The 14th Amendment to the Constitution is truly a magical amendment. It was used to justify attempts to kick Donald Trump off the 2024 ballot. Through the decades, judges who want to play at social engineering have used it frequently to justify questionable law.
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It’s even been invoked to bypass Congress to raise the debt limit.
Now, the Fourth Circuit Court of Appeals has decided that the amendment’s “equal protection” clause means that state Medicaid programs have to cover gender reassignment surgeries.
The appeals court ruled that West Virginia’s Medicaid rules on mastectomies are unconstitutional because they violate the “equal protection standard” by not covering mastectomies for gender dysphoria.
Yes, really.
The ruling also includes a North Carolina Medicaid case that the state government won’t cover “sex changes.” The Fourth Circuit nullified the state ban on gender change surgeries, citing the 14th Amendment’s guarantee of “equal protection of the laws.”
This was a court looking for an excuse to make law.
Judge Roger Gregory who wrote the majority opinion in Kadel v. Folwell (8-6) asked, “Is removing a patient’s breasts to treat cancer the same procedure as removing a patient’s breasts to treat gender dysphoria?” He continued, “There is no case law to ground this discussion nor obvious first principles.”
Huh?
He is undeterred, and he concludes that gender dysphoria and transgender status are intertwined, so that such insurance exclusions are nothing more than a proxy for discriminating against gender identity. Then he goes further, finding that West Virginia’s and North Carolina’s policies also unconstitutionally discriminate based on sex. How so?
Imagine, Judge Gregory says, an unidentified patient seeking a vaginoplasty. Is this a biological female with a rare birth defect? Is it a transgender patient? “By virtue of the fact that they are seeking a vaginoplasty, we know that they were born without a vagina,” he writes. “But we do not know what sex they were assigned at birth. Without that information, we cannot say whether the Plan or Program will cover the surgery.” Ergo, sex discrimination.
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Gregory gets even nuttier.
The differences in coverage “is rooted in a gender stereotype: the assumption that people who have been assigned female at birth are supposed to have breasts, and that people assigned male at birth are not.”
It’s not a “gender stereotype.” It’s a biological fact.
“No doubt, the majority of those assigned female at birth have breasts, and the majority of those assigned male at birth do not. But we cannot mistake what is for what must be.”
Not just a “majority.” It’s a universal biological fact with a tiny number of exceptions.
Treating different things differently doesn’t violate the 14th Amendment’s Equal Protection Clause, and jurists aren’t supposed to ignore the obvious. Writing in dissent at the Fourth Circuit, Judge Julius Richardson struggles to contain his exasperation. “The states,” he says, “have chosen to cover alterations of a person’s breasts or genitalia only if the person experiences physical injury, disease, or (in West Virginia) congenital absence of genitalia.”
That determination does not turn on the patient’s sex or gender. “Christopher Fain—one of the plaintiffs below—received coverage for a hysterectomy based on a diagnosis unrelated to Fain’s transgender status,” the dissent says. Likewise, males with gynecomastia qualify for surgery coverage in West Virginia only “if they have physical symptoms, like breast pain,” meaning that isn’t a procedure done merely “to affirm a patient’s biological sex.”
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The ruling that opened this can of worms was Bostock v. Clayton County, a case that “held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity.” Now, as a dissenting judge in Kadel v. Folwell, Judge J. Harvie Wilkinson III is saying that this ruling could be a Roe v Wade ruling for the transgender community.
“This is imperial judging at its least defensible,” he says, “What plaintiffs propose is nothing less than to use the Constitution to establish a nationwide mandate that States pay for emerging gender dysphoria treatments.”
He’s not wrong. But getting the ruling past this Supreme Court would be a stretch.