Coverage Of Gender-Affirming Care Is An Unequal Patchwork

Lawsuits brought by transgender employees show how state agencies fight against paying for gender-affirming care for some people while others are covered.
FRANKFORT, KY - MARCH 29: Sarah Newton stands with a trans pride flag during a rally to protest the passing of SB 150 on March 29, 2023 at the Kentucky State Capitol in Frankfort, Kentucky. SB 150, which was proposed... FRANKFORT, KY - MARCH 29: Sarah Newton stands with a trans pride flag during a rally to protest the passing of SB 150 on March 29, 2023 at the Kentucky State Capitol in Frankfort, Kentucky. SB 150, which was proposed by State Senator Max Wise (R-KY), is criticized by many as a "Don't Say Gay" bill and was vetoed by Kentucky Governor Andy Beshear during the General Assembly. Lawmakers may override this veto, passing the bill into law. (Photo by Jon Cherry/Getty Images) MORE LESS
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This article was originally published at ProPublica, a Pulitzer Prize-winning investigative newsroom.

Transgender people who are trying to get their insurance plans to cover their transition-related health care face a fragmented landscape.

Consider: A transgender retiree on the state of Arizona’s health insurance plan is generally covered for transition-related surgery. But an active state employee is not.

Some of the health plans that the state of West Virginia offers its employees do cover transition-related care, but others don’t.

If you’re a transgender employee of Georgia’s state university system, you are covered for gender-affirming care by its insurance plan, but other state employees don’t have that coverage.

The discrepancies illuminate the challenges transgender people face in accessing and affording gender-affirming care, which can include services like long-term hormone therapy and chest and genital surgery. Major medical associations recognize the necessity of those services for transgender people and the harm that can result from prohibiting them. Meanwhile, as conservative state lawmakers propose and pass restrictions on gender-affirming care for both children and adults, transgender people are watching their options for care narrow even further.

“We still have a lot of people who think that this stuff isn’t real or that it’s immoral or sinful and that it shouldn’t be covered,” said Christine Yared, an attorney who has represented transgender plaintiffs against employers that don’t cover gender-affirming care. Changes to these policies, she said, often result from “pressure from the ground up.”

Within some states, different state agencies have made conflicting decisions — either voluntarily or as a result of lawsuits — on whether their various health plans will cover gender-affirming care.

Federal courts have consistently ruled that employers cannot categorically exclude gender-affirming care from health care plans, often referencing federal policies on employment and health care discrimination. ProPublica previously reported that two states — North Carolina and Arizona — and a county in Georgia each spent in excess of $1 million to fight employees seeking coverage for gender-affirming care. The state of North Carolina and Houston County, Georgia, now must offer that care, after rulings in those cases; both are appealing.

But while lawsuits can force employers, including states, counties and big corporations, to cover such care, legal wins sometimes apply narrowly, extending to some of an employer’s transgender members and excluding others.

As a result of another Georgia lawsuit, filed in 2018, the state’s university system agreed to a settlement that awarded the plaintiff $100,000 and began providing coverage for gender-affirming care under the university system’s plan. Transgender employees are now suing the state of Georgia to get it to offer coverage of gender-affirming care through all state insurance plans.

“Lacking any justified or justifiable reason, the only conceivable purpose of the Exclusion is to single out transgender people undergoing a gender transition for inferior compensation as compared to their colleagues, and to avoid covering a stigmatized form of health care,” the complaint against Georgia alleges.

A spokesperson for the Georgia Department of Community Health and State Health Benefit Plan, both defendants in the case, declined to comment on ongoing litigation.

A transgender person working for Arizona’s state government cannot get coverage for gender-affirming surgery — until they retire and sign on to the state retirement system’s health plan. The two plans are administered by separate state departments. The retirement system chose to cover gender-affirming care “for the benefit of our retiree cohort,” said spokesperson David Cannella.

Arizona’s Department of Administration, which oversees the employee health plan, for years had fought to keep excluding gender-affirming care from coverage, even when faced by a federal lawsuit. Arizona is now finalizing a settlement agreement with the plaintiff, a University of Arizona professor. Arizona state officials did not respond to ProPublica’s request for comment by the time of publication.

In 2020, several transgender public employees in West Virginia sued the state to demand it provide coverage of gender-affirming care. One of its health insurance providers agreed to a settlement with employees and began covering the care last year.

But the state Public Employees Insurance Agency, which offers its own health plan options, didn’t agree to settle — and that part of the case stopped short when the plaintiff, a computer technician for a county school board, died unexpectedly last year. Her lawyers agreed with family members to dismiss her claims.

Now West Virginia offers public employees four health insurance choices that don’t cover gender-affirming care and three that do.

Avatara Smith-Carrington, a Lambda Legal lawyer who represented the West Virginia plaintiffs, said it is their hope that another transgender employee will step up to file a lawsuit against the organization that provides the other plans. “It should be challenged,” Smith-Carrington said.

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