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.”
West Virginia Republican Gov. Patrick Morrisey signed a bill that effectively erases the existence of transgender people from state law.
Surrounded by anti-trans advocates, Morrisey signed the "Riley Gaines Act" -- named after the former collegiate swimmer-turned-anti-LGBTQ activist -- into law.
The law defines the terms "man" and "woman" based on a person's biological anatomy at the time of birth in the state code.
For all legal purposes, the state will not recognize the gender of any person who identifies outside of the gender binary or identifies as a gender that does not align with their assigned sex at birth.
A page touting Golden Girls actress Bea Arthur's military service during World War II was reportedly scrubbed from the U.S. Department of Defense website as part of the Trump administration's overzealous efforts to purge anything related to diversity or LGBTQ identity.
Last week, X user @swiftillery noted that the article on Arthur -- first published in October 2021 -- had been removed from the Defense Department website.
According to The Advocate, the Internet Archive documented a "404 -- Page Not Found" message at the URL where the article had been housed.
Over the chants of hundreds of protesters, Iowa Republicans passed a bill to eliminate the ability of transgender people to access public accommodations that align with their gender identity, as well as their ability to access credit, housing, and to obtain employment.
As the February 27 vote was taken, a spectator shouted, "Hope you're proud of yourself!" while another screamed, "Fascist scumbags, eat shit!"
The vote, which passed 33-15 along party lines, makes Iowa the first state in the United States to eliminate existing nondiscrimination protections for a previously protected group of citizens.
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