West Virginia Medicaid recipients and Fain v. Croch plaintiffs Shauntae Anderson (left) and Chris Fain – Photos courtesy of Lambda Legal.
On Aug. 2, a federal judge ruled that West Virginia’s Medicaid program must cover gender-affirming surgical care for transgender patients.
U.S. District Court Judge Robert Chambers, of the Southern District of West Virginia, ruled that the insurance exclusion contained in the state’s Medicaid program — which prohibited coverage for gender confirmation surgery to treat gender dysphoria — discriminates against individuals on both their sex and their gender identity. He also issued an order prohibiting the state from attempting to enforce the exclusion by denying coverage to other transgender recipients.
In the case, known as Fain v. Crouch, Chambers found that such discrimination violates the Equal Protection Clause of the Fourteenth Amendment, anti-discrimination provisions contained in the Affordable Care Act, and provisions of the Medicaid Act that require Medicaid to cover medically necessary treatments and require that all Medicaid recipients receive access to the same type of coverage as other recipients.
“Defendants enacted a clear policy excluding coverage for surgical care of gender dysphoria with no exceptions. This caused an actual, concrete injury to plaintiffs by essentially constructing a discriminatory barrier between them and health insurance coverage,” Chambers wrote in his opinion. “This is not a hypothetical injury.
“Plaintiffs requesting coverage would have been futile due to the exceptionalness exclusion, and the law does not require Plaintiffs to take such futile acts,” Chambers added. “Defendants’ policy was clear — a request for coverage would have been denied under the exclusion. Thus, Plaintiffs have standing.”
The original plaintiffs in the lawsuit — Christopher Fain, a clothing store employee and Medicaid participant; and Brian McNemar, an accountant at a state hospital and his transgender spouse, student Zachary Martell — enlisted the help of Lambda Legal, the Employment Law Center, and the law firm Nicholas Kaster, PLLP, suing state officials in 2020 to challenge insurance exclusions in both West Virginia’s Medicaid program and its state employee health plans, as provided by the state’s Public Employee Insurance Agency.
In 2021, two additional plaintiffs, Shauntae Anderson, a warehouse worker and Medicaid recipient,, and Leanne James, a state employee, were successfully added to the lawsuit as plaintiffs. In 2022, a settlement with The Health Plan of West Virginia led to the removal of insurance exclusion on gender-affirming care in PEIA plans, with the remainder of claims regarding the PEIA being dismissed after James’ death in February 2022. The case continued, focusing on only the Medicaid exclusion.
The court also certified the lawsuit as a class action suit, meaning Judge Chambers’ findings apply to all transgender West Virginians who participate in the state’s Medicaid program, not just Anderson and Fain as individuals.
Fain and Anderson, as well as members of their legal team, praised Chambers’ ruling.
“We applaud Judge Chambers’ decision to remove the discriminatory barrier to accessing medically necessary, gender-confirming surgical care for all transgender West Virginia Medicaid participants,” Avatara Smith-Carrington, a staff attorney at Lambda Legal, said in a statement. “Protecting and advancing health care for transgender people is vital, sound, and just. Transgender West Virginia Medicaid participants deserve to have equal access to the same coverage for medically necessary healthcare that cisgender Medicaid participants receive as a matter of course.”
“I am excited to finally have access to the healthcare I deserve,” Anderson said in a statement. “The exclusion negatively affects my health and wellbeing as well as the health and wellbeing of other transgender Medicaid participants in our community. Gender-confirming care is healthcare, and it is lifesaving.”
“This is a victory not only for me but for other transgender Medicaid participants across West Virginia,” Fain noted. “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. Transgender West Virginians should never feel as if our lives are worth less than others.”
U.S. District Judge Ana Reyes, of the District of Columbia, issued a preliminary injunction blocking President Donald Trump's executive order banning transgender people from enlisting in the military, which also includes expelling transgender service members from the Armed Forces.
The federal judge found the Trump administration's ban violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution because it discriminates against trans service members on the basis of their transgender status and sex.
Reyes said Trump's executive order was "soaked in animus."
A former firefighter has been awarded $1.75 million in damages as part of a lawsuit alleging she was retaliated against -- after filing a separate lawsuit alleging she was discriminated against.
Lori Franchina, who identifies as a lesbian, first began working for the Providence, Rhode Island, fire department in 2002. She quickly rose through the ranks, ending up as lieutenant, but claims she was mistreated due to her gender and sexual orientation.
She claims to have been subjected to a host of abusive behaviors at the hands of fellow firefighters.
Examples included being called lewd nicknames, such as "Fran-gina," ignored in life-or-death situations, and even having a bloody glove snapped in her face, splashing another person's brain matter into her eyes, nose, and mouth.
In new guidance posted to its website, the U.S. Department of Health and Human Services announced that healthcare workers, clinic staff, and third parties could file complaints against medical providers thought to be providing people under age 19 with hormones, puberty blockers, and gender-affirming surgical procedures.
LGBTQ advocates are deriding the online portal as a "snitch line."
The guidance is intended to align with an executive order signed by President Donald Trump prohibiting the provision of gender-affirming care to people under the age of 19 and barring federal funds from being spent on medical treatments meant to assist a person of any age in transitioning genders.
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