The 4th U.S. Circuit Court of Appeals has decided to convene as a full court to consider two transgender rights cases from North Carolina and West Virginia. The move comes after two panels of judges had heard arguments in the cases but had yet to issue rulings. The court’s decision to grant “en banc” review in the two cases is rare and is typically done after a three-judge panel has issued a written decision.
The court did not give a reason for its orders, but Lambda Legal Defense & Education Fund senior attorney Tara Borelli, who argued in both disputes, said that having both cases reviewed by the full court will allow for consistency across the issues in both appeals. The cases involve the question of whether North Carolina’s state health insurance plan can bar coverage for treatments commonly sought by transgender people, including gender reassignment surgery and hormone therapy, as well as a similar case from West Virginia involving the state’s Medicaid program.
North Carolina and West Virginia are among at least 15 states where employee health plans do not include coverage for gender transition-related procedures. The U.S. district courts in the two cases found that the exclusions were discriminatory.
The 4th Circuit’s 14 active judges, who generally make up the en banc court, are evenly split between judges appointed during Democrat and Republican administrations. However, the 4th Circuit is considered a Democrat-appointed majority court, since Chief Circuit Judge Roger Gregory was first named to the court by then-President Bill Clinton and confirmed under former President George W. Bush.
En banc arguments in federal appeals courts are uncommon, but the 4th Circuit has been more active in this regard than other circuits in recent years, hearing two cases as a full court last year and six in 2021. The court did not set argument dates in Wednesday’s orders in the two cases.
This decision by the 4th Circuit to convene as a full court to consider these transgender rights cases could have significant implications for the legal protections afforded to transgender people in North Carolina and West Virginia. The cases raise important questions about discrimination in healthcare and the rights of transgender individuals to access medically necessary care.
