CHARLESTON — A lawsuit challenging a prohibition on covering hormone therapy treatments and surgeries through Medicaid and West Virginia’s public worker insurance provider can move forward.
U.S. District Judge Robert Chambers issued an order Wednesday ruling against a motion by the West Virginia Public Employees Insurance Agency to dismiss a lawsuit filed in November in the U.S. District Court for the Southern District of West Virginia on behalf of Medicaid recipients and public workers.
Christopher Fain, Zachary Martell and Brian McNemar allege the state’s blanket prohibition on covering gender hormone replacement therapy, used to treat gender dysphoria, is discriminatory. Chambers agreed that the allegations against PEIA and the state Department of Health and Human Resources need further review.
Fain’s case centers around DHHR’s refusal to cover surgical procedures to treat gender dysphoria, defined by the Mayo Clinic as “the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics.” Gender dysphoria is most often experienced by transgender people.
“Assuming that (Fain’s) allegations are true…WVDHHR enacted a clear policy that excludes gender-confirming surgical care with no exceptions,” Chambers wrote. “In doing so, WVDHHR caused a concrete injury to Plaintiff Fain by constructing an allegedly discriminatory barrier between him and health insurance coverage. This barrier constitutes a concrete, non-speculative injury. Given this injury, Fain has standing to sue, and his claims challenging the policy are ripe for review.”
McNemar, a public employee insured through PEIA, and his spouse, Zachary Martell, allege that PEIA denied them access to hormone replacement therapy. Hormone replacement therapy often uses prescription medication, such as testosterone, to treat gender dysphoria. McNemar and Martell, a transgender man, was forced to pay for testosterone out-of-pocket, while testosterone is covered for non-transgender men.
PEIA also has a subcontract with The Health Plan which also prohibits coverage of treatments for gender dysphoria. Ted Cheatham, director of PEIA, argued that McNemar and Martell’s fight should be with The Health Plan, not PEIA. Chambers, in his order, said the Health Plan’s prohibition on hormone replacement therapy simply mirrors PEIA policy which could be changed at any time by PEIA.
(McNemar and Martell) have alleged that their injuries can be traced to Cheatham because he only approves the discriminatory policies (including The Health Plan’s HMO policy) and refuses to provide a non-discriminatory alternative,” Chambers wrote. “Both allegations are plausible because Cheatham is statutorily responsible for administering PEIA, including overseeing ‘provider negotiations, provider contracting and payment, designation of covered and noncovered services, [and] offering of additional coverage options or cost containment incentives.'”
Fain v. Crouch is a class action lawsuit. The parties are represented by The Employment Law Center in Parkersburg, Minneapolis-based law firm Nichols Kaster, and the Lambda Legal Defense and Education Fund. Lambda advocates for LGBTQ and transgender rights.
“This decision is a great step forward for our plaintiffs,” said Avatara Smith-Carrington, an attorney with Lambda Legal and a Tyron Garner Memorial Law Fellow. “No one should be denied coverage for health care simply because they are transgender. We are very pleased that Judge Chambers found that Lambda Legal’s challenge to the state’s categorical denial of gender-confirming care to transgender Medicaid and PEIA participants deserves to be heard on the merits.”
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