Supporters and opponents of transgender rights gather outside the U.S. Supreme Court as the high court hears arguments in a case about transgender people’s health rights in December 2024 in Washington, DC. In an appeals court ruling in lithe of this case, U.S. v. Skrmetti, West Virginia’s ban on Medicaid coverage for adult gender-affirming surgeries was upheld. Experts believe this could have far-reaching effects. (Photo by Kevin Dietsch/Getty Images)
A U.S. appeals court ruling last month that upheld West Virginia’s ban on Medicaid coverage for adult gender-affirming surgeries could encourage other states seeking to impose similar restrictions.
The 4th U.S. Circuit Court of Appeals in March overturned a lower court ruling in Anderson v. Crouch, who had lifted West Virginia’s ban on Medicaid coverage for adult gender-affirming surgeries. The lower court ruled that the ban was discriminatory.
The decision came after the Supreme Court upheld Tennessee’s ban on gender-affirming youth care last year USA vs. Skrmetti. The court subsequently reversed the rulings of several lower courts and remanded cases, including the West Virginia case, for reconsideration in lithe of the Supreme Court’s opinion in the Tennessee case.
In response, the West Virginia Supreme Court’s up-to-date ruling expands the Supreme Court’s reasoning to include the state’s ban on Medicaid coverage for adult gender-affirming surgeries. The justices wrote that West Virginia’s policy applies only to certain procedures and argued that it does not target specific people or a protected status such as sex.
In a unanimous opinion, the three-judge appeals panel wrote: “It is not irrational for a legislature to encourage citizens to ‘appreciate their sex’ rather than ‘despise their sex’ by denying funding for experimental procedures that could have the opposite effect.” The panel added: “The Supreme Court’s decision in the Skrmetti case precludes any argument to the contrary.” The plaintiffs have filed a motion for a rehearing by the full panel.
Some research shows that providing care to people consistent with their gender identity is associated with better overall well-being and mental health. Gender affirming care includes a range of services including hormone replacement, breast and genital removal or enlargement, and facial surgery.
Experts say that while the West Virginia ruling technically only sets a precedent for states in the 4th Circuit, it could encourage and influence other states that want to impose similar limits on public funding for gender-affirming treatments for adults. It also agrees with that slain of federal guidelines issued by President Donald Trump, including his order that federal agencies only recognize a biological, binary definition of gender.
“This gives states leeway to enact laws that would potentially limit access to gender-affirming care for transgender youth and adults,” said Elana Redfield, federal policy director at the Williams Institute, a think tank at the University of California, Los Angeles School of Law. “It could encourage states to adopt broader bans, including Medicaid bans, even for adults.”
According to the Williams Institute, an estimated 152,000 transgender adults are enrolled in Medicaid, but fewer than half live in states that guarantee coverage for gender-affirming care. Approximately 29% of LGBTQ+ people live in states where this is the case exclude reporting, according to the Movement Advancement Project, a think tank that also tracks the legislation.
Carmel Shachar, assistant professor of law and faculty director of Harvard Law School’s Health Law and Policy Clinic, called Anderson v. Crouch as “a significant early case in the post-Skrmetti landscape.”
“(The ruling) is definitely influential,” she added, saying it was “a sign of which way the wind is blowing right now when it comes to state policy.”
Reuters reported that lawsuits have been filed in at least seven other states over bans or restrictions on insurance coverage for gender-affirming care. According to the Movement Advancement Project, a think tank that advocates for LGBTQ+ rights, 27 states explicitly include gender-affirming care in Medicaid insurance guidelines, and 11 states expressly prohibit the exploit of Medicaid funds for gender-affirming care for people of all ages.
Oklahoma wants to join that list. There are Republicans move forward Legislation that would prohibit Medicaid funds from covering gender-affirming care for adults. The bill would also prevent public funds from being used by organizations or individuals to finance gender transition. It passed the Senate 11-2 last month and a House oversight committee last week.
During a floor debate this month, Oklahoma state Democrat Ellen Pogemiller directly asked the bill’s sponsor whether privately insured adults treated in public hospitals would lose access to health care. “This is a serious concern,” Pogemiller said, adding that she has received this question from constituents.
“Fair point. I don’t have an answer for you,” replied Republican Rep. Erick Harris, one of the bill’s sponsors.
Pogemiller also cited a 2022 national survey by The Trevor Project, which provides suicide prevention services for LGBTQ+ youth found 55% of transgender and non-binary youth in Oklahoma had seriously considered suicide in the past year. The Research about whether gender-equitable care prevents suicides in children or adults is inconclusive.
“Are you concerned that laws like this are leading to an increase in youth and adult suicides?” she asked.
“I’m concerned about public money being used for things it shouldn’t be used for,” Harris said. “That’s what I’m worried about.”
Shannon Minter, legal director at the National Center for LGBTQ Rights, said the ruling in the West Virginia case could lead to more discrimination.
“It asks states to find creative ways to discriminate against other groups of people and disguise it as simply regulating medical care,” Minter said. “It is dangerous when the law and courts refuse to recognize this kind of blatant discrimination.”
Hailey Briggs is executive director of Oklahomans For Equality, which serves the state’s LGBTQ+ communities, running support groups and an LGBTQ+-affirming clinic that offers hormone replacement therapy. She said the bill creates more fear in the community. Since the start of this year’s legislative session, the clinic has admitted between four and six up-to-date patients each week, some driving for hours, and there has been an escalate in calls to mental health services.
“This entire legislative session in particular has just been absolutely brutal for people,” she said.
The bill is “not a narrow policy change,” Briggs continued. “We actually see this as a broad attempt to put vital health care out of reach for many people.”
The organization expects an escalate in patients and insurance denials if the bill becomes law because the clinic is not federally or state funded and offers low-cost care. “We work to support people who are uninsured or underinsured,” Briggs said. “They are being turned away from their trusted providers at government-funded institutions.”
Texas is one of the states that prohibits Medicaid coverage for this care for people of all ages. Andrea Segovia, senior field and policy director at the Transgender Education Network of Texas, said such measures would have a lasting “chilling effect.” Her team is increasingly hearing about insurance denials, she said.
“They’re considered cosmetics. They’re not considered necessary,” Segovia said of some medical procedures. “Someone will email us and say, ‘I lost my insurance coverage,’ or ‘I got this letter from my insurance company.'”
Harvard Law School’s Shachar said the 4th Circuit’s ruling could make it easier to deny coverage.
“Private insurers would still be free to cover these services even if Medicaid doesn’t cover them. But I think an insurer who doesn’t want to cover these services might feel a little more comfortable after this case,” Shachar said. “It definitely opens the door for insurers to say, ‘Medicaid doesn’t cover this, we don’t want to cover it.'”
A statement from Republican Texas Attorney General Ken Paxton last month blocked He said anyone who helps with this care is “committing child abuse.” But now even adults have told Segovia’s team that their psychotherapists are dismissing them as patients.
“There have been several people — adults — who have lost their mental health providers because (the providers) feared that the attorney general would come after them and their license,” Segovia said. “It just caused a lot of confusion among our professionals.”
Stateline reporter Nada Hassanein can be reached at nhassanein@stateline.org.
This story was originally produced by State borderwhich is part of States Newsroom, a nonprofit news network that includes West Virginia Watch, and is a 501c(3) public charity supported by grants and a coalition of donors.
