Health plan exclusion of trans care ruled unconstitutional by Fourth Circuit

RICHMOND, Va. (CN) — A divided Fourth Circuit ruled Monday that state health plan exclusions of gender-affirming care violate federal law.

"To be denied coverage for life-saving health care simply because you are transgender is degrading and humiliating," Transgender Legal Defense & Education Fund senior counsel Ezra Cukor said in a statement. "Trans people only want to get the same coverage for their health care needs as their co-workers."

A majority of the en banc Fourth Circuit affirmed rulings from North Carolina and West Virginia granting summary judgment to a collection of transgender people and, in some cases, their kids, finding both states' denial of coverage for medical care to be discriminatory and unconstitutional. 

"The exclusions cannot function without relying on direct — not just proxy-based — discrimination," U.S. Circuit Court Judge Roger Gregory, a George W. Bush appointee, wrote for the majority. "While the exclusion may apply to everyone, for many treatments, it is only relevant to transgender individuals." 

Six Republican appointees rejected the majority's ruling, claiming the Fourth Circuit is using en banc cases to address social issues outside the scope of the individual cases presented. 

"I suppose that one day we shall exchange our robes of black for a purple more befitting our new regal state," U.S. Circuit Judge Harvie Wilkinson, a Ronald Reagan appointee, wrote in his dissent. "But until that time, a basic respect for the legitimate and diverse views of our fellow Americans should prevail."

The North Carolina State Health Plan for Teachers and State Employees has broadly excluded coverage for treatment related to what it calls "sex changes" since the 1990s. The Tar Heel state argued that expansion is not financially feasible, with spending on the plan already being $4 billion per year for basic health needs. 

West Virginia's Medicaid Program covers some gender-affirming care but not gender-affirming surgery, and they likewise point to cost as a reason for the narrowed coverage. Both states' central argument is that the coverage exclusions do not discriminate against a suspect or quasi-suspect class and are rationally related to legitimate government interests.

The states claim that those with gender dysmorphia, a diagnosis tied with clinically significant distress and anxiety resulting from the incongruence between an individual's gender identity and birth-assigned sex, are treated the same as cisgender citizens. Lawyers representing North Carolina pointed to the plan's coverage of reconstructive breast surgery following a mastectomy, regardless of whether the recipient plan member is transgender or cisgender, as proof.

"The state health plan provides every plan participant with the same health benefits to protect against the same health risks," North Carolina said in its brief. "The plan provides the same health coverage regardless of sex, gender or transgender status." 

The majority rejected the notion that the exclusions don't target transgender people. The exclusions bar any citizen from receiving compensation for gender-affirming care, but it's only transgender people who would need it, Gregory wrote.

"Gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it," Gregory wrote for the majority. "The excluded treatments aim at addressing incongruity between sex assigned at birth and gender identity, the very heart of transgender status."

The majority found the laws aren't exempt from equal protection clause claims if they apply equally to all. A law taxing kippahs would apply to non-Jews and Jews alike but would affect only Jews, Gregory wrote by way of example.

Plaintiff Shauntae Anderson is a Black transgender woman and a West Virginia Medicaid enrollee. Anderson said in her brief that the state's denial of coverage for her chest surgery and vaginoplasty causes agonizing distress. 

"West Virginia's denial of medically necessary care just because of who I am was deeply dehumanizing," Anderson said in a statement after the ruling. "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 health care that our doctors say is necessary for us."

Cisgender people receive coverage for certain gender-affirming surgeries, specifically vaginoplasty for congenital absence of a vagina, post-mastectomy breast reconstruction and breast reduction for gynecomastia. 

"When the purpose of the surgery is to align a patient's gender presentation with their sex assigned at birth, the surgery is covered. 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," Gregory wrote. "This is textbook sex discrimination."

Lawyers from Lambda Legal, who represented plaintiffs in both cases, celebrated Monday's ruling and said it will save lives. 

"Denying access to this care has detrimental effects on the health of trans people, which can include worsening dysphoria, depression, anxiety and even self-harm," Lambda legal counsel and health care strategist Omar Gonzalez-Pagan said in a statement. "We hope this decision makes it clear to policymakers across the country that health care decisions belong to patients, their families and their doctors, not to politicians."

The ruling comes the same month the Richmond-based federal court ruled West Virginia's ban on allowing transgender athletes to compete with the gender of their choosing violates Title IX. Lawyers representing the states did not provide comment.

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