Appeals judges ruled that West Virginia policies that don’t cover sex transition surgery through Medicaid violate federal law, and the state’s attorney general vowed to take the question to the U.S. Supreme Court.
The judges in the majority concluded that West Virginia discriminates unfairly against transgender people because the state’s policies allow coverage for the same procedures to other people for different medical reasons.
The Fourth Circuit Court of Appeals, which covers the region that includes West Virginia, entered an 8-6 ruling Monday. Appeals judges considered policies in North Carolina and West Virginia in their ruling.
“Decisions like this one, from a court dominated by Obama- and Biden-appointees, cannot stand: we’ll take this up to the Supreme Court and win,” said Attorney General Patrick Morrisey, a Republican who is running for governor.
The West Virginia aspect of the case involved plaintiff Shauntae Anderson, a transgender Medicaid patient who has been diagnosed with gender dysphoria. Anderson sued in the Southern District of West Virginia on behalf of herself and others in a similar situation, arguing that the state’s coverage exclusion discriminates against transgender people.
Anderson was represented by the national Lambda Legal organization.
“West Virginia’s denial of medically necessary care just because of who I am was deeply dehumanizing. I am so relieved that this court ruling puts us one step closer to the day when Medicaid can no longer deny transgender West Virginians access to the essential healthcare that our doctors say is necessary for us,” Anderson said today.
The North Carolina case also involved transgender people who were denied coverage for healthcare prescribed for their gender-dysphoria diagnoses. That case focused on the policies of the North Carolina State Health Plan.
“These two cases present the same question: Do healthcare plans that cover medically necessary treatments for certain diagnoses but bar coverage of those same medically necessary treatments for a diagnosis unique to transgender patients violate either the Equal Protection
Clause or other provisions of federal law?” wrote Judge Roger Gregory for the majority.
“We hold that they do, and therefore affirm the judgments of the district courts.”
Gregory was joined by Fourth Circuit appeals judges Diaz, King, Wynn, Thacker, Harris, Heytens and Benjamin.
Six other appeals judges — Richardson, Wilkinson, Niemeyer, Quattlebaum, Agee and Rushing — produced dissenting opinions.
West Virginia’s part of the case focused on coverage available under the state’s Medicaid plan, the federal-state program that provides health insurance for low-income people. West Virginia’s Bureau for Medical Services administers the state’s Medicaid Program and receives funding from the U.S. Department of Health and Human Services.
The state’s Medicaid Program covers some gender-affirming care, including counseling, office visits, hormones and lab work. It does not, however, cover gender-affirming surgery — “regardless of medical necessity.” The coverage exclusion was adopted around 2004 and has been maintained since without review.
However, the federal case notes that West Virginia partially or fully covers procedures for diagnoses that are not gender dysphoria.
Those include mastectomies, breast-reduction surgery, chest reconstruction following a mastectomy, hysterectomies, removal or creation of the vagina and removal or creation of male reproductive organs.
The West Virginia plaintiff, Shauntae Anderson, began taking birth control pills for estrogen before going on Medicaid. Once she was on Medicaid, her doctors recommended hormone replacement therapy, and she started that in 2019.
Doctors have not yet recommended her for surgery; to the extent they have discussed it with her, they have simply said that Medicaid does not cover the surgeries, so “there is nothing that they can do about it.” according to the federal case.
Anderson argued in the federal lawsuit that the coverage exclusion discriminates against transgender people in violation of the Fourteenth Amendment, the Medicaid Act and the Affordable Care Act. The Equal Protection Clause of the Fourteenth Amendment forbids a state from denying “to any person within its jurisdiction the equal protection of the laws.”
The appeals court majority ruled, The North Carolina State Health Plan and the West Virginia Medicaid Program discriminate on the basis of gender identity and sex in violation of the Equal Protection Clause.”
Dissenting judges countered, “In the majority’s haste to champion plaintiffs’ cause, today’s result oversteps the bounds of the law. The majority asserts that the challenged exclusions use medical diagnosis as a proxy for transgender persons, despite the complete lack of evidence for this claim.”
Morrisey vowed to fight the appeals court majority’s ruling.
“We are confident in the merits of our case: that this is a flawed decision and states have wide discretion to determine what procedures their programs can cover based on cost and other concerns,” Morrisey stated.
“Just one single sex-transition surgery can cost tens of thousands of dollars—taxpayers should not be required to pay for these surgeries under Medicaid. Our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens.”