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A transgender clothing store employee on Medicaid, a West Virginia state employee, and his transgender spouse have filed a class-action lawsuit against the Mountaineer State for its blanket exclusions that prohibit both the state’s Medicaid and employee health care plans from providing insurance coverage for gender-affirming health care.
The lawsuit, filed Thursday in the U.S. District Court for the Southern District of West Virginia, was brought by Lambda Legal, Nicholas Kaster, PLLP, and the Employment Law Center on behalf of Christopher Fain, a Medicaid participant, and Brian McNemar and Zachary Martell, a state employee and his dependent spouse, arguing that the blanket exclusion is discriminatory.
Fain, 44, who studies nonprofit leadership at Marshall University and works at a clothing store in Huntington, is enrolled in Medicaid, but has been denied coverage for his testosterone prescription due to the exclusion on transition-related care.
As a result, he has been forced to pay out-of-pocket for the prescription, creating additional financial hardship.
Martell, 33, a student at Mountwest College in Huntington, is married to Brian McNemar, an accountant at a state hospital.
Although McNemar’s health insurance plans his supposed to cover himself and any dependents, the exclusion barring coverage of “treatments associated with gender dysphoria” has resulted in the denial of coverage for Martell’s prescriptions and regular office visits with his health care provider.
Because of this denial of coverage, Martell and McNemar have either had to pay out-of-pocket expenses, or Martell has had to forego care altogether.
In its complaint, Lambda Legal argues that the exclusion violates the plaintiffs’ right to equal protection under the law by discriminating against transgender individuals seeking gender-affirming health care on the basis of both sex and transgender status.
It also alleges that the exclusion violates protections for transgender individuals contained in Section 1557 of the Affordable Care Act, as well as requirements within West Virginia’s Medicaid Act that dictate that coverage must be provided to all eligible individuals and that the coverage provided “not be less in amount, duration, or scope” than coverage provided to other Medicaid recipients.
The lawsuit, known as Fain v. Crouch, names the West Virginia Department of Health and Human Resources and its Bureau for Medical Services, which administers the Medicaid plan that provides insurance coverage to 564,000 Medicaid recipients, and The Health Plan of West Virginia, Inc., the health insurer for approximately 15,000 West Virginia state employees, as defendants.
Also named as defendants are William Crouch, the Cabinet Secretary of the West Virginia Department of Health and Human Resources, Cynthia Beane, the Commissioner for the Bureau for Medical Services, and Ted Cheatham, the chief administrative officer of the Public Employees Insurance Agency, in their official capacity as state officials who oversee the Medicaid and public employee health care plans.
The plaintiffs and their lawyers are asking the court to issue both preliminary and permanent injunctions preventing the state from seeking to bar coverage for gender-affirming care, as well as a judgment that the exclusion is discriminatory and unconstitutional.
They are also seeking compensatory damages for any pain, suffering, humiliation, financial harm, or emotional distress the plaintiffs suffered as a result of being denied coverage, as well as payment of legal fees associated with having to bring the lawsuit.
“Transgender and non-binary West Virginians are denied coverage for essential, and sometimes life-saving, gender-confirming care — while cisgender West Virginians receive coverage for the same kinds of care as a matter of course,” Avatara Smith-Carrington, a Tyron Garner Memorial Fellow at Lambda Legal who serves as a lead attorney on the case, said in a statement. “The exclusions of gender-confirming care in West Virginia’s state health plans are unconstitutional and discriminatory, and deny transgender and non-binary West Virginians basic dignity, equality, and respect.”
“No one should have the door slammed on them while they’re just trying to access basic healthcare. But that’s what these discriminatory exclusions do to people just because they’re transgender,” Fain said in a statement. “This health care is about my very survival, and the health and survival of thousands of other transgender people in our community forced to go without care because of these exclusions. We feel like we are being swept under the rug, treated as if we don’t exist, and that is not okay.”
“It is both humiliating and painful to be denied access to coverage for essential healthcare simply because of who I am,” Martell added in his own statement. “For years, my husband has served as a dedicated public servant, and the health coverage we receive through the state employee health plan is a basic part of the compensation he earns through his job. The discriminatory exclusion, which bars me from care simply because I am transgender, denies state employees equal pay for equal work.”
Lambda Legal has previously been successful in fighting other blanket exclusions on gender-affirming care, securing a victory in March for an Alaska state librarian who was denied coverage for gender confirmation surgery under her state employee health care plan. That same month, a U.S. district court judge denied an effort by the state of North Carolina to dismiss a lawsuit brought by Lambda Legal on behalf of North Carolina state employees and their dependents who have been denied coverage for transition-related care.
“West Virginia shouldn’t single out certain communities to deny health care coverage,” Andrew Schneider, the executive director of the LGBTQ organization Fairness West Virginia, said in a statement. “These blanket exclusions are another hurdle that people shouldn’t have to jump over just to go to the doctor. The exclusions stop people from getting the care they need, which can be lifesaving. It’s time to ditch the exclusions and let doctors decide what care is best for their patients.”
Nearly half of all transgender people in the United States say they've experienced mistreatment by a medical provider, including refusals of care and instances of verbal or physical abuse, according to a report released earlier this week by the liberal think tank the Center for American Progress.
The report highlights disparities in health care experiences between transgender Americans and their cisgender counterparts, based on a survey of 1,500 LGBTQ individuals about their life experiences that was conducted in June 2020. The survey found that 47% of transgender people reported experiences of mistreatment by medical providers, with that number rising to 68% among transgender people of color.
A 27-year-old Washington State man has been sentenced to more than 20 years in prison after being found guilty of killing transgender teenager Nikki Kuhnhausen in 2019.
Last month, a jury found David Bogdanov, of Vancouver, guilty of second-degree murder and malicious harassment -- a hate crime charge -- for strangling Kuhnhausen, who was 17, to death and then burying her remains in a wooded area near Larch Mountain, in a remote part of northeast Clark County, in southern Washington.
Kuhnhausen went missing on June 6, 2019 while crashing at a friend’s house. Six months later, on Dec. 7, 2019, her remains were found by a person collecting bear grass who reported finding a human skull. Police later found the rest of Kuhnhausen's remains, along with her clothing, jewelry, and hair extensions.
A Tennessee mother says she's worried for the safety of her transgender son after he was harassed and threatened by a group of boys while using the boys' bathroom. But it's her son who could potentially face punishment as schools attempt to comply with a recently passed law governing transgender bathroom use.
Sherri Yandle, of Murfreesboro, claims her son, Tobi, a 16-year-old junior at Siegel High School, was given permission by the school to use single-stall faculty bathrooms. But when he found them locked, with no other alternatives, he decided to use the boys' bathroom. Video footage from school security cameras backs up Tobi's story that he only resorted to the boys' bathroom after finding the faculty bathrooms locked.
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