West Virginia asks Supreme Court to allow Medicaid to deny coverage for gender-affirming surgery

West Virginia will take its fight over whether its Medicaid program must cover gender-affirming surgeries to the Supreme Court, the state’s Republican attorney general announced Thursday.

“Once again, the state of West Virginia is going to the U.S. Supreme Court,” Attorney General Patrick Morrisey said at a news conference in Bridgeport, W.Va.

The announcement is the latest development in a legal battle that’s been ongoing since 2020, when three transgender men alleged in a class-action lawsuit that West Virginia’s refusal to cover transition surgeries violates federal antidiscrimination laws.

A federal judge in 2022 ordered the state to cover the procedures, a decision the 4th U.S. Circuit Court of Appeals affirmed in April . In the 4th Circuit ruling, Judge Roger Gregory, an appointee of former President Clinton, wrote that West Virginia’s exclusion — as well as a similar North Carolina policy — is “obviously discriminatory” and violates the Medicaid Act and the Affordable Care Act.

Morrisey and other state officials maintain West Virginia’s policy barring coverage of gender-affirming surgeries reflects cost concerns, not an antitransgender animus.

“We’re not a rich state. We can’t afford to do everything, and that’s one of the challenges that we have with this mandate. There’s only so much money to go around, and spending money on some treatments necessarily takes it away from others,” Morrisey, who is running for governor of the state, said Thursday.

“Our state’s Medicaid program made a reasonable decision to reserve scarce funding for medically necessary treatments, not elective surgeries,” he said, adding that the decision was made to ensure adequate resources for people with heart disease, diabetes and other medical conditions.

Major medical organizations argue gender-affirming care is medically necessary, though not every trans person chooses to transition medically or has access to care. In April, Shauntae Anderson, a transgender woman and plaintiff in the class-action lawsuit challenging West Virginia’s Medicaid exclusion, said her state’s refusal to cover gender-affirming surgeries is “deeply dehumanizing” and needlessly restricts access to essential health care.

Morrisey, whose run for governor is endorsed by former President Trump, continues to veer to the right on transgender issues, often referring to transgender women as “men” and capitalizing on misinformation surrounding gender-affirming health care in campaign ads.

Thursday’s appeal to the Supreme Court, he said, could have national significance.

“This is a case that we think should be heard by the U.S. Supreme Court because it’s interpreting a major federal law, the Medicaid Act, and it presents a nationally important constitutional question: whether Medicaid or any state-related insurance program must cover all transgender care,” Morrisey said Thursday.

The request is West Virginia’s third Supreme Court filing over the past month. The state is also asking the court to review a lower court ruling preventing it from enforcing a 2021 law that bars transgender student-athletes from competing in sports and to block the Environmental Protection Agency’s new power plant rules.

The Supreme Court last year rejected a request by Morrisey to allow the state to enforce its trans athlete ban, though Justices Samuel Alito and Clarence Thomas said they would have heard the case.

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