The Center for Medicare Advocacy has co-authored an amicus brief with the National Health Law Program (NHeLP) in support of West Virginia Medicaid beneficiaries seeking coverage of medically necessary gender affirming care. In Fain v. Crouch, 2022 WL 3051015, at *14 (S.D.W. Va. Aug. 2, 2022), a federal district court held that excluding coverage of gender affirming surgery as a treatment for gender dysphoria “invidiously discriminates on the basis of sex and transgender status.” The court determined that West Virginia’s Medicaid program is violating the Equal Protection Clause of the Constitution, the Affordable Care Act, and the Medicaid Act. The state appealed.
In their brief to the Fourth Circuit Court of Appeals, NHeLP and the Center explain that Medicaid coverage of gender affirming care is not optional, and correct West Virginia’s assertions about Medicare’s coverage of such care. Medicare revoked a nationwide ban on coverage of gender affirming surgery in 2014, finding the care to be “safe and effective.” In its appeal, West Virginia argues that Medicare’s 2016 decision not to issue a national policy on coverage of gender affirming surgery is relevant to whether Medicaid should cover the service. However, while Medicare declined to issue a national policy on coverage of such care, most medical services covered by Medicare are not governed by national policies. Moreover, Medicare does cover gender affirming surgery when it is reasonable and necessary for the individual beneficiary.
Amicus briefs in support of coverage were also submitted by the American Medical Association, the American Psychiatric Association, the Endocrine Society, the National Association of Nurse Practitioners in Women’s Health, and a group of constitutional law professors, among others.