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.
West Virginia Attorney General Patrick Morrisey said he’d take the case to court. Republican U.S. Sen. Shelley Moore Capito said she’d introduce a repeal resolution in the Senate. Democrat Joe Manchin, who’s not running for re-election, said he’d support her measure.
Regardless of whether the rule stands or falls, the standards it sets could happen anyway.
Morrisey was successful in his bid to block President Barack Obama’s Clean Power Plan. The U.S. Supreme Court sided with him in West Virginia v EPA two years ago.
The policy never took effect. But as Amanda Levin, director of policy analysis for the Natural Resources Defense Council, points out, the goals it set were met, and earlier than planned.
“That was also a rule at that time, there were concerns about whether or not the power sector would be able to achieve it, and it ended up achieving those standards 11 years early, even though the rule was stayed,” she said.
Now, as then, critics of the rules, including some in the electric power sector, say they can’t be achieved. Manchin points to the 2021 winter storm in Texas that caused deadly power outages.
“We saw what happened in Texas, how many people’s lives were lost, how much was disrupted in the economy, went to heck in a handbasket down there when their gas lines froze up.” he said.
The failures in Texas, and more recently in the eastern United States in late 2022, were mostly of fossil fuel infrastructure, especially natural gas. Renewables and battery storage helped hold the Texas power grid through last summer’s heat.
Levin says the new EPA rules come at a time when electric utilities are rapidly building wind, solar and battery storage. They’ve already surpassed coal and even nuclear.
“Clean energy sources are now the cheapest and fastest growing source of new power generation,” she said.
Even West Virginia is building more solar and will soon begin building storage batteries.
Mon Power activated the largest solar facility in the state in January in Monongalia County and is building another one in Harrison County.
Form Energy is building a long-duration storage battery plant in Weirton. Other companies coming to West Virginia, including steelmaker Nucor, wanted access to renewable power.
Phil Moye, a spokesman for Appalachian Power, which operates three coal plants in West Virginia, says the company is looking at the EPA rules to see how they affect plant operations and future investments.
“The development of new dispatchable generation resources and storage technologies will be critical in determining how quickly the industry can meet the requirements of the new rules,” he said.
Appalachian Power is an underwriter of West Virginia Public Broadcasting.
The Supreme Court last year declined to take the case when Morrisey asked.
West Virginia’s attorney general will again ask the U.S. Supreme Court to uphold the state’s ban on transgender student athletes.
Attorney General Patrick Morrisey said Wednesday he’d ask the justices to consider BPJ vs. West Virginia State Board of Education.
The Supreme Court last year declined to take the case when Morrisey asked. That was before the Fourth U.S. Circuit Court of Appeals in Richmond, Virginia, ruled that the law, House Bill 3293, violated Title IX protections for gender equality in school sports.
There is no guarantee the justices will be any more inclined to hear the case now.
“We will be filing, over the next month, and we’re going to make sure we time our filing to maximize the chance this case is going to be heard, and most importantly, that we will win,” he said.
Morrisey, who’s running for governor in the Republican primary, appeared with former collegiate swimmer Riley Gaines, who’s become a national figure in the opposition to transgender women and girls participating in school sports.
Another Republican rival, Secretary of State Mac Warner, said Wednesday that Morrisey should step away from the case because he lost the appeal to the Fourth Circuit.
“He should voluntarily step aside and allow competent legal counsel to defend the West Virginia law that was overwhelmingly passed by the WV Legislature and signed by Governor Justice,” Warner said.
Meanwhile, the 13-year-old student in Harrison County, Becky Pepper Jackson, continues to participate on her school’s track team.
Jack Jarvis, communications director for Fairness West Virginia, said Morrisey’s statements about transgender youth contribute to a hostile environment with increased harassment, bullying and discrimination.
“Transgender women are women, period,” Jarvis said. “If you want to support women, you need to support all women. Becky and all of the other trans youth across our state deserve to fully participate in school activities and athletic events.”
As the primary race for governor enters the home stretch, some candidate’s negative attack ads running endlessly on broadcast and social media target a minority group — transgender children.
As the primary race for governor enters the home stretch, some candidate’s negative attack ads running endlessly on broadcast and social media target a minority group — transgender children.
But what is the fallout from these ads for this vulnerable group? And West Virginia children and families, in general?
The ads bombard us non-stop. The most vitriol is coming from political action committees in support of two of the Republican candidates for governor; Attorney General Patrick Morrisey and businessman Chris Miller.
The messages center on who is more pro-former President Donald Trump, and who is more anti-transgender. The campaign mantra focuses on not letting biological boys on girls sport teams, in girls school bathrooms or girls locker rooms.
West Virginia Public Broadcasting reached out to Morrisey and Miller to get their personal thoughts on transgender people and their campaign ads. Miller’s campaign office declined comment, Morrisey’s campaign headquarters did not answer repeated requests for comment.
This Chris Miller campaign ad attacking opponent Patrick Morrisey is one example of the recent anti-transgender ads circulating broadcast television and online.
Studying sex education and gender identity for more than 40 years, award winning author and filmmaker Mark Schoen said modern science shows gender identity is not a choice, but a biological cause and effect.
“It’s like, you don’t choose your race, you don’t choose your ethnicity, you don’t choose your gender identity,” Schoen said. “And to be persecuted for some biological factor. It’s like racism.”
Billy Wolfe with the West Virginia American Civil Liberties Union (ACLU) is a co-founder and organizer of the Appalachian Queer Youth Summit, a summer camp for West Virginia teens who are either LGBTQ+ or come from LGBTQ+ families. Wolfe said the majority of campers fall under the trans and non-binary umbrella, and the summit offers them a refuge.
“Some of them are 18, 19 years old, and it’s the first time they have felt safe,” Wolfe said. “While it’s wonderful to be part of something that makes young people feel safe and empowered. The truth is, our camp shouldn’t have to exist. These kids should be experiencing the same base level of safety and respect that any other young person experiences.”
Wheeling city council member Rosemary Ketchum is running for Wheeling mayor. Ketchum is a transgender person who said a campaign ad attack that claims “He’s for they/them, not for us,” diminishes any safety and respect for transgender people in the name of base politics.
“I think it is exploitative to children,” Ketchum said. “Ultimately, those ads are not for West Virginians, those ads are for funders. It is a very popular and successful fundraising strategy to attack marginalized communities. And they’re looking to pull money from California and Florida and other states to fund their elections here in West Virginia. They’re talking about our kids, our children, and they’re putting them on television and parading them around to look like clowns.”
One TV ad funded by a political action committee shows a young boy, about 10 years old, in bib overalls, wearing heavy makeup and a big grin. Schoen said that representation smacks of discrimination.
“It would be like, if you said that dark, Black people should be discriminated against but light, Black people are OK,” he said. “You’re discriminating against the child who’s just being themselves.”
Wolfe said the anti-trans ads, by their frequency and nature, vilify a minority of children.
“Their campaigns are built on demonizing people, and villainizing people to score cheap political points,” Wolfe said. “We know that this kind of rhetoric not only affects young people, it also leads to legislation that causes real harm. These messages are damaging. Studies show that this rhetoric is extremely harmful. It can lead to suicidal ideation and worse.”
Wolfe said the rhetoric in these ads can compound already fragile social situations.
“A lot of these kids are struggling, but they’re not really necessarily struggling just because they’re trans,” Wolfe said. “They’re struggling because of how people who are not trans are treating them. They are being treated like a threat, even though they are the ones who are at risk for violence.”
Ketchum said living in a West Virginia border city, she hears from potential West Virginians that these political transgender attack ads could actually stunt any state growth and progress.
“They say, ‘Rosemary, do you feel it’s safe for me to live in West Virginia?” Ketchum said. “Should I pull my kid out of public school if these politicians are going to pass laws that potentially make them criminals? Rosemary, should I move to West Virginia, or should I think about Ohio or Pennsylvania?’”
As to transgender students on sports teams, in bathrooms and locker rooms, Schoen said it should be handled on a case-by-case basis.
“There was an instance where a female, someone who transitioned from male to female, and then the next day switched swimming teams,” Schoen said. “I think we have to look at issues on an individual basis, we can’t just make a blanket statement about all transgender people.”
Wolfe said just a few years ago, it would have been hard to imagine so many states banning evidence-based gender affirming medical care. He said political attack ads that vilify transgender children take the voting public further away from considering the real issues that affect our daily lives.
“It would have been hard to imagine that the state would sink so many resources into passing and defending a law banning one single 13-year-old girl from being on her middle school’s track team, up to and including, I might add, asking the U.S. Supreme Court to treat the matter as an emergency, something on par with national security and terrorism,” Wolfe said. “But this is where we are, because we aren’t seeing ideas-based campaigns or solution-based campaigns. We are seeing people say vote for me. I don’t like the same people that you don’t like.”
The ACLU and Lambda Legal, a national LGBTQ rights law firm, brought the case on behalf of a 13-year-old middle school student in Harrison County who wanted to run on her track team.
A federal appeals court struck down West Virginia’s ban on transgender student participation in school sports Tuesday.
The Fourth U.S. Circuit Court of Appeals in Richmond, Virginia, said the 2021 law violated Title IX, the landmark 1972 law that enshrined gender equality in school sports.
The ACLU and Lambda Legal, a national LGBTQ rights law firm, brought the case on behalf of a 13-year-old middle school student in Harrison County who wanted to run on her track team.
“The ruling makes clear that the law is discriminatory,” said Billy Wolfe, an ACLU-WV spokesman, in an email. The student, Becky Pepper-Jackson, is the only one affected by the ruling, Wolfe said, but encouraged others who might be affected to contact the ACLU.
The 2-1 decision, for now, invalidates House Bill 3293, which the legislature enacted and Gov. Jim Justice signed.
Last year, a U.S. district judge upheld the enforcement of the law, but the Fourth Circuit overruled that decision.
In an emergency appeal last year, West Virginia Attorney General Patrick Morrisey asked the U.S. Supreme Court to allow the state to enforce the law while the Fourth Circuit considered the case. The justices declined.
In a statement Tuesday, Morrisey said he would continue to defend the law.
West Virginia is one of 21 states that have enacted some type of restriction on transgender student participation in school sports.
In 2020, the Fourth Circuit ruled in favor of a Virginia transgender boy who challenged his school’s refusal to let him use the bathroom that matched his gender identity.
The U.S. Supreme Court declined to hear the appeal in that case as well.
In Tuesday’s ruling, one of the three judges, G. Steven Agee, dissented. He was nominated by President George W. Bush to the court in 2008.
Attorneys general from West Virginia and Kentucky filed a lawsuit against the EPA over new air quality standards. They allege the standards burden manufacturing and infrastructure projects.
Attorneys general from West Virginia and Kentucky have sued the U.S. Environmental Protection Agency (EPA) over a recent policy that raised air quality standards nationally.
Filed Wednesday, the lawsuit claims that adjusting to the new standard would financially burden manufacturing and infrastructure projects. EPA officials have said the new policy reduces major public health risks.
Controversy grew in February after the EPA lowered the maximum concentration for particulate matter in the air by 25 percent, requiring companies to reduce their levels of air pollution.
Particulate matter refers to particles invisible to the naked eye, like some forms of soot and smoke. When inhaled, these particles can cause eye, nose and throat irritation, blood abnormalities and even lung damage.
The EPA has stated that raising air quality standards will reduce these health risks and the costs associated with them.
EPA officials have already stated that all 55 counties in West Virginia already meet the new air quality standards. Some regions with major industrial activity, like parts of Pennsylvania and Ohio, might not.
But in a press release Wednesday, Morrisey said the new measure marks an EPA attempt “to advance [President Joe] Biden’s radical climate agenda.”
The new rule is being enforced by the Securities and Exchange Commission (SEC), a federal agency tasked with monitoring financial markets and watching for financial fraud. Companies are now being asked to estimate their potential greenhouse gasses to the SEC.
“How is the company supposed to know if greenhouse gas emission will affect its finances?” he said. “How many trucks are going to be too many? How much coal to use versus natural gas or other forms of energy?”
The lawsuit was filed on behalf of 24 states in the D.C. Circuit of the U.S. Court of Appeals.
Wednesday’s lawsuit also listed EPA Administrator Michael Regan as a defendant. Beyond the lawsuit, EPA intervention in state air pollution standards stands on shaky ground.
Last month, members of the U.S. Supreme Court heard arguments against another EPA policy from representatives of several different states, including West Virginia.
Some have said that the justices are poised to overturn that policy, which cracks down on the emission of air pollution across state lines. This could mark the thirdSupreme Court case lost by the EPA recently.
