Transgender health care must be paid for by state insurance, says an appeals court

By Selena Simmons-Duffin
Cases about transgender people and their rights have been working their way through the court system for years. Here, people demonstrate in favor of trans rights in front of the Supreme Court in 2019.
Cases about transgender people and their rights have been working their way through the court system for years. Here, people demonstrate in favor of trans rights in front of the Supreme Court in 2019.

A federal appeals court ruled on Monday that state health insurance plans must provide coverage for gender-affirming care in North Carolina and West Virginia. Trans advocates say it’s a huge victory, especially since bills restricting the rights of transgender people have been on the rise in state legislatures.

The 4th Circuit Court of Appeals in Richmond, Va., issued its decision about two cases. One was brought by North Carolina state employees and their dependents who are transgender and were unable to get coverage for gender-affirming care.

The other lawsuit came from West Virginians who are transgender and on Medicaid. They could get coverage for some treatments — like hormones — but not for surgery.

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These cases were heard last fall by the 4th circuit en banc — that is, all the judges on that appeals court heard the argument.

In oral arguments, the judges asked about mastectomies, as an example. Those are covered for patients with breast cancer, but they were not covered by the health insurance plans for transgender patients.

In an 8-6 decision, the majority of the 4th circuit decided that these patients were entitled to health insurance coverage for their care.Judge Roger Gregory, writing the majority opinion, called the denial of coverage “obviously discriminatory.”

West Virginia Attorney General Patrick Morrisey had defended his state’s decision not to cover gender-affirming surgeries in Medicaid. Morriseyresponded to the loss in a statement, saying: “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.”

In a statement, North Carolina State Treasurer Dale Folwell called the ruling “unabashed judicial activism.”

The 4th circuit has seven judges appointed by Republican presidents and eight judges appointed by Democratic presidents.

“We’re absolutely thrilled that the court ruled that discriminatory treatment just has no place under the law,” says Tara Borelli, senior counsel with Lambda Legal, who argued the case for the plaintiffs.

The policies in question have already changed, Borelli notes. Both state health programs have had to cover transgender health care since lower federal district courts ruled in favor of the patients in 2022, she says.

Now that the appeals court has issued its decision, Borelli says it sets an important precedent and other states across the country should pay close attention.

Lawyers for North Carolina and West Virginia had argued that the coverage denials were based on saving taxpayer money, not bias.

Borelli noted that an appeal to the Supreme Court will cost more taxpayer dollars.

The Supreme Court’s recent actions on transgender issues are mixed.

Earlier this month, the justices allowed Idaho’s ban on gender-affirming care for minors to take effect.

But it has declined to hear other cases about to transgender students’ access to bathrooms and participation in school sports. Court-watchers read that as a reluctance to step into the fray.

Meanwhile, on Friday the Biden administration issued a regulation strengthening protections against discrimination for transgender patients across the country. That regulation applies to any health care — not just care related to their gender — so a trans person with a broken arm can’t be mistreated in the E.R., for example.

A group of Republican-led states have pledged to challenge the rule in court.

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