Big Win in Kadel – Fourth Circuit Rules in Favor of Transgender Health Care Consumers

The Center for Health Law & Policy Innovation of Harvard Law School (CHLPI), in concert with Professor Kevin Barry of Quinnipiac Law School, is pleased to report a big win in the courts for the health care rights of the transgender and gender nonconforming community today. CHLPI and Prof. Barry co-authored an amicus brief in Kadel v. North Carolina State Health Plan for Teachers & State Employees, No. 20-1409 (4th Cir.) supporting the plaintiffs and providing critical context about health care discrimination against transgender people and its consequences, as well as the importance of robust enforcement of laws that prohibit such discrimination.    

Kadel is a lawsuit brought by small group of transgender people (and, in some cases, their parents) enrolled in a state health insurance plan that categorically excludes coverage for gender affirming care, including counseling, hormone therapy, and surgical care.  The plaintiffs allege that this policy violates the anti-discrimination provisions of the Affordable Care Act, known as Section 1557.  In their complaint, the plaintiffs ask the court to declare that the state insurance plan policy violates federal law, to order that the policy be changed, and to find that they are entitled to money damages as a result of the harm to them caused by the policy.  The lower court ruled in favor of the plaintiffs, finding it permissible for the plaintiffs to seek money damages, despite a legal doctrine that sometimes protects government entities from such suits, known as “sovereign immunity.”  In today’s decision, the U.S. Court of Appeals for the Fourth Circuit (covering federal lawsuits brought in Maryland, Virginia, West Virginia, North Carolina, and South Carolina) ruled that the state had waived its sovereign immunity pursuant to the Civil Rights Remedies Equalization Act of 1986, a law that waives sovereign immunity in suits alleging violations of federal anti-discrimination laws applicable to recipients of federal financial assistance.  Determining the Affordable Care Act to be just such a law, and noting that the plan routinely accepted federal monies, the Fourth Circuit held that the state insurance plan was not immune from liability for damages in the plaintiffs’ lawsuit.   

The win is a significant victory for the plaintiffs, and many other health care consumers, who will now be able to enforce meaningfully their right to be free from discrimination in states that are subject to the Court’s ruling.  Represented by Lambda Legal Defense & Education Fund, Inc., Transgender Legal Defense and Education Fund, Inc., and a group of private attorneys, the Plaintiffs will now proceed with their lawsuit in the lower court, absent further appeal.   

The group of nonprofit civil rights, advocacy, and public interest organizations supporting the plaintiffs on the CHLPI / Barry brief include:  the Clearinghouse on Women’s Issues, Feminist Majority Foundation, Gender Equality Law Center, Harvard Law School LGBTQ+ Advocacy Clinic, Legal Voice, NARAL Pro-Choice America, National Center for Lesbian Rights, National Health Law Program, National Women’s Law Center, North Carolina AIDS Action Network, Planned Parenthood South Atlantic, Women’s Bar Association of the District of Columbia, and the Women’s Bar Association of the State of New York.  Equality North Carolina filed an amicus brief as well.