Justice Roger L. Gregory, appointed by President Clinton, wrote for the majority that the restrictions were “patently discriminatory” based on both sex and gender.
“In this case, discrimination on the basis of diagnosis East discrimination on the basis of gender identity and sex,” Gregory wrote, because “gender dysphoria is so intertwined with transgender status that it is virtually indistinguishable.”
The majority ruled that West Virginia’s policy also violated the anti-discrimination provision of the Affordable Care Act, a finding that has broad implications for other states’ Medicaid programs.
It’s the second ruling in favor of trans rights this month from the 4th Circuit, a once-conservative court that has become a pioneer in the field of transgender rights. The court was the first to rule that trans students had the right to use the bathroom that corresponds to their gender identity and the first to recognize gender dysphoria as a protected disability. Earlier this month, the court ruled that a federally funded college could not ban a 13-year-old trans girl from playing on the women’s track and field team.
The decision could be appealed to the Supreme Court, which recently allowed Idaho to impose a ban on gender-affirming care for minors. But the conservative-led court has been reluctant to engage on the issue, letting several 4th Circuit rulings in favor of transgender rights stand. The court also generally waits until there is disagreement between the circuit courts before intervening.
All of these decisions split the Fourth Circuit court along ideological lines, with Democratic-appointed judges joining the majority opinion and Republican-appointed judges dissenting. In the main disagreement with Monday’s ruling, Judge Jay Richardson, a Trump appointee, wrote that the federal court has no role in policing what treatments health care plans decide to cover.
The majority opinion, Richardson writes, “views these cases as new fronts on which this conflict must be waged. But not every battle is part of a larger war. In the majority’s haste to defend the plaintiffs’ cause, today’s result exceeds the bounds of the law.”
Richardson said what matters is that trans patients have the same coverage of the same conditions as others. For example, he said, a trans patient with uterine cancer could undergo a hysterectomy under these plans.
“Different coverage of treatments for different diagnoses is… based on medical judgment of biological reality,” he wrote. “States may reasonably decide that certain gender dysphoria-related services are not justified in terms of cost, in part because they call into question the medical effectiveness and necessity of those services. »
Other states have banned hormone treatment and surgery for trans minors; some also have limited care for transgender adults. Several other states have similar laws prohibiting insurance coverage for transition-related treatments.
In West Virginia, transgender Medicaid users have challenged the state’s program, which since 2004 has legally banned “transsexual surgeries.” In North Carolina, officials challenged their coverage, which in 2018 excluded surgical treatment of gender dysphoria – the clinical diagnosis of a mismatch between a person’s sex and their birth sex.
Both states insisted there was no bias in their coverage limitations, only cost concerns; Trans patients, they argued, were only entitled to the same health treatments as everyone else, but not to specialized care.
“There is no covered service for a cisgender person that is not covered for a transgender person meeting the same criteria,” Caleb David, a West Virginia attorney, told the appeals court judges during oral arguments. David added that the state had decided to provide psychiatric and hormonal treatment for gender dysphoria – but not surgery.
Trans patient advocates said there was no medical justification for setting a limit there, when the state would cover such procedures for other conditions. They also said the financial explanation was suspect because very few people undergo gender affirmation surgery. It is “a drop in the bucket,” Lambda Legal attorney Tara Borelli said during oral arguments. But even if the cost were significant, she argued, the cost of public health insurance “must be a shared burden.” This must not be done at the expense of a vulnerable minority group.”
The court agreed, saying cost reduction could not justify covering the same treatments for health conditions other than gender dysphoria. For example, Gregory also pointed out that under these plans, “cisgender people TO DO receive coverage for certain gender-affirming surgeries,” including breast reconstruction for cancer patients after a mastectomy.
North Carolina began covering gender-affirming care in 2017 and stopped the following year, when Republican Dale Folwell became state treasurer. Julia McKeown, a professor at North Carolina State University, accepted her position in 2016, a few years after fully transitioning from a life spent “being adamant about my gender” but limited in expressing it. She spent months preparing for the operation, only to be forced to pay the full fee along with all other treatments.
“It’s like the rug is being pulled out from under you,” she says. “In some ways it’s worse than going in and knowing it’s going to be turned down.” She reduced her retirement savings rather than delay the operation, calling herself “lucky” to be able to do so.
McKeown grew up in a rural Florida town and spent years passing as a man for fear of social and professional exclusion. Joining the trial meant exposing yourself to hate mail from strangers.
“In an ideal world, I would have loved to continue my life” after the operation, she said. “At the same time, I feel a moral obligation to help those who cannot speak out for themselves, and those who are at risk of being laid off or who have dependents on the state health care system who need access to treatment.”
Twenty-one Republican-led states asked the court to rule against the plaintiffs, focusing on disagreements over what physical interventions should be available to trans youth. But most major medical plans and the federal government cover gender transition treatment, which has been approved by mainstream medical associations. Studies indicate that very few people who transition regret doing so or seek to reverse the changes, including those who begin treatment as adolescents.
Seventeen Democratic-led states and the District of Columbia urged the court to rule in favor of this coverage, saying their “experience demonstrates that protecting access to gender-affirming care improves health outcomes.” health of our transgender residents at low cost.”
correction
An earlier version of this story reported that the challenged insurance plans covered mastectomies for cancer patients, but not for trans women. The plans covered mastectomies for all cancer patients, but did not cover the procedure for trans men who wanted to have their breasts removed to treat gender dysphoria.
