West Virginia Can No Longer Discriminate Against Transgender Medicaid Participants

Nicole J. Schladt, Associate Attorney, Nichols Kaster

On August 2, 2022, federal District Court Judge Robert C. Chambers granted affirmative summary judgment for Plaintiffs in Fain et al. v. Crouch et. al, and ruled that West Virginia could no longer discriminate against transgender Medicaid participants by excluding coverage for gender-confirming surgical care. In doing so, Judge Chambers held that, “The West Virginia Medicaid Program exclusion denying coverage for the surgical care for gender dysphoria invidiously discriminates on the basis of sex and transgender status. Such exclusion violates the Equal Protection clause of the Fourteenth Amendment, the Affordable Care Act, and the Medicaid Act. Defendants are enjoined from enforcing or applying the exclusion.” The court also certified the lawsuit as a class action.

In their complaint, Plaintiffs alleged that West Virginia state health insurance plans deprive transgender people of essential, and sometimes life-saving, health care. Plaintiffs alleged that the exclusion in the state’s Medicaid plans—such as an exclusion for “transsexual surgery”—facially, and categorically, exclude coverage for health care that transgender people require, while allowing cisgender people to receive coverage for the same forms of care as a matter of course.

Plaintiffs alleged that West Virginia state health insurance plans deprive transgender people of essential, and sometimes life-saving, health care.

The court found that the proposed class—comprised of “all transgender people who are or will be enrolled in West Virginia Medicaid and who are seeking or will seek gender-confirming care barred by the Exclusion”—met all of the requirements under Rule 23(a) for certification. The court held that the boundaries of the class include at least 686 Medicaid participants at present, thus satisfying numerosity. For commonality, the court noted that West Virginia’s exclusion of care “applies to every member of the class without exception; it is a barrier for all transgender participants who seek or who may seek this treatment.” The proposed class representatives met the typicality requirement by having claims identical to those of the class they seek to represent. And Plaintiffs and their counsel are adequate representatives.

The court further found that Plaintiffs satisfied the requirements under Rule 23(b)(2). “Here, certification of the class seems appropriate given that the exclusion applies broadly to all members of the proposed class. A declaratory judgment finding that the exclusion is unlawful and an injunction enjoining Defendants from enforcing the exclusion would be appropriate to the class as a whole.”

Nichols Kaster, PLLP, Lambda Legal, and the Employment Law Center, PLLC filed the class action lawsuit in 2020, inspired in part by a presentation about Flack v. Wisconsin Dep’t of Health Servs. during the annual Impact Fund Class Action Conference earlier the same year.

Originally, counsel brought the lawsuit on behalf of Christopher Fain, a Medicaid participant; and Zachary Martell, the spouse of Brian McNemar, a state employee, challenging the exclusion of gender-confirming care in both the Medicaid and state employee health plans respectively. In 2021, counsel added two additional plaintiffs, Shauntae Anderson, a Medicaid participant, and Leanne James, a public employee and Public Employee Insurance Agency (PEIA) member. In 2022, a settlement with The Health Plan of West Virginia, Inc. led to the removal of the exclusion on coverage for gender-confirming care in The Health Plan’s PEIA plans. The remaining claims involving PEIA were dismissed after the sorrowful passing of Leanne James in February 2022.