In North Carolina, the battle for transgender people’s medical coverage heads to court

In North Carolina, the battle for transgender people’s medical coverage heads to court

Michael and Shelley Bunting

At the end of this month, Michael Bunting is leaving his job at UNC-Chapel Hill after nearly 30 years. It wasn’t an easy decision.

It’s not that he doesn’t love his job as an assistant athletic director. It’s not that he’s ready to retire at 52 years old. The state employee health plan will no longer cover the medical treatment doctors say his son needs.

The exact same treatment would be covered for most people under the plan. His son C.B., who is transgender, is excluded.

“Our son is transgender and lives with gender dysphoria, which requires medical care that our state health care board of trustees decided would no longer be covered by our state health plan,” Bunting said Monday. “Since this board excluded coverage for gender confirming care, we’ve endured months and months of anxiety and worry about how we’ll pay for the care and treatment our child needs.”

Bunting’s family purchased a separate, high-deductible insurance plan to help cover the cost of that treatment. Now he’s leaving a job he loves, after decades of service, so that he can afford the care the plan covered just two years ago.

SCIENCE VS POLITICS

Bunting is one of seven plaintiffs in a federal lawsuit filed this week over the blanket exclusion of coverage for treatment of gender dysphoria.

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.

Gender dysphoria is recognized by the American Medical Association, the American Psychiatric Association and even Blue Cross/Blue Shield of North Carolina, which administers the state employee health care plan. They all agree on effective courses of treatment.

But while doctors and even insurance companies say the science is clear, the politics are muddy.

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 opposed the move, calling care related to gender dysphoria 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 he’s forced 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.”

State Treasurer Dale Folwell

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.”

But even in the amended statement, medical experts say Folwell’s understanding of the reality of transgender peoples’ lives and the treatment their doctors recommend is dangerously limited.

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.

“AN AMAZING JOURNEY”

When Michael Bunting’s son C.B. was 11, he had a difficult conversation with his parents. He was assigned female at birth but from an early age knew that wasn’t right.

“He would have to fill out ‘male’ or ‘female’ on forms and he didn’t know what to put,” said C.B.’s mother, Shelley Bunting. “He knew from an early age.”

C.B. was luckier than many transgender people. His parents listened. They learned. They supported him. More than that, they were proud of him.

“He has been amazing,” Michael Bunting said of his son. “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.”

Michael Bunting said it has been “an amazing journey” for his family. It has included challenges, he said, but ultimately they’ve arrived where they need to be.

“He was very brave — knew ‘this is who I am,'” said Shelley Bunting. “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.”

Today, C.B is a healthy middle school boy interested in math and science and enjoys swimming, parkour and lacrosse.

But suddenly losing the health coverage his family had counted on made it much more difficult.

C.B. began socially transitioning in 2017 — beginning to live fully as a young man rather than a young woman. Doctors at Duke prescribed puberty-delaying medication to help. When the health care plan began excluding coverage of such treatment, the cost to the family skyrocketed.

The burden has changed Bunting’s career plans. But the family says they joined the lawsuit because it’s harder, even impossible, for some of the other families struggling with the same problem.

The other plaintiffs in the lawsuit, all current or former employees of the state’s university system, have also faced that struggle:

Max Kadel, a 36-year old transgender man who works for the UNC-Chapel Hill.

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

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

Sam Silvaine, a 30-year old transgender man who is a former employee of N.C. State.

Last year, a federal judge in Wisconsin found a similar health plan exclusion in that state unlawful, leading to a change in the state employee health care plan.

Taylor Brown, staff attorney with Lambda Legal, and Noah Lewis, senior staff attorney at the Transgender Legal Defense & Education Fund, speak at a Monday press conference.

“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 on the lawsuit Monday.

“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.

“North Carolina otherwise provides excellent health benefits,” said Noah Lewis, senior staff attorney at the Transgender Legal Defense & Education Fund. “So it’s a real betrayal to have the state unfairly turn its back on its own employees and their families precisely when they are facing pressing healthcare needs.”

Lewis said he’s now heard from more than 20 state employees who went into debt to afford treatment that had been covered under the plan — or have had to do without treatment and procedures deemed necessary by their doctors.

“When it comes to treating all people fairly and equally, North Carolina is again on the wrong side of history,” Lewis said. “It’s failing transgender North Carolinians — and this time it’s targeting its own employees.”

Ames Simmons, policy director for LGBTQ advocacy group Equality NC, agrees.

“We continue to strongly urge the board to remove the exclusion and cover these benefits for North Carolina’s 720,000 teachers and state employees, families and dependents,” Simmons said.

Simmons, who is himself transgender, said the state is taking a discouraging step backward.

“We believe all North Carolina teachers and state employees should have access to high quality and affordable health care,” Simmons said. “We were glad to see that during 2017 the state health plan removed an outdated and discriminatory exclusion for trans related care. It was confusing and disheartening to see the exclusion suddenly and silently reappear in January of 2018.”

It is also disheartening to see the state treasurer’s personal politics trump medical science, Simmons said.

“Trans people need access to medical care to treat gender dysphoria, which is a recognized medical condition,” Simmons said. “Despite the state treasurer’s public statements to the contrary, it is the overwhelming consensus among the medical experts that treatment for gender dysphoria is medically necessary, effective and safe.”

“Trans employees pay the same premiums as other employees, yet they receive unequal benefits in return,” Simmons said.

“The exclusion was wrong before 2017 and it remains wrong now.”