Appeals judges on the circuit that covers West Virginia heard arguments today about whether West Virginia has violated constitutionally guaranteed equal protections by declining to cover surgical treatments for gender dysphoria.
The federal appeals case also focused on whether West Virginia violated the Medicaid Act and the Affordable Care Act by declining to cover surgical treatments for gender dysphoria.
This is the second time the case has gone before appeals judges.
A little more than a year ago, appeals judges in a narrowly-decided opinion 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.
Earlier this summer, though, the U.S. Supreme Court weighed in on a different case, United States v. Skrmetti, where the Court upheld a Tennessee law banning gender-affirming medical care like puberty blockers and hormones for transgender minors.
That case had similar issues, but it was about minors. So the West Virginia case, Crouch vs. Anderson, came back to the 4th Circuit, the appeals district that includes West Virginia, for further consideration.
At the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., this morning, a panel that included judges Paul Niemeyer of Maryland, Julius Richardson of South Carolina and Allison Jones Rushing of North Carolina heard about 45 minutes of oral arguments.
The case focuses 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.
West Virginia’s Medicaid program covers some gender-affirming care, including counseling, office visits, hormones and lab work. It does not, however, cover gender-affirming surgery, 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.
At the time of the initial appeals court review, doctors had not yet recommended her for surgery; to the extent they had 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.”
Lawyers representing West Virginia state government argued today that states are not required to fund gender-affirming surgery.
“Neither federal statutes nor the Constitution compel states to fund sex reassignment surgeries,” said Caleb David, deputy solicitor general and special counsel for the state of West Virginia, going on to say the district court’s earlier ruling was in error and that the Skrmetti case underscores that.
He said West Virginia’s exclusion does not violate equal protection because it is based on medical use, not sex or transgender status.
“Sex doesn’t come into the equation. Transgender status does not come into the equation. The state doesn’t ask whether a beneficiary is transgender or not. Transsexual surgery isn’t covered for any Medicaid beneficiary, regardless of sex or transgender status. It only classifies on the basis of medical use,” David told the appeals judges.
He continued, “If it’s for treatment of gender dysphoria, then it’s not covered. If it’s for something that is within the list of covered services, for instance, breast cancer, it is covered regardless of the patient’s sex or gender identity, and because it doesn’t turn on sex, there’s no risk from which men are protected and women are not, and there’s no risk from which women are protected and men are not.”
Omar Gonzalez-Pagan, an attorney for Lambda Legal Defense and Education Fund, argued on behalf of Anderson that the exclusion targets transgender people and constitutes the intent to discriminate.
“This exclusion stands out because it doesn’t describe any particular service, but rather a broad category of services because of who attains it. It doesn’t describe LASIK surgery or weight loss program or optometry services. It refers to the people who attain it, and it use of the language is very specific,” he said.