Transgender care policies in W.Va., NC are discriminatory, judge rules

State health plans and government-funded insurance programs cannot exclude coverage of gender-affirming medical care, a federal appeals court ruled Monday.

The 4th U.S. Circuit Court of Appeals ruled 8-6 to affirm two lower court rulings ordering North Carolina and West Virginia to reverse policies that exclude coverage for gender-affirming care. North Carolina’s state health plan does not cover treatment “related to sex change or modification and related care,” and West Virginia’s Medicaid program covers only some gender-affirming treatments.

Lawyers for both states argued in court that the policies were based solely on cost concerns and not animosity toward transgender people. Justice Roger Gregory, writing for the majority on Monday, said the states’ restrictions are “obviously discriminatory.”

“Because we find that the coverage exclusions facially discriminate on the basis of sex and gender identity and are not substantially related to an important governmental interest, we affirm the district courts,” Gregory wrote. in the opinion of the majority. “We further assert that West Virginia’s exclusion violates the Medicaid Act and the Affordable Care Act.”

A federal judge ruled in 2022 that North Carolina’s health plan discriminates against transgender people by excluding coverage for gender-affirming medical care. The same year, another court ruled that West Virginia’s Medicaid program must provide coverage for care.

In a statement MondayTara Borelli, senior legal counsel at Lambda Legal and lead attorney in both cases, said the 4th Circuit’s decision “will save lives.”

“This confirms that discriminating against trans people by denying critical medical care is not only wrong, but unconstitutional,” she said. “No one should be denied essential health care, but in both cases our clients were denied coverage for necessary medical care prescribed by their doctors just because they are transgender.”

“West Virginia’s denial of necessary medical care just because of who I am was deeply dehumanizing,” said Shauntae Anderson, one of the plaintiffs in the case against the state’s Medicaid program. “I am so relieved that this court ruling brings us one step closer to the day when Medicaid can no longer deny transgender West Virginians access to the essential health care our doctors say we need.”

Gender-affirming healthcare for transgender minors and adults is considered medically necessary by major medical organizations, although not all trans people choose to medically transition or access care. Twenty-four states as of 2021 have banned treatments for transgender youth, according to the Movement Advancement Projecta nonprofit that monitors LGBTQ laws, and legislation in some states also restricts access to adult care.

In more than a dozen states, gender-affirming care is explicitly excluded from state employee benefit plans, and Medicaid policies in 10 states exclude coverage of transition-related care for individuals of all ages. In three states, Medicaid can be used to cover the costs of gender-affirming care for transgender adults, but not for minors.

West Virginia’s Republican Attorney General Patrick Morrisey responding to the 4th Circuit ruling with a promise to take the case to the Supreme Court.

“Decisions like this, from a court dominated by Obama and Biden appointees, cannot stand: we will take this to the Supreme Court and we will win,” he said. in a statement. Morrisey, who is currently campaigning for governor of West Virginia, said last week that he also plans to appeal a separate 4th Circuit ruling barring the state from enforcing its restrictions on transgender student-athletes to the Supreme Court.

North Carolina State Treasurer Dale Folwell (R), whose office oversees the state’s health plan, said Monday’s 4th Circuit decision was “detached from the reality” of the plan’s fiscal situation, which “ faces the real risk of imminent insolvency.”

“Consequently, the Plan cannot be all things to all people – our priority is to provide coverage that does the best for the greatest number of people with the finite resources we have available,” Folwell said. in a statement.

“As I have consistently said, I respect the rule of law and therefore will continue to follow all legal avenues available to protect the Plan and its members,” he added.