Transgender Care Coverage Policies in North Carolina and West Virginia Are Discriminatory, Court Rules

by Aliyya Swaby

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After a federal appeals court ruled this week that transgender people are legally entitled to the same access to medically necessary health care as everyone else, the immediate reaction of the states of North Carolina and West Virginia was to vow to appeal the decision to the U.S. Supreme Court.

The immediate reaction of Hann Henson, an employee of a North Carolina school district who’d spent years struggling to access gender-affirming care, was to break into tears. Last year, ProPublica wrote about his tumultuous journey seeking medical support in his gender transition while living in a state with a long history of discrimination against transgender people.

“Having something that you know is going to help you feel better, is going to help you feel whole, and having it constantly dangled above your head is just dehumanizing,” he said.

The 4th U.S. Circuit Court of Appeals, based in Virginia, ruled that the two states violated federal law by banning coverage of certain treatments for transgender people but allowing it for others. These cases were the first of their kind to reach a federal appeals court and the decision could influence states and courts in other parts of the country.

For years, transgender people have argued in court that the North Carolina state employee health plan and West Virginia Medicaid program discriminated against them by refusing to cover certain treatments when they are prescribed for transgender people. The court’s majority agreed with this argument, in line with previous district court rulings, highlighting that West Virginia’s Medicaid program “covers mastectomies to treat cancer, but not to treat gender dysphoria.”

Henson found out about the lawsuit in 2022 soon after he started his job as a communications specialist for a North Carolina school district. He realized he was sprinting against a clock, with the state under a court order to cover gender-affirming care while the legal fight was underway. He scheduled what he hoped would be his last major surgery for November 2023, two months after the appeals court heard oral arguments on the case.

But as he got closer to the date, he realized he had to delay the surgery due to a stomach ulcer. He said the looming court decision was all he could think about for months. He even considered trying to go ahead with the procedure despite his poor health. He finally got the surgery in late March.

Dale Folwell, the state treasurer and a named defendant, used the lawsuit in his campaign for governor. (He lost the Republican primary in March.) He maintained in interviews and court documents that the state health plan should have the authority to determine which employee benefits are covered. He reiterated those comments in a statement this week: “Untethered to the reality of the Plan’s fiscal situation, the majority opinion opens the way for any dissatisfied individual to override the Plan’s reasoned and responsible decisions and drive the Plan towards collapse.”

Hann Henson and his wife, Aly Young, in Asheville, North Carolina, last summer (Annie Flanagan, special to ProPublica)

Henson will need a follow-up surgery in five months, a common part of the process. He said he now feels a sense of relief knowing the appeals court decision ensures that he likely won’t lose access to his care at a critical time. But he worries about other transgender people seeking services and imagines them refreshing a court website compulsively just like he did.

For now, the ruling protects access to gender-affirming care for transgender people on both states’ health plans. The decision would apply to any federal court cases brought in other states in the 4th Circuit: South Carolina, Virginia and Maryland. The 11th Circuit is currently considering two similar cases out of Georgia and Florida.

All the active judges on the court heard oral arguments in the case in September. In their ruling Monday, eight of the 14, almost all of whom were appointed by Democratic presidents, ruled in favor of the transgender plaintiffs. “In addition to discriminating on the basis of gender identity, the exclusions discriminate on the basis of sex,” wrote Judge Roger Gregory, who was initially appointed by President Bill Clinton and confirmed under the George W. Bush administration.

The states argued that gender-affirming care cost too much and was medically ineffective, so they were justified in not covering it. The court’s majority opinion dismissed both arguments as lacking support. Evidence shows covering the care would likely cost states very little, and major medical associations support broad access to gender-affirming care, citing evidence that prohibiting it can harm transgender people’s mental and physical health.

The judges who signed the three dissenting opinions were all appointed by Republican presidents. “In the majority’s haste to champion plaintiffs’ cause, today’s result oversteps the bounds of the law,” Judge Julius Richardson, a President Donald Trump appointee, wrote in the principal dissent. “The majority asserts that the challenged exclusions use medical diagnosis as a proxy for transgender persons, despite the complete lack of evidence for this claim.”

North Carolina and West Virginia are planning to appeal the decision to the U.S. Supreme Court, according to press releases from each state. “We are confident in the merits of our case: that this is a flawed decision and states have wide discretion to determine what procedures their programs can cover based on cost and other concerns,” West Virginia Attorney General Patrick Morrisey said in a statement.

It remains to be seen how and whether other states and insurance companies with restrictive policies for covering gender-affirming care will act in response to the opinion.

“It should serve as a cautionary tale not just to states that implement state health plans and Medicaid programs but also to private insurers,” said Omar Gonzalez-Pagan with Lambda Legal, which represented the transgender plaintiffs in North Carolina and West Virginia. “I would hope that this serves as a determining factor in the adoption of any bad policies as an inspiration to get rid of policies that currently exist.”

This content originally appeared on Articles and Investigations - ProPublica and was authored by by Aliyya Swaby.