CHARLESTON — Two West Virginians said their state-funded health insurance won’t cover hormone replacement therapy solely because they are transgender, according to a lawsuit filed in federal court Thursday.
The men are challenging blanket exclusions of coverage for gender-confirming health care in West Virginia’s health plans, the state’s Medicaid program and the Public Employees Insurance Agency, most commonly called PEIA.
In their lawsuit, Christopher Fain and Zachary Martell, both of Huntington, claim they were denied coverage for hormone replacement therapy, even though such therapy is covered by the state-run insurance programs for people using it as treatment for health conditions other than gender confirmation.
“Transgender and nonbinary West Virginians are denied coverage for essential, and sometimes lifesaving, gender-confirming care, while cisgender West Virginians receive coverage for the same kinds of care as a matter of course,” said Avatara Smith-Carrington, Tyron Garner Memorial Fellow at Lambda Legal and lead attorney on the case. “The exclusions of gender-confirming care in West Virginia’s state health plans are unconstitutional and discriminatory, and deny transgender and nonbinary West Virginians basic dignity, equality and respect.”
The men are supported in their lawsuits by Lambda Legal, a national civil rights organization focused on the rights of lesbian, gay, bisexual and transgender people. They also are represented by Nicole Schladt with Minneapolis-based Nichols Kaster PLLP and Walt Auvil with the Employment Law Center PLLC in Parkersburg.
The case, styled as Christopher Fain et. al. vs. Bill Crouch, Secretary of the West Virginia Department of Health and Human Resources, is a class action lawsuit challenging blanket exclusions of coverage for gender-confirming care in West Virginia’s state health plans, according to a news release from Lambda Legal. The blanket exclusions of coverage for care are stated expressly in the health plans offered to Medicaid participants and to state employees.
The other defendants named in the lawsuit are Cynthia Beane, commissioner for the West Virginia Bureau of Medical Services; Ted Cheatham, director of West Virginia PEIA; West Virginia DHHR’s Bureau for Medical Services; and The Health Plan of West Virginia.
West Virginia’s state health plans serve approximately 564,000 Medicaid participants and 15,000 state employees, according to the lawsuit.
The men are seeking a permanent injunction that would require the state agencies to provide coverage for treatments for all gender-confirming health care treatment, as well as other compensatory damages and attorneys’ fees.
Smith-Carrington said Lambda has filed similar lawsuits in Alaska and North Carolina in which public employees were denied health care coverage for certain types of care because they were transgender.
In the Alaska case, a federal judge earlier this year ruled the denial of coverage for a procedure for a librarian under that state’s health care plan was discrimination based on sex and called part of the plan a “facially discriminatory policy.”
In North Carolina, a federal judge in March denied a motion by state officials there to dismiss a similar lawsuit for state employees and their dependents who were denied coverage for gender-confirming care.
In West Virginia, Fain and Martell both have been denied insurance coverage for their testosterone prescriptions because neither West Virginia Medicaid nor PEIA cover “treatments associated with gender dysphoria.”
Gender dysphoria is a condition where a person does not experience or express the gender they were assigned at birth, according to the Diagnostic and Statistical Manual of Mental Disorders, a publication from the American Psychiatric Association that classifies and describes psychological conditions, their symptoms and treatments.
Fain, 44, relies on West Virginia Medicaid for his health care coverage while he takes classes at Marshall University and works at a clothing store in Huntington.
Medicaid doesn’t cover Fain’s testosterone prescription, forcing him to pay out of pocket for his treatment.
“No one should have the door slammed on them while they’re just trying to access basic health care,” Fain said. “But that’s what these discriminatory exclusions do to people just because they’re transgender. This health care is about my very survival, and the health and survival of thousands of other transgender people in our community forced to go without care because of these exclusions. We feel like we are being swept under the rug, treated as if we don’t exist, and that is not OK.”
Martell, a student at Mountwest Community and Technical College in Huntington, is married to Brian McNemar, who works as an accountant at a state hospital.
Martell and McNemar use PEIA for their health care coverage, with Martell being a dependent on his husband’s plan.
Martell has been denied coverage for his testosterone treatments, as well as visits to his doctor’s office.
Not only have Martell and McNemar had to pay out of pocket for the coverage, but Martell, at times, has either had to delay or altogether forego treatment.
“It is both humiliating and painful to be denied access to coverage for essential health care simply because of who I am,” Martell said. “For years, my husband has served as a dedicated public servant, and the health coverage we receive through the state employee health plan is a basic part of the compensation he earns through his job. The discriminatory exclusion, which bars me from care simply because I am transgender, denies state employees equal pay for equal work.”
With the 2020 election bringing GOP supermajorities in both chambers of the West Virginia Legislature, Andrew Schneider, executive director of Fairness West Virginia, said he and the organization believe equality is a nonpartisan issue. Schneider said the organization still plans to focus on legislative means to achieve equality for the LGBTQ population in West Virginia, beyond the scope of the lawsuit.
“West Virginia shouldn’t single out certain communities to deny health care coverage,” Schneider said Thursday. “These blanket exclusions are another hurdle that people shouldn’t have to jump over just to go to the doctor. The exclusions stop people from getting the care they need, which can be lifesaving. It’s time to ditch the exclusions and let doctors decide what care is best for their patients.”