A federal appeals court is considering two cases out of North Carolina and West Virginia that could have significant implications on whether individual states are required to cover health care for transgender people with government-sponsored insurance.
The Richmond-based 4th U.S. Circuit Court of Appeals heard oral arguments in cases Thursday involving the coverage of gender-affirming care by North Carolina’s state employee health plan and the coverage of gender-affirming surgery by West Virginia Medicaid.
A group of people who were denied coverage sued the North Carolina State Health Plan that covers more than 750,000 state employees and dependents. They claim their equal protection rights under the Fourteenth Amendment were violated.
A lower court agreed with the transgender plaintiffs, but the Fourth Circuit agreed to hear the appeal. The court decided all 14 judges should hear the case. This is called an en banc hearing, and is unusual at the appellate court level. Regardless of how the court rules, the case could be appealed to the U.S. Supreme Court.
In court on Thursday, N.C. State Health Plan lawyer John Knepper argued there can't be discrimination because these procedures are not covered for anyone on the plan, so everyone is treated equally. He argued health plans make all sorts of difficult decisions about not covering certain procedures.
"The distinctions here are based on diagnosis and treatment, the same kinds of distinctions that (the) insurance plan makes in every other context, rather than on the individual's identity, or the individual applicants as a person," he said.
The plan stressed that it does not forbid any of these procedures, it simply does not pay for them, though judges noted that if an insurance plan does not pay for a procedure, the reality for many people is that the procedure is out of reach.
But lawyers for the transgender plaintiffs say it specifically discriminates against them because they are the only ones seeking this care.
"Defendants have yet to offer a persuasive argument for how a ban on sex changes is somehow not based on sex," said Tara Bonelli, a lawyer representing the transgender plaintiffs.
The full Fourth Circuit also heard a case involving West Virginia Medicaid in which that plan also denied coverage for some gender transition care.
The court did not give a timeline for when it might issue a ruling.
The Associated Press contributed to this report.
