Christopher Fain (left) and Zachary Martell and Brian McNemer (right). (Photo Credit: Lambda Legal)

HUNTINGTON, W. Va. — 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 on Nov 12. 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 non-binary 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 non-binary West Virginians basic dignity, equality, and respect,” said Avatara Smith-Carrington, Lambda Legal lead attorney on the case.

Fain v. Crouch is a class action lawsuit challenging blanket exclusions of coverage for gender-confirming care in West Virginia’s state health plans.

“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 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.

Fain studies nonprofit leadership at Marshall University and works at a clothing store in Huntington. He is enrolled in Medicaid, but the program does not cover his testosterone prescription, forcing Fain to cover the cost of his care out-of-pocket.

Martell is married to Brian McNemar, who works as an accountant at a state hospital. Both Martell and McNemar rely on the state employee health plan for coverage. Denial has been issued for coverage for prescriptions and office visits because the state employee health plans exclude coverage of “treatments associated with gender dysphoria.” As a result, Martell and McNemar have been forced to pay out-of-pocket for Martell’s care and, at times, even delay or forego care altogether.

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.


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Lainey Millen

Lainey Millen was formerly QNotes' associate editor, special assignments writer, N.C. and U.S./World News Notes columnist and production director from 2001-2019 when she retired.