CHARLESTON, W.Va. (AP) 鈥� West Virginia is asking the U.S. Supreme Court to review that found the state's refusal to cover certain health care for transgender people with government-sponsored insurance is discriminatory, Republican Attorney General Patrick Morrisey said Thursday.
In April, the Richmond-based 4th U.S. Circuit Court of Appeals ruled 8-6 in the case involving coverage of gender-affirming surgery by West Virginia Medicaid, finding that the 鈥渃overage exclusions facially discriminate based on sex and gender identity," according to a majority opinion penned by Judge Roger Gregory.
The state of West Virginia had argued that officials in states with limited resources should have discretion to utilize those resources as they see fit to meet the needs of the population. West Virginia is one of the U.S. states with the most people living under the poverty line and the worst health outcomes.
鈥淲e鈥檙e not a rich state 鈥� we can鈥檛 afford to do everything,鈥� Morrisey said Thursday during a live-streamed briefing with press. 鈥淎nd that鈥檚 one of the challenges that we have with this mandate. There鈥檚 only so much money to go around, and spending money on some treatments necessarily takes it away from others.鈥�
West Virginia is 鈥渁 state that鈥檚 trying to help ensure that we鈥檙e covering people with heart disease, with diabetes, and all sorts of medical conditions,鈥� Morrisey said, adding that long-term research on gender affirming surgery is still limited.
In the majority 4th Circuit opinion, judges said the cost of treatment is not a sufficient argument to support upholding a policy found to be discriminatory: 鈥淓specially where government budgets are involved, there will frequently be a 鈥榬ational鈥� basis for discrimination,鈥� Judge Gregory wrote.
During Thursday鈥檚 briefing, Morrisey said he didn't have the data in front of him to answer a question from a reporter about how many West Virginia Medicaid recipients had pursued obtaining gender-affirming surgery, and what the actual cost to the state was.
鈥淲e can look at it and we can evaluate it, but that鈥檚 not the question in this case,鈥� he said.
Andrew Schneider, executive director of LGBTQ+ advocacy organization Fairness West Virginia, said Thursday that the state has 鈥渁 moral obligation to care for its vulnerable and marginalized citizens.鈥�
鈥淧atrick Morrisey鈥檚 decision to appeal this case to the U.S. Supreme Court is at odds with this sacred duty,鈥� Schneider said, adding that other states that have enacted policies granting coverage for gender affirming surgery haven't seen significant cost increases.
鈥淭o the extent that West Virginia Medicaid is struggling, we need only to blame the Republican-controlled Legislature for underfunding the program 鈥� not the dozens of transgender people who may use the program in the future,鈥� he said. 鈥淵ou can鈥檛 underfund a program for years only to then blame a marginalized group for its problems.鈥�
The 4th Circuit case also involved gender-affirming care coverage by North Carolina鈥檚 state employee health plan. Specifically, North Carolina鈥檚 policy bars treatment or studies 鈥渓eading to or in connection with sex changes or modifications and related care,鈥� while West Virginia鈥檚 bars coverage of 鈥渢ranssexual surgery.鈥�
A spokesperson for Morrisey's office said Thursday that North Carolina is also asking the U.S. Supreme Court to take up its case.
Similar cases are under consideration in courts across the country, but April's was the first U.S. Court of Appeals decision to consider government-sponsored coverage exclusions of gender affirming medical care 鈥� and whether those exclusions are lawful.
Both states appealed separate lower court rulings that found the denial of gender-affirming care to be discriminatory and unconstitutional. Two panels of three Fourth Circuit judges heard arguments in both cases before deciding to intertwine the two cases and see them presented before the full court.
In August 2022, a federal judge ruled West Virginia鈥檚 Medicaid program must provide coverage for gender-affirming care for transgender residents.
An filed in 2020 also named state employee health plans. A settlement with The Health Plan of West Virginia Inc. in 2022 led to the removal of the exclusion on gender-affirming care in that company鈥檚 Public Employees Insurance Agency plans.
Unlike North Carolina, West Virginia has covered hormone therapy and other pharmaceutical treatments for transgender people since 2017. Gregory noted in April that West Virginia鈥檚 program partially or fully covers surgeries to remove and reconstruct sexual organs for non-gender dysphoria-related diagnoses, such as cancer.
Leah Willingham, The Associated Press
