The 4th U.S. Circuit Court of Appeals issued a ruling on Monday requiring state health insurance plans to pay for gender transition surgeries, a decision that comes amid a nationwide struggle over transgender healthcare policy.
The ruling came in a set of cases in West Virginia and North Carolina, in which state officials justified not covering the surgeries, including double mastectomies and vaginoplasties, on the basis of cost rather than on considerations related to gender identity and expression.
In the majority opinion, Judge Roger Gregory called the restrictions “obviously discriminatory” based on both sex and gender.
West Virginia’s Medicaid program has banned “transsexual surgeries” by law since 2004. In 2020, a class action suit was filed on behalf of trans-identified Medicaid recipients in the state to challenge the law.
In North Carolina, state employees filed suit in 2019, arguing that the North Carolina State Health Plan discriminated against transgender patients by excluding coverage for gender transition medicine. The law specifically prohibits the coverage of “surgical procedures or treatments related to a patient’s transgender status.”
Plaintiffs in North Carolina and West Virginia were represented by the same organization, Lambda Legal.
The majority for the court said the language used by West Virginia and North Carolina was still discriminatory on the basis of gender identity, even if it did not explicitly use the phrase “transgender” or reference a protected class.
“A law is not facially neutral simply because, in place of explicit references to protected identities, the law uses different words that mean the same thing,” Gregory wrote. “Rewording the policies to use a proxy … does not make the classification covert.”
The court’s decision comes following a string of cases on expanding transgender rights, including the recognition of gender dysphoria as a protected disability. Earlier this month, the court ruled in a separate case that a federally funded middle school could not prohibit a trans-identified, biological male 13-year-old from participating on the girls’ track and field team.
North Carolina and West Virginia argued that their coverage limitations were not biased and solely based on procedure costs.
Surgeries for gender transition are medically complicated and can cost thousands of dollars without insurance, depending on the state.
Phalloplasty, or the construction of a phallus from female genitalia, generally costs between $25,000 and $35,000. Vaginoplasty, or the creation of female genitalia using male anatomy, can cost upward of $40,000.
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Double mastectomies for noncovered conditions, such as severe breast cancer, can cost between $5,000 and $12,000.
The case could be challenged at the Supreme Court level, but the high court is reluctant to take up cases unless two or more appellate courts disagree.
