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U.S. Federal Courts

Supreme Court sends North Carolina healthcare discrimination suit back

NC State Health Plan appealed to the Fourth Circuit claiming it could not be sued because the state is protected by “sovereign immunity”

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Trans flag at U.S. Supreme Court by Michael Key, the Washington Blade

WASHINGTON – The U.S. Supreme Court denied the North Carolina State Health Plan’s petition this past week on Tuesday asking the Court to review a lower court ruling that the plan, a state entity, could be sued for denying comprehensive gender-affirming health care coverage to transgender state employees or their transgender dependents.

Lambda Legal and the Transgender Legal Defense & Education Fund (TLDEF) are suing the health plan, the North Carolina State Health Plan for Teachers and State Employees, for its blanket exclusion of coverage for gender-affirming health care services.

In September 2021, the U.S. Court of Appeals for the Fourth Circuit upheld a lower court ruling in Lambda Legal’s and TLDEF’s lawsuit, Kadel v. Folwell, rejecting the State’s claims that a state entity – in this case the state employee health plan – is protected by sovereign immunity, the legal doctrine that precludes bringing a lawsuit against the state without its consent. Lambda Legal and TLDEF sued the state health plan for violating the health care nondiscrimination law, enacted as Section 1557 of the Affordable Care Act.

In 2020, the U.S. District Court for the Middle District of North Carolina ruled that the North Carolina State Health Plan, a state entity, could be sued under claims that its actions violated the health care nondiscrimination law that is part of the Affordable Care Act, finding that by accepting federal financial assistance the state entity had waived its sovereign immunity. Unsatisfied and determined to continue denying health care coverage for transgender state employees, the State Health Plan appealed to the Fourth Circuit claiming it could not be sued because the state is protected by “sovereign immunity,” and arguing the text of Section 1557 of the ACA is not clear.

The Fourth Circuit decision from 2021 marked the first time that a federal appellate court in the United States has ruled that claims of ‘sovereign immunity’ do not protect state entities from liability under the Affordable Care Act if they receive federal funding.

Lambda Legal TLDEF filed Kadel v. Folwell in 2019 against North Carolina officials for discrimination in the state employee health care plan on behalf of several current and former state employees and their children who were denied coverage under the North Carolina State Health Plan (NCSHP) for medically necessary care.

“We are pleased that the Supreme Court decided not to review this case and that we can now focus on holding North Carolina’s State Health Plan accountable for its discriminatory and harmful refusal to provide comprehensive health care coverage – including for gender-affirming care – to all its state employees and their dependents,” said Lambda Legal Senior Attorney and Health Care Strategist Omar Gonzalez-Pagan.

“The Court’s denial leaves in place a court of appeals decision strongly affirming that it is unlawful and dangerous for state entities receiving federal funding to engage in discrimination in health care and that they are not immune from accountability in court. Entities, like The State Health Plan, must be held accountable when they discriminate and violate people’s rights. Today’s decision protects the rights of marginalized people, including LGBTQ people and people living with HIV, to seek justice and obtain relief in court if they are subjected to health care discrimination,” Gonzalez-Pagan added.

Plaintiffs Max Kadel and Julia McKeown courtesy Lambda Legal/TLDEF

“I am pleased with today’s decision, and I look forward for our case to prevail in court moving forward. Transgender state employees, like myself, deserve the same access to benefits and equal treatment as any other employee. We dedicate our time and talent to improve the wellbeing of the state and our neighbors, yet we are deprived of medically necessary and often life-saving health care services. This is an injustice,” Julia McKeown, assistant professor at North Carolina State University and a plaintiff said.

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U.S. Federal Courts

White House blocked from ending Title 42

Advocacy groups say policy further endangered LGBTQ+ asylum seekers

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The Mexico-U.S. border in Mexicali, Mexico, on July 22, 2018. A federal judge in Louisiana has blocked the Biden administration from terminating Title 42, a Centers for Disease Control and Prevention policy that closed the Southern border to most asylum seekers and migrants because of the pandemic. The previous White House's policy was to have ended on May 23, 2022. (Washington Blade photo by Michael K. Lavers)

LAFAYETTE, La. — A Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the pandemic was to have ended Monday, but it remains in place after a federal judge blocked the Biden administration’s plans to end it.

The White House last month announced it would terminate Title 42, a policy the previous administration implemented in March 2020.

U.S. District Judge Robert Summerhays in Louisiana on May 20 issued a ruling that prevented the Biden administration from terminating the Trump-era policy. White House Press Secretary Karine Jean-Pierre in a statement announced the Justice Department will appeal the decision, while adding the administration “will continue to enforce the CDC’s 2020 Title 42 public health authority pending the appeal.”

“This means that migrants who attempt to enter the United States unlawfully will be subject to expulsion under Title 42, as well as immigration consequences such as removal under Title 8 (of the U.S. Code),” said Jean-Pierre.

Advocacy groups and members of Congress with whom the Washington Blade has spoken since Title 42 took effect say it continues to place LGBTQ asylum seekers and other vulnerable groups who seek refuge in the U.S. at even more risk.

Oluchi Omeoga, co-director of the Black LGBTQIA+ Migrant Project, last month described Title 42 as a “racist and harmful policy.” ORAM (Organization of Refuge, Asylum and Migration) Executive Director Steve Roth said Title 42 “put asylum seekers in harm’s way in border towns and prevented them from seeking safety in the United States.”

Title 42 was to have ended less than a month after five members of Congress from California visited two LGBTQ+ shelters for asylum seekers in Tijuana.

The Council for Global Equality, which organized the trip, in a tweet after Summerhays issued his ruling described Title 42 as a “catastrophe.”

“The Biden administration cannot breathe a sign of relief until it’s a matter of the past,” said the Council for Global Equality on Saturday. “We remain committed to end Title 42.”

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U.S. Federal Courts

Federal Court rules against Tennessee’s anti-Trans restroom sign law

“Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination”

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Estes Kefauver Federal Building and Courthouse Annex Nashville, TN (Photo Credit: GSA/U.S. Courts)

NASHVILLE – A U.S. District Court on Tuesday struck down the Tennessee law that required businesses and other entities that allow transgender people to use the public restroom that matches their gender to post a government-prescribed warning sign.

The measure known as House Bill 1182 (SB 1224), requires businesses or government facilities open to the public to post a sign if they let transgender people use multi-person bathrooms.

On July 9, 2021, the court granted a preliminary injunction blocking the law from going into effect, and today’s ruling strikes down the law permanently.

According to the text of the law, language would be required to be included on the signs reading: “This facility maintains a policy of allowing the use of restrooms [or another type of accommodation] by either biological sex, regardless of the designation on the restroom.”

“We applaud the court for recognizing that this law violates the First Amendment and harms transgender people,” said Hedy Weinberg, ACLU of Tennessee executive director. “Transgender individuals should be able to live their lives free of harassment and discrimination. Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination.”

Screenshot via WVLT CBS 8 Knoxville

In the U.S. District Court for the Middle District of Tennessee ruling, U.S. District Court Judge Aleta A. Trauger noted; “It would do a disservice to the First Amendment to judge the Act for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to parrot a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans whom those establishments are trying to provide with some semblance of a safe and welcoming environment.”

“Transgender Tennesseans are real. The businesses and establishments that wish to welcome them are real. And the viewpoints that those individuals and businesses hold are real, even if they differ from the views of some legislators or government officials,” Judge Trauger added.

The lawsuit was filed on behalf of Bob Bernstein and his restaurant Fido, who objected to the stigmatizing message that would have been required by this law. Fido has informal policies that allow customers to determine which restroom is appropriate for them and has not had any complaints or concerns about their restroom policies.

“As a former journalist, I believe strongly in free speech,” said Bob Bernstein, owner of Fido, a restaurant in Nashville. “The government can’t just force people to post discriminatory, inaccurate, and divisive signs in their places of business. I am glad that the court recognized that this law violates the First Amendment.”

“We’re thrilled to see the court rule in support of transgender and non-binary lives today. This signage law was simple cruelty – and cruelty is unjust,” said Henry Seaton, ACLU of Tennessee transgender justice advocate. “We’ll continue our pursuit of trans justice to its fullest extent, and hope that the trans and non-binary community feels relief and hope from this ruling.”

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U.S. Federal Courts

Federal court blocks part of Alabama trans medical treatment law

“Kids in Alabama can now continue to receive this lifesaving care, & doctors cannot be prosecuted simply for doing their jobs”

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Hugo L. Black United States Courthouse, Birmingham, Alabama (Photo Credit: US Courts/DXR)

BIRMINGHAM, Ala. — In a 32 page ruling released Friday evening, U.S. District Judge Liles Burke preliminarily enjoined the state from enforcing the law criminalizing medical care for transgender minors in Alabama.

The law made it a felony for Doctors and licensed healthcare providers to give gender-affirming puberty blockers and hormones to transgender minors.

Burke, who was nominated to the bench by former President Donald Trump to serve on the U.S. District Court for the Northern District of Alabama, wrote that the section of the Alabama Vulnerable Child Compassion and Protection Act that makes treatment of trans minor children a felony; “the Court finds that there is a substantial likelihood that Section 4(a)(1)–(3) of the Act is unconstitutional and, thus, enjoins Defendants from enforcing that portion of the Act pending trial.”

Judge Burke however ruled that all other provisions of the Act remain in effect, specifically: (1) the provision that bans sex-altering surgeries on minors; (2) the provision prohibiting school officials from keeping certain gender-identity information of children secret from their parents; and (3) the provision that prohibits school officials from encouraging or compelling children to keep certain gender-identity information secret from their parents.

The U.S. Department of Justice had challenged the state’s  SB 184 – a bill that would criminalize doctors for providing best-practice, gender-affirming care to transgender and nonbinary youth.

In the filing by the Justice Department, the complaint alleges that the new law’s felony ban on providing certain medically necessary care to transgender minors violates the Fourteenth Amendment’s Equal Protection Clause. The department is also asking the court to issue an immediate order to prevent the law from going into effect.

S.B. 184 makes it a felony for any person to “engage in or cause” specified types of medical care for transgender minors. S.B. 184 thus discriminates against transgender youth by denying them access to certain forms of medically necessary care.

It further discriminates against transgender youth by barring them from accessing particular procedures while allowing non-transgender minors to access the same or similar procedures. The penalties for violating the law include up to 10 years of imprisonment and a fine of up to $15,000. S.B. 184 would force parents of transgender minors, medical professionals, and others to choose between forgoing medically necessary procedures and treatments, or facing criminal prosecution.

The United States’ complaint alleges that S.B. 184 violates the Equal Protection Clause by discriminating on the basis of sex and transgender status.

LGBTQ legal rights advocates SPLC, GLAD, NCLR, and HRC, joined by co-counsel King & Spalding LLP and Lightfoot, Franklin & White LLC, had previously filed a legal challenge in federal district court against Alabama SB 184.

Shannon Minter, the Legal Director for the National Center for Lesbian Rights, one of the legal rights advocacy groups who had sued Alabama told the Blade late Friday night:

“We are thrilled by this outcome, which will provide enormous relief to transgender children and their families. As the court recognizes, this is well established medical care that has been endorsed by 22 major medical associations. Thanks to this decision, kids in Alabama can now continue to receive this lifesaving care, and their doctors cannot be prosecuted simply for doing their jobs. This is a huge victory for compassion and common sense and a much needed antidote to the tidal wave of hostile legislation targeting these youth.”

In addition to the U.S. Justice Department,  the doctors challenging SB 184 in Ladinsky v. Ivey are Dr. Morissa J. Ladinsky and Dr. Hussein D. Abdul-Latif, both providers at the Children’s Hospital of Alabama and members of the medical staff at the University of Alabama at Birmingham Hospital and the teaching staff at UAB School of Medicine. Dr. Ladinsky and Dr. Abdul-Latif have long-term expertise in caring for transgender children of Alabama families. Under SB 184, they both face criminal penalties including up to 10 years in prison if they continue to provide that support to their patients.

The Alabama family plaintiffs are proceeding anonymously to protect their children. They include Robert Roe, and his 13-year-old transgender daughter Mary, of Jefferson County; and Jane Doe and her 17-year-old-transgender son John, of Shelby County. These families have deep ties to Alabama. If SB 184 is allowed to go into effect both families will be forced to choose between leaving the state, breaking the law, or facing devastating consequences to their children’s health.

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