Morrisey to challenge ruling regarding transgender healthcare to U.S. Supreme Court
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CHARLESTON - Attorney General Patrick Morrisey said Monday he would challenge another decision of a federal appeals court to the U.S. Supreme Court after it said West Virginia could not deny Medicaid coverage for gender reassignment surgeries.
In an 8-6 decision, the U.S. Court of Appeals for the 4th Circuit ruled Monday in favor of Shauntae Anderson and a defendant in North Carolina, where laws and regulations were blocking the defendants from access to gender reassignment surgeries. The decision paves the way for state managed healthcare plans to pay for these kinds of surgeries.
Anderson was challenging the former state Department of Health and Human Resources and a 2004 law that bans the state's Medicaid program from using taxpayer dollars from paying for transgender surgeries, though state Medicaid does cover medication for gender-affirming care for adults.
While attorneys for DHHR argued that the ban on gender reassignment surgeries was due to the cost, the fourth circuit said the ban was a form of discrimination since in West Virginia, Medicaid does pay for similar surgeries when not being used for gender reassignment, such as mastectomies and breast reduction surgeries. The fourth circuit decision upholds the decisions of lower federal courts that ruled in the defendant's favor.
The majority opinion was penned by Judge Roger Gregory, a 1975 graduate of West Virginia University, who was appointed by former President George W. Bush in 2001.
"The North Carolina and West Virginia appellants' central argument is that the coverage exclusions do not discriminate against a suspect or quasi-suspect class and are rationally related to legitimate government interests," Gregory wrote. "Because we hold that the coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest, we affirm the district courts. We further hold that the West Virginia exclusion violates the Medicaid Act and the Affordable Care Act."
In a statement Monday, Morrisey said he would appeal the appeals court decision to the U.S. Supreme Court. He blamed the decision on judges appointed by Democratic presidents, including former President Barack Obama and current President Joe Biden.
"We are confident in the merits of our case: that this is a flawed decision and states have wide discretion to determine what procedures their programs can cover based on cost and other concerns," Morrisey added. "Just one single sex-transition surgery can cost tens of thousands of dollars--taxpayers should not be required to pay for these surgeries under Medicaid. Our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens."
This is the second decision from the fourth circuit in nearly two weeks that Morrisey plans to appeal to the U.S. Supreme Court.
In a 2-1 decision on April 16, a fourth circuit appeals court panel blocked enforcement of House Bill 3293, which requires student-athletes in middle school, high school or college to participate in sports that match the student's sex assigned at the time of their birth. Instead of appealing to the full fourth circuit, Morrisey announced at an April 24 press conference that he would appeal to the U.S. Supreme Court.
Bridgeport Middle School student-athlete Becky Pepper-Jackson - a transgender girl - filed suit against the 2021 law when it prevented her from joining her schools track and cross-country team. A U.S. Supreme Court decision allows Pepper-Jackson to participate in school sports pending the outcome of the case.
Five girls on a track team of another middle school in Harrison County went viral less than two weeks ago after they refused to throw shot put against Pepper-Jackson as a First Amendment protest. Those girls are now suing, claiming Harrison County Schools violated their First Amendment rights after they were prohibited from further competitions following their protest. Morrisey filed a friend of the court brief on their behalf over the weekend.
"The only thing this decision does is teach these children to keep their mouths shut and not disagree with what they saw as unfairness," Morrisey said. "That is outrageous and it tramples these students' rights to freedom of speech and expression."