A liberal court gets it right

The U.S. Court of Appeals for the 4th Circuit—widely acknowledged as one of the most liberal courts of appeal in the country—issued an important ruling last week. In Anderson v. Crouch, a unanimous panel concluded that West Virginia may lawfully exclude so-called gender transition surgeries from Medicaid coverage. That is a win for real healthcare for children and for the rule of law.

The case has a long history. In 2022, a district court ruled against West Virginia, finding that its decision not to fund gender transition surgeries with taxpayer dollars discriminated against individuals who identify as transgender. The en banc 4th Circuit agreed, holding that West Virginia’s Medicaid exclusion violated the Equal Protection Clause and the Affordable Care Act. West Virginia appealed to the Supreme Court, which vacated the 4th Circuit’s decision and sent it back for reconsideration in light of United States v. Skrmetti. That landmark decision upheld Tennessee’s ban on minors receiving drugs and hormones for the purpose of changing their gender. On Tuesday, the remand panel reversed the 4th Circuit’s prior determination and held that the Constitution does not require taxpayers to fund so-called gender transition surgeries.

In a common-sense ruling, the unanimous panel followed Skrmetti and held that West Virginia’s Medicaid exclusion does not discriminate against anyone but merely determines which medical treatments the state wishes to fund. In a key passage, the Court explained that “West Virginia’s [Medicaid] plan does not provide unequal access to medical treatments based on sex or transgender status.” Instead, for every medical service, the state had established a list of qualifying diagnoses. In other words, a medical treatment includes both the medical service and the specific condition “for which it is being administered.” Such distinctions are essential to ethical medical practice. Take morphine, for example. Using the drug for pain management is not the same as using it for suicide.

Accordingly, the fact that West Virginia’s Medicaid pays for chest augmentation surgery for breast cancer survivors but not for gender dysphoria does not constitute discrimination. Similarly, it is one thing to perform a mastectomy to remove cancer and quite another to remove healthy breasts to make a girl look more like a boy. West Virginia’s Medicaid exclusion did not make any distinction on the basis of sex or transgender status but rather on the basis of medical diagnoses.

States are supposed to protect their most vulnerable citizens. Yet childhood gender transition hormones and surgeries come with serious and often irreversible physical consequences. The side effects can include heart conditions, cancer risk, loss of bone density, and lifelong sterilization. Further, children struggling with gender dysphoria often suffer from depression, anxiety, and other mental health co-morbidities. The evidence shows that if these children get the mental health help they need, if they are loved and supported—instead of pushed into social, chemical, or physical “transitions”—most of them regain comfort with their own bodies.

In fact, the United States is an outlier, with some states permitting these experimental and risky interventions, while the countries that pioneered the “treatments” have largely forbidden them. Sweden, Denmark, and England have significantly restricted or banned—outside the research setting—drugs and surgeries for minors suffering from gender dysphoria, prioritizing mental health support. This reversal is due in part to the 2024 Cass Review, a pathbreaking report that found that evidence supporting medical interventions (puberty blockers, cross-sex hormones) for children with gender dysphoria is “remarkably weak” and that the risks outweigh any benefits.

So, what is driving the industry? Old-fashioned greed may provide at least a partial explanation. In a horrifying video, a Vanderbilt University Medical Center doctor touted the surgeries as “huge money makers” for the hospital. Meanwhile, other Vanderbilt doctors admitted they possessed “very, very little data to guide [the] treatment” and were “still figuring it out.” All of this makes one wonder how in good conscience any state can fund such procedures. As West Virginia Attorney General John McCuskey explained, states should not be subsidizing “unproven, non-essential medical procedures.”

The Anderson ruling will have ripple effects nationwide. More than a dozen states prohibit or limit Medicaid coverage for gender-transition drugs or surgeries. Most have faced lawsuits claiming that the state’s decision not to fund these drugs and procedures is unlawful. The Anderson decision explains why states may legitimately refuse to use taxpayer dollars to fund unproven and dangerous treatments on our youth.