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Judge finds West Virginia Medicaid exclusion of transgender surgery unconstitutional

Following a federal judge’s decision, low-income transgender citizens in West Virginia will soon be able to receive gender-conforming surgical care.

HUNTINGTON, W. Va. (CN) — Following a federal judge’s decision, low-income transgender citizens in West Virginia will soon be able to receive gender-conforming surgical care.

Two years ago, Christopher Fain filed a class action on behalf of over 600 transgender residents against the state Department of Health and Human Resources, challenging the Department’s Bureau of Medical Services’ blanket exclusion of coverage for surgical care as treatment for gender dysphoria in its Medicaid and state employee health insurance plans. Specifically, the complaint claimed the exclusion for “transsexual surgery” regardless of medical necessity violated the plaintiffs’ rights of equal protection under the 14th Amendment.

On Tuesday, U.S. District Judge Robert C. “Chuck” Chambers agreed. Not only did Chambers find WVDHHR’s exclusion unconstitutional, but also granted the lawsuit class action status.

In a 30-page opinion, Chambers said WVDHHR facially discriminates against transgender residents by excluding them medically necessary surgeries afforded to other Medicaid recipients.

“The relevant comparison here is to persons who seek the same, medically necessary surgeries for non-gender dysphoria related treatments,” Chambers said.

“The West Virginia Medicaid Program provides, for example, medically necessary mastectomies for non-gender dysphoria related diagnoses. The only difference between this scenario and the Plaintiffs’ circumstances is that Plaintiffs seek these surgeries to treat gender dysphoria — thus, a distinction hinging on their transgender identity.”

Additionally, Chambers said following the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, WVDHHR’s restricting transgender people to receive surgical care for gender dysphoria is per se sex discrimination.

“Looking to the language of the exclusion,” Chambers said, “it is clear that the exclusion discriminates on its face. The exclusion denies coverage for ‘transsexual surgery.’ This language refers explicitly to sex — one seeking a “transsexual surgery” seeks to change from their sex assigned at birth to the sex that more accurately reflects their gender identify.”

“Only individuals who identify as transgender would seek ‘transsexual surgery,’” he added “and as the Supreme Court reasoned in Bostock v. Clayton County, Georgia, one cannot consider the term 'transgender' without considering sex.”

“This is a victory not only for me but for other transgender Medicaid participants across West Virginia” Fain,46, said in a press release issued by the Lambda Legal Defense and Education Fund, a New York, New York LGBT civil rights organization that backed the class action.

“This decision is validating, confirming that after years of fighting to prove that gender-confirming care is medically necessary, we should have access to the same services that West Virginia Medicaid already provides to cisgender participants,” he added. “Transgender West Virginians should never feel as if our lives are worth less than others,”

Anna P. Prakash with the Minneapolis law firm of Nichols Kaster is lead counsel in suit.  Walk Auvil with the Employment Law Center in Parkersburg is local counsel.

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