A U.S. appeals court ruling last month that upheld West Virginia’s ban on Medicaid coverage for adult gender-affirming surgeries could embolden other states seeking to impose similar restrictions.
The 4th U.S. Circuit Court of Appeals in March overturned a lower court decision in Anderson v. Crouch that had reversed West Virginia’s ban on Medicaid coverage for adult gender-affirming surgeries. The lower court ruled that the ban was discriminatory.
The decision came after the Supreme Court last year upheld Tennessee’s ban on gender-affirming care for youth in U.S. v. Skrmetti. The court then vacated several lower courts’ rulings and handed back cases — including West Virginia’s — for reconsideration in light of the high court’s opinion in the Tennessee case.
In response, the new West Virginia ruling extends the Supreme Court’s reasoning to the state’s ban on Medicaid coverage for adult gender-affirming surgery. The judges wrote West Virginia’s policy applies only to certain procedures, contending that it doesn’t target certain people or a protected status such as sex.
In a unanimous opinion, the three-judge appeals panel wrote, “(I)t is not irrational for a legislature to encourage citizens ‘to appreciate their sex’ and not ‘become disdainful of their sex’ by refusing to fund experimental procedures that may have the opposite effect.” The panel added, “The Supreme Court’s decision in Skrmetti forecloses any argument to the contrary.” The plaintiffs have filed a request for a rehearing by a full panel.
Providing care to people that aligns with their gender identity has been associated with overall better well-being and mental health, some research shows. Gender-affirming care includes a range of services, including hormone replacement, chest and genital removal or augmentation, and facial surgeries.
Experts say that while the West Virginia ruling technically sets a precedent only for 4th Circuit states, it could embolden and influence other states that are aiming to impose similar restrictions on public funds for gender-affirming treatments for adults. It also aligns with the slew of federal directives issued by President Donald Trump, including his order that federal agencies only recognize a biological, binary definition of sex.
“This gives states leeway to enact laws that would potentially restrict access to gender-affirming care for trans youth and adults,” said Elana Redfield, federal policy director at the Williams Institute, a think tank at the University of California, Los Angeles School of Law. “It could encourage states to adopt more, broader bans, including Medicaid bans, even for adults.”
An estimated 152,000 transgender adults are enrolled in Medicaid, but less than half live in states that guarantee coverage for gender-affirming care, according to the Williams Institute. About 29% of LGBTQ+ people live in states that exclude coverage, according to the Movement Advancement Project, a think tank that also tracks legislation.
Carmel Shachar, assistant clinical professor of law and faculty director of Harvard Law School’s Health Law and Policy Clinic, called Anderson v. Crouch “a significant early case in the post-Skrmetti landscape.”
“(The ruling) is definitely influential,” she added, saying it’s “a sign of which way the wind is blowing right now when it comes to state policies.”
At least seven other states have faced lawsuits over banning or limiting insurance coverage for gender-affirming care, Reuters reported. According to the Movement Advancement Project, a think tank that supports LGBTQ+ rights, 27 states explicitly include gender-affirming care in Medicaid coverage policies, and 11 states explicitly ban Medicaid funds from use for gender-affirming care for people of all ages.
Oklahoma is aiming to join that list. Republicans there are advancing legislation that would prohibit Medicaid funds from covering adult gender-affirming care. The bill would also bar public money from being used by any organization or individual to pay for gender transition. It passed the Senate last month and a House oversight committee 11-2 last week.
During a floor debate this month, Oklahoma state Rep. Ellen Pogemiller, a Democrat, asked the bill’s sponsor directly whether privately covered adults who get care in public hospitals would lose access to care. “That’s a grave concern,” said Pogemiller, who added that she’s received that question from constituents.
“Fair point. I don’t have an answer for you,” replied Republican state Rep. Erick Harris, a cosponsor of the bill.
Pogemiller also cited a 2022 national survey by The Trevor Project, which provides suicide prevention services for LGBTQ+ youth, that found 55% of Oklahoma transgender and nonbinary youth had seriously considered suicide in the previous year. The research on whether gender-affirming care prevents suicides in children or adults is inconclusive.
“Are you concerned with legislation like this leading to an increase in youth and adult suicide?” she asked.
“I am concerned about public funds being used for things that they shouldn’t be used for,” Harris said. “That’s what I’m concerned about.”
Shannon Minter, legal director at the National Center for LGBTQ Rights, said the ruling in the West Virginia case could lead to more discrimination.
“It invites states to come up with creative ways to discriminate against other groups of people and disguise it as just regulation of medical care,” Minter said. “It’s dangerous when the law and the courts refuse to recognize that type of blatant discrimination.”
Hailey Briggs is the executive director of Oklahomans For Equality, which serves LGBTQ+ communities in the state, running support groups and an LGBTQ+-affirming clinic that offers hormone replacement therapy. She said the bill is triggering more fear in the community. Since the start of this year’s legislative session, the clinic has seen between four and six new patients each week, some driving from hours away, as well as an uptick in mental health care service calls.
“This entire legislative session in particular has been just absolutely brutal for folks,” she said.
The bill is “not a narrow policy change,” Briggs continued. “We do see this as really a sweeping attempt to push essential health care out of reach for a lot of folks.”
The organization anticipates a surge in patients and insurance denials should the bill be signed into law, since the clinic isn’t federally or state funded and offers low-cost care. “We work to supplement for folks who don’t have insurance or are underinsured,” Briggs said. “They are going to be turned away from their trusted providers in state-funded institutions.”
Texas is one of the states that bans Medicaid coverage for such care for people of all ages. Andrea Segovia, senior field and policy director at the Transgender Education Network of Texas, said there’s an ongoing “chilling effect” as a result of such policies. Her team is increasingly hearing of insurance denials, she said.
“They’re seen as cosmetics. They’re seen as not necessary,” Segovia said of some medical procedures. “Somebody will email us and say, ‘I lost my coverage,’ or ‘I got this letter from my insurance.’”
Shachar, of Harvard Law School, said the 4th Circuit ruling may make denying coverage easier.
“Private insurers would still be free to cover these services, even if Medicaid doesn’t cover them. But I think an insurer who doesn’t want to cover these services might feel a little more comfortable after this case,” Shachar said. “It definitely opens the doors there for insurers to (say), ‘Medicaid’s not covering it, we don’t want to cover it.’”
An opinion by Texas Republican Attorney General Ken Paxton last month barred mental health care providers from assisting in transitioning youth’s care, and he said anyone helping with such care is “committing child abuse.” But now, even adults have told Segovia’s team that their mental health therapists are dropping them as patients.
“There have been multiple people — adults — who have lost their mental health care provider because (the providers are) concerned that the attorney general would come after them and their license,” Segovia said. “It’s just created a lot of confusion for our professionals.”
This article was originally published by our partners at Stateline on Friday, April 24, 2024.
Stateline reporter Nada Hassanein can be reached at nhassanein@stateline.org.