Fate of West Virginia Trans Care Medicaid Ban Tied to Skrmetti

Transgender individuals’ health-care rights will come under judicial scrutiny Tuesday, as a federal appeals court panel will hear arguments that center on the application of a recent US Supreme Court decision to West Virginia’s exclusion of “transsexual surgery” from Medicaid coverage.

The case is in an unusual position, said Omar Gonzalez-Pagan, an attorney with Lambda Legal Education & Defense Fund who will argue for the plaintiff. This is because a majority of the active judges on the US Court of Appeals for the Fourth Circuit upheld a ruling that the state’s Medicaid exclusion violated the 14th Amendment’s equal protection clause, Section 1557 of the Affordable Care Act, and the Medicaid Act.

Yet the Supreme Court vacated it in June.

The Fourth Circuit majority was very narrow, with six judges dissenting, and it isn’t yet clear whether any of those six will be on the panel. There’s also been a change in presidential administrations since then, and President Donald Trump has acted to defund gender dysphoria care at all levels.

Skrmetti appears to have raised more questions than answers since the decision was handed down, with several lower courts delving into how the justices’ analysis of the equal protection question applies to different factual scenarios involving the rights of transgender people.

West Virginia Attorney General John McCuskey (R) said in a supplemental brief that United States v. Skrmetti—which upheld a Tennessee law banning gender-affirming care for minors—controls this case. West Virginia’s Medicaid exclusion, like the Tennessee law, doesn’t discriminate on the basis of race or transgender status, but distinguishes among patients solely on their diagnoses, he said.

The state made a valid decision within its discretion not to pay for gender-affirming surgeries based on concerns about their cost and efficacy, he said.

Thomas Jipping, a senior legal fellow at the Heritage Foundation, agrees. The cases aren’t exactly identical, but if the exclusion is written in terms of medical use and treats trans people of both sexes equally, the result on the equal protection question should be same, he said.

The Eleventh Circuit earlier this year applied Skrmetti to uphold a transgender care exclusion in a public employee health plan, he noted.

Jipping expects the question to “bubble around at the lower level for a bit,” but said this case probably won’t go back to the Supreme Court unless a clear circuit split develops.

‘Doesn’t Take Care of Everything’

But Skrmetti “really doesn’t take care of everything,” said Craig Konnoth, a professor at the University of Virginia School of Law.

The justices concluded in Skrmetti that the Tennessee law, with only a few references to “sex,” didn’t trigger intermediate scrutiny under the equal protection clause, he said. West Virginia’s Medicaid exclusion, however, expressly refers to “transsexual” and “sex change” surgery.

The constitutional analysis, moreover, doesn’t apply to the statutory claims under the ACA and the Medicaid Act that are also at play in the case, Konnoth said. The justices didn’t say anything about sex discrimination outside of the constitutional capacity.

They “said in dicta that different sex discrimination rules might apply in the medical context, but Congress has said for statutory purposes, the rules of sex discrimination are the same,” he said.

Suzanne Goldberg, a professor at Columbia Law School, agreed that this case raises “fundamentally different legal and practical questions.”

The Medicaid Act, while giving states discretion to design their own plans, doesn’t allow them to discriminate based on diagnoses, she said.

Goldberg expects the Fourth Circuit to focus on the differences between this case and Skrmetti, which involve different groups and affect different conduct.

“Skrmetti involved front-end medical decision-making, whereas this case involves back-end insurance coverage matters,” she said. “It’s a gross oversimplification to say the cases are about the same issues.”

But Katie Keith, founding director of the Center for Health Policy and the Law at the O’Neill Institute, believes “it’s an open question how the Fourth Circuit will apply Skrmetti here.”

In addition to the Eleventh Circuit case, a recent Ninth Circuit decision sent an insurance coverage dispute against Blue Cross Blue Shield of Illinois back to the trial court for reconsideration, said Keith, who teaches at Georgetown University Law Center and served on the White House Gender Policy Council during the Biden administration.

The district court had held the insurer liable under the ACA for categorically excluding certain gender-affirming services.

The West Virginia Attorney General’s Office didn’t respond to a request for comment.

Nichols Kaster PLLP and the Employment Law Center PLLC also represent the plaintiff.

The case is Anderson v. Crouch, 4th Cir., No. 22-1927, oral arguments scheduled 12/9/25.