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West Virginians Sue Over State Ban on Gender-Affirming Health Coverage

Fain Martell McNemar

From left: Christopher Fain, Zachary Martell, and Brian McNemar, courtesy Lambda Legal

Lambda Legal has filed a class action lawsuit challenging West Virginia’s blanket exclusion of gender-confirmation coverage from its Medicaid and state employee health insurance programs.

Lambda filed the suit, Fain v. Crouch, Thursday in U.S. District Court for the Southern District of West Virginia on behalf of Christopher Fain, a Medicaid participant; Zachary Martell and Brian McNemar, a dependent and state employee, respectively; and, as the suit states, “all others similarly situated.”

Fain is a transgender man, college student, and retail worker. Medicaid does not cover his testosterone prescription, so he has to pay for that out of pocket. Martell, also a trans man and college student, is married to McNemar, who is an accountant for a state hospital. Martell receives health insurance under the state employee plan as McNemar’s dependent, but the insurance does not cover his prescriptions or office visits for gender-confirming care.

“No one should have the door slammed on them while they’re just trying to access basic health care,” Fain said in a Lambda Legal press release. “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 OK.”

Martell added, “It is both humiliating and painful to be denied access to coverage for essential health care 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.”

“Transgender and nonbinary West Virginians are denied coverage for essential and sometimes lifesaving gender-confirming care — while cisgender West Virginians receive coverage for the same kinds of care as a matter of course,” said Avatara Smith-Carrington, Tyron Garner Memorial Fellow at Lambda Legal and lead attorney on the case. “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.”

The plaintiffs are also represented by attorneys with the law firm of Nichols Kaster and the Employment Law Center. Defendants are the West Virginia Department of Health and Human Resources and its Bureau for Medical Services; William Crouch, secretary of the department; Cynthia Beane, commissioner of the bureau; Ted Cheatham, director of the West Virginia Public Employees Insurance Agency; and the Health Plan of West Virginia.

Lambda Legal has filed similar lawsuits against other states with employee health plans that have blanket exclusions for gender-confirming procedures. In March, it secured a victory for an Alaska state librarian denied coverage for her gender-confirming care. The same month, a U.S. district court judge denied an effort by the state of North Carolina to dismiss a lawsuit filed by Lambda Legal on behalf of North Carolina state employees and their dependents denied coverage for gender-confirming care.

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