by the U.S. Fourth Circuit as a Transgender Roe v. Wade. Their celebration is, however, premature. While Kadel v. Folwell is undoubtedly a landmark ruling that the Equal Rights Amendment bars state health plans from excluding medical coverage for transgender surgical procedures, one of the dissenting circuit court justices called it “imperial judging at its least defensible.” It will almost certainly be reviewed by the Supreme Court.
In the spotlight in the Fourth Circuit case were two states that had excluded covering costs “in connection with sex changes.”  West Virginia’s Medicaid plan did not pay for transgender surgical procedures. North Carolina’s insurance plan for teachers and government staff did the same.
The die was cast in the appellate court when the majority concluded that the state plans “cover mastectomies to treat cancer, but not to treat gender dysphoria…and chest-reconstruction surgery for cisgender women post-mastectomy, but not for gender dysphoria in transgender women.” The majority considered “treatments for a diagnosis unique to transgender patients” as “medically necessary treatments” and that the Constitution prohibited any coverage exclusions for transgender patients. The court’s bottom line: “The North Carolina State Health Plan and the West Virginia Medicaid Program discriminate on the basis of gender identity and sex in violation of the Equal Protection.”
Just the Facts has subscribers in over 100 countries. Many may not be familiar with the much talked about 14th Amendment. It was ratified in 1868 in the wake of the Civil War and designed to stop states from discriminating against freed Black slaves. The Amendment gave all Blacks born in the United States citizenship as a matter of birthright. Courts have, in the 156 years since its ratification, expansively interpreted its broadly-worded second sentence: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
That language was the basis for the Supreme Court’s 1973 milestone 7-2 Roe v. Wade decision. The Roe court ruled there was a personal right to privacy implied in the 14th Amendment and that abortion was constitutionally protected.
In 2019, the same Fourth Circuit appeals court that made the Kadel ruling, had demonstrated its willingness to grant constitutional protection to gender identity. In deciding in Grimm v. Gloucester County School Board that a Virginia school district could not bar a transgender boy from using whatever bathroom he chose, the court concluded that “gender identity is a protected characteristic under the Equal Protection Clause.” The following year, the Supreme Court ruled 6-3 in its Bostock ruling that gay and transgender status was covered by the 1964 Civil Rights Act.
The Kadel ruling relies on Grimm and Bostock and expands their reach. A dissenting judge, J. Harvie Wilkinson III, summed up the potential impact of the new decision: “What plaintiffs propose is nothing less than to use the Constitution to establish a nationwide mandate that States pay for emerging gender dysphoria treatments.”
In reaching its sweeping ruling, the majority provided examples of what it concluded constitute sex discrimination in the state plans. It cited, for instance, that “women can receive coverage for a vaginoplasty to treat the congenital absence of a vagina, but transgender women cannot receive a vaginoplasty to treat gender dysphoria.”
The court did not further describe the birth condition that would require such surgery for women. It is Mayer-Rokitansky-Küster-Hauser syndrome, a rare congenital reproductive disorder defined by an underdeveloped or nonexistent uterus and vagina. When