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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 “apply to everyone, not just transgender people.” 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 “applying to straight, gay, lesbian, and bisexual people equally,” 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, “gender 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.” 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 “XX chromosomes” and “XY chromosomes” 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. Twenty-one Republican states filed an amicus brief in favor of denying trans people anti-discrimination protections in healthcare, and 17 Democratic states 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 Carolina already have gender-affirming care bans for trans youth in place, and 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, the Supreme Court recently narrowed 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, “The 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.” 

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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

Education Department moves to end support for trans students

Mental health services among programs that are in jeopardy

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The U.S. Department of Education headquarters in D.C. (Photo courtesy of the GSA/Education Department)

An email sent to employees at the U.S. Department of Education on Friday explains that “programs, contracts, policies, outward-facing media, regulations, and internal practices” will be reviewed and cut in cases where they “fail to affirm the reality of biological sex.”

The move, which is of a piece with President Donald Trump’s executive orders restricting transgender rights, jeopardizes the future of initiatives at the agency like mental health services and support for students experiencing homelessness.

Along with external-facing work at the agency, the directive targets employee programs such as those administered by LGBTQ resource groups, in keeping with the Trump-Vance administration’s rollback of diversity, equity, and inclusion within the federal government.

In recent weeks, federal agencies had begun changing their documents, policies, and websites for purposes of compliance with the new administration’s first executive action targeting the trans community, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

For instance, the Education Department had removed a webpage offering tips for schools to better support homeless LGBTQ youth, noted ProPublica, which broke the news of the “sweeping” changes announced in the email to DOE staff.

According to the news service, the directive further explains the administration’s position that “The deliberate subjugation of women and girls by means of gender ideology — whether in intimate spaces, weaponized language, or American classrooms — negated the civil rights of biological females and fostered distrust of our federal institutions.”

A U.S. Senate committee hearing will be held Thursday for Linda McMahon, Trump’s nominee for education secretary, who has been criticized by LGBTQ advocacy groups. GLAAD, for instance, notes that she helped to launch and currently chairs the board of a conservative think tank that “has campaigned against policies that support transgender rights in education.”

NBC News reported on Tuesday that Trump planned to issue an executive order this week to abolish the Education Department altogether.

While the president and his conservative allies in and outside the administration have repeatedly expressed plans to disband the agency, doing so would require approval from Congress.

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Federal Government

Trump bans transgender service members from U.S. armed forces

Lambda Legal, HRC announce plans to sue

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President Donald Trump (Photo via White House/X)

President Donald Trump on Monday signed a series of executive orders focused on the military, including a directive gutting the Pentagon’s diversity, equity, and inclusion programs along with another banning transgender service members from the U.S. armed forces.

White House officials said new military standards for mental and physical readiness will exclude transgender troops, which would mean the EO goes further than the ban Trump implemented during his first term in 2017.

Among the first actions the president took after his inauguration on Jan. 20 was rescinding the order that former President Joe Biden signed immediately after he took office in 2021 that allowed trans and gender diverse service members to serve openly.

“The implementation [of the ban] is on the DoD regarding specifics,” a White House official told CNN.

A February 2018 memo by the U.S. Department of Defense contained carveouts to exempt trans service members already in uniform who had joined the military prior to the policy excluding them, along with those who do not require a change in gender or those who have been “stable for 36 consecutive months in their biological sex prior to accession.”

DEI practices, meanwhile, will be subject to review by Defense Secretary Pete Hegseth, who was narrowly confirmed by the U.S. Senate on Friday.

Lambda Legal and the Human Rights Campaign on Monday announced plans to sue the Trump-Vance administration “to block implementation of yet another discriminatory and dangerous attempt to bar patriotic transgender military service members from serving openly in the U.S. armed services,” Lambda Legal said in a press release.

“We have been here before and seven years ago were able to successfully block the earlier administration’s effort to prevent patriotic, talented Americans from serving their country,” said Sasha Buchert, Lambda Legal counsel and director of the Nonbinary and Transgender Rights Project. “Not only is such a move cruel, it compromises the safety and security of our country and is particularly dangerous and wrong. As we promised then, so do we now: we will sue.”

“Thousands of current service members are transgender, and many have been serving openly, courageously, and successfully in the U.S. military for more than eight years — not to mention the previous decades when many were forced to serve in silence,” Buchert added. “Once again, as during the first term, the Trump administration is attacking a vulnerable population based on bias, political opportunism, and demonstrably untrue ‘alternative facts,’ denying brave men and women the opportunity to serve our country without any legitimate justification whatsoever.” 

Sarah Warbelow, vice president of legal at HRC, said “Our military servicemembers, including thousands of transgender troops, wear the same uniform, take the same oath, and meet the same rigorous standards,” adding, “They are heroes who put their lives on the line to protect our country—and we owe them all a debt of gratitude.”

“Instead, this discriminatory ban insults their service and puts our national security at risk. Expelling highly trained members of our military undermines military readiness and wastes years of financial and training investments,” Warbelow said.

“It also needlessly upends the lives of families who have already sacrificed so much,” she said. “The Commander-in-Chief should prioritize our military’s safety and readiness, not use his position to issue bans on entire groups of people. This order is unconstitutional, and we will see this administration in court.” 

GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights also filed a federal lawsuit on Tuesday challenging the ban. The suit, Talbott v. Trump, was filed on equal protection grounds on behalf of six active service members and two individuals actively seeking enlistment, according to a statement from the groups.

“When you put on the uniform, differences fall away and what matters is your ability to do the job,” said Nicolas Talbott, Second Lieutenant, Army. “Every individual must meet the same objective and rigorous qualifications in order to serve.”

SPARTA Pride, a nonprofit of transgender people who currently serve or have served in the military, released a statement on Monday:

“Transgender Americans have served openly and honorably in the U.S. Armed Forces for nearly a decade. Thousands of transgender troops are currently serving, and are fully qualified for the positions in which they serve. 

“Transgender service members currently fill critical roles in combat arms, aviation, nuclear engineering, law enforcement, and military intelligence, many requiring years of specialized training and expertise. Transgender troops have deployed to combat zones, served in high-stakes missions, and demonstrated their ability to strengthen unit cohesion and morale. 

“While some transgender troops do have surgery, the recovery time and cost is minimal, and is scheduled so as not to impact deployments or mission readiness (all of which is similar to a non-emergent minor knee surgery). The readiness and physical capabilities of transgender service members is not different from that of other service members.

“SPARTA Pride is standing by to support all transgender service members impacted by this policy.” 

“Donald Trump’s executive orders are not only cruel, discriminatory, and wrapped in disinformation, but they will make all of us less safe. Throughout our military’s history, thousands of transgender people have served with honor, integrity, and bravery,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center. “Attempting to ban them is an insult to their humanity and the contributions that they have made.”

“Additionally, Trump’s decision to remove diversity, equity, and inclusion initiatives will lead to further harassment in our ranks, making underrepresented service members a greater target for discrimination,” she said. “Already we are hearing reports of anti-harassment policies being taken down based on the order to end equity and inclusion initiatives, which is appalling, misguided, and a gross insult to those who serve.”

Goss Graves added, “Everyone, regardless of race, gender or sex, should be able to work with dignity— including in the military — without fear of discrimination and harassment. We will continue to fight against these harmful abuses of power.” 

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Federal Government

Senate confirms gay Treasury secretary nominee Scott Bessent

Hedge fund manager confirmed by 68-29 vote margin

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Treasury Secretary Scott Bessent (Washington Blade photo by Michael Key)

The U.S. Senate on Monday confirmed President Donald Trump’s pick for Treasury secretary, openly gay hedge fund manager Scott Bessent.

Overcoming opposition from some economically progressive Senate Democrats like Elizabeth Warren (Mass.) and Ron Wyden (Ore.), the nominee was confirmed by vote of 68-29.

Bessent during his hearing said that extending tax cuts that were passed during Trump’s first administration with the 2017 Tax Cuts and Jobs Act but are slated to expire in 2025 will be a top priority.

“This is pass-fail, that if we do not fix these tax cuts, if we do not renew and extend, then we will be facing an economic calamity,” he told the senators.

“Today, I believe that President Trump has a generational opportunity to unleash a new economic golden age that will create more jobs, wealth and prosperity for all Americans,” Bessent said at his confirmation hearing. 

According to Fortune Magazine, Bessent, who is a billionaire, disclosed assets worth an estimated $521 million.

He will be the second openly gay man to serve in the Cabinet, after Biden-Harris administration Transportation Secretary Pete Buttigieg, and in a Cabinet-level office, after Obama-Biden administration Acting U.S. Trade Representative Demetrios Marantis and Trump-Pence administration Acting Director of National Intelligence Ric Grenell.

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