Victory! Challenge to West Virginia's Ban on Health Care Coverage for Transgender West Virginians Will Get its Day in Court

(WEST VIRGINIA - May 20, 2021) -- Yesterday, a federal district court judge denied the State of West Virginia's request to dismiss a lawsuit by Lambda Legal, Nichols Kaster, and The Employment Law Center, challenging West Virginia's ban on gender-confirming care in West Virginia's Medicaid and state employee health plans. The ruling, by Judge Robert Chambers of the District Court for the Southern District of West Virginia, ensures that Lambda Legal's lawsuit filed on behalf of Christopher Fain, Zachary Martell, and Brian McNemar against the West Virginia Department of Health and Human Resources (WV Medicaid) and West Virginia Public Employees Insurance Agency (PEIA) will proceed on the merits. In response, Lambda Legal attorney and Tyron Garner Memorial Law Fellow Avatara Smith-Carrington released the following statement:

"This decision is a great step forward for our plaintiffs. No one should be denied coverage for health care simply because they are transgender. We are very pleased that Judge Chambers found that Lambda Legal's challenge to the state's categorical denial of gender-confirming care to transgender Medicaid and PEIA participants deserves to be heard on the merits. The state's denial of health care inflicts severe harms on transgender West Virginians, and we are grateful our clients will get their day in court."

In the opinion, Judge Robert C. Chambers wrote:

"Assuming that the Plaintiffs' allegations are true, as the Court must at the pleading stage, WVDHHR enacted a clear policy that excludes gender-confirming surgical care with no exceptions... 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. To the extent that the Exclusion does not constitute an outright denial, the Court finds that a request for gender-confirming surgery would be futile. To hold otherwise would require an individual to request a benefit even when he or she knows that the defendant maintains a clear policy to deny that request."

BACKGROUND

Fain v. Crouch is a class action lawsuit challenging blanket exclusions of coverage for gender-confirming care in West Virginia's state health plans. The blanket exclusions of coverage for care are stated expressly in the health plans offered to Medicaid participants and to state employees. West Virginia's state health plans serve approximately 564,000 Medicaid participants and15,000 state employees.

Christopher Fain studies nonprofit leadership at Marshall University and works at a clothing store in Huntington. He is enrolled in Medicaid, the nation's largest healthcare provider for low-income individuals, but the program has an explicit exclusion on coverage for gender-confirming care. The Medicaid plan's exclusion of coverage for health care has caused Mr. Fain economic hardship and humiliation.

Zachary Martell is married to Brian McNemar, who works as an accountant at a state hospital. Both Mr. Martell and Mr. McNemar rely on the state employee health plan for coverage. Mr. Martell-who receives coverage for care as Mr. McNemar's dependent - has been denied coverage both for his prescriptions and office visits with his healthcare provider because the state employee health plans explicitly exclude coverage of "treatments associated with gender dysphoria." As a result, Mr. Martell and Mr. McNemar have been forced to pay out-of-pocket for Mr. Martell's care and, at times, even delay or forego care altogether.

Handling the case on behalf of Lambda Legal are attorneys Avatara Smith-Carrington, Tara Borelli, Carl Charles, Sasha Buchert, and Nora Huppert. They are joined by co-counsel Anna Prakash and Nicole Schladt with Nichols Kaster LLP, and Walt Auvil of The Employment Law Center PLLC.

Read more about Fain v Crouch here: https://www.lambdalegal.org/in-court/cases/fain-v-crouch

Read the judge decision here: https://www.lambdalegal.org/in-court/legal-docs/fain_wv_20210519_memorandum-opinion-and-order