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West Virginia agencies and government officials have been named as defendants in a proposed class action lawsuit that says the state Medicaid and employee insurance plans do not include transgender health insurance.
The class action lawsuit was filed Thursday in federal court by lead plaintiff Christopher Fain, a transgender Medicaid participant, Brian McNemar, a cisgender state employee, and McNemar’s transgender spouse, Zachary Martell.
The plaintiffs say West Virginia’s state insurance plans “deprive transgender people of essential, and sometimes life-saving, health care” and use “antiquated and improper language.”
Furthermore, the plans’ exclusions deny transgender people “gender-confirming care,” such as counseling, hormone replacement therapy, and surgeries, the transgender health insurance class action lawsuit alleges.
“While cisgender people receive coverage for those forms of health care as a matter of course, transgender people are targeted for discrimination by exclusions in the state health plans,” the class action lawsuit says. “This kind of discrimination is unlawful under federal constitutional and statutory guarantees of freedom from discrimination based on sex and transgender status.”
The plaintiffs claim the state is violating the law in two ways.
First, the transgender health insurance class action lawsuit alleges, the state discriminates against transgender Medicaid participants by denying them gender-confirming care, “even though it is medically necessary and can be life-saving, while routinely providing cisgender participants the same treatments.”
Gender-confirming care treats gender dysphoria, defined by the plaintiffs as “the clinically significant distress that can result from the dissonance between an individual’s gender identity and sex assigned at birth.”
Second, the plaintiffs argue, state employees and their dependents are discriminated against when the state denies gender-confirming care coverage, “even though cisgender people receive the same kinds of treatments as a matter of course.”
West Virginia’s state employee benefit package includes health insurance through the Public Employees Insurance Agency (PEIA), the class action lawsuit says.
All included plans deny transgender health insurance coverage, and therefore are discriminatory, the plaintiffs say.
“In other words,” the class action lawsuit argues, “Defendants deny equal compensation for equal work to employees who are transgender or have transgender dependents, and harm employees’ transgender family members who depend on them for health care.”
According to the plaintiffs, the American Medical Association, American Psychological Association, American Psychiatric Association, American College of Obstetricians and Gynecologists, and other medical organizations all have recognized gender-confirming care as being “medically necessary, safe, and effective treatment for gender dysphoria — and that access to such treatment improves the health and well-being of transgender people.
Each of these groups has publicly opposed exclusions of insurance coverage by private and public health insurers,” such as the ones at issue in the West Virginia transgender health insurance class action lawsuit.
Plaintiff Fain claims he was informed by his pharmacist in June 2019 that his Medicaid plan would not cover the hormone treatment Fain had been undergoing since February 2019 at the recommendation of his mental-health provider.
Without his needed transgender health insurance coverage, Fain says, he began purchasing — and still purchases — his needles and other supplies through an online vendor, paying out-of-pocket for those supplies and the hormones he purchases through the pharmacy.
Plaintiff Martell, a full-time student, is not offered health insurance though his college, according to the class action lawsuit. Because of this, he has been enrolled on McNemar’s PEIA plan.
Martell, who has a medical diagnosis of gender dysphoria, has been undergoing treatment, including hormone replacement therapy, the class action lawsuit states.
According to the complaint, Martell is in need of a bilateral mastectomy “as medically necessary care to treat his gender dysphoria and eliminate the need for the ongoing use of a binder.”
While the surgery is “a widely accepted and effective treatment for gender dysphoria,” the class action lawsuit argues, Martell’s insurance plan “bars him from receiving this medically necessary care.”
The transgender health insurance class action lawsuit accuses West Virginia of violating the Equal Protection Clause of the 14th Amendment, the Affordable Care Act and the Medicaid Act’s availability and comparability requirements.
The plaintiffs seek a preliminary and permanent injunction stopping the enforcement of the exclusions and directing the defendants to provide coverage for all gender-confirming health care.
They also seek an award of compensatory and consequential damages for financial harm, emotional distress, embarrassment, humiliation, and other damages, in addition to attorneys’ fees, court costs, and any other relief the Court deems appropriate.
Do you think West Virginia should be required to include transgender health insurance in its state employee and Medicaid plans? Tell us your thoughts in the comments.
The plaintiffs are represented by Walt Auvil of the Employment Law Center PLLC; Anna P. Prakash and Nicole J. Schladt of Nichols Kaster PLLP; and Sasha Buchert, Avatara Smith-Carrington, Tara L. Borelli and Nora Huppert of Lambda Legal Defense and Education Fund Inc.
The West Virginia Transgender Health Insurance Class Action Lawsuit is Fain, et al. v. William Crouch, et al., Case No. 3:20-cv-00740, in the U.S. District Court for the Southern District of West Virginia, Huntington Division.
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