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State employees file lawsuit over transgender discrimination

Current and former state employees filed a federal lawsuit Monday over discrimination against transgender people in the state employee health plan.

Connor Thonen-Fleck, 16, flanked by his parents Alexis Thonen and Jason Fleck at Monday’s press conference.

The suit, filed by Lambda Legal and the Transgender Legal Defense & Education Fund, stems from a blanket exclusion of coverage for treatment of gender dysphoria, a condition recognized by both the medical community and Blue Cross/Blue Shield of North Carolina, which administers the state employee health care plan.

“We know across this nation courts are affirming the rights of transgender people to exist, to live authentically and to be treated equally and free from discrimination in all areas of life, including employment and healthcare,” said Taylor Brown, staff attorney with Lambda Legal, at a press conference outside the United States District Court for the Middle District of North Carolina in Durham.

“Moreover, these exact exclusions are being struck down in state Medicaid programs, state employee health programs and private insurance programs by state and federal courts across the country,” Brown said.

The suit alleges the exclusion violates the Equal Protection Clause of the U.S. Constitution, Title IX of the Education Amendments of 1972, and the nondiscrimination provision of the Affordable Care Act.

As Policy Watch reported last year, the board of trustees of the state health care plan voted to begin covering treatments for gender dysphoria at the end of 2016, near the end of Janet Cowell’s term as State Treasurer. The move was necessary to comply with the Affordable Care Act. When Dale Folwell came into office in 2017, he made it clear he opposed the move, calling transition-related care elective and unnecessary.

The plan’s trustees allowed the coverage to expire at the first opportunity — not renewing it for the 2018 plan year or for 2019.

Blue Cross/Blue Shield of North Carolina has recognized dysphoria as a serious medical issue and covered treatments related to transition, including hormone therapy and gender confirmation surgery. Transgender patients and their doctors have testified before the plan’s board of trustees that the treatment is necessary and life-saving.

Despite that, Folwell has said he does not intend to change the policy until ordered to do so by court order.

“We are more than confident the court will deliver just that order,” Brown said. “And explain to Mr. Folwell what the United States Constitution and federal law commands with regard to equal treatment of transgender people.”

Asked for a response to the suit’s filing Monday, Folwell’s office provided a statement nearly identical to the one it produced on the issue in October of last year.

“The State Health Plan’s policy of not covering sex change operations as a benefit is the same now as it was during the entire eight years of Treasurer Janet Cowell’s administration,” Folwell said in the statement.

“Until the court system, a legislative body or voters tell us that we ‘have to,’ ‘when to,’ and ‘how to’ spend taxpayers money on gender reassignment surgery, I will not make a decision that has the potential to discriminate against those who desire other currently uncovered, elective procedures,” Folwell said in the statement.

“The State Treasurer, the Plan’s Executive Administrator, and the Plan’s Board of Trustees have the duty and responsibility to act as fiduciaries for the Plan.  In that effort, the Plan strives to provide a comprehensive benefits program for its members while balancing network access, health benefit offerings, and Plan and member costs.”

Last year’s statement used the term “sex change operations” twice. The term is not used by doctors and is considered offensive by most transgender people.

Monday’s statement used the term once – changing it in the second instance to “gender reassignment surgery.”

Many transgender people elect not to have any surgery related to their transition. The blanket exemption excludes not just surgical procedures but coverage of all treatment related to gender dysphoria – including things like hormone treatment and even talk therapy. Similar treatments available to patients who are not transgender are covered under the plan.

The American Medical Association and the American Psychological Association recognize gender dysphoria and transition-related care to treat it as medically necessary and potentially life-saving. A myriad of professional medical organizations have called for an end to transgender-focused exclusions  in public and private health insurance policies.

There are seven plaintiffs in the lawsuit:

Max Kadel, a 36-year old transgender man who works for the University of North Carolina at Chapel Hill.

Julia McKeown, a 43-year old transgender woman who teaches at North Carolina State University.

Jason Fleck, an employee of the University of North Carolina at Greensboro, and his 16-year-old son Connor Thonen-Fleck, who is transgender.

Michael D. Bunting  Jr., an employee at the University of North Carolina at Chapel-Hill, and his 13 year-old son C.B, who is transgender.

Sam Silvaine, a 30-year old transgender man who is a former employee of North Carolina State University.

Michael Bunting, who has worked at UNC-Chapel Hill for nearly 30 years, said he is retiring this month – in part due to the cost of paying for his 13-year-old C.B’s son’s treatment while it falls under the state employee health plan’s blanket exclusion. The family is currently having to purchase additional, private insurance to cover his treatment.

“He was very brave – knew ‘this is who I am,'” said Shelley Bunting, C.B.’s mother. “It took us many months of learning about it and research – talking with him, talking with therapists, meeting with the school. But he’s a happy kiddo. He’s in 8th grade now, looking at high school.”

Michael and Shelley Bunting.

“He has been amazing,” Michael Bunting said. “He has taught us so much about this. How he has handled the transition socially, with friends and family – it has been graceful and brave. I can’t imagine doing that as a grown person, no matter at his age.”

His parents now hope that the legal fight they’re joining will make things easier for C.B and other people transitioning – at any age.

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