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4th Circuit rules gender identity is a protected characteristic

Ruling a response to N.C., W.Va. legal challenges

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Lewis F. Powell Jr. Courthouse in Richmond, Va. (Photo courtesy of the U.S. Courts/GSA)

BY ERIN REED | The 4th U.S. Circuit Court of Appeals ruled Monday that transgender people are a protected class and that Medicaid bans on trans care are unconstitutional.

Furthermore, the court ruled that discriminating based on a diagnosis of gender dysphoria is discrimination based on gender identity and sex. The ruling is in response to lower court challenges against state laws and policies in North Carolina and West Virginia that prevent trans people on state plans or Medicaid from obtaining coverage for gender-affirming care; those lower courts found such exclusions unconstitutional.

In issuing the final ruling, the 4th Circuit declared that trans exclusions were “obviously discriminatory” and were “in violation of the equal protection clause” of the Constitution, upholding lower court rulings that barred the discriminatory exclusions.

The 4th Circuit ruling focused on two cases in states within its jurisdiction: North Carolina and West Virginia. In North Carolina, trans state employees who rely on the State Health Plan were unable to use it to obtain gender-affirming care for gender dysphoria diagnoses.

In West Virginia, a similar exclusion applied to those on the state’s Medicaid plan for surgeries related to a diagnosis of gender dysphoria. Both exclusions were overturned by lower courts, and both states appealed to the 4th Circuit.

Attorneys for the states had argued that the policies were not discriminatory because the exclusions for gender affirming care ā€œapply to everyone, not just transgender people.ā€ The majority of the court, however, struck down such a claim, pointing to several other cases where such arguments break down, such as same-sex marriage bans ā€œapplying to straight, gay, lesbian, and bisexual people equally,ā€ even though straight people would be entirely unaffected by such bans.

Other cases cited included literacy tests, a tax on wearing kippot for Jewish people, and interracial marriage in Loving v. Virginia.

See this portion of the court analysis here:

4th Circuit rules against legal argument that trans treatment bans do not discriminate against trans people because ‘they apply to everyone.’

Of particular note in the majority opinion was a section on Geduldig v. Aiello that seemed laser-targeted toward an eventual U.S. Supreme Court decision on discriminatory policies targeting trans people. Geduldig v. Aiello, a 1974 ruling, determined that pregnancy discrimination is not inherently sex discrimination because it does not “classify on sex,” but rather, on pregnancy status.

Using similar arguments, the states claimed that gender affirming care exclusions did not classify or discriminate based on trans status or sex, but rather, on a diagnosis of gender dysphoria and treatments to alleviate that dysphoria.

The majority was unconvinced, ruling, ā€œgender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it. The excluded treatments aim at addressing incongruity between sex assigned at birth and gender identity, the very heart of transgender status.ā€ In doing so, the majority cited several cases, many from after Geduldig was decided.

Notably, Geduldig was cited in both the 6th and 11th Circuit decisions upholding gender affirming care bans in a handful of states.

The court also pointed to the potentially ridiculous conclusions that strict readings of what counts as proxy discrimination could lead to, such as if legislators attempted to use ā€œXX chromosomesā€ and ā€œXY chromosomesā€ to get around sex discrimination policies:

The 4th Circuit majority rebuts the state’s proxy discrimination argument.

Importantly, the court also rebutted recent arguments that Bostock applies only to “limited Title VII claims involving employers who fired” LGBTQ employees, and not to Title IX, which the Affordable Care Act’s anti-discrimination mandate references. The majority stated that this is not the case, and that there is “nothing in Bostock to suggest the holding was that narrow.”

Ultimately, the court ruled that the exclusions on trans care violate the Equal Protection Clause of the Constitution. The court also ruled that the West Virginia Medicaid Program violates the Medicaid Act and the anti-discrimination provisions of the Affordable Care Act.

Additionally, the court upheld the dismissal of anti-trans expert testimony for lacking relevant expertise. West Virginia and North Carolina must end trans care exclusions in line with earlier district court decisions.

The decision will likely have nationwide impacts on court cases in other districts. The case had become a major battleground for trans rights, with dozens of states filing amicus briefs in favor or against the protection of the equal process rights of trans people.Ā Twenty-one Republican statesĀ filed an amicus brief in favor of denying trans people anti-discrimination protections in healthcare, and 17 Democratic statesĀ joined an amicus brief in support of the healthcare rights of trans individuals.

Many Republican states are defending anti-trans laws that discriminate against trans people by banning or limiting gender-affirming care. These laws could come under threat if the legal rationale used in this decision is adopted by other circuits. In the 4th Circuit’s jurisdiction, West Virginia and North CarolinaĀ already have gender-affirming care bans for trans youth in place, andĀ South Carolina may consider a similar bill this week.

The decision could potentially be used as precedent to challenge all of those laws in the near future and to deter South Carolina’s bill from passing into law.

The decision is the latest in a web of legal battles concerning trans people. Earlier this month, the 4th Circuit also reversed a sports ban in West Virginia, ruling that Title IX protects trans student athletes. However, theĀ Supreme Court recently narrowedĀ a victory for trans healthcare from the 9th U.S. Circuit Court of Appeals and allowed Idaho to continue enforcing its ban on gender-affirming care for everyone except the two plaintiffs in the case.

Importantly, that decision was not about the constitutionality of gender-affirming care, but the limits of temporary injunctions in the early stages of a constitutional challenge to discriminatory state laws. It is likely that the Supreme Court will ultimately hear cases on this topic in the near future.

Celebrating the victory, Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan said in a posted statement, ā€œThe court’s decision sends a clear message that gender-affirming care is critical medical care for transgender people and that denying it is harmful and unlawful … We hope this decision makes it clear to policy makers across the country that health care decisions belong to patients, their families, and their doctors, not to politicians.ā€ 

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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.

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The preceding article was first published at Erin In The Morning and is republished with permission.

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Federal Government

White House finds Calif. violated Title IX by allowing trans athletes in school sports

Education Department threatens ‘imminent enforcement action’

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California Gov. Gavin Newsom (D) (Washington Blade photo by Michael Key)

The Trump-Vance administration announced on Wednesday that California’s Interscholastic Federation and Department of Education violated federal Title IX rules for allowing transgender girls to compete in school sports.

In a press release, the U.S. Department of Education’s Office of Civil Rights threatened “imminent enforcement action” including “referral to the U.S. Department of Justice” and the withholding of federal education funding for the state if the parties do not “agree to change these unlawful practices within 10 days.”

The agency specified that to come into compliance; California must enforce a ban excluding transgender student athletes and reclaim any titles, records, and awards they had won.

Federal investigations of the California Interscholastic Federation and the state’s Department of Education were begun in February and April, respectively. The Justice Department sued Maine in April for allowing trans athletes to compete and refusing a similar proposal to certify compliance within 10 days.

Broadly, the Trump-Vance administration’s position is that girls who are made to compete against trans opponents or alongside trans teammates are unfairly disadvantaged, robbed of opportunities like athletics scholarships, and faced with increased risk of injury — constituting actionable claims of unlawful sex discrimination under Title IX.

This marks a major departure from how the previous administration enforced the law. For example, the Department of Education issued new Title IX guidelines in April 2024 that instructed schools and educational institutions covered by the statute to not enforce categorical bans against trans athletes, instead allowing for limited restrictions on eligibility if necessary to ensure fairness or safety at the high school or college level.

Sports aside, under former President Joe Biden the department’s Office of Civil Rights sought to protect against anti-LGBTQ discrimination in education, bringing investigations and enforcement actions in cases where school officials might, for example, require trans students to use restrooms and facilities consistent with their birth sex or fail to respond to peer harassment over their gender identity.

Much of the legal reasoning behind the Biden-Harris administration’s positions extended from the 2020 U.S. Supreme Court case Bostock v. Clayton County, which found that sex-based discrimination includes that which is based on sexual orientation or gender identity under Title VII rules covering employment practices.

A number of high profile Democrats, including California Gov. Gavin Newsom, have recently questioned or challenged the party’s position on transgender athletes, as noted in a statement by Education Secretary Linda McMahon included in Wednesday’s announcement.

ā€œAlthough Gov. Gavin Newsom admitted months ago it was ‘deeply unfair’ to allow men to compete in women’s sports, both the California Department of Education and the California Interscholastic Federation continued as recently as a few weeks ago to allow men to steal female athletes’ well-deserved accolades and to subject them to the indignity of unfair and unsafe competitions.”

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Federal Government

Trump’s dismantling of US foreign aid derails HIV prevention effort in Africa

FDA approved breakthrough preventative drug lenacapavir earlier this month

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President Donald Trump (Washington Blade photo by Michael Key)

On June 18, the Food and Drug Administration approved a long-acting injectable for the prevention of HIV that could have a transformational impact on decades-long efforts to end the epidemic in the U.S. and abroad.

Offering robust protection with just two doses per year, lenacapavir has the potential to dramatically improve uptake and adherence compared to daily oral PrEP regimens like Truvada or Descovy, particularly for high risk populations living in places with poor health infrastructure or where stigma about HIV discourages frequent testing and clinic visits.

According to the New York Times, however, the rollout of lenacapavir for HIV prevention overseas has been stymied by the gutting of agencies, staff, programs, and funding dedicated to foreign aid and public health during President Donald Trump’s second term.

Among other moves, the administration has frozen or withdrawn nearly all U.S. foreign development assistance, dismantled the U.S. Agency for International Development and reduced the size of its workforce by more than 95 percent, and shuttered key public health units housed under the U.S. Department of Health and Human Services, the National Institutes of Health, the Centers for Disease Control and Prevention, and the FDA.

As a result, the Times reports, HIV programs across the African continent have been “scrambling to procure drugs that the United States once supplied, replace lost nurses and lab technicians, and restart shuttered programs to prevent new infections.”

Experts fear HIV infection rates are climbing in some of the hardest-hit countries, but since the U.S. pulled funding for data collection and monitoring, there is no way to know for sure.

Historically, the U.S. has provided about 75 percent of all global spending on efforts to fight the epidemic, a reflection of the extent to which there was broad bipartisan support for the allocation of resources for this purpose through programs like the President’s Emergency Plan for AIDS Relief. Trump continued this legacy in his first term, launching the ambitious Ending the HIV Epidemic initiative that was continued under former President Joe Biden.

After returning to the White House, however, the president and his administration have justified their slash-and-burn cuts to the federal government’s work in international development and public health by arguing that funds and resources sent to overseas nations are too often pilfered by corrupt foreign state actors or wasted on ineffectual programs.

Trump and his allies also believe the U.S. should no longer be expected to shoulder such a disproportionate share of the responsibility for foreign aid, and that other countries are likelier to step up and contribute more in response to America’s retreat.

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Federal Government

So far, virtually no acknowledgement of Pride month by federal gov’t

Trump-Vance administration proclaimed ‘no more drag shows’ at Kennedy Center

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President Donald Trump (Washington Blade photo by Michael Key)

Just a few days from the start of June, there has been virtually no acknowledgment of Pride month by federal government agencies this year, a striking departure from recent policy and practice under the Biden-Harris administration and even under President Donald Trump’s first term.

Some limited and more localized observances have been preserved or renewed in 2025, for example by the U.S. courts’ webpage celebrating history-making LGBTQ jurists like Judges Deborah A. Batts and J. Paul Oetken of the U.S. District Court for the Southern District of New York, and by the Metropolitan Washington Airports Authority, which notes on its website plans to actively participate in WorldPride 2025.

The paltriness of Pride this year comes pursuant to several policy changes under Trump 2.0 such as executive orders narrowing the definition of gender to exclude trans and nonbinary people and banning activities related to diversity, equity, and inclusion, which have led to agency-wide changes including the removal of LGBTQ focused website content and dissolution of “affinity groups.”

Many of these actions came to light in the first few months of Trump’s second term. For example, in January the Associated Press reported a memo from the U.S. Defense Intelligence Agency indicating that observances related to Martin Luther King Jr. Day, Pride Month, Holocaust Days of Remembrance, and other cultural or historical annual events would be paused.

While it remains to be seen whether and to what extent the White House, federal government, and Congress will acknowledge Pride month in 2025, in 2024:

  • • At the end of May, President Joe Biden issued a proclamation declaring June LGBTQ Pride Month, as he had done for the previous three years of his administration
  • • The U.S. Senate, then under Democratic control, introduced a resolution recognizing June 2024 as LGBTQ Pride Month
  • • Federal agencies across the whole of government participated in Pride activities, and at a high level — for instance, then-U.S. Secretary of State Antony Blinken hosted a Pride month convening focused on U.S. foreign policy, national security, inclusive development, and human rights
  • • Actions in June, which in many cases were coordinated via LGBTQ employee resource groups or affinity groups, included celebrations of LGBTQ individuals — for example, the U.S. Department of Commerce’s Economic Development Administration toasted those who made significant contributions to economic growth, while the U.S. Patent and Trademark Office hosted a “Proud Innovation 2024” event, highlighting the accomplishments of LGBTQ innovators, entrepreneurs, and small business owners who utilize intellectual property to grow their businesses and mentor others in their communities.
  • Agencies also provided support indirectly — for example, the U.S. Federal Trade Commission sponsored attorneys who wished to represent the FTC at LGBTQ Pride events organized by various bar associations

The Washington Post pointed to some of the challenges facing organizers of WorldPride as they plan festivities in D.C. throughout early June: “This year, the LGBTQ+ celebration is being held in the backyard of a government that has targeted transgender rights and made major cuts to HIV prevention programs. At the Kennedy Center, President Donald Trump has promised ā€œNO MORE DRAG SHOWS, OR OTHER ANTI-AMERICAN PROPAGANDA.”

On June 14, Trump is set to preside over a military parade in Washington commemorating the 250th anniversary of the U.S. Army, his 79th birthday, and Flag Day, in a celebration that will feature 6,600 soldiers from at least 11 corps and divisions nationwide and 150 military vehicles, including 28 M1 Abrams tanks.

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