Court says state health care plans can’t exclude gender-affirmation surgery

Justice Roger Gregory, writing for the majority, called the restrictions obviously discriminatory on the basis of both sex and gender.

It’s the second ruling in favor of trans rights this month from the 4th Circuit, a once-conservative court that has become a pioneer in the field of transgender rights. The court was the first to say that trans students have the right to use bathrooms that align with their gender identity and the first to recognize gender dysphoria as a protected disability. Earlier this month, the court said a federally funded high school could not ban a 13-year-old transgender boy from playing on the girls’ track and field team.

All of these rulings divided the appeals court along ideological lines. In a dissenting ruling Monday, Trump-appointed Judge Jay Richardson wrote that there was no role for the federal court in controlling which treatments health care plans decide to cover.

The majority opinion, Richardson wrote, treats these cases as new fronts on which to wage this conflict. But not all battles are part of a larger war. In the majority’s rush to defend the plaintiffs’ cause, today’s result oversteps the bounds of the law.

Other states have banned hormone treatment and surgery for trans minors; some have also restricted care to transgender adults. Several other states have similar laws against insurance coverage for transition-related treatment.

In West Virginia, transgender Medicaid users challenged the state’s program, which has banned transsexual surgeries by law since 2004. In North Carolina, state employees challenged theirs coverage, which in 2018 excluded surgical treatment for gender dysphoria, the clinical diagnosis of a disconnect between a person’s gender and birth sex.

Both states insisted there was no bias in their coverage limitations, only cost concerns; Trans patients, they argued, were only entitled to the same health treatments as everyone else, but not to specialist care.

There is no covered service for a cisgender person that isn’t covered for a transgender person who meets the same criteria, Caleb David, a West Virginia attorney, told the appeals court judges during oral argument . David added that the state had decided to offer psychiatric and hormonal treatment for gender dysphoria, but not surgery.

Advocates for trans patients said there was no medical justification for drawing the line there, when the state would cover such procedures for other conditions. They also said the financial explanation was suspect because few people undergo gender-affirming surgery. His a drop in the bucket, Lambda legal counsel Tara Borelli said during oral arguments. But even if the cost was significant, he argued, the cost of public health insurance must be a shared burden. It cannot be diverted on the backs of a vulnerable minority group.

The court agreed, saying that cost reduction could not justify coverage of the same treatments for health problems other than gender dysphoria. For example, the court noted, the challenged plans covered mastectomies for cancer patients, but not for trans women.

North Carolina began covering gender-affirming care in 2017 and stopped the following year when Republican Dale Folwell became state treasurer. Julia McKeown, a professor at North Carolina State University, took the job in 2016, several years into a full transition after a lifetime of being adamant about what my gender was but limiting myself to express it She spent months preparing for the surgery, but was forced to cover the full cost along with all other treatments.

It’s like having the rug pulled out from under you, he said. Somehow worse than going in and knowing you’d be denied. She dipped into her retirement savings rather than delay the surgery, calling herself lucky to be able to do it.

McKeown grew up in a rural Florida town and spent years passing as a man for fear of social and professional exclusion. Joining the lawsuit meant exposing yourself to hate mail from strangers.

In an ideal world, I would have liked to get on with my life after the surgery, she said. At the same time, I feel a moral obligation to help those who cannot speak for themselves, and those who are at risk of being laid off or who have dependents on the state health plan who need access to treatment.

Twenty-one Republican-led states asked the court to rule against the plaintiffs, focusing on the disagreement over what physical interventions should be available to trans youth. But most major medical plans and the federal government cover gender transition treatment, which has been endorsed by mainstream medical associations. Studies indicate that very few people who transition regret doing so or seek to reverse the changes, including those who begin treatment in their teens.

Seventeen Democratic-led states and the District of Columbia urged the court to rule on coverage, saying their experience shows that protecting access to gender-affirming care improves health outcomes for our transgender residents in low cost