On Aug. 2, a federal judge ruled that West Virginia’s Medicaid program must cover gender-affirming surgical care for transgender patients.
U.S. District Court Judge Robert Chambers, of the Southern District of West Virginia, ruled that the insurance exclusion contained in the state’s Medicaid program — which prohibited coverage for gender confirmation surgery to treat gender dysphoria — discriminates against individuals on both their sex and their gender identity. He also issued an order prohibiting the state from attempting to enforce the exclusion by denying coverage to other transgender recipients.
In the case, known as Fain v. Crouch, Chambers found that such discrimination violates the Equal Protection Clause of the Fourteenth Amendment, anti-discrimination provisions contained in the Affordable Care Act, and provisions of the Medicaid Act that require Medicaid to cover medically necessary treatments and require that all Medicaid recipients receive access to the same type of coverage as other recipients.
“Defendants enacted a clear policy excluding coverage for surgical care of gender dysphoria with no exceptions. This caused an actual, concrete injury to plaintiffs by essentially constructing a discriminatory barrier between them and health insurance coverage,” Chambers wrote in his opinion. “This is not a hypothetical injury.
“Plaintiffs requesting coverage would have been futile due to the exceptionalness exclusion, and the law does not require Plaintiffs to take such futile acts,” Chambers added. “Defendants’ policy was clear — a request for coverage would have been denied under the exclusion. Thus, Plaintiffs have standing.”
The original plaintiffs in the lawsuit — Christopher Fain, a clothing store employee and Medicaid participant; and Brian McNemar, an accountant at a state hospital and his transgender spouse, student Zachary Martell — enlisted the help of Lambda Legal, the Employment Law Center, and the law firm Nicholas Kaster, PLLP, suing state officials in 2020 to challenge insurance exclusions in both West Virginia’s Medicaid program and its state employee health plans, as provided by the state’s Public Employee Insurance Agency.
In 2021, two additional plaintiffs, Shauntae Anderson, a warehouse worker and Medicaid recipient,, and Leanne James, a state employee, were successfully added to the lawsuit as plaintiffs. In 2022, a settlement with The Health Plan of West Virginia led to the removal of insurance exclusion on gender-affirming care in PEIA plans, with the remainder of claims regarding the PEIA being dismissed after James’ death in February 2022. The case continued, focusing on only the Medicaid exclusion.
The court also certified the lawsuit as a class action suit, meaning Judge Chambers’ findings apply to all transgender West Virginians who participate in the state’s Medicaid program, not just Anderson and Fain as individuals.
Fain and Anderson, as well as members of their legal team, praised Chambers’ ruling.
“We applaud Judge Chambers’ decision to remove the discriminatory barrier to accessing medically necessary, gender-confirming surgical care for all transgender West Virginia Medicaid participants,” Avatara Smith-Carrington, a staff attorney at Lambda Legal, said in a statement. “Protecting and advancing health care for transgender people is vital, sound, and just. Transgender West Virginia Medicaid participants deserve to have equal access to the same coverage for medically necessary healthcare that cisgender Medicaid participants receive as a matter of course.”
“I am excited to finally have access to the healthcare I deserve,” Anderson said in a statement. “The exclusion negatively affects my health and wellbeing as well as the health and wellbeing of other transgender Medicaid participants in our community. Gender-confirming care is healthcare, and it is lifesaving.”
“This is a victory not only for me but for other transgender Medicaid participants across West Virginia,” Fain noted. “This decision is validating, confirming that after years of fighting to prove that gender-confirming care is medically necessary, we should have access to the same services that West Virginia Medicaid already provides to cisgender participants. Transgender West Virginians should never feel as if our lives are worth less than others.”
By Justin Walton on September 9, 2022
A Texas school district has adopted a slew of policies aimed at discouraging transgender youth from identifying openly as trans, and barring school administrators from acknowledging any gender identity other than what matches their assigned sex at birth.
On August 22, the school board of the Grapevine-Colleyville Independent School District (GCISD) passed a number of policies for the upcoming 2022-2023 school year on a string of narrow 4-3 votes, reports the Texas Observer.
The Observer notes that the conservative majority on the board received significant funding from conservative political action committees that were established to support candidates seeking to advance a right-wing political agenda -- including hostility to LGBTQ policies.
The Virginia Department of Education has issued new "model policies" that effectively strip away some of the rights and protections that transgender students have enjoyed in Virginia's more liberal-leaning school districts in recent years.
The 2022 policies, which reflect the priorities of Republican Gov. Glenn Youngkin's administration, replace the department's 2021 model policies adopted under former Democratic Gov. Ralph Northam. Youngkin, who was swept into office on a platform of "parental rights," bolstered by a wave of resentment and anger stemming from school closures during the COVID-19 pandemic and lesson plans touching on hot-button social issues like racism and LGBTQ rights, has made parental notification the cornerstone of his administration's policies.
The Washington State Commission on Human Rights has ruled that Alaska Airlines' gendered uniform policy may be discriminatory. The finding may set up the possibility of a future lawsuit.
On August 31, the commission issued a reasonable cause finding of discrimination against Alaska Airlines over the company's enforcement of a uniform policy requiring flight attendants to conform to gender-specific dress code and grooming standards.
Under the code, flight attendants must wear either a "masculine" or "feminine" uniform, which, in turn, dictates whether employees may wear dresses or skirts, what type of pants or cardigans they may wear, what color shoes they may wear, and whether they wear ties or neck scarves.
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