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.”
A federal judge has blocked the Trump administration from enforcing a directive from Secretary of State Marco Rubio that prohibits transgender and nonbinary individuals from obtaining passports reflecting their gender identities.
Rubio's directive, issued in January, had instructed State Department staff to freeze all applications for passports with "X" gender markers or applications requesting changes to gender markers on existing passports.
Rubio also directed his subordinate to enforce a section of the Immigration and Nationalist Act that allows the United States to refuse entry to any visa applicant who commits identity fraud or misrepresents who they are, with particular focus on transgender athletes from foreign countries.
A federal judge has blocked the Trump administration from enforcing provisions in a pair of anti-LGBTQ executive orders issued earlier this year that threatened to strip congressionally approved funding from LGBTQ service providers and health centers.
The provisions specifically target LGBTQ and HIV prevention organizations that engage in diversity, equity, and inclusion (DEI) initiatives or that promote so-called "gender ideology" by recognizing transgender identity as valid.
The U.S. Senate parliamentarian blocked several provisions in President Donald Trump's proposed tax and budget bill, including a transgender health care ban that would have prohibited federal funds from covering gender-affirming care.
The provision seeks to block transgender people of all ages -- including adults -- from accessing transition-related care by banning Medicaid, ACA marketplace plans, and the Children's Health Insurance Program from covering the cost.
But Senate Parliamentarian Elizabeth MacDonough, who is tasked offering nonpartisan advice to federal lawmakers on Senate rules, declared that the proposed transgender health care ban violates the Byrd Rule, which requires reconciliation bills -- those cobbled together to resolve differences between House and Senate versions -- to only contain provisions that impact the budget or spending, and not any "extraneous" matters.
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