Appeals court: WV Medicaid policy banning coverage for gender-affirming surgeries discriminatory

Policies in West Virginia and North Carolina that ban individuals with government-sponsored health insurance from using that coverage for gender-affirming care were deemed discriminatory this week in a ruling from a federal appeals court, dealing another blow to Republican leaders in West Virginia who have leaned heavily into anti-trans policies and messaging.

The 4th U.S. Circuit Court of Appeals ruled 8-6 in the case, which officials have said is likely to advance to the United States Supreme Court. Originally filed as two separate cases — one for North Carolina and another for West Virginia — the cases were combined last year following oral arguments in front of 4th Circuit judges. 

“These two cases present the same question: Do health care 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?” Judge Roger Gregory posed in the ruling. “We hold that they do, and therefore affirm the judgments of the district courts.”

In Monday’s ruling, judges upheld decisions by lower courts in both states saying that state health care plans — specifically Medicaid in West Virginia — were obligated to cover certain health services for trans people, including gender-affirming surgeries for adults. 

“Because we hold that the coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest, we affirm the district courts,” Gregory wrote.

Gregory presented the example of mastectomies and breast-reduction surgeries, which are covered by West Virginia Medicaid for diagnoses like cancer and excess breast tissue, but not for the legitimate diagnosis of gender dysphoria. To offer coverage in one case but not the other, the ruling reads, is “obviously discriminatory.”

West Virginia Attorney General Patrick Morrisey said in a statement Monday that his office will be appealing the 4th Circuit’s decision to the United States Supreme Court. 

“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,” Morrisey said.

Six of the eight judges who ruled in the majority on the case were appointed by Presidents Barack Obama or Joe Biden. Gregory, who wrote the opinion for the majority, was appointed to the court by President Bill Clinton in 2000 and reappointed by President George W. Bush to the same position in 2001. 

This will be the second case in as many weeks related to trans rights that Morrisey, who is running in a tight Republican primary race for governor, has said he plans to seek an appeal on. 

Earlier this month, the 4th Circuit ruled that the state was acting unconstitutionally in enforcing a ban on trans girls from competing on female sports teams at public schools. On Monday, Morrisey filed a legal brief in support of several middle school girls who forfeited their shot put competition in protest of a trans girl participating in the track and field competition. 

The federal court decisions come as state legislatures across the nation — as well as several political hopefuls seeking higher office in West Virginia — have targeted the LGBTQ community, and specifically trans people, at increasing rates. 

According to data from the American Civil Liberties Union, more than 100 pieces of legislation were introduced by state legislatures nationwide this year to limit health care options for LGBTQ people, with most targeting trans individuals.

In West Virginia, state coverage via Medicaid for gender-affirming surgeries due to gender dysphoria has been outlawed since 2004. Coverage for medication, including pubertal modulating and hormone therapy, are covered by the health care plan. Despite a body of evidence showing that access to such medications decreases suicidality, depression and more in children living with gender dysphoria, state lawmakers have been advocating legislation to limit the use of these medications for children for several years.

According to a 2021 study, less than 1% of trans or gender-nonconforming adults who receive gender-affirming surgery nationwide regret their procedures. Most report lower rates of depression, suicidality and anxiety following receiving the care.

West Virginia plaintiff Shauntae Anderson, a trans woman who sued the former state Department of Health and Human Resources to challenge that 2004 law, said in a statement to the Associated Press that the state’s refusal to cover such procedures was “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 in a statement to the AP.