West Virginia Asks Supreme Court to Block Medicaid Funds for Transgender Surgery

West Virginia Attorney General Patrick Morrisey speaks at an event in Inwood, W.Va., on Oct. 22, 2018. Win McNamee/Getty Images

West Virginia is fighting for its right not to pay for elective gender-altering surgeries under its Medicaid program, and state officials have brought their case all the way to the U.S. Supreme Court.

“Just one single sex-reassignment surgery can cost tens of thousands of dollars—taxpayers should not be required to pay for these surgeries under Medicaid,” West Virginia Attorney General Patrick Morrisey said in a statement.

Mr. Morrisey has petitioned the Supreme Court to take up a case that West Virginia lost on appeal over its decision to exclude coverage for certain types of transgender medical procedures.

Decades ago, West Virginia decided to limit Medicaid coverage for certain medical services, including the use of what it calls “transsexual surgeries” to treat gender dysphoria, in a bid to control spiraling Medicaid costs. However, it continued to cover the same type of surgeries for non-gender dysphoria diagnoses, such as mastectomies to treat breast cancer.

The state also continued to provide many covered treatments for gender dysphoria, including psychiatric diagnostic evaluation, psychotherapy, and hormone treatment.

West Virginia’s decision to deny coverage for surgeries related to gender dysphoria led to claims of discrimination. In 2020, the state was hit with a class action lawsuit alleging that West Virginia’s decision to exclude coverage for gender-altering surgeries violated the Affordable Care Act, Medicaid law, and the Equal Protection Clause of the 14th Amendment.

Two additional plaintiffs were added to the case in 2021, with an amended complaint arguing that, with its coverage exclusions, West Virginia was unlawfully discriminating on the basis of sex and transgender status.

“Defendants categorically deny gender-confirming care to transgender Medicaid participants, even though it is medically necessary and can be life-saving, while routinely providing cisgender participants the same treatments,” reads the complaint.

West Virginia’s central counterargument was that the coverage exclusions are related to legitimate government interests, namely not to waste taxpayer dollars on what it argued were not medically necessary surgeries, and that the exclusions did not discriminate against transgender individuals as a class because they focused on types of treatments for certain diagnoses, not people.

Circuit Court Ruling

The case eventually made its way to the U.S. Court of Appeals for the Fourth Circuit, which in April 2024 ruled in an 8–6 split decision that West Virginia’s denial of coverage for gender-altering surgeries for transgender patients was discriminatory and unconstitutional.

Judge Roger Gregory wrote in the majority opinion that “discriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex.”

Three judges filed dissenting opinions. Judge Harvie Wilkinson argued that “the science behind gender dysphoria care is far from settled,” expressing sympathy with the notion that gender-altering surgeries to treat gender dysphoria were not indisputably medically necessary.

Following the appellate court ruling, West Virginia was widely expected to appeal to the Supreme Court.

In announcing the filing of a 49-page petition for a writ of certiorari to the high court, the West Virginia attorney general told reporters at a press conference that the state’s decision to deny Medicaid coverage for gender-altering surgeries to treat gender dysphoria is about reserving scarce funding for “medically necessary treatments, not elective surgeries.”

“The state’s Medicaid program is saying no to the transsexual surgery,” he said. “It’s a state that’s trying to help ensure that we’re covering people with heart disease, with diabetes, and all sorts of medical conditions.”

Mr. Morrisey argued that West Virginia is entitled to have priorities on how it sets up its Medicaid program and that he believes the Fourth Circuit incorrectly applied a more stringent standard of review for the case. He also disputed the effectiveness of gender-altering surgeries to treat gender dysphoria.

“The evidence is very shaky and they’re very costly. So West Virginia should not have to cover these procedures,” he said. “Plain and simple.”

West Virginia is asking the Supreme Court to review the case because it presents a nationally important constitutional question and it interprets a major federal law, Mr. Morrisey argued.

Lambda Legal, which represented the plaintiffs in the class action lawsuit, did not respond to a request for comment before publication time.