Judge: Trial of Transgender Discrimination by West Virginia Employees May Continue | News, Sports, Jobs


CHARLESTON – Efforts by a private health insurance company to dismiss a federal lawsuit brought by two public employees over the state’s ban on hormone replacement coverage were dismissed on Monday.

U.S. District Court Judge Robert Chambers issued a notice and order on Monday dismissing a West Virginia health plan petition filed in January to dismiss a lawsuit brought by state employees Zachary Martell and Brian McNemar. Another state employee, Christopher Fain, is also part of the lawsuit.

Martell and McNemar allege that the state’s blanket ban on covering hormone replacement therapy, used to treat gender dysphoria, is discriminatory.

McNemar, a public employee insured by the State Public Employees’ Insurance Agency, and his wife, Zachary Martell, allege that PEIA denied them access to hormone replacement therapy. McNemar and Martell have health care coverage through The Health Plan – a PEIA contractor that also prohibits treatment coverage for gender dysphoria.

Hormone replacement therapy often uses prescription drugs, such as testosterone, to treat gender dysphoria. McNemar and Martell, a transgender man, were forced to pay for testosterone out of pocket, while testosterone is covered for cisgender men. They allege that this is a violation of the federal Patient Protection and Affordable Care Act, the 2010 law which also includes provisions prohibiting discrimination.

The health plan filed the motion to dismiss the case on January 11. Their lawyers argued that since McNemar’s plan received no federal funding and therefore fell outside the ACA’s prohibition of discrimination.

Fatal for their cause of action is that: (A) the health plan is not accountable to Zachary Martell because his plan is NOT subject to scrutiny under the nondiscrimination provision of the ‘ACA, and (B) the health plan is not responsible to Brian McNemar because his claims are derived from his wife’s claims, ” wrote Stewart McMillan, an attorney for The Health Plan. “For these reasons alone, this Court should dismiss The Health Plan from this lawsuit. “

Chambers disagreed, citing The Health Plan’s participation in the Medicaid Advantage program as proof that the health care provider had received federal funding.

“By extending non-discrimination protections to individuals under ‘any health program or activity’, Congress clearly intended to prohibit discrimination by any entity operating within the ‘health’ system,” Chambers wrote. “Here, The Health Plan’s role as a health insurance provider undoubtedly involves the health of those within ACA’s coverage.

“For example, in the present case, the plaintiff Martell alleges that the exclusion from the health plan limited his access to health care because of his power to design health benefits”, The rooms continued. “Therefore, as the custodian of Martell’s health services, the health plan is viewed as a ‘health program’ which Congress intended to eliminate from discrimination.”

Chambers rejected previous petitions to dismiss the case filed in May by the PEIA; as well as DHHR in regards to Fain, who brought an action against DHHR for refusing to cover surgeries to treat gender dysphoria – a condition that causes anxiety and discomfort in people who think they are of the opposite sex at birth.

Fain, McNemar and Martell are represented by the Parkersburg Employment Law Center, the Minneapolis-based Nichols Kaster law firm, and the Lambda Legal Defense and Education Fund. Lambda defends the rights of LGBTQ and transgender people.

Steven Allen Adams can be contacted at [email protected]

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