W.V. Medicaid recipients, state workers sue over transgender healthcare coverage

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A transgender woman in a hospital gown being treated by a doctor. (Photo by Zackary Drucker as part of Broadly's Gender Spectrum Collection. Credit: The Gender Spectrum Collection. Made available to media outlets via Creative Commons. No derivatives, no commercial use. See guidelines here: broadlygenderphotos.vice.com/guidelines)

CHARLESTON, W.V. — A lawsuit challenging West Virginia’s ban on gender-confirming health care was filed last month.

West Virginia does not allow for transgender healthcare issues on the state’s Medicaid program or state employee health insurance.

The suite was filed by Lambda Legal, Nichols Kaster, PLLP, and the Employment Law Center, PLLC. The lawsuit was filed in the U.S. District Court for the Southern District of West Virginia on behalf of Christopher Fain, a Medicaid participant; and Zachary Martell and Brian McNemar, a dependent and state employee, respectively.

“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.” said Avatara Smith-Carrington, Tyron Garner Memorial Fellow at Lambda Legal and lead attorney on the case, in a press release. 

The case, Fain v. Crouch, is a class action challenging the blanket ban.

“No one should have the door slammed on them while they’re just trying to access basic healthcare. 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 okay.” said Christopher Fain, who was born and resides in West Virginia. 

“It is both humiliating and painful to be denied access to coverage for essential healthcare simply because of who I am. 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,” said Zachary Martell, a student at Mountwest College in Huntington, West Virginia. 

Fain studies nonprofit leadership at Marshall University and works at a clothing store in Huntington. He is enrolled in Medicaid, but the program does not cover his testosterone prescription, forcing Fain to cover the cost of his care out-of-pocket, creating a stressful and inequitable financial burden. The lawsuit alleges that the plan’s exclusion of coverage for his care has caused Fain economic hardship and humiliation.

Zachary Martell is married to Brian McNemar, who works as an accountant at a state hospital. Both Martell and McNemar rely on the state employee health plan for coverage. Martell—who receives coverage for care as McNemar’s dependent — has been denied coverage both for his prescriptions and office visits with his healthcare provider because the state employee health plans explicitly exclude coverage of “treatments associated with gender dysphoria.” As a result, Martell and McNemar have been forced to pay out-of-pocket for Mr. Martell’s care and, at times, even delay or forego care altogether. 

“West Virginia shouldn’t single out certain communities to deny health care coverage. 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,” said Andrew Schneider, executive director of Fairness West Virginia.

Read the complaint: https://www.lambdalegal.org/in-court/legal-docs/fain_wv_20201112_complaint.

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