Curtis Tate Published

Appeals Court: Medicaid Program Must Cover Gender-Affirming Care

A group of protesters occupy a large space carrying colorful signs.
Protesters took to the state Capitol on March 9, 2023 to oppose a bill to ban gender-affirming health care for transgender minors.
Curtis Tate/West Virginia Public Broadcasting

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

The Fourth U.S. Circuit Court of Appeals in Richmond, Virginia, upheld a lower court ruling Monday on a vote of 8 to 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.

Attorney General Patrick Morrisey, a candidate for governor in the state’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 PEIA, the state employees’ health insurance program.

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