Appeals court says WVa, NC can't bar Medicaid coverage for eligible trans surgeries
An appeals court has ruled that West Virginia and North Carolina cannot bar Medicaid coverage for so-called gender reassignment procedures for trans-identified individuals.
The United States Court of Appeals for the Fourth Circuit issued an 8-6 decision on Monday which upheld lower court rulings in the cases of Kadel v. Folwell and Anderson v. Crouch.
At issue were 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.
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Appellate Judge Roger Gregory wrote the majority opinion, arguing that “the coverage exclusions facially discriminate on the basis of gender and sexual orientation, and are not sufficiently 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 goal is to align the gender presentation of a patient with a gender identity that does not match their gender assigned at birth, the surgery is not covered. This is textbook gender discrimination…”
Gregory also rejected the arguments that such body-mutilation procedures are harmful, writing that “these criticisms do not support the notion that sex-dysphoria treatments are ineffective as much as continuing to evolve.”
“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 cost savings and failure to cover medically ineffective treatments justify the exclusion … Their arguments are even weaker than the North Carolina Appellants' arguments.”
Circuit Judge Julius N. Richardson wrote one of the three dissents, arguing that “The Equal Protection Clause does not authorize judges to strike down any policy with which we disagree.”
“Instead, it gives the states freedom to adapt policies to local circumstances, while providing a carefully calibrated remedy for truly unlawful 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 gender, sexual orientation or a combination thereof” can “obtain coverage for these services if they have a qualifying diagnosis.”
Lambda Legal Senior Counsel Tara Borelli, the lead attorney for both suits, was “pleased” with the ruling and asserted in statement announced on 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 simply because they are transgender.”
The Attorney General of West Virginia Patrick Morrisey denounced the opinion of the Fourth Circuit in a statement on Monday, vowing to appeal the decision to the US Supreme Court.
“Decisions like this, from a court dominated by Obama- and Biden-elects, cannot stand: we will take this to the Supreme Court and win,” Morrisey declared.
“We are confident on the merits of our case: that this is a flawed decision and states have broad discretion to determine what procedures their programs can cover based on cost and other concerns.”
Morrisey added that “taxpayers should not pay for these operations under Medicaid” and that West Virginia “should have the ability to determine how to spend our resources to care for the essential medical needs of our citizens.”
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