Judges Zero in on Transgender Terminology in Medicaid Care Case

Access to transgender surgery for low-income residents of West Virginia appeared at risk Tuesday as federal appeals court judges reconsidered Medicaid coverage requirements under direction from the US Supreme Court.

A three-judge panel for the US Court of Appeals for the Fourth Circuit seemed skeptical of arguments that West Virginia’s exclusion from it’s Medicaid plan of “transsexual surgery” was discriminatory and illegal under the Affordable Care Act and the Medicaid Act.

Much of the oral arguments centered on terminology related to transgender care, with judges grilling Lambda Legal attorney Omar Gonzalez-Pagan—who argued against West Virginia—over why the state couldn’t design health plans as it sees fit and whether excluding gender-affirming care actually amounted to discrimination.

“I’m literally just trying to understand the words. I’m really not trying to fight with you about it, but I don’t even understand what those words mean,” said Judge Julius N. Richardson, in pressing Gonzalez-Pagan over whether phrasing in West Virginia’s plan excludes transgender people from services rather than outlining specific procedures.

“Say that for me one more time—that it doesn’t identify procedures? I mean, it talks about surgery,” Richardson said.

Judge Paul V. Niemeyer likewise took issue with Gonzalez-Pagan’s position, noting, “West Virginia wants to exclude surgery where a person’s coming in and seeks to change his body from one sex to another. How do you propose they describe that?”

“Give me a term that you think is less discriminatory. You think transsexual is discriminatory. I’m suggesting transsexual means nothing more than sex change,” Niemeyer said.

Skrmetti Effect

Previously, in an en banc case, the Fourth Circuit ruled that blanket exclusions for gender-affirming care in state-sponsored health plans in West Virginia, as well as North Carolina, were unconstitutional.

However, the US Supreme Court ordered the Fourth Circuit to revisit the ruling. In doing so, the justices want the Fourth Circuit to consider their June decision in United States v. Skrmetti.

In Skrmetti, the Supreme Court in a 6-3 ruling allowed Tennessee to ban transgender minors from getting puberty blockers, hormone treatments, and surgery, noting that state law didn’t violate the Constitution’s equal protection guarantee, and that the law’s prohibitions hinge on age and medical use rather than sex.

In a brief for the case being heard Tuesday, plaintiff Shauntae Anderson tried to distance her case from the Skrmetti outcome.

Unlike the law attacked in Skrmetti, Anderson said West Virginia Medicaid’s gender-affirming care exclusion “facially classifies Medicaid enrollees based on transgender status and sex.”

Anderson also noted that neither of her case’s Medicaid Act claims turn “on the narrow question Skrmetti answered: whether denying hormone treatment to minors pursuant to a state law regulating medical practice is sex-based discrimination under the Equal Protection Clause.”

“Regardless of what Skrmetti holds as to the Equal Protection Clause, it simply does not address or change the Medicaid Act’s prohibition on discrimination based on diagnosis,” Anderson said.

West Virginia, for its part, argued in a brief that “neither federal statutes nor the Constitution compel States to fund sex reassignment surgeries.”

“Skrmetti counsels deference to States when determining what’s in their citizens’ best interests on public-health issues like these. Courts should heed that counsel when considering the Medicaid Act’s availability and comparability requirements,” the state brief said.

Language Hangups

Language around gender care also came up Tuesday during questioning with Caleb B. David, deputy solicitor general for West Virginia.

Niemeyer said, “It seems to me that’s more confusing to affirm a gender when you’re trying to change the gender to conform to the identity that the person has assumed.”

“A person feels uncomfortable in a male body or a female body and wants to change his body to conform to his mental identification. That sounds to me like change,” Niemeyer said. “Maybe today, it’s more desirable to call it gender confirming, or sex confirming.”

Also on the panel was Judge Allison Jones Rushing.

The case is Anderson v. Crouch, 4th Cir., No. 22-01927, Arguments 12/9/25.