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Legislators, DHHS split on defense of state law banning gender transition surgeries for minors

Members of the N.C. House consider legislation in committee. Source: ncleg.gov

State legislative leaders and the Department of Health and Human Services take different stances on a request to block a new state law banning gender transition surgeries for minors.

Top lawmakers filed paperwork in US District Court Friday opposing a preliminary injunction in the case Voe v. Mansfield. The suit targets House Bill 808. Meanwhile, state lawyers representing DHHS argued in a separate court filing that the new state law runs afoul of federal law. The department asked a federal court to clarify the portions of HB 808 that can be allowed to stand.

Legislators’ lawyers described HB 808 as “a law that protects North Carolina minors from experimental gender transition procedures.” Originally passed on June 29, it became law on Aug. 16 with the override of Gov. Roy Cooper’s veto.

“Despite this advance notice and the law’s immediate effectiveness, Plaintiffs waited nearly two months to sue,” lawmakers’ lawyers wrote. “In the meanwhile, both the Sixth and Eleventh Circuits reversed or vacated preliminary injunctions prohibiting enforcement of virtually identical prohibitions in Tennessee, Kentucky, and Alabama laws. And the Eighth Circuit granted initial en banc review of a permanent injunction for a similar Arkansas prohibition.”

North Carolina falls under the 4th U.S. Circuit Court of Appeals.

“Yet Plaintiffs mention none of those developments because they want to rush this Court into granting an overbroad statewide preliminary injunction,” legislative leaders argued. “A preliminary injunction is premature and unnecessary. Minor Plaintiff, the only individual whose treatment Plaintiffs identify as potentially impacted, (1) is not receiving and has not received any prohibited gender transition procedure; (2) is ineligible for any gender transition procedure until puberty; and (3) is incapable of providing informed consent for at least two to three years. No healthcare provider in North Carolina has expressed willingness to provide such treatment to Minor while the private cause of action remains in place. And any minor with a ‘course of treatment that commenced prior to August 1, 2023’ may keep obtaining that treatment.”

While legislative leaders oppose a preliminary injunction, the state health department takes a different approach.

“DHHS believes that H.B. 808 directly conflicts with one or more provisions of federal law, including Section 1557 of the Affordable Care Act,” wrote state government lawyers representing the department. “DHHS believes that it is not possible for it to comply with H.B. 808 and also comply with the mandates of federal law applicable to the North Carolina Medicaid program.”

“DHHS therefore respectfully asks the Court to clarify the proper scope of H.B. 808 and, if necessary, rule that H.B. 808 may only be enforced to the extent that it does not require DHHS to violate applicable federal authorities,” according to the department’s court filing.

Addressing a separate issue, DHHS offered no opposition to the plaintiffs’ request to proceed anonymously in the case. A minor in the case is identified as “Victor Voe,” represented through parents “Vanessa Voe” and “Vance Voe.”

Legislative leaders agreed the Voes could proceed with pseudonyms, with two caveats. First, the legislative intervenors and other defendants would have access to the Voes’ “true names along with information, documents, and other materials ‘otherwise discoverable under the Federal Rules of Civil Procedure.’”

“Second, Intervenors further state their understanding that the Voes proceeding pseudonymously does not, by itself, justify statewide relief or injunctive relief that Plaintiffs would not otherwise be entitled to if they were proceeding under their own names,” lawmakers’ lawyers wrote. “Otherwise, Plaintiffs’ motion would prejudice Intervenors, other Defendants, and the State of North Carolina as a whole, and Intervenors would need to reconsider their non-opposition.”

The latest court filings arrived one week after the federal government outlined its own concerns about HB 808. A 27-page document filed on Oct. 27 detailed the feds’ argument that the state law violates the US Constitution.

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“The North Carolina General Assembly recently enacted a statute that prohibits the provision of, and use of state funds to pay for, medically necessary care to young people because of their sex and because they are transgender,” according to the feds’ court filing.

Described as a “statement of interest of the United States of America,” the document came from US Attorney Sandra Hairston of North Carolina’s Middle District, along with three officials connected to the Federal Coordination and Compliance Section of the US Justice Department’s Civil Rights Division.

“As a result [of HB 808], medical professionals in North Carolina are prohibited from administering medically necessary care for transgender minors diagnosed with gender Dysphoria — even where the minors’ parents or guardians have consented to such care — while leaving non-transgender minors free to receive the same procedures and treatments,” the court filing continued. “Similarly, medically necessary care for transgender minors diagnosed with gender dysphoria is excluded from coverage under any publicly funded health insurance or health coverage plan.”

The statement of interest is designed “to advise the Court of its view that, by denying transgender minors — and only transgender minors — access to medically necessary and appropriate care and health coverage, H.B. 808 violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, Plaintiffs are likely to succeed on the merits of their equal protection claim.”

“The United States has a strong interest in protecting both individual and civil rights, including the rights of transgender persons,” according to the document. It cites a Biden administration executive order from January 2021. The order “recognizes the right of all people to be ‘treated with respect and dignity,’ ‘to access healthcare … without being subjected to sex discrimination,’ and to ‘receive equal treatment under the law, no matter their gender identity or sexual orientation.’”

The legislation states “It shall be unlawful for a medical professional to perform a surgical gender transition procedure on a minor or to prescribe, provide, or dispense puberty-blocking drugs or cross-sex hormones to a minor.”

Those currently receiving treatment will be grandfathered in, though. HB 808 states that medical professionals “shall not be prohibited from continuing or completing a course of treatment for a minor that includes a surgical gender transition procedure, or the administration of puberty-blocking drugs or cross-sex hormones” that commenced prior to Aug. 1, 2023, as long as the parents, children, and medical professional all deem it to be in the child’s best interest.

The new law also creates penalties for medical professionals in violation, including the revoking of their medical license and being opened up to civil suits from patients. In addition, HB 808 bans any use of state funds for minor sex-change treatments.

In the Senate, the veto override vote went directly along party lines, with no Democrat voting to override and no Republican voting to sustain. In the House, however, Democrats Rep. Garland Pierce of Scotland County and Michael Wray of Northampton County voted with Republicans to override.

“In some of the most liberal parts of the country, children are allowed to permanently alter their bodies with off-label drugs for the purpose of changing their sex,” said state Sen. Joyce Krawiec, R-Forsyth, in a press release after the override. “While Republicans are protecting minors from such absurd open-door policies, Democrats are siding with the furthest left of their base and putting politics ahead of documented medical risks and consequences. We need to take a cautious approach and limit access to these life-altering medical procedures, and today’s vote to override Gov. Cooper’s veto does just that.”

House Speaker Tim Moore, R-Cleveland, released a press statement on all the overrides, saying, “While Governor Cooper has tried to stand between parents and their kids, today the NC House will continue to affirm parent’s rights, protect female athletes, and advocate for the health and safety of our children.”