Appeals court says states’ failure to cover transgender procedures is discriminatory

The 4th U.S. Circuit Court of Appeals ruled on Monday that North Carolina and West Virginia discriminate against people who self-identify as transgender when those states fail to cover certain procedures under government-sponsored insurance plans. The court issued an 8-6 decision, affirming that both states had violated the Fourteenth Amendment through gender-based discrimination.

Did a court opinion explain why? Circuit Judge Roger Gregory penned the majority opinion and argued that while every procedure covered by the states is necessary, not all necessary treatments are covered. He also argued that West Virginia Medicaid regularly covers certain procedures but withholds coverage for transgender patients. Programs will cover mastectomies to treat cancer but not treat gender dysphoria, Gregory wrote.

The court also took issue with the failure of North Carolina government insurance to cover several forms of genital surgery and over two dozen more procedures when coded as “transsexualism” or “sex reassignment.” The state also does not cover all treatments suggested by the World Professional Association for Transgender Health for gender dysphoria patients, Gregory noted.

States argued that their policies are not discriminatory because they apply to everyone equally regardless of sex or identity. However, the court alleges policies should be considered discriminatory because only people who identify as transgender are affected. Similar surgeries for patients who don’t identify as transgender are also covered by insurance, Gregory noted, pointing to breast reconstruction surgery for breast cancer patients.

How have states responded? West Virginia Attorney General Patrick Morrisey plans to appeal the decision to the Supreme Court, according to a statement issued after the Monday decision. Just one surgery attempting to modify gender characteristics can cost tens of thousands of dollars, which taxpayers should not be required to pay for, Morrisey wrote. The North Carolina Attorney General Josh Stein’s office had not offered any comment at the time of publishing.

Dig deeper: Read Mary Jackson’s report in Relations on California requiring insurance companies to cover double mastectomies for girls with gender dysphoria.