Transgender rights supporters and opponents gather in front of the U.S. Supreme Court as the Supreme Court hears arguments in a transgender health rights case in December 2024 in Washington, D.C. An appeals court ruling in featherlight of that case, USA v. Skrmetti, upheld West Virginia’s ban on Medicaid coverage for adult gender-affirming surgeries. Experts say this could have wide-ranging consequences. (Photo: Kevin Dietsch/Getty Images)
Last month’s ruling by a U.S. appeals court upholding West Virginia’s ban on Medicaid coverage of adult gender-affirming surgeries could embolden other states seeking to impose similar restrictions.
In March, the 4th U.S. Circuit Court of Appeals overturned a lower court’s decision in Anderson v. Crouch, which had struck down West Virginia’s ban on Medicaid for adult gender-affirming surgery. A lower court ruled that the ban was discriminatory.
The decision comes after the Supreme Court last year upheld Tennessee’s ban on gender-affirming youth care USA v. Skrmetti. The court then reversed several lower court decisions and remanded the cases – including the West Virginia case – for reconsideration in featherlight of the Supreme Court’s opinion in the Tennessee case.
In response, a modern ruling in West Virginia expands the Supreme Court’s argument to include the state’s ban on using Medicaid for adult gender-affirming surgery. The justices wrote that West Virginia’s policy applies only to certain procedures, saying it does not target specific people or a protected status such as gender.
In a unanimous opinion, the three-judge appellate panel wrote: “(It) is not irrational for the legislature to encourage citizens to ‘appreciate their sex’ and not ‘disdain their sex’ by refusing to fund experimental procedures that may have the opposite effect.” The panel added: “The Supreme Court’s decision in Skrmetti precludes any argument to the contrary.” The plaintiffs filed a motion for reconsideration of the case by the full bench.
Some research shows that providing people with care that is consistent with their gender identity is associated with overall better well-being and mental health. Gender-affirming care includes a range of services, including hormone replacement therapy, removal or augmentation of the chest and genitals, and facial surgery.
Experts say that while the West Virginia ruling technically sets a precedent only for 4th Circuit states, it could embolden and influence other states that intend to impose similar limits on public funding for gender-affirming medical treatment for adults. Also agrees with rotation federal directives issued by President Donald Trump, including his order that federal agencies only recognize a biological, binary definition of gender.
“This gives states the freedom to pass laws that would potentially limit access to gender-affirming care for transgender youth and adults,” said Elana Redfield, director of federal policy at the Williams Institute, a think tank at the University of California, Los Angeles School of Law. “This could encourage states to adopt more broader bans, including bans on Medicaid, even for adults.”
According to the Williams Institute, an estimated 152,000 transgender adults are covered by Medicaid, but less than half live in states that guarantee gender-affirming care. About 29% of LGBTQ+ people live in these states exclude according to the Movement Advancement Project, a think tank that also tracks the legislation.
Carmel Shachar, assistant professor of law and faculty director of the Health Law and Policy Clinic at Harvard Law School, called Anderson v. Crouch “a significant early case in the post-Skrmetti landscape.”
“(The ruling) definitely has an impact,” she added, saying it was “a sign of which way the winds are blowing right now in terms of state policy.”
Reuters reported that at least seven other states faced lawsuits over banning or limiting insurance coverage for gender-affirming care. According to the Movement Advancement Project, a think tank supporting LGBTQ+ rights, 27 states explicitly include gender-affirming care in their Medicaid coverage policies, and 11 states explicitly prohibit the operate of Medicaid funds for gender-affirming care for people of all ages.
Oklahoma intends to join that list. Republicans are progress legislation that would prohibit Medicaid funds from covering adult gender-affirming care. The bill would also prohibit any organization or individual from using public money to pay for gender reassignment. It passed the Senate last month and passed the House Oversight Committee last week by an 11-2 vote.
During a floor debate this month, Oklahoma Republican Ellen Pogemiller, a Democrat, asked the bill’s sponsor directly whether adults in private care who receive care in public hospitals would lose access to care. “These are serious concerns,” Pogemiller said, adding that she had received this question from constituents.
“Good point. I don’t have an answer for you,” replied state Rep. Erick Harris, a co-sponsor of the bill.
Pogemiller also cited a 2022 national survey conducted by The Trevor Project, which provides suicide prevention services for LGBTQ+ youth, that found 55% of transgender and nonbinary youth in Oklahoma seriously considered suicide in the previous year. The tests on whether gender-affirming care prevents suicide in children or adults is ambiguous.
“Are you concerned about legislation like this leading to an increase in suicide rates among youth and adults?” she asked.
“I’m concerned that public funds will be used for things they shouldn’t be used for,” Harris said. “That’s what I’m worried about.”
Shannon Minter, legal director at the National Center for LGBTQ Rights, said the West Virginia ruling could lead to more discrimination.
“It encourages states to find creative ways to discriminate against other groups of people and disguise it as mere regulation of health care,” Minter said. “It is dangerous when the law and the courts refuse to recognize this type of blatant discrimination.”
Hailey Briggs is the executive director of Oklahomans For Equality, an organization serving the state’s LGBTQ+ community that runs support groups and an LGBTQ+-affirming clinic that offers hormone replacement therapy. In her opinion, the bill is causing increasing fear in society. Since the beginning of this year’s legislative session, the clinic has seen four to six modern patients a week, some driving from long distances, and mental health referrals have increased.
“This entire legislative session in particular has been just absolutely brutal for citizens,” she said.
The bill “is not a narrow policy change,” Briggs continued. “We see this as a really large-scale attempt to push primary care out of reach for many people.”
The organization expects an augment in patient volume and insurance denials if the bill becomes law because the clinic is not federally or state funded and offers low-cost care. “We are working to supplement benefits for people who are uninsured or underinsured,” Briggs said. “They will be turned away from trusted providers in state-funded institutions.”
Texas is one of the states that prohibits Medicaid coverage of such care for people of all ages. Andrea Segovia, senior director of field and policy affairs for the Transgender Education Network of Texas, said such policies create an ongoing “chilling effect.” Her team is hearing more and more about insurance denials, she said.
“They are seen as cosmetics. They are considered not necessary,” Segovia said of some medical procedures. “Someone will email us and say, ‘I lost my insurance,’ or ‘I got this letter from my insurance.’
Harvard Law School’s Shachar says the Fourth Circuit’s ruling could make it easier to deny coverage.
“Private insurers would still be free to cover these services even if Medicaid doesn’t cover them. But I think an insurer that doesn’t want to cover these services might feel a little more comfortable after this case,” Shachar said. “It definitely opens the door for insurers to (say), ‘Medicaid doesn’t cover this, we don’t want to cover this.’
The opinion was issued last month by Republican Texas Attorney General Ken Paxton prohibited mental health care providers from helping transition youth care and stated that anyone who assists in such care is “committing child abuse.” But now even adults have told Segovia’s team that mental health therapists treat them as patients.
“Many people – adults – lost their mental health care provider because (providers) feared the attorney general would attack them and their license,” Segovia said. “It just caused a lot of confusion among our specialists.”
Stateline reporter Nada Hassanein can be reached at: nhassanein@stateline.org.
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