CHARLESTON — West Virginia Attorney General Patrick Morrisey is asking the U.S. Supreme Court to review a federal appeals court decision regarding the state’s decision not to cover sex-reassignment surgeries under its Medicaid plan.
In April, the U.S. Fourth Circuit Court of Appeals ruled West Virginia and North Carolina’s refusal to cover some health care for transgender people with government-sponsored insurance is discriminatory.
On July 25, Morrisey announced his office’s plans to appeal that 8-6 ruling to the U.S. Supreme Court.
“Under Medicaid, states have wide discretion to determine what procedures their programs can cover based on cost and other concerns,” Morrisey said Thursday. “Our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens.
“Just one single sex-reassignment surgery can cost tens of thousands of dollars — taxpayers should not be required to pay for these surgeries under Medicaid.”
In its April 29 opinion, the Fourth Circuit ruled in favor of Shauntae Anderson, a transgender woman covered by West Virginia Medicaid who is seeking gender-affirming surgery. The ruling also applies to North Carolina’s state employee health plan not covering gender-affirming care.
“Decisions like this one, from a court dominated by Obama- and Biden-appointees, cannot stand: we’ll take this up to the Supreme Court and win,” Morrisey said at the time. “We are confident in the merits of our case: that this is a flawed decision and states have wide discretion to determine what procedures their programs can cover based on cost and other concerns. …
“Our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens.”
Judge Roger Gregory wrote the majority Fourth Circuit opinion.
“The coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest,” wrote Gregory, who first appointed by President Bill Clinton and re-appointed by President George W. Bush.
In an April statement, Anderson called the state’s refusal to cover her care “deeply dehumanizing.”
“I am so relieved that this court ruling puts us one step closer to the day when Medicaid can no longer deny transgender West Virginians access to the essential healthcare that our doctors say is necessary for us,” she said.
Before the 4th Circuit heard the case las fall, both West Virginia and North Carolina had appealed lower court rulings saying the states’ denials of care were discriminatory and unconstitutional. Two three-judge panels heard arguments in the separate case before deciding to combine them for the full court to decide.
In 2022, U.S. District Judge Robert C. “Chuck” Chambers ruled West Virginia’s Medicaid program must provide coverage for gender-affirming care for transgender residents. When the federal lawsuit first was filed in 2020, a transgender state employee also was named as a plaintiff. But a settlement with The Health Plan of West Virginia in 2022 removed her from the case.
The state Department of Health and Human Resources and former secretary Bill Crouch were listed as defendants in the original complaint.
West Virginia has covered hormone therapy and other pharmaceutical treatments for transgender people since 2017.
In the North Carolina case, a court in 2022 demanded the state pay for “medically necessary services” such as hormone therapy and some surgeries. The state provides counseling for gender dysphoria, but it doesn’t cover treatment related to sex changes or modifications and related care.
