618 F.Supp.3d 313
S.D.W. Va2022Background
- Plaintiffs Christopher Fain and Shauntae Anderson are transgender West Virginia Medicaid enrollees who seek gender‑affirming surgeries (mastectomy, vaginoplasty, breast reconstruction) but face a state Medicaid exclusion for "transsexual surgery."
- West Virginia Medicaid (Mountain Health Trust) covers other gender‑related care (hormones, counseling, diagnostics) but the Policy Manual and MCO contracts bar surgical treatment for gender dysphoria "regardless of medical necessity;" the exclusion dates to ~2004.
- The program uses Kepro/InterQual to assess medical necessity, and InterQual has evidence‑based standards for gender‑affirming surgery, but the blanket exclusion prevents their application for gender dysphoria claims.
- Plaintiffs did not submit claims because doing so would be futile under the undisputed, exceptionless exclusion; defendants include DHHR/BMS and state officials charged with administering Medicaid.
- The district court granted summary judgment to Plaintiffs, holding the exclusion violates Equal Protection, ACA §1557, and the Medicaid Act (availability and comparability), and enjoined enforcement of the exclusion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equal Protection (Fourteenth Amendment) | Exclusion denies medically necessary surgeries to transgender people while covering identical surgeries for other diagnoses, so it discriminates based on sex/transgender status and must survive intermediate scrutiny. | Policy is diagnosis‑based (gender dysphoria), not sex‑based; surgeries for gender dysphoria are distinct; costs and CMS consistency justify exclusion. | The exclusion facially discriminates on the basis of sex/transgender status, triggers heightened scrutiny, and fails because defendants offered no adequate important government interest; Equal Protection violation. |
| ACA §1557 (sex discrimination in federally funded health programs) | BMS receives federal funds and the exclusion discriminates on the basis of sex/transgender status under Bostock; thus it violates §1557. | "Sex" historically refers to binary sexes; the exclusion is limited to surgery and other gender‑related care remains covered. | §1557 violation: program is a federally funded health activity and exclusion constitutes sex‑based discrimination under the Bostock framework. |
| Medicaid Act — Availability (mandatory/optional services & medical necessity) | The same surgical procedures are covered when provided for non‑gender‑dysphoria diagnoses; exclusion denies medically necessary treatment and is not an appropriate, reasonable limit. | States may limit services and set criteria (medical necessity); program discretion and CMS non‑mandate permit exclusion. | Availability requirement violated: exclusion denies coverage for medically necessary services that the state otherwise provides for other diagnoses. |
| Medicaid Act — Comparability (equal amount/duration/scope) | Medicaid must provide comparable services to all within a coverage group; excluding surgeries based on diagnosis discriminates against similarly situated beneficiaries. | Because no one on Medicaid receives these surgeries for gender dysphoria, there is no unequal treatment among Medicaid beneficiaries. | Comparability requirement violated: surgeries materially identical to covered procedures are denied to those with gender‑dysphoria diagnoses, creating unequal treatment. |
| Standing | Plaintiffs suffered concrete injury because an exceptionless exclusion made claims futile; they need not submit a claim to show injury. | Plaintiffs lack injury because they never filed claims and received denials. | Plaintiffs have standing: refusal to apply would be futile and exclusion itself creates a concrete, redressable injury. |
Key Cases Cited
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (employment‑discrimination framework recognizing that discrimination based on transgender status is discrimination "because of sex")
- Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020) (policies discriminating against transgender people implicate sex‑based and transgender‑status classifications and warrant heightened scrutiny)
- City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (rational‑basis review and limits on permissible classifications; discussion of heightened scrutiny standards)
- Beal v. Doe, 432 U.S. 438 (1977) (Medicaid requirement that states provide coverage for medically necessary services within chosen categories)
- Geduldig v. Aiello, 417 U.S. 484 (1974) (pregnancy exclusion analysis relied on by defendants; considered and distinguished by court)
- Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999) (contrast case on comparability where benefit challenged was provided to no one)