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A federal judge last week ruled that The Health Plan of West Virginia is subject to compliance to a specific provision under the Affordable Care Act that prohibits sex discrimination, including against transgender Americans.

The Health Plan of West Virginia is a private company that provides health insurance services for the state. U.S. District Judge Robert Chambers on June 28 denied a motion from The Health Plan to dismiss a lawsuit from two transgender men who say their state-funded health insurance won’t cover hormone replacement therapy solely because they are transgender.

Christopher Fain and Zachary Martell filed a lawsuit challenging blanket exclusions of coverage for gender-confirming health care in West Virginia’s health plans, the state’s Medicaid program and the Public Employees Insurance Agency, or PEIA, in November 2020.

The case is pending in U.S. District Court in the Southern District of West Virginia.

Martell receives health care coverage through his husband, Brian McNemar, who is a public employee and receives benefits through PEIA.

Their respective health care insurance providers have denied Fain and Martell, both of Huntington, coverage for their testosterone prescriptions because neither West Virginia Medicaid nor PEIA covers “treatments associated with gender dysphoria,” they said in the class-action lawsuit.

Not only have Martell and McNemar had to pay out of pocket for the coverage, but Martell, at times, has either had to delay or forgo treatment, he said in the lawsuit.

The men are seeking a permanent injunction that would require the state agencies to provide coverage for treatments for all gender-confirming health care treatment, as well as other compensatory damages and attorneys’ fees.

In the motion to dismiss the case, attorneys for The Health Plan argued that the health insurance company should be dismissed as a defendant because Martell and McNemar didn’t allege that their specific health care plan was supported by federal money through the Affordable Care Act, meaning it wasn’t subject to the anti-discrimination provision in the law.

The Health Plan’s attorneys also argued that Martell’s claim against the company should be dismissed because his claim is through his husband’s health insurance, making him a secondary party to any issues with the plan.

The Health Plan’s attorneys specifically relied on a definition of “health program or activity” as it pertains to Section 1557 of the Affordable Care Act, which prohibits discrimination in health care on the basis of sex and other characteristics.

The Trump administration narrowed the definition of “health program or activity” to include entities “principally engaged in the business of providing health care.

In denying the motion, Chambers said that, without clarity in the law from Congress, existing legal precedent keeps the definition of “health program or activity” open to interpretation. He noted that The Health Plan did receive federal financial assistance through its Medicare Advantage program, making it accountable to the provisions of Section 1557.

“Congress clearly intended to prohibit discrimination by any entity acting within the ‘health’ system,” Chambers said in his order. “Here, The Health Plan’s role as a health insurance provider undoubtedly implicates the health of persons falling within the scope of [Affordable Care Act] protections.”

In addition to The Health Plan of West Virginia, other defendants named in the lawsuit are Bill Crouch, secretary of the state Department of Health and Human Resources; Cynthia Beane, commissioner for the state Bureau of Medical Services; PEIA director Ted Cheatham; and the DHHR’s Bureau for Medical Services.

Reach Lacie Pierson at


.com, 304-348-1723 or follow @laciepierson on Twitter.

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