Christopher Fain (left), Zachary Martell, and Brian McNemar – Photos courtesy of Lambda Legal
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.”
On Sept. 10, the U.S. Supreme Court denied South Carolina's emergency request to enforce its bathroom ban, allowing a transgender boy at a public high school to keep using the boys' restroom while his legal challenge to the law moves forward.
South Carolina pointed to several recent actions by the Trump administration to justify its request, including an executive order threatening to pull federal funding from schools that don't maintain sex-segregated facilities, enforcement actions by the U.S. Department of Education, and the Supreme Court's June ruling upholding Tennessee's ban on gender-affirming care for minors.
Two pharmacists are suing Walgreens and the Minnesota Board of Pharmacy, alleging they were punished for refusing to dispense gender-affirming medications. They are seeking a religious exemption that would allow them to decline filling such prescriptions on moral grounds.
Minnesota law classifies it as unprofessional conduct for a pharmacist to refuse to dispense a valid prescription. Exceptions exist, but only for non-religious reasons, such as doubts about a drug's effectiveness.
State law also permits pharmacists to refuse prescriptions for abortion-inducing drugs. The plaintiffs argue the state should likewise clarify whether pharmacists can decline to dispense gender-affirming medications if doing so conflicts with their belief that gender is binary and fixed at birth, reports Minnesota Lawyer.
U.S. Customs and Border Protection (CBP) has begun enforcing a new rule requiring airlines to ignore any "X" gender markers on passports and instead enter either "M" or "F" for all passengers.
Announced in a July 7 bulletin, CBP said the rule stems from an earlier executive order by former President Donald Trump aimed at eliminating recognition of transgender identities. The directive took effect on July 14, with airlines given 90 days to comply before full enforcement.
Now in effect, the rule has sparked widespread concern over how it will be implemented in practice.
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