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    Ann Rostow: Fourth Circuit Leading the Way

    By Ann Rostow–

    Fourth Circuit Leading the Way

    One of the most interesting decisions on our “coming up soon” list was just announced last week, namely the ruling by the full U.S. Court of Appeals for the Fourth Circuit on transgender health coverage under state insurance programs in North Carolina and West Virginia. Keep in mind, we’re not discussing the complex issue of hormones and such for teens and pre-teens. Here, we are simply asking whether or not the Tar Heel state insurance employee program can refuse to pay for adult transgender services, and also asking the related question of whether West Virginia can limit trans surgery for adults under its Medicaid system. 

    By an 8–6 vote, the full court said that both insurance schemes illegally discriminated against transgender patients when they denied coverage based on status. Part of the argument the states proposed to justify the unequal treatment was the notion that transgender coverage was too expensive, a rationale that proved ludicrous when anyone bothered to add up the minimal cost of the few transgender men and women in the system. Regardless, Lambda’s Tara Borelli told the court during oral arguments (I see here in The Washington Post) that “the cost of public health insurance has to be a shared burden. It can’t be shunted onto the backs of a vulnerable minority group.”

    Democratic appointees have a slight (8–7) edge in the Fourth Circuit, but the court’s transgender jurisprudence is still remarkable. This is the court that ruled in favor of high school student Gavin Grimm, who sued for access to the boys bathrooms on his Virginia campus. This is also the court that ruled that gender dysphoria is protected under the Americans with Disability Act, and this is the court that recently ruled in favor of a middle-school transgender girl who sued to run track on the girls’ team. 

    Interestingly, the Supreme Court declined to review the Grimm case, and subsequently the justices also refused to hear the appeal of Williams v. Kinkaid, the ADA case (although Justice Alito, joined by Thomas, wrote a nine-page objection to what was presumably a seven-justice decision to let the ruling stand).

    We don’t yet know whether or not the High Court will hear the appeal of the girls’ sports opinion, although there are several transgender sports cases now percolating through the appellate system, and it will be hard to guess what the nine justices will do with this ruling. Further, we expect the Court to be pressured to step into one of several transgender youth health care challenges, much as it seems they would prefer to duck the whole constellation of transgender legal disputes for the time being.

    Not Breaking News

    Meanwhile, my in-box is filled with headlines about a “new Biden administration policy” that covers transgender bias under Title IX of the Education Amendments of 1972. Forgive me if I’m not rising to applaud this exciting development. Readers, this is the tedious outcome of the long-drawn-out process of acknowledging Neil Gorsuch’s 2020 Bostock opinion, which said the term “sex discrimination” in federal law inherently includes sexual orientation and gender identity discrimination. 

    When Biden took office, he ordered his administration to incorporate this GLBT-friendly interpretation into various agency policies, and this has taken eons to formalize. Every few months, there’s another agency reaching another milestone in this Kafka-esque bureaucratic voyage. A preliminary final report! A draft final report! A final report, pending a 60-day period of public input! A final revision! A report from the sub-agency for education policy. A report from the civil rights office of the department of transportation. A report from the civil rights office of the office of civil rights. 

    You get the picture and you now see why I’m less than excited about this latest final final final report from the Department of Education, but, of course, I’m quietly pleased it has arrived at last. At the same time, we got another update on the same theme, a “guidance” announcement from the Equal Employment Opportunity Commission that, surprise!, Title VII covers workplace harassment based on sexual orientation and transgender status, just like Gorsuch said four years ago. And I also see “news” from the Department of Health and Human Services about the non-discrimination code in Obama Care that forbids sex discrimination, and that we now learn “recognizes that protections against discrimination on the basis of sex include sexual orientation and gender identity, consistent with the U.S. Supreme Court’s holding in Bostock v. Clayton County.” 

    Thank you, Bostock majority, and thank you, Biden administration, but hold the banner headlines.

    How Now, Brown Cow?

    I have an interesting story about the unexpected drop in successful anti-GLBT legislation around the states so far this session, a counterintuitive development that is always intriguing, n’est-ce pas? Unfortunately, I’m intellectually exhausted by my first two items with their hefty subject matter, expert legal analysis, and trenchant commentary on the Administrative State. I can’t even think up a title for this section. Must I demand even more of myself? 

    I also have a Fifth Circuit hearing on the Texas ban on drag performances (probably not a positive development), some stories about the Pope being nice to transgender people, something about the good Methodists (as opposed to the bad Methodists who split away from the good ones after the last nice thing that the good Methodists did for us), and the news that George Santos has revived his drag persona, “Kitara Rivache.” 

    But instead of pursuing these worthy topics, I have descended into my latest internet indulgence, the website called “View from the Wing,” which features gossipy anecdotes about crazy airline passengers and their antics. Whenever I see one of these headlines, I can’t resist. I have no idea why I’m so drawn to these characters: The entitled traveler who meets his or her match in the determined flight attendant who won’t take any nonsense from Drunken Dan or Psycho Suzie. The indignant narcissist who plops down in first class, lights up a cigar, or demands a Piña Colada. The righteous passenger who subdues the guy who tries to open the door at 35,000 feet, or the gal who takes off her clothes in the middle of the aisle. 

    And the immediate hand of justice is gratifying. No warrants or lawyers are needed in the friendly skies, just zip ties and citizens’ arrests. Then the pilot pulls a u-turn and returns to Newark where a team of agents barge into the plane and remove the blustering offender. Or perhaps the captain nose dives into Gander International and delivers Mister Moron to the Newfoundland authorities and a freezing holding cell. Write your own script! 

    I’ve also gotten sucked in by these relatively new attractions at the bottom of articles that offer “bridezillas you won’t believe!” or “worst customers ever! He tipped a penny and got the surprise of his life!” Then you are presented with dozens of little vignettes that operate like mental junk food. Cheetos for the frontal lobe. After a healthy salad of appellate court news, I need these.

    Gods Help Us All

    Before we move to state lawmaking, I just saw that my favorite adversaries, One Million Moms, are mad again, this time with Zillow—who we learn is a “Repeat Offender!” and “Did not learn their lesson!” As I’ve mentioned in past dispatches, One Million Moms is actually One Mom named Monica Cole, who works for the American Family Association digging up innocuous references to sex and romance and sputtering with outrage on behalf of small children. In this case, Zillow is “promoting same-sex relationships and the LGBTQ agenda” by showing “two homosexual men sitting on the sofa together as one man gives a handmade gift to his partner in an attempt to save money for their future joint home purchase.”

    Really, Monica? This is a problem? Monica warns that the Bible “is very clear about this particular type of sexual perversion in Romans 1:26–27.” I have retrieved this text for your enlightenment, and it says: “Because of this, God gave them over to shameful lusts. Even their women exchanged natural sexual relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.”

    Don’t get me wrong; it sounds like fun! But it has nothing to do with real estate or financial savings as far as I can see. I also tried to find out what Zillow did to annoy Monica to begin with, but only found more complaints, along with a word of thanks to golfer Scottie Scheffler who went overboard in thanking Jesus and God for his Masters victory. Hey, he’s a great golfer, but athletes should keep their faith to themselves. The notion that a higher power dictates something as fleeting and unimportant as the outcome of a sports event diminishes that divine relationship and makes the athlete look like an idiot. 

    I just re-read that last sentence with memories of my wife and I racing around in a desperate attempt to dig out more Kansas Jayhawk paraphernalia, making lucky tequila shots, telling Alexa to play the Kansas fight song, standing up and dancing around the den in an effort to secure a win from supernatural forces, in this case the Basketball Gods. But that was different. If Scottie had thanked the Golf Gods, I would have had no objection. Indeed, the Golf Gods always decide who gets the Green Jacket.

    Good Signs?

    As mentioned earlier, there are unexpected signs that the explosion of anti-GLBT bills coming out of the red states in the last year or two may have slowed. To put things in perspective with the help of The Washington Post, about seven anti-GLBT bills passed around the country in 2019, just five years ago. Last year, by contrast, 77 were signed into law. You may recall that I used to ignore most state proposals, because they rarely went anywhere and seemed all for show. That changed, culminating in last year’s bloodbath of mostly anti-trans legislation. 

    I think most of us thought the trend would continue, and indeed, the Human Rights Campaign reported that nearly 500 hostile bills were filed as the current sessions got underway. But as many sessions come to a close, only a fraction of these bills have passed, just 20. 

    The Post article includes a number of possible explanations. For one thing, our side is better prepared this year after facing onslaughts and having to scramble to mount opposition in numerous states. I would guess as well that, sadly, the low-hanging fruit has already been enacted, leaving conservatives trying to pass more draconian measures (like a failed bill in Iowa to remove transgender people from civil rights protections). 

    But also, the Post notes, the anti-gay and anti-trans agenda has possibly passed its high point and may be starting to run its course. The voting public was never very concerned about, say, girls playing sports with a transgender teammate, or who uses which bathroom where. These issues were driven by strategists on the far right, looking for easy money and using a misunderstood subject, transgender Americans, as a quick trigger for soundbites and stupidity.   

    But DeSantis and his anti-woke agenda made little headway in a run for president, and elsewhere, non-MAGA Republican leaders are going back to a meat and potatoes legislative strategy. Democratic governors have continued to veto anti-GLBT laws, and just last week, the Kansas legislature (which we follow most carefully here in our Jayhawk household,) failed by one vote to override the veto of Democratic governor Laura Kelly, who singlehandedly sent a comprehensive anti-trans bill to its demise. 

    Roughly 20 state legislatures remain in session, so it’s too early to pat ourselves on the back, but still. It’s a ray of hope.

    GLBT Fortnight in Review
    Published on May 9, 2024