Gender-affirming surgery must be funded by state health plans, a Richmond court ruled.
The federal appeals court is the first in the country to say the transition should be covered for transgender people with government-sponsored insurance.
The decision arose from a series of cases in North Carolina and West Virginia, in which transgender residents argued that their surgeries should be funded by employee health plans or state-subsidized Medicaid.
State officials said their policy of not covering transgender surgeries was based on financial concerns and not bias.
Connor Thonen-Fleck addresses reporters as his parents stand by his side on March 11, 2019, in Durham, North Carolina, West Virginia.
But the Richmond-based 4th U.S. Court of Appeals on Monday ruled 8-6 in the case.
The court’s decision does not mean that tThe transition will be covered automatically by Transgender people with government-sponsored insurance. failure could be appealed to the Supreme Court, which recently allowed Idaho to enforce a ban on gender-affirming child care.
But the powerful Court has been somewhat reluctant to address the issue, allowing multiple Fourth Circuit rulings supporting the transgender rights stance.
In West Virginia, transgender Medicaid users challenged state policy, which has prohibited funding for “transsexual surgeries” by law since 2004.
In North Carolina, state employees questioned its coverage, which has not covered surgeries for gender dysphoria since 2018.
In January, Ohio became the 23rd state to ban transgender child care, amid a wave of laws passed by Republican-controlled legislatures in recent years.
“The coverage exclusions discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest,” wrote Judge Roger Gregory, first appointed by former President Bill Clinton and re-appointed by former President George W. Bush. in the majority opinion.
The ruling follows a decision earlier this month by Fourth Circuit judges that West Virginia’s ban on transgender girls competing in sports as girls, and vice versa, is illegal because of a federal civil rights law that prohibits discrimination based on sex in schools.
As with the ruling on the transgender sports law, West Virginia Attorney General Patrick Morrisey said his office planned to appeal Wednesday’s decision on the health care case.
“Decisions like this, from a court dominated by Obama and Biden appointees, cannot stand: we will take this to the Supreme Court and win,” Morrisey said in a statement.
After the ruling, West Virginia plaintiff Shauntae Anderson, a Black transgender woman and Medicaid participant from West Virginia, said, “I am so relieved that this court ruling brings us one step closer to the day when Medicaid can no longer denying transgender West Virginians access to the essential health care our doctors deem necessary for us.’
A spokesman for North Carolina State Treasurer Dale Folwell, whose department oversees the state’s health plan, said the agency was still reviewing the decision Monday but would have a response later.
During oral arguments in September, at least two justices said the case is likely to eventually reach the U.S. Supreme Court.
Both states appealed separate lower court rulings that found the denial of gender-affirming care was discriminatory and unconstitutional.
Two three-judge panels of the Fourth Circuit heard arguments in both cases last year before deciding to merge the two cases and see them presented to the full court.
In June 2022, a North Carolina trial court required the state plan to pay for “medically necessary services,” including hormone therapy and some surgeries, for transgender employees and their children.
The judge ruled in favor of the employees and their dependents, who said in a 2019 lawsuit that they were denied coverage for gender-affirming care under the plan.
North Carolina’s state insurance plan provides health coverage to more than 750,000 teachers, state employees, retirees, legislators and their dependents. While it provides counseling for gender dysphoria and other diagnosed mental health conditions, it does not cover treatment “in relation to sex changes or modifications and related care.”
In August 2022, a federal judge ruled that West Virginia’s Medicaid program must provide coverage for gender-affirming care for transgender residents.
An original lawsuit filed in 2020 also named state employee health plans. An agreement with The Health Plan of West Virginia Inc. in 2022 led to the elimination of the gender-affirming care exclusion in that company’s Public Employees Insurance Agency plans.
During oral arguments in September, attorneys for the state of North Carolina said the state-sponsored plan is not required to cover hormone therapy or gender-affirming surgery because being transgender is not a disease.
They stated that only a subset of transgender people suffer from gender dysphoria, a diagnosis of distress over gender identity that does not match a person’s assigned sex.
Before offering pharmaceutical or surgical intervention, medical guidelines call for thorough psychological evaluations to confirm gender dysphoria before initiating any treatment.
West Virginia attorneys said the U.S. Centers for Medicare and Medicaid Services has declined to issue a national coverage decision on gender-affirming surgery.
State attorneys said West Virginia’s policy is also not a case of discrimination, but rather a state trying to make better use of limited resources. West Virginia has a $128 million shortfall in Medicaid next year, which is projected to widen to $256 million in 2025.
Unlike North Carolina, the state has covered hormone therapy and other pharmaceutical treatments for transgender people since 2017.
