A federal appeals court will determine whether states are required to cover gender transition procedures for people on government health insurance plans.
The Richmond, Virginia-based 4th Circuit Court of Appeals heard cases Thursday involving West Virginia's denial of Medicaid coverage for transition surgeries and North Carolina's denial of coverage for transition drugs and surgeries under its state employee health plan.
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West Virginia has covered transition drugs since 2017, which Caleb David, attorney for the state, said "came from a place of caring and compassion."
Both states lost at the district court level, with judges there determining the denials were discriminatory and unconstitutional, violating the equal protection clause.
Earlier this year, both cases were heard separately by three-judge panels in the 4th Circuit before the court decided to merge them to be presented before the full court of 15. At least two judges noted the cases are likely to reach the Supreme Court.
"We are asking the appeals court to overturn the district court’s flawed decision because under Medicaid, states have wide discretion to determine what procedures their programs can cover based on cost and other concerns,” West Virginia Attorney General Patrick Morrisey said. "Taxpayers should not be required to pay for these surgeries under Medicaid — our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens."
David said that West Virginia is not discriminating, but rather applying limited resources to areas of need. The Mountain State has a Medicaid deficit of $128 million, which is projected to increase to $256 million by 2025.
“West Virginia is entitled to deference where they’re going to take their limited resources,” he said. “They believe that they need to provide more resources towards heart disease, diabetes, drug addiction, cancer, which are all rampant in the West Virginia population.”
However, Lambda Legal, the counsel representing the transgender plaintiffs in both cases, said the exclusion of coverage is "targeted" and therefore unconstitutional.
“One of the most important things that a court can do is to uphold those values to protect minority rights who are not able to protect themselves against majoritarian processes,” senior counsel Tara Borelli said.
West Virginia's attorneys argue, however, that even the U.S. Centers for Medicare and Medicaid Services has not issued a national determination on transition surgeries. In addition, most states do not cover sex changes under Medicaid.
Last year, District Judge Chuck Chambers ruled against West Virginia and certified the lawsuit as a class action to cover all in the state who use Medicaid.
North Carolina, on the other hand, is arguing that its state-sponsored health plan is not required to cover costs of transition as being transgender is not an illness, with attorney John Knepper claiming that only a small portion of persons claiming transgender identity actually have gender dysphoria.
The Tar Heel State's government insurance plan covers more than 750,000 state employees, including counseling for gender dysphoria and other mental illnesses. However, that coverage stops "in connection with sex changes or modifications and related care."
Last year, the trial court ruled against the state, requiring it to pay for what it said were "medically necessary services."
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Borelli echoed that statement, saying, “It is disappointing that state officials in North Carolina and West Virginia have chosen to double-down on the discriminatory denial of medically necessary, evidence-based care."
Despite that, there is a large and growing body of evidence suggesting that gender transitions are both scientifically dubious and potentially dangerous, especially for children.