Appeals Court: Medicaid Program Must Cover Gender-Affirming Care

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.

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.

Dozens Of Bills Leave House On Crossover Day 

The issues ranged from parents’ involvement in school curriculum to gender affirming care.

More than 60 bills moved through the House of Delegates on Crossover Day, the last day to consider bills in their chamber of origin.. The issues ranged from parents’ involvement in school curriculum to gender affirming care. 

House Bill 4313 creates the Parents’ Bill of Rights. It empowers parents to direct the upbringing, education, health care, and mental health of their child. It says parents may bring suit against anyone for any violation of this article. 

Del. Evan Hansen, D-Monongalia, opposed a bill he said is misnamed and continues to promote a culture war in the legislature.

“This cause of action can be employed on a number of hot button issues,” Hansen said. “Issues related to race issues, related to gender issues, related to women’s health care. The short title of this bill, parental rights, is a great title, almost an Orwellian title. Because this bill will provide some rights for parents, so long as they agree with the majority party.” 

With little, if no, debate from the majority party, the bill passed 83-14. 

To further improve the situation in the state corrections department, House Bill 4734 provides another pay increase to state correctional workers. It gives all corrections workers, not just guards, a $6,000 bonus after more than three years of service.

Del. Ty Nestor, R-Randolph, was one of many supporting a measure he says helps improve the situation.  .

You’re not just going to give money that is due in our line that had been earned by members of the Division of Corrections, Juvenile Services and Regional Jail authority,” Nestor said. “You’re also going to thank them for how they conducted themselves and their bravery for staying with their jobs.”

The bill passed 99-0.   

House Bill 4822 creates the Certified Sites and Development Readiness Program. Local communities would apply for a site development microgrant of up to $75,000, all to be decided by the Department of Economic Development.

Del. Adam Vance, R-Wyoming, opposed the bill. He said he believes the coalfields will continue to be ignored by the microgrant decision makers.

You’ve got navigable rivers that they want to go to because it’s easy. They have border counties, because it’s easy. They have highways, because it’s easy. But the ones that are needing the help the most, that is the hardest hit, that’s in the middle of somewhere that don’t have these things, they still are not reaching out. I don’t think that this bill is going to reach out to those areas,” Vance said.

But Del. Clay Riley, R-Harrison, supported a bill he said gives localities a competitive chance for development.

This is the opportunity that gives them the additional funds to say you know what, maybe I can go get a piece of property through the voluntary remediation program so we can get it cleaned up,” Riley said. “Maybe I can get that bat survey done so maybe I can lure someone there. So, if you want to help the small, rural counties, who may be down on their luck, this is an opportunity to help them up.”

The bill passed 86-13. 

House bill 4945 relates generally to the Hope Scholarship Program. The bill adjusts funding to anticipate greater real time enrollment, it includes microschool eligibility and addresses public school re-enrollment.

House Minority Chair Sean Hornbuckle, D-Cabell, continued to express his caucus’ concerns over limited funding for public schools and the Hope Scholarship Program.

“It takes money away from your private schools, from your pods or microschools, and sends them out of state,” Hornbuckle said. “We did not close that loophole. We are literally funding out of state schools. That is very problematic. With the Hope Scholarship, we are in a crisis.”

But Del. Wayne Clark, R-Jefferson, was with a majority who supported the bill. He noted two major components. 

Number one,” Clark said. “If there is no kid in the school, there is no funding for that school. right? No kid, no funds. Number two, parents choose where they want their taxpayer education money to go.”

The Hope Scholarship bill passed, 76-21.  

Gender affirming care is at the center of House Bill 5297. The proposal prohibits puberty blockers and hormonal therapy when provided to assist in a gender transition. The bill says a physician may not provide irreversible gender reassignment surgery or gender altering medication for the purpose of assisting an individual with a gender transition to anyone under 18 years of age. There are exceptions for severe medical conditions as long as they do not go toward gender transition.

Amendments proposed to grandfather in minors already undergoing such treatment and make the treatments and puberty blocking medication necessary for suicidal patients both failed.  

Del. Kayla Young, D-Kanawha, opposed the bill. She said the medication can be lifesaving. 

Suicide is the second leading cause of death in kids aged 10 to 14,” Young said. “It is the third leading cause of death in kids aged 15 to 24. When we talk about LGBTQ kids, those rates are four times higher. In 2022, in West Virginia, 50 percent of trans kids thought about suicide; 20 percent of them actually attempted it. That is horrible, horrible. These are not statistics that we should be proud of at all. Gender affirming care has been known to reduce suicide by 75 percent.”

But Del. Geoff Foster, R-Putnam, disputed the lifesaving premise regarding hormonal medication.

“There’s no proven methodology that says that actually does decrease suicidality,” Foster said. “What helps these children? In many cases, when they’re suffering through gender dysphoria, they’re also suffering from co-morbidity situations such as depression. And I think when we say, well, we’re going to treat this by gender affirming care and switching someone’s gender and that’ll fix the problem. While the suicidality rate is the same before and after transition, or before and after these drugs are prescribed.” 

The bill passed 88-11. One Republican, Del. Diana Wizenreid, R-Ohio, voted no along with 10 Democrats.

These bills will now go to the Senate.

Morrisey Argues Against Gender Affirming Care Through Medicaid

West Virginia Attorney General Patrick Morrisey does not think the state’s Medicaid plan should cover gender-affirming surgery.

On Thursday, West Virginia Attorney General Patrick Morrisey said his office argued a case before the Fourth U.S. Circuit Court of Appeals involving the state’s decision not to cover gender-affirming surgeries under its Medicaid plan.

That case is an appeal from an order last year from a federal district court. It said the state’s choice not to cover gender-affirming care under Medicaid violates the U.S. Constitution’s Equal Protection Clause. 

The original class-action lawsuit was filed in the U.S. District Court for the Southern District of West Virginia on behalf of three Medicaid recipients. Christopher Fain, a Medicaid participant; and Zachary Martell and Brian McNemar, a dependent and state employee, respectively.

Usually, three-judge panels decide cases on appeal, but the Fourth Circuit set the argument before the entire court in this case and a related case out of North Carolina.

For now, gender-affirming care is covered under the state’s Medicaid program.

National Survey Shows Concerning Mental Health Results In LGBTQ Youth

May is Mental Health Awareness Month and a recent nationwide survey of the LGBTQ community revealed concerning numbers. 

May is Mental Health Awareness Month and a recent nationwide survey of the LGBTQ community revealed concerning numbers. 

For the past five years, the Trevor Project’s annual survey on the Mental Health of LGBTQ Young People has asked LGBTQ youth, ages 13 to 24, from across the United States about their experiences in the past year. This year’s results from more than 28,000 respondents raise concerns about child and student mental health.

Of those surveyed, 41 percent seriously considered attempting suicide in the past year — and young people who are transgender, nonbinary, and/or people of color reported higher rates than their peers.

Jeneice Shaw, a licensed psychologist and assistance and training director at the Carruth Center for Counseling and Psychological Services at West Virginia University (WVU), said that LGBTQ youth are dealing with additional stressors from a young age.

“Often what you see is that queer students, or queer folks in general, have a lot of extra added stress, because their identities are politicized,” Shaw said. “Especially young queer folks have more to manage in a lot of ways, so they have higher levels of anxiety, higher levels of depression, higher levels of attempted suicide than the cisgender or heterosexual population.”

Shaw said one benefit she’s seen is that younger generations are more open to conversations about mental health, but stigma still persists. One of the survey’s findings was that even though 81 percent of respondents wanted mental health care, only 44 percent were able to access it. 

Shaw recognizes that many of the issues impacting LGBTQ people are systemic, and can’t be resolved in a therapy session. But the survey also found that small changes like living and going to school in gender-affirming environments significantly reduced the risk of suicide.  

“Broadly, respecting people’s wishes and decisions like having gender neutral bathrooms in schools and spaces that are easily accessible. Not politicizing the health care for trans and non-binary folks, which we see happening a lot,” Shaw said. “I just think there’s a lot of bigger societal pieces that are threatening the existence of trans and non-binary folks, of like, ‘You don’t exist,’ kind of thing, like, ‘This isn’t real.’ And that’s not true.” 

Ash Orr works as a press relations manager for a national LGBTQ nonprofit. Locally, he is a board member for Project Rainbow, an organization working to provide housing support for displaced LGBTQ members. He said that housing instability can exacerbate mental health issues.

“Here in West Virginia, we have the highest amount of trans individuals per capita of anywhere else in the country. And housing is already such a sensitive issue for the LGBTQ community, even if you take away the ongoing attacks that are happening to our community,” he said. “Housing is something that is stressful to navigate as a queer, trans person. You have to think about, ‘Is this landlord safe? Are the individuals that I may be neighbors to, are they safe? Will this be a place that I can come out to as being queer or trans while living here?’”

The Trevor Project’s survey found that less than half of LGBTQ youth — 40 percent — found their home to be LGBTQ-affirming. The survey also found that transgender people are much more likely to consider suicide. More than half of all trans men surveyed considered suicide in the past year, double the rate of cis men surveyed — cis meaning identifying with their assigned gender at birth.

“We do see a lot of younger individuals, especially now with everything going on in our state and in Appalachia, seeking housing assistance and discrimination assistance,” he said. “These issues are systemic, but they also intersect with one another, and that’s why we really do need a whole system overhaul when it comes to how we are looking at mental health access, mental health providers and services, as well as unsheltered services and resources.”

Megan Gandy, an associate professor and Behavioral Social Work program director at WVU, said that for things to improve for LGBTQ youth, it will take everyone working together.

“The thing that really struck me the most was just the fact that it takes a community for LGBTQ+ folks and kids to be well,” she said. “Legislation matters, school matters, families matter, faith communities matter. All of these things matter to make youth mental health better.” 

Gandy said she’s already seeing the impact of restrictive laws, such as House Bill 2007, which the West Virginia Legislature made law earlier this year and significantly limits access to gender-affirming care for anyone under the age of 18.

“I’ve seen literal families packing up and moving. It’s not just with kids, even though that law was for kids, it’s also with adults, because they’re fearful about coming out,” Gandy said. “They’re fearful about the repercussions that they might face. They’re also trying to plan for the inevitable with what next year’s legislation might cut, they might limit adult access to gender affirming care.” 

For the first time this year, The Trevor Project survey asked respondents to describe a world where all LGBTQ people are accepted. Key phrases that popped up repeatedly included things like, “people just exist,” and “basic human rights.”

Gandy said she does see a path forward for those who want to support LGBTQ children and youth.

“Youth need caring, supportive adults. It doesn’t matter if they’re heterosexual and cisgender or if they’re LGBTQ+, they just need caring and supportive adults and LGBTQ youth need adults to support them in their sexual orientation, their gender identity,” she said. “That’s something that is relatively easy to do for adults, but somehow they still find it difficult to do because of their own biases and their own belief systems that they haven’t updated with new information.” 

According to Gandy, there is a particularly easy action anyone can take to show their support of LGBTQ youth.

“One of the simplest ways that we can show that LGBTQ+ youth matter is visibility because it is, it can be an invisible minority status,” she said. “We can show visibility, visible support through rainbow flags, the pride progress flag, the trans flag — those really do actually mean a lot when kids see that and it just automatically communicates to them that you’re a safe person.”

W.Va. Governor Signs Ban On Gender-Affirming Care

West Virginia Republican Gov. Jim Justice on Wednesday signed a bill banning gender-affirming care for minors, joining at least 10 other states that have enacted laws restricting or outlawing medically supported treatments for transgender youth.

West Virginia Republican Gov. Jim Justice on Wednesday signed a bill banning gender-affirming care for minors, joining at least 10 other states that have enacted laws restricting or outlawing medically supported treatments for transgender youth.

The bill outlaws those under 18 from being prescribed hormone therapy and fully reversible puberty blockers. It also bans minors from receiving gender-affirming surgery, something physicians say doesn’t even happen in West Virginia.

Unlike measures passed in other states, however, West Virginia’s law contains a unique exemption: It permits doctors to prescribe medical therapy if a teenager is considered at risk for self-harm or suicide.

Under the law, which will take effect in January 2024, a patient can be prescribed puberty blockers and hormone therapy after receiving parental consent and a diagnosis of severe gender dysphoria from two clinicians, including a mental health provider or an adolescent medicine specialist.

Both practitioners must be trained to diagnose and treat young people with severe gender dysphoria and provide written testimony that medical interventions are necessary to prevent or limit possible or actual self-harm.

The provisions were added at the urging of Senate Majority Leader Tom Takubo, who is a physician.

“These kids struggle. They have incredible difficulties,” the Republican said on the Senate floor earlier this month. Takubo cited more than a dozen peer-reviewed studies showing a decrease in rates of suicide ideation and attempts among youth with severe gender dysphoria who had access to medication therapy.

Gender dysphoria is defined by medical professionals as severe psychological distress experienced by those whose gender identity differs from their sex assigned at birth.

The bill also prohibits minors from being prescribed hormone therapy before the age of puberty, something West Virginia physicians say doesn’t happen anyway.

The medication dosage for any adolescent must be the lowest possible necessary to “treat the psychiatric condition and not for purposes of gender alteration,” according to the bill.

The West Virginia law comes as Republican lawmakers across the U.S. have pursued several hundred proposals this year to push back on LGBTQ+ rights, particularly rights for transgender residents, including banning transgender girls from girls sports, keeping transgender people from using restrooms in line with their gender identities and allowing or requiring schools to deadname trans students.

Lawmakers in West Virginia and other states moving to enact bans on transgender health care for youth and young adults often characterize gender-affirming treatments as medically unproven, potentially dangerous in the long term and a symptom of “woke” culture.

Every major medical organization, including the American Medical Association, the American Academy of Pediatrics and the American Psychiatric Association, supports gender-affirming care for youths.

A 2017 study by UCLA Law’s The Williams Institute estimated West Virginia had the highest per capita rate of transgender youth in the country.

The rate of suicide ideation, or having suicidal thoughts or ideas, for transgender youth in West Virginia is three times higher than the rate for all youth in the state, according to West Virginia Youth Risk Behavior Survey data.

Natalie Frazier, who oversees gender-affirming care for Planned Parenthood in North Carolina, South Carolina, Virginia and West Virginia, said the bill Justice signed Wednesday was “better than it could have been.”

“But it’s still unnecessary — just an unnecessary barrier to care that is going to end up harming people,” she said, adding that not every child’s family will have the resources to travel to two different clinicians for a gender dysphoria diagnosis.

Frazier, who is also a certified nurse midwife, said the diagnosis of severe gender dysphoria with risk of suicide “could probably apply to just about any kid getting access to gender-affirming care.”

“That’s why people are are so invested in providing the care because there is a disproportionate risk,” she said. “That’s something that any of these kids could be at risk for and nobody’s going into this care lightly.”

West Virginia’s ban also includes exemptions for people who are born intersex and for people taking treatments for infection, injury, disease or disorder that has been “caused by or exacerbated by the performance of gender transition procedures.”

Surgeries can be performed if a child is at risk for “imminent danger of death or impairment of a major bodily function.”

At least 11 states have now enacted laws restricting or banning gender-affirming care for minors: Alabama, Arkansas, Arizona, Georgia, Iowa, Kentucky, Mississippi, Tennessee, Utah, South Dakota and West Virginia. Federal judges have blocked enforcement of laws in Alabama and Arkansas, and nearly two dozen states are considering bills this year to restrict or ban care.

Gender-Affirming Health Care And Sen. Capito Visits Shepherd University On This West Virginia Morning

On this West Virginia Morning, one hotly debated bill before the state legislature is one that restricts gender-affirming health care for state youth. It’s slowly moving forward in the Senate. In our latest episode of The Legislature Today, News Director Eric Douglas speaks with reporter Curtis Tate about the bill.

On this West Virginia Morning, one hotly debated bill before the state legislature is one that restricts gender-affirming health care for state youth. It’s slowly moving forward in the Senate. In our latest episode of The Legislature Today, News Director Eric Douglas speaks with reporter Curtis Tate about the bill.

Also, in this show, Shepherd University hosted U.S. Sen. Shelley Moore Capito, R-WV, Monday after close to $3 million of congressional funds were granted to support programs on campus. Eastern Panhandle reporter Shepherd Snyder has more.

West Virginia Morning is a production of West Virginia Public Broadcasting which is solely responsible for its content.

Support for our news bureaus comes from West Virginia University, Concord University, and Shepherd University.

Listen to West Virginia Morning weekdays at 7:43 a.m. on WVPB Radio or subscribe to the podcast and never miss an episode. #WVMorning

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