➤ WEST VIRGINIA, from p.22
zation, UniCare. UniCare’s written
plan excludes coverage for “sex
transformation procedures and
hormone therapy for sex transformation
procedures.” Fain’s pharmacist
told him that his hormone
prescription would not be covered
due to this exclusion. After this
lawsuit was fi led, the Medicaid defendants
submitted an affi davit to
the court stating that the program
“does not have a policy of denying
testosterone for treatment of gender
dysphoria.” On that basis, Fain
agreed to drop his claim for denial
of hormone therapy coverage from
the lawsuit. He hopes to have gender
confi rmation surgery, but has
not applied because of the plan’s
explicit exclusion, and the defendants
have not indicated any softening
of their position as to that.
Brian McNemar, a state employee,
is concerned that his husband,
a transgender man named Zachary
Martell, will not be covered for
hormone therapy or gender confi
rmation surgery due to a similar
explicit exclusion under the health
plan for state employees. Unlike the
Medicaid defendants, the health
plan did not offer to cover Martell’s
hormone therapy or future confi rmation
surgery in response to the
case being fi led.
Under the 11th Amendment
of the Constitution, states enjoy
sovereign immunity from being
sued by their own citizens in federal
court unless the state agrees
to waive immunity. The Medicaid
defendants argued that they enjoy
11th Amendment immunity in this
case. Rejecting that claim, Judge
Chambers found that by participating
in the Medicaid program,
West Virginia has waived its immunity
and agreed to be sued for violations
arising from its operation of
the program. The suit against the
state Medicaid program relies on
the Equal Protection Clause, the
nondiscrimination clause in the
Affordable Care Act, and the Medicaid
Act’s coverage requirements.
Fain’s case seeks declaratory and
injunctive relief on behalf of a potential
class of all transgender
Medicaid recipients in West Virginia,
as well as compensatory damages
under the Affordable Care Act
for himself for having to bear the
expenses of his hormone therapy
which should have been covered
by the program.
McNemar and Martell’s suit on
behalf of a proposed class of state
employees and plan participants
is based solely on the Equal Protection
Clause. The essence of
the Equal Protection claim is that
transgender individuals are denied
coverage for medications and
procedures that are available to
cisgender individuals who have a
medical need for hormone therapy
or for similar surgical procedures
being performed for different purposes.
For example, a transgender
man will not be covered for a
mastectomy for purposes of gender
confi rmation but a cisgender woman
will be covered for a mastectomy
as part of treatment for breast
cancer. Similarly, a man who is
suffering a hormone defi ciency can
get testosterone treatment, but a
transgender man who needs testosterone
for gender confi rmation
purposes is denied.
The defendants moved to dismiss
the Equal Protection claim,
arguing that the exclusionary policy
would survive “heightened scrutiny,”
which requires the government
to show that the challenged
policy substantially advances important
government interests. The
interests that they advanced are
(1) “guaranteeing the health and
safety of the enrollees,” (2) “maintaining
the medical standards of
physicians and other entities that
accept the insurance of enrollees,”
and (3) “saving taxpayer dollars
from use for procedures that are
not medically necessary, or FDA
approved.” Judge Chambers pointed
out that these are all fact-based
arguments that confl ict with facts
that the plaintiffs alleged in their
complaint, and thus they cannot
be decided on a motion to dismiss,
which can only be granted if the
facts alleged by the plaintiffs are
not suffi cient to raise a plausible
legal claim. Courts are not supposed
to grant motions to dismiss
lawsuits that require the determination
of contest material facts,
which require presentation of evidence
to a fact-fi nder, either 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 confi rmation procedures,
including hormone treatment
and surgery, can be medically
necessary care. Furthermore,
and as will become relevant when
this case has to be decided on
the merits, several other federal
courts have ruled in favor of plaintiffs
suing other states’ Medicaid
programs for failing to cover gender
confi rmation procedures, and
years ago the federal Tax Court
ruled that gender confi rmation expenses
may be deducted from federal
income tax because they are
“medically necessary procedures.”
Neither Fain nor Martell has
actually tried to obtain authorization
from their insurers for gender
confi rmation surgery yet, so
the defendants argued that they
did not have standing to sue for
a declaration that the exclusionary
policy is illegal because they
had not suffered a concrete injury.
Judge Chambers accepted the
plaintiffs’ argument that they are
not required to apply for coverage
when the policy expressly excludes
it, since that would be a futile gesture.
“Assuming that the plaintiffs’
allegations are true, as the Court
must at the pleading stage,” he
wrote, West Virginia “enacted a
clear policy that excludes genderconfi
rming surgical care with no
exceptions. In doing so,” the Medicaid
program “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.”
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
therapy in response to his fi ling
this lawsuit, but Chambers saw
that as a convenient dodge to avoid
an adverse court ruling. He wrote
that even if the Medicaid program
“is earnest in assertion that Fain’s
surgical request may be granted,
dismissing the suit on that ground
would allow defendants to dodge
liability by granting litigants’ requests,
all while maintaining an
allegedly discriminatory policy
and practice for anyone who does
not fi le suit. Such a loophole cannot
be permitted.”
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