West Virginia Medicaid Must Pay for Gender-Confirmation Surgery

Transgender Medicaid beneficiaries in West Virginia can now look to the state to pay for surgeries deemed medically necessary to treat gender dysphoria, after a federal court in the state said a blanket ban on such coverage is unconstitutional.

The Mountain Health Trust program discriminates against transgender people in violation of the Equal Protection Clause by providing coverage for medically necessary surgeries, such as hysterectomies, when they are needed by cisgender people, but not when the same or similar procedures are required by transgender people for gender-confirming reasons, the US District Court for the Southern District of West Virginia said.

The court noted that the surgeries are the same and are billed using the same CPT codes. “The only difference, which results in the preclusion of coverage for Plaintiffs, is that their diagnosis is for gender dysphoria, arising from their identity as transgender,” it said.

Additionally, by denying coverage for “transsexual surgery,” the exclusion facially discriminates on the basis of sex, the court said. Because only people who identify as transgender would seek surgery to change their sex from that assigned at birth to the sex that more accurately reflects their gender identity, the exclusion references sex on its face, the court said.

The state failed to show that this discrimination is sufficiently related to a substantial government interest to survive the challenge, the court also said. The defendants, led by Health and Human Resources Secretary William Crouch, argued that it would become too costly for the state to pay for the surgeries. But they didn’t introduce any evidence of the costs, the court said.

The Center for Medicare and Medicaid Services’ failure to require coverage for surgery to treat gender dysphoria doesn’t “give a green light for the states to enact discriminatory policies” that violate the US Constitution, the court said. And the defendants’ argument that surgical treatment for gender dysphoria can never be medically necessary isn’t supported by the record, it said.

The defendants also violated Section 1557 of the Affordable Care Act by discriminating on the basis of sex in connection with a health program or activity, the court said. The exclusion violates the Medicaid Act’s availability and comparability requirements, Judge Robert C. Chambers also found in Tuesday’s opinion granting the plaintiffs summary judgment.

Nichols Kaster PLLP, Lambda Legal, and the Employment Law Center PLLC represent the plaintiffs. Shuman McCuskey & Slicer PLLC represents Crouch, the department, and other state officials.

The case is Fain v. Crouch, 2022 BL 268526, S.D. W.Va., No. 3:20-740, 8/2/22.