CHARLESTON, W. Va. (AP) West Virginia and North Carolina’s refusal to cover certain transgender health care with government-sponsored insurance is discriminatory, a federal appeals court ruled Monday in a case likely headed to the U.S. Supreme Court.
The U.S. Court of Appeals for the 4th Circuit, based in Richmond, ruled 8-6 in the case involving the employee health plan’s coverage of gender affirmation care state of North Carolina and West Virginia Medicaid’s coverage of gender affirmation surgery.
Specifically, North Carolina’s policy prohibits “treatments or studies that lead to or are related to sex change or modification and related care,” while West Virginia prohibits coverage of transgender surgery.
The coverage exclusions facially discriminate based on sex and gender identity, and are not substantially related to an important government interest, wrote Judge Roger Gregory, first appointed by former President Bill Clinton and reappointed by former President George W. Bush. the majority opinion.
Similar cases are being heard in courts across the country, but Monday’s decision is the first decision by the U.S. Court of Appeals to consider government-sponsored coverage exclusions from affirmative action health care. gender and whether these exclusions are lawful.
The ruling follows a ruling earlier this month by 4th Circuit judges that West Virginia’s transgender sports ban violates a teen athlete’s rights under Title IX, the federal civil rights law that prohibits discrimination based on sex in schools
As with the transgender sports law ruling, West Virginia Attorney General Patrick Morrisey said his office planned to appeal Monday’s decision in the health care case.
Decisions like this, from a court dominated by Obama and Biden appointees, can’t stand: Well, take this to the Supreme Court and win, Morrisey said in a statement.
North Carolina State Treasurer Dale Folwell, whose department oversees the state’s health plan, said in a news release that Monday’s majority decision was in direct conflict with other decisions of the federal appeals courts and is expected to be corrected by the United States Supreme Court.
Folwell said the State Health Plan is threatened by financial challenges as plan members age and their health declines.
Consequently, the Plan cannot be everything to everyone, Folwell said. Untethered from the reality of the Plans’ fiscal situation, the majority opinion paves the way for any disgruntled individual to override the Plans’ reasoned and responsible decisions and drive the Plan toward collapse.
In the majority opinion, the justices said that the cost of treatment is not a sufficient argument to support the defense of a policy that is considered discriminatory.
Especially where government budgets are involved, there will often be a rational basis for discrimination, Justice Gregory wrote.
Both states appealed separate lower court rulings that found the denial of gender affirmation discriminatory and unconstitutional. Two three-judge panels of the Fourth Circuit heard arguments in both cases last year before deciding to join the two cases and see them presented to the full court.
In June 2022, a North Carolina trial court required the state plan to pay for medically necessary services, including hormone therapy and some surgeries, for transgender employees and their children. The judge had ruled in favor of the employees and their dependents, who said in a 2019 lawsuit that they were denied coverage for the plan’s gender affirmation.
North Carolina’s state insurance plan provides health coverage to more than 750,000 teachers, state employees, retirees, legislators and their dependents.
In August 2022, a federal judge ruled that West Virginia’s Medicaid program must provide coverage for gender-affirming care for transgender residents.
An original lawsuit filed in 2020 also named state employee health plans. An agreement with The Health Plan of West Virginia Inc. in 2022 it led to the removal of the gender-affirmation care exclusion in the company’s Public Employees Insurance Agency plans.
Attorneys for the states argued that gender dysphoria treatments—all treatments in North Carolina and surgical treatments in West Virginia—are excluded from coverage for everyone, regardless of their gender identity. They stated that only a subset of transgender people suffer from gender dysphoria, a diagnosis of distress over gender identity that does not match the persons assigned sex.
Before offering pharmaceutical or surgical intervention, medical guidelines call for thorough psychological evaluations to confirm gender dysphoria before initiating any treatment.
In his opinion, Gregory said that, in his opinion, gender dysphoria is so closely related to transgender status that it is practically indistinguishable from it.
We hold that gender dysphoria, an inextricable diagnosis of transgender status, is an indicator of transgender identity, the judge wrote. And coverage exclusions that prohibit treatments for gender dysphoria on the basis of transgender identity by proxy.
Unlike North Carolina, West Virginia has covered hormone therapy and other drug treatments for transgender people since 2017. Gregory noted that West Virginia’s program partially or fully covers surgeries to remove and reconstruct sex organs for diagnoses unrelated to gender dysphoria, such as cancer.
After the ruling, West Virginia plaintiff Shauntae Anderson, a black transgender woman and West Virginia Medicaid participant, called her state’s refusal to cover her care deeply dehumanizing.
“I am so relieved that this court ruling brings us one step closer to the day when Medicaid can no longer deny transgender people in West Virginia access to the essential health care our doctors say we need,” he said. Anderson said in a statement.
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