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

State health care plans and government-funded insurance programs cannot exclude coverage for 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 roll back policies that exclude coverage for gender-affirming care. North Carolina’s state health plan does not cover treatment “in connection with sex changes or modifications and related care,” and West Virginia’s Medicaid program covers only some gender-affirming treatments.

Attorneys for both states argued in court that the policies were based only on cost concerns, not animus toward transgender people. Judge Roger Gregory, writing for the majority Monday, said the states’ restrictions are “obviously discriminatory.”

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

A federal judge in 2022 ruled 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 Monday, Tara Borelli, senior legal counsel at Lambda Legal and the lead attorney on both cases, said the 4th Circuit’s ruling “will save lives.”

“It confirms that discriminating against transgender people by denying critical medical care is not only wrong but unconstitutional,” she said. “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’s denial of medically necessary 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 puts us one step closer to the day when Medicaid can no longer deny transgender West Virginians access to the essential healthcare that our doctors say is necessary for us.”

Gender-affirming health care for transgender minors and adults is considered medically necessary by major medical organizations, though not every trans person chooses to medically transition or has access to care. Twenty-four states since 2021 have banned treatments for transgender youths, according to the Movement Advancement Project, a nonprofit that tracks LGBTQ laws, and legislation in some states also restricts access to care for adults.

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 for transition-related care for individuals of all ages. In three states, Medicaid can be used to cover the cost of gender-affirming care for transgender adults but not minors.

West Virginia’s Republican attorney general, Patrick Morrisey, responding to the 4th Circuit ruling with a vow to take the case to the 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,” he said in a statement. Morrisey, who is currently campaigning for governor of West Virginia, last week said he also plans to appeal a separate 4th Circuit ruling blocking 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 “untethered to the reality” of the fiscal situation of the plan, which is “facing the real risk of looming insolvency.”

“Accordingly, the Plan cannot be everything for everyone — our priority is to provide coverage that does the most good for the highest number of people with the finite resources we have available,” Folwell said in a statement.

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