The US Court of Appeals for the Fourth Circuit Tuesday heard oral arguments on whether the West Virginia Medicaid Program’s denial of gender-affirming surgery for individuals with gender dysphoria violates the Affordable Care Act, Medicaid Act and Equal Protection Clause under the US Constitution’s Fourteenth Amendment.

Caleb David, attorney for the state defendants, argued that West Virginia’s program treats everyone equally and provides the same amount of coverage to both trans and cis gender participants who seek treatment under the same diagnosis. Judge Diana Gribbon Motz asked the defense whether transgender men and cisgender women are equally situated, regardless of their diagnosis, when they seek similar medical care. David responded by saying that the insurance industry and the Medicaid program define standards for coverage differently.

Tara Borelli, the attorney for the plaintiffs, responded to Judges Julius Richardson and Allison Jones Rushing’s questions regarding West Virginia Medicaid’s  refusal to cover surgeries for people who have been diagnosed with gender dysphoria by stating that gender dysphoria is a diagnosis that only pertains to transgender people. As a result, she argued that the exclusion of the surgeries only applied to particular people.

In David’s closing argument he reiterated that West Virginia Medicaid is not required to cover the surgeries even if it is deemed necessary.

Christopher Fain and Shauntae Anderson, the named plaintiff in the class action, brought the case against West Virginia state officials and the West Virginia Department of Health and Human Resources, Bureau for Medical Services. Fain and Anderson receive hormone therapy for their gender dysphoria diagnosis. Both plaintiffs wish to receive gender-affirming surgery, however West Virginia’s Medicaid Plan exclusion of transsexual surgery prohibits any transgender individual who is “diagnosed with gender dysphoria” from receiving “coverage for the surgical treatment of this diagnosis.”

The trial court found in favor of the plaintiffs and granted their motion for summary judgement. The trial court found that West Virginia Medicaid’s exclusion “invidiously discriminates on the basis of sex and transgender status.”