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4th Circuit rules Medicaid must cover gender-affirming care

A man is seen standing at a podium surrounded by people.
Jonathan Drew
Plaintiff Connor Thonen-Fleck addresses reporters about the case while his parents stand nearby on March 11, 2019, in Durham, North Carolina

Read the original story on West Virginia Public Broadcasting's website.

A federal appeals court has ruled that West Virginia’s Medicaid program must cover gender-affirming surgeries.

The 4th U.S. Circuit Court of Appeals in Richmond upheld a lower court ruling Monday on a vote of 8–6 that the state’s Medicaid exclusion violated federal law.

The Fourth Circuit ruling also applies to North Carolina’s health insurance program for state employees.

The states had argued that cost, rather than bias against transgender beneficiaries, was behind excluding gender-affirming surgeries. West Virginia’s Medicaid program does cover hormone therapy, office visits, counseling and lab work.

The court’s majority found that the states’ exclusion did not apply to the same procedures, such as mastectomies or breast reductions, for patients with cancer or excess breast tissue who are not transgender.

“The coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest,” Judge Roger Gregory, first appointed by former President Bill Clinton and re-appointed by former President George W. Bush, wrote in the majority opinion.

Attorney General Patrick Morrisey, a candidate for governor in West Virginia’s Republican primary, said he’d appeal the case to the U.S. Supreme Court.

“Our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens,” Morrisey said in a statement.

The West Virginia lawsuit, filed in 2020 in the U.S. District Court for the Southern District of West Virginia, named the former Department of Health and Human Resources and its former secretary, Bill Crouch, as defendants.

The suit also covered Public Employees Insurance Agency (PEIA), the state employees’ health insurance program.

District Judge Robert Chambers ruled against the exclusions in 2022. Morrisey appealed to the Fourth Circuit.

West Virginia attorneys said the U.S. Centers for Medicare & Medicaid Services has declined to issue a national coverage decision on gender-affirming surgery.

The Associated Press contributed to this report.

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