Appeals court says WVa, NC can’t bar Medicaid coverage for elective trans surgeries
An appeals court has ruled that West Virginia and North Carolina cannot prohibit Medicaid coverage for so-called gender reassignment procedures for trans-identified individuals.
The United States Court of Appeals for the Fourth Circuit released an 8-6 decision on Monday that upheld lower court rulings in the cases of Kadel v. Folwell and Anderson v. Crouch.
At issue was a North Carolina law that prohibited any coverage for elective procedures — cosmetic surgeries to look more like the opposite sex and body mutilating operations that include castration and double mastectomies — and a West Virginia law that allowed coverage for puberty blockers and cross-sex hormones, but not surgeries.
Appeals Judge Roger Gregory authored the majority opinion, arguing that “the coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest.”
“Certain gender-affirming surgeries that could be provided to people assigned male at birth and people assigned female at birth are provided to only one group under the policy,” Gregory wrote.
“When the purpose is to align a patient’s gender presentation with a gender identity that does not match their sex assigned at birth, the surgery is not covered. This is textbook sex discrimination …”
Gregory also rejected the arguments that such body-deforming procedures are harmful, writing that “those criticisms do not support the notion that gender-dysphoria treatments are ineffective so much as still developing.”
“Without evidence to show that gender-dysphoria treatments are ineffective, the North Carolina Appellants cannot show that the coverage exclusion is narrowly tailored to serve the state’s substantial interest in not covering medically ineffective treatment,” he continued.
“The West Virginia Appellants also argue that saving costs and not covering medically ineffective treatments justify the exclusion ... Their arguments are even weaker than the North Carolina Appellants’ arguments.”
Circuit Judge Julius N. Richardson authored one of the three dissents, arguing that “The Equal Protection Clause does not license judges to strike down any policy we disagree with.”
“It instead grants the states leeway to tailor policies to local circumstances, while providing a carefully calibrated remedy for truly illicit discrimination. No such discrimination appears in these cases,” Richardson wrote.
“North Carolina and West Virginia do not target members of either sex or transgender individuals by excluding coverage for certain services from their policies. They instead condition coverage on whether a patient has a qualifying diagnosis.”
Richardson went on to state that any person “regardless of their sex, gender identity, or combination thereof” is able to “obtain coverage for these services if they have a qualifying diagnosis.”
Lambda Legal Senior Counsel Tara Borelli, the lead lawyer for both suits, was “pleased” with the ruling and claimed in a statement released Monday that the decision “will save lives.”
“It confirms that discriminating against transgender people by denying critical medical care is not only wrong but unconstitutional,” Borelli stated.
“No one should be denied essential health care, but our clients in both cases were denied coverage for medically necessary care prescribed by their doctors just because they’re transgender.”
West Virginia Attorney General Patrick Morrisey denounced the Fourth Circuit opinion in a statement on Monday, vowing to appeal the decision to the U.S. Supreme Court.
“Decisions like this one, from a court dominated by Obama- and Biden-appointees, cannot stand: we’ll take this up to the Supreme Court and win,” Morrisey stated.
“We are confident in the merits of our case: that this is a flawed decision and states have wide discretion to determine what procedures their programs can cover based on cost and other concerns.”
Morrisey added that “taxpayers should not be required to pay for these surgeries under Medicaid” and that West Virginia “should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens.”
