West Virginia Medicaid Participants and State Employees File Lawsuit to Challenge Unlawful Ban on Transgender Health Care Coverage

(West Virginia -November 12, 2020) A federal lawsuit challenging West Virginia’s blanket exclusions of coverage for gender-confirming care in West Virginia’s Medicaid and state employee health insurance plans was filed today. The class-action 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 suit was filed by Lambda Legal, Nichols Kaster, PLLP, and the Employment Law Center, PLLC.

“Transgender and nonbinary West Virginians are denied coverage for essential, and sometimes life-saving, gender-confirming care—while cisgender West Virginians receive coverage for the same kinds of care as a matter of course. 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, who uses they/them pronouns.

Fain v. Crouch is a class action lawsuit challenging blanket exclusions of coverage for gender-confirming care in West Virginia’s state health plans. The blanket exclusions of coverage for care are stated expressly in the health plans offered to Medicaid participants and to state employees. West Virginia’s state health plans serve approximately 564,000 Medicaid participants and15,000 state employees.

“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, 44, 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.

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

Zachary Martell is married to Brian McNemar, who works as an accountant at a state hospital. Both Mr. Martell and Mr. McNemar rely on the state employee health plan for coverage. Mr. Martell—who receives coverage for care as Mr. 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, Mr. Martell and Mr. 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. The state’s civil rights advocacy organization recently released its annual Transgender Health Survey reporting that close to 45 percent of respondents experienced discrimination by medical or mental health providers, and 17 percent were outright refused care.

“West Virginia should be protecting its most vulnerable citizens by providing all Medicaid participants and state employees with access to essential healthcare. Instead, West Virginia uses blanket exclusions of coverage to deliberately discriminate against transgender people,” said Nichols Kaster attorney Nicole Schladt. “We are proud to represent the plaintiffs in this lawsuit—Mr. Fain, Mr. Martell, and Mr. McNemar—as they challenge West Virginia’s discriminatory exclusions and stand up for the state’s transgender and non-binary community.”

Lambda Legal has filed similar lawsuits against other states that include blanket exclusions for gender-confirming in state employee health plans. In March, Lambda Legal secured a victory for an Alaska state librarian denied coverage for her gender-confirming care. Also, in March, 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.

Avatara Smith-Carrington, Tara Borelli, Sasha Buchert, and Nora Huppert are handling the matter for Lambda Legal. They are joined by Anna Prakash and Nicole Schladt of Nichols Kaster, PLLP; and Walt Auvil of the Employment Law Center, PLLC.

Learn more about the case here: https://www.lambdalegal.org/in-court/cases/fain-v-crouch

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

Watch press conference: https://www.facebook.com/lambdalegal/videos/1649202958577499