Federal Court refuses to dismiss challenge to West Virginia ban on surgery coverage – Gay City News

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Lambda Legal’s challenge to West Virginia’s refusal to provide insurance coverage for gender-affirming surgery under its Medicaid program and health insurance program for state employees and their spouses and dependents took a step forward on May 19 when US District Judge Robert C. Chambers denied motions to dismiss several of the defendants.

More importantly, in ruling on the Employee Health Plan case, Chambers rejected the state’s argument that Lambda’s claim for equal protection under the 14e The amendment was not viable. He also ruled that the defendants did not enjoy immunity from liability under 11e Amendment, and he rejected the argument that the claimants in the case could not challenge the exclusion from coverage because they had not specifically requested coverage for the surgery. He also refused to dismiss the plaintiffs ‘request to certify a class action suit, arguing that the plaintiffs’ allegations meet the standards governing class actions in federal courts.

Christopher Fain, a transgender man, participates in West Virginia’s Medicaid program through a managed care organization, UniCare. UniCare’s written plan excludes coverage of “sex transformation procedures and hormone therapy for sex transformation procedures”. Fain’s pharmacist told her that her hormone prescription would not be covered because of this exclusion. After the lawsuit was filed, Medicaid defendants submitted an affidavit to the court stating that the program “does not have a policy of withholding testosterone for the treatment of gender dysphoria.” Based on this, Fain agreed to withdraw his request for denial of hormone therapy coverage from the trial. He is hoping to have sex confirmation surgery, but has not made a claim due to the plan’s explicit exclusion, and the defendants have indicated no relaxation of their position on the matter.

Brian McNemar, a state employee, fears her husband, a transgender man named Zachary Martell, may not be covered for hormone therapy or gender-confirming surgery due to a similar explicit exclusion under the plan health of government employees. Unlike Medicaid defendants, the health plan did not offer to cover Martell’s hormone therapy or future confirmatory surgery in response to the filed case.

Under the 11e As an amendment to the Constitution, states enjoy sovereign immunity from prosecution by their own citizens in federal court, unless the state agrees to waive the immunity. Medicaid defendants argued that they benefited from 11e Immunity from amendment in this case. Dismissing this claim, Judge Chambers concluded that by participating in the Medicaid program, West Virginia had lifted its immunity and agreed to be prosecuted for violations arising from its operation of the program. The state’s Medicaid program lawsuit is based on the equal protection clause, the affordable care law’s non-discrimination clause, and the Medicaid law’s coverage requirements. The Fain case seeks a declaratory judgment and injunction on behalf of a potential class of all transgender Medicaid recipients in West Virginia, as well as damages under the Affordable Care Act for himself for having had to bear the costs of his hormonal treatment which should have been covered by the program.

McNemar and Martell’s lawsuit on behalf of a proposed class of government employees and plan members is based solely on the equal protection clause. The essence of the Equal Protection claim is that transgender people are denied coverage for drugs and procedures available to cisgender people who have a medical need for hormone therapy or for similar surgical procedures performed for different purposes. For example, a transgender man will not be covered for a mastectomy for gender confirmation purposes, but a cisgender woman will be covered for a mastectomy as part of breast cancer treatment. Likewise, a man who suffers from a hormone deficiency may receive testosterone treatment, but a transgender man who needs testosterone for gender confirmation is denied.

The defendants called for the equal protection claim to be dismissed, arguing that the exclusionary policy would survive “increased scrutiny,” which requires the government to show that the contested policy significantly advances important government interests. The interests they have advanced are (1) “to ensure the health and safety of registrants”, (2) “to maintain the medical standards of physicians and other entities that accept insurance from registrants”, and (3) “to save money. taxpayer money to use for procedures that are not medically necessary or approved by the FDA. Judge Chambers pointed out that these are all factual arguments which conflict with the facts alleged by the complainants in their complaint, and therefore they cannot be decided on a motion to dismiss, which can only be granted if the facts alleged by the complainants are not sufficient to raise a plausible legal claim. Courts are not supposed to accept motions to dismiss lawsuits which require the determination of disputed material facts, which require the presentation of evidence to an investigator, judge or jury, in a trial proceeding.

Judge Chambers politely refrained from pointing out, for example, that there is a large and growing body of administrative and judicial opinions accepting that gender-confirming procedures, including hormone therapy and surgery, may be wrong. medically necessary care. In addition, and as will become relevant when this case comes to be decided on the merits, several other federal courts have ruled in favor of plaintiffs pursuing Medicaid programs in other states for failing to cover such confirmation proceedings, and it Years ago, the Federal Tax Court ruled that gender confirmation expenses can be deducted from federal income tax because they are “medically necessary procedures.”

Neither Fain nor Martell have yet tried to get clearance from their insurers for gender-confirming surgery, so the defendants argued that they lacked standing to sue for a statement that the exclusion policy is illegal because they had not suffered concrete harm. Justice Chambers accepted the claimants’ argument that they are not required to apply for coverage when the policy expressly excludes it, as that would be a futile move. “Assuming the plaintiffs’ claims are true, as the court must do at the pleading stage,” he wrote, West Virginia “has adopted a clear policy that excludes gender-confirming surgical care without exception. In doing so, “the Medicaid program” caused concrete harm to claimant Fain by building an allegedly discriminatory barrier between him and health insurance coverage. This barrier constitutes a concrete and non-speculative prejudice. In view of this injury, Fain has standing to bring an action, and his allegations challenging the policy are ripe for consideration. “

The defendants argued that if Fain applied, it was possible that they would grant his request, just as they had agreed to cover his hormone treatment in response to his filing of this complaint, but Chambers saw this as a practical dodge for avoid an unfavorable court decision. . He wrote that although the Medicaid program “sincerely states that Fain’s surgical request can be granted, dismissing the lawsuit on this ground would allow defendants to evade liability by granting litigants’ requests, while still maintaining a policy. and an allegedly discriminatory practice for anyone who does not file a complaint. Such an escape cannot be allowed.

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