The opinion
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CHRISTOPHER FAIN;
ZACHARY MARTELL; and
BRIAN MCNEMAR,
individually and on behalf of all others similarly situated,
Plaintiffs,
v. CIVIL ACTION NO. 3:20-0740
WILLIAM CROUCH, in his official capacity as
Cabinet Secretary of the West Virginia
Department of Health and Human Resources;
CYNTHIA BEANE, in her official capacity as
Commissioner for the West Virginia Bureau for
Medical Services;
WEST VIRGINIA DEPARTMENT OF HEALTH
AND HUMAN RESOURCES, BUREAU FOR
MEDICAL SERVICES;
TED CHEATHAM, in his official capacity as
Director of the West Virginia Public Employees
Insurance Agency; and
THE HEALTH PLAN OF WEST VIRGINIA, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant Ted Cheatham’s Motion to Dismiss the Complaint
(ECF No. 22), and Defendants William Crouch, Cynthia Beane, and the West Virginia Department
of Health and Human Resources, Bureau for Medical Services’ (collectively, “WVDHHR
Defendants”) Motion for Partial Dismissal of Plaintiffs’ Class Action Complaint (ECF No. 23) and
Motion to Dismiss (ECF No. 32). For the reasons stated below, the motions are DENIED.
Also pending before the Court is Plaintiffs’ Motion for Leave to file Sur-Reply (ECF No.
56). For good cause shown, this motion is GRANTED.
I. BACKGROUND
The putative Class Action Complaint asserts several claims, each of which is rooted in the
same theory: that Defendants discriminated against Plaintiffs by denying coverage for
gender-confirming health care. The Complaint defines “gender-confirming care” as health care
which “includes, but is not limited to, counseling, hormone replacement therapy, and surgical care
. . . . for the treatment of gender dysphoria—the clinically significant distress that can result from
the dissonance between an individual’s gender identity and sex assigned at birth . . . . ” Compl. ¶¶
1-2. According to the Complaint, these treatments are denied to transgender individuals despite
being available to cisgender individuals.1
Based on this overarching theory, the Complaint raises two types of individual and class
action claims: (1) those brought by Medicaid recipients against the WVDHHR Defendants and (2)
those brought by state employees and their dependents against Ted Cheatham, the Director of the
West Virginia Public Employee Insurance Administration, and The Health Plan, a health
maintenance organization permitted to offer health plans to state employees through PEIA.2
(1) WVDHHR Defendants
Christopher Fain, a transgender male, brings four discrimination claims individually and
on behalf of the proposed Medicaid Class against the WVDHHR Defendants. As a Medicaid
recipient, Fain relies on WVDHHR Medicaid plans for insurance coverage. However, Fain alleges
that he has been denied hormone replacement therapy and surgical care (double mastectomy),
despite needing that care to treat his gender dysphoria diagnosis. According to Fain, WVDHHR
has denied this treatment under its Medicaid Policy Manual, which excludes “[t]ranssexual
surgery” from coverage (the “Exclusion”). Compl. ¶ 61. Fain challenges the Exclusion as well as
1 The Complaint defines “cisgender” as “people who are not transgender.” Compl. ¶ 1 n.1.
2 The Health Plan filed a separate motion to dismiss (ECF No. 20), which the Court will
address in a subsequent opinion.
similar policies adopted by the three managed care organizations (“MCO”) in the Mountain Health
Trust system. This includes Fain’s MCO, UniCare, which excludes coverage for “[s]ex
transformation procedures and hormone therapy for sex transformation procedures.” Id. at ¶ 61.
Since lodging the Complaint, WVDHHR Defendants submitted an affidavit stating that,
“[i]n providing prior authorization services for the West Virginia Bureau of Medical Services’
pharmaceuticals program, the Rational Drug Therapy Program does not have a policy of denying
testosterone for treatment of gender dysphoria.” Wowczuk Aff. ¶ 7, ECF No. 32-1. Based on this
affidavit, Fain agreed not to pursue his claims based on denial of hormone therapy. See Stipulation
¶ 10, ECF No. 53.
With surgical care as his sole basis for recovery, Fain alleges that WVDHHR Defendants’
policies are discriminatory because “the same treatments are covered for cisgender people who are
Medicaid participants.” Compl. ¶ 62. According to Plaintiffs, this discrimination violates (1) the
Equal Protection clause, (2) the nondiscrimination clause under Section 1557 of the Patient
Protection and Affordable Care Act (42 U.S.C. § 18116), (3) the Medicaid Act’s Availability
Requirements (42 U.S.C. § 1396a(a)(10)(A)), and (4) the Medicaid Act’s Comparability
Requirements (42 U.S.C. § 1396a(a)(10)(B)). Fain seeks declaratory and injunctive relief for
himself and the Medicaid Class as to each of these claims. He also individually seeks
compensatory damages under the ACA.
(2) Defendants Cheatham
Plaintiff Brian McNemar is a state employee who is insured through West Virginia’s
PEIA. McNemar is married to Plaintiff Zachary Martell, who is McNemar’s dependent. Martell is
a transgender man diagnosed with gender dysphoria and is seeking both hormone replacement
therapy and surgical care to treat that diagnosis. McNemar and Martell bring two claims
individually and on behalf of the proposed State Employee Class and The Health Plan Subclass.
Like Plaintiff Fain, McNemar and Martell challenge PEIA and The Health Plan policies
and practices which exclude gender-confirming care. According to the Complaint, the PEIA plans
exclude “[s]urgical or pharmaceutical treatments associated with gender dysphoria or any
physical, psychiatric, or psychological examinations, testing, treatments or services provided or
performed in preparation for, or as a result of, sex transformation surgery.” Compl. ¶ 64.
Additionally, there is a similar exclusion in all plans provided by The Health Plan, which are
approved by Cheatham. Id. Plaintiffs allege Cheatham’s approval of discriminatory policies and
failure to offer a non-discriminatory option violates the Equal Protection clause. They seek
declaratory and injunctive relief on behalf of the class.3
II. WVDHHR DEFENDANTS’ MOTIONS TO DISMISS
On January 11, 2021, WVDHHR Defendants moved for partial dismissal (ECF No. 23),
challenging Fain’s claim for compensatory damages under the Eleventh Amendment and the
sufficiency of Fain’s class action allegations. On February 2, 2021, WVDHHR Defendants filed a
second motion to dismiss (ECF No. 32), this time challenging standing and ripeness, as well as
Fain’s ability to represent the proposed class. With the filing of Plaintiffs’ Unopposed Motion for
Leave to File Sur-Reply in Opposition to WVDHHR Defendants’ Motion to Dismiss on April 5,
2021, the motions became ripe for review.
(1) Eleventh Amendment Immunity
The first jurisdictional issue raised by WVDHHR Defendants is whether Fain’s claim for
compensatory damages against WVDHHR under the ACA must be dismissed. WVDHHR argues
that this claim is barred by the Eleventh Amendment, whereas Plaintiff argues that WVDHHR
3 Plaintiffs also alleged that Cheatham violated the ACA but have voluntarily dismissed
that claim. Order, ECF No. 38.
waived its Eleventh Amendment immunity by accepting federal assistance.
The waiver exception applies if a state “voluntarily participat[es] in federal spending
programs [and] Congress expresses ‘a clear intent to condition participation in the programs . . . on
a State’s consent to waive its constitutional immunity.’” Litman v. George Mason Univ., 186 F.3d
544, 550 (4th Cir. 1999) (quoting Booth v. Maryland, 112 F.3d 139, 145 (4th Cir.1997)). Such a
waiver must be a “clear and unambiguous” condition of the funding. Arlington Cent. Sch. Dist. Bd.
Of Educ. v. Murphy, 548 U.S. 291, 296 (2006).
Here, Fain argues that Congress clearly and unambiguously conditioned federal Medicaid
funding on states’ waiver of immunity for nondiscrimination provisions when it enacted Section
1003 of the Civil Rights Remedies Equalization Act of 1986. That Section reads:
A State shall not be immune under the Eleventh Amendment of the Constitution
of the United States from suit in Federal court for a violation of section 504 of
the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972,
the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or
the provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1). According to Plaintiff, the so-called Residual Clause (“or the
provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial
assistance”) incorporates Section 1557 of the ACA, which is a nondiscrimination provision. The
Court agrees.
The text of the Residual Clause unequivocally waives immunity against violations of
“provisions of any other Federal statute prohibiting discrimination.” Section 1557 is
unambiguously a federal statue which prohibits discrimination by recipients of Federal financial
assistance; it states:
Except as otherwise provided for in this title (or an amendment made by this title),
an individual shall not, . . . be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under, any health program or activity, any part
of which is receiving Federal financial assistance, including credits, subsidies, or
contracts of insurance, or under any program or activity that is administered by an
Executive Agency or any entity established under this title (or amendments).
42 U.S.C. § 18116. Although there is not yet4 controlling precedent on Section 1003’s application
to the ACA, several district courts have held that the Residual Clause incorporates Section 1557.
See, e.g., Kadel v. Folwell, 446 F. Supp. 3d 1, 17 (M.D.N.C. 2020) (“[T]he Court concludes that
Section 1557, when read in conjunction with CRREA, effectuates a valid waiver of sovereign
immunity.”); Boyden v. Conlin, 341 F. Supp. 3d 979, 998 (W.D. Wis. 2018) (same); Esparza v.
Univ. Med. Ctr. Mgmt. Corp., No. CV 17-4803, 2017 WL 4791185, at *9 (E.D. La. Oct. 24, 2017)
(same).
Defendants argue that Section 1003 is not a sufficient waiver because the Supreme Court
requires waivers to be “unequivocally expressed in the text of the relevant statute.” Sossamon v.
Texas, 563 U.S. 277, 284 (2011) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
99 (1984)) (emphasis added). WVDHHR Defendants reason that because Section 1557 does not
contain an express waiver, Plaintiffs’ claim must be dismissed.
WVDHHR’s reading of Sossamon is oversimplified and ignores the final section of the
opinion. After the Court remarked that the waiver must be “in the text of the relevant statute,” it
declined to invalidate Section 1003 or the Residual Clause. Instead, it held: “[e]ven assuming that
a residual clause like the one in § 1003 could constitute an unequivocal textual waiver, § 3 [of the
Religious Land Use and Institutionalized Persons Act] is not unequivocally a ‘statute prohibiting
discrimination’ within the meaning of § 1003.” Sossamon, 563 U.S. at 292. This analysis supports
the finding that Section 1003 may constitute a “relevant statute” under Sossamon.
In addition to being undermined by Sossamon’s analysis, the Court rejects WVDHHR’s
4 The issue was recently submitted to the Fourth Circuit in Kadel v. N.C. State Health
Plan, No. 20-1409 (4th Cir. argued March 11, 2021).
reasoning because it would lead to untenable results. If the Court held that Section 1557 cannot be
read in conjunction with Section 1003, it would invalidate the waivers for Section 504 of the
Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age
Discrimination Act of 1975, and Title VI of the Civil Rights Act of 1964. That contradicts
Congress’ intent in enacting Section 1003, states’ longstanding acceptance of these waivers, and
the body of case law upholding Section 1003. See, e.g., Litman, 186 F.3d at 554. The Court cannot
disregard this longstanding precedent.
In sum, the Court finds that West Virginia waived its immunity from suit under Section
1557 by accepting federal assistance under the ACA, as provided by Section 1003’s Residual
Clause. WVDHHR’s Motion is denied as to immunity.
(2) Standing and Ripeness
WVDHHR Defendants next argue that Fain lacks standing and that his claims are not ripe
for review because he has not requested the gender-confirming surgery he claims to have been
denied. Consequently, says WVDHHR, Fain’s injuries are speculative, and his claims are not ripe.
Federal courts do not have jurisdiction over a suit unless the plaintiff can establish
standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In general, standing requires three
elements: (1) an injury in fact that is both concrete and actual or imminent; (2) a causal connection
between the injury and the defendant’s alleged wrongdoing; and (3) a substantial likelihood that a
favorable judgment will redress the injury. Id.
Ripeness, like standing, is a constitutional and prudential doctrine that limits federal
courts’ jurisdiction to the “cases” and “controversies” described in Article III, § 2 of the United
States Constitution. The doctrine’s “basic rationale is to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements over administrative
policies.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). In evaluating whether a dispute is
ripe, courts must consider “(1) the fitness of the issues for judicial decision and (2) the hardship to
the parties of withholding court consideration.” Cooksey v. Futrell, 721 F.3d 226, 240 (4th Cir.
2013). “A case is fit for judicial decision when the issues are purely legal and when the action in
controversy is final and not dependent on future uncertainties.” Miller v. Brown, 462 F.3d 312, 319
(4th Cir. 2006).
Fain argues that the Complaint meets these standards because he has alleged injury from
the denial of care established by the WVDHHR Exclusion, which renders any request for surgery
futile. As indicated in the Complaint, the WVDHHR Medicaid Policy Manual excludes coverage
for “[t]ranssexual surgery.” Compl. ¶ 61. According to Fain, this Exclusion dispels WVDHHR’s
argument that its denial is speculative because it demonstrates that WVDHHR has already made
the decision to exclude the surgery he requires. The Court again agrees with Plaintiff.
Assuming that the Plaintiffs’ allegations are true, as the Court must at the pleading stage,
WVDHHR enacted a clear policy that excludes gender-confirming surgical care with no
exceptions. In doing so, WVDHHR caused a concrete injury to Plaintiff Fain by constructing an
allegedly discriminatory barrier between him and health insurance coverage. This barrier
constitutes a concrete, non-speculative injury. Given this injury, Fain has standing to sue, and his
claims challenging the policy are ripe for review.
To the extent that the Exclusion does not constitute an outright denial, the Court finds that
a request for gender-confirming surgery would be futile. To hold otherwise would require an
individual to request a benefit even when he or she knows that the defendant maintains a clear
policy to deny that request. Such a request would be nothing more than a formality and is
unnecessary for the purposes of Plaintiffs’ claims, which are purely legal. Courts do not require
plaintiffs to perform such futile acts, especially when those acts could subject them to “personal
rebuffs.” See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66 (1977)) (“If an
employer should announce his policy of discrimination by a sign reading ‘Whites Only’ on the
hiring-office door, his victims would not be limited to the few who ignored the sign and subjected
themselves to personal rebuffs.”); see also Pinchback v. Armistead Homes Corp., 907 F.2d 1447,
1452 (4th Cir. 1990) (quoting same).
This is not the first time a court has extended the futile gesture doctrine to allegations of
health care discrimination. In Cruz v. Zucker, 116 F. Supp. 3d 334 (S.D.N.Y. 2015), aff’d on mot.
for reconsideration 195 F.Supp.3d 554 (July 5, 2016), the transgender plaintiffs challenged a New
York Medicaid policy which excluded all “cosmetic” procedures, including gender confirming
surgeries. Id. at 336. The court held that plaintiffs were not required to seek coverage for their
gender-confirming procedures before filing suit because such an attempt would have been futile
under the blanket cosmetic exclusion. Id. at 349. The court also noted that the question was purely
legal, which rendered such fact development unnecessary. Id.
WVDHHR contends that Fain should have been required to request the surgery because it
is possible that that the request will be granted. In support of this argument, WVDHHR Defendants
point to previous approvals of Fain’s hormone therapy, despite its policy excluding coverage for
“hormone therapy for sex transformation procedures.” WVDHHR Defs.’ Reply 4-5, ECF No. 55.
However, WVDHHR’s past approvals for hormonal therapy are inapposite because WVDHHR
did not just grant an exception for Fain, it filed an affidavit stating that it was not their policy to
deny hormone therapy. WVDHHR Defendants do not contest that their explicit policy is to deny
gender confirming surgical care without exception. Moreover, even if WVDHHR is earnest in
assertion that Fain’s surgical request may be granted, dismissing the suit on that ground would
allow defendants to dodge liability by granting litigants’ requests, all while maintaining an
allegedly discriminatory policy and practice for anyone who does not file suit. Such a loophole
cannot be permitted.
WVDHHR’s final argument is that Fain’s request would not be futile because it could be
denied on grounds other than the Exclusion. However, Plaintiffs allege that the Exclusion denies
of coverage without exception. Accordingly, WVDHHR’s policy acts as a barrier to Fain’s surgery
in every instance and renders alternative grounds for denial irrelevant. The Court rejects this
argument and concludes that Plaintiffs have plausibly alleged a ripe claim for which they have
standing to bring.
(3) Sufficiency of Class Allegations
Lastly, WVDHHR Defendants argue that the class allegations should be dismissed because
the Complaint does not sufficiently allege a viable class action under Federal Rule Civil Procedure
23(c)(1)(A). Rule 23 provides that “[a]t an early practicable time after a person sues or is sued as a
class representative, the court must determine by order whether to certify the action as a class
action.” Because this determination requires a “rigorous” factual and legal analysis, it is rare for a
court to make a class determination at the pleadings stage. See Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 351 (2011) (internal citation omitted). As recently held in this District, class allegations
should be stricken only when “it is clear from the face of the complaint that the plaintiff cannot and
could not meet Fed. R. Civ. P. 23’s requirements for certification . . . . ” Sommerville v. Union
Carbide Corp., No. 2:19-CV-00878, 2020 WL 2945541, at *3 (S.D. W. Va. June 3, 2020)
(Goodwin, J.) (quoting Williams v. Potomac Family Dining Grp. Operating Co., No.
GJH-19-1780, 2019 WL 5309628, at *5 (D. Md. Oct. 21, 2019)) (internal quotation marks
omitted).
WVDHHR argues that Plaintiffs will not be able to meet the commonality requirement
under Fed. R. Civ. Pro. 23(a)(2), which mandates “questions of law or fact common to the class.”
Although “[a] single common question will suffice, . . . it must be of such a nature that its
determination ‘will resolve an issue that is central to the validity of each one of the claims in one
stroke.’” EQT Prod. Co. v. Adair, 764 F.3d 347, 360 (4th Cir. 2014) (quoting Wal-Mart, 564 U.S.
at 350). This is evident when the “plaintiff shows that the class members have suffered the same
injury,” and when the common injury arises from “a common contention.” Wal-Mart, 564 U.S. at
349.
In the discrimination context, the common contention acts as the “glue” which holds each
of the claims together and ensures “that examination of all the class members’ claims for relief will
produce a common answer to the crucial question why was I disfavored.” Brown v. Nucor Corp.,
785 F.3d 895, 909 (4th Cir. 2015) (quoting Wal-Mart, 564 U.S. at 349) (emphasis in original)
(internal quotation marks omitted). This requirement can be met when the plaintiff shows that the
defendant “operated under a general policy of discrimination.” Wal-Mart, 564 U.S. at 353 (quoting
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159 n.15 (1982)) (internal quotation marks omitted).
Plaintiffs’ allegations are consistent with this standard. As noted above, Plaintiffs allege
that the class members suffer from a common injury which arises from a general policy of
discrimination: the denial of coverage for “[t]ranssexual surgery” in the WVDHHR Medicaid
Policy Manual. Compl. ¶ 61. As alleged, this denial generally effects the proposed class, which
includes “[a]ll transgender people who are or will be enrolled in West Virginia Medicaid and who
are seeking or will seek gender-confirming care barred by the Exclusions.” Id. at ¶ 108.5
Based on this common contention, Plaintiffs have appropriately framed the common
5 To the extent that this definition must be amended to reflect the parties’ Stipulation (ECF
No. 53), the Court finds that the class certification stage is the appropriate time to do so.
questions as follows: (1) whether WVDHHR’s Exclusion facially, and as applied to the proposed
Class, violates the U.S. Constitution, the ACA, and the federal Medicaid Act; and (2) whether
WVDHHR should be enjoined from enforcing the Exclusion and denying Mr. Fain and members
of the proposed Medicaid Class coverage for and access to gender-confirming care. See Compl. ¶¶
118-56. These questions are primarily legal and have the potential to relieve the common injury
“in one stroke.” See Wal-Mart, 564 U.S. at 350.
WVDHHR Defendants attempt to rebut this common contention by representing that “a
word search of the Medicaid State Plan contains not a single instance of the use of the words
‘transgender,’ ‘gender-confirming care,’ or ‘gender dysphoria.’” WVDHHR Defs.’ Mot. for Part.
Dismissal 14, ECF No. 25. This is a classic red herring. The Policy Manual’s exclusion of
“[t]ranssexual surgery” and Plaintiffs’ resulting injury are not disproved by the absence of other
terms in the State Plan. This is especially true given WVDHHR’s apparent refusal to deny the
Exclusion’s application to Plaintiffs’ alleged surgical needs.
WVDHHR’s further attempts to reframe the Complaint are also unconvincing. Defendants
argue that Plaintiffs will not be able to establish commonality because “the majority of the factual,
and, therefore, legal, questions are unique to each class member . . . . ” WVDHHR Defs.’ Mot. for
Part. Dismissal 8, ECF No. 25. WVDHHR Defendants have it backwards; legal standards inform
the necessary fact findings. Having started with the conclusion that particularized discovery will
be required, Defendants crafted a legal standard which resembles a common negligence claim:
particularized discovery would be necessary in order to determine the
individualized facts relative to Defendants’ duty to each class member, the
underlying facts of the breach of that duty as experienced by each class member,
and any causation between that breach and each particular class member’s
alleged damages. . . .
WVDHHR Defs.’ Motion to Dismiss 9, ECF No. 55. Plaintiffs neither assert a negligence claim,
nor do they seek compensatory damages on behalf of the class. Additionally, their Equal
Protection, ACA, and Medicaid Act claims do not require evidence of individual “duty” or
“breach.” These claims are purely legal and require little to no fact development. Having failed to
identify any ground upon which the Parties will be required to make particularized and
individualized factual findings, WVDHHR’s argument must be rejected. The Court denies
WVDHHR’s Motion for Partial Dismissal of Plaintiffs’ Class Action Complaint (ECF No. 23) and
Motion to Dismiss (ECF No. 32).
III. CHEATHAM MOTION TO DISMISS
On January 11, 2021, Defendant Cheatham moved for dismissal, arguing that McNemar
and Martell lack standing and have failed to state an Equal Protection Clause claim. For the
reasons stated below, the Court finds that dismissal is unwarranted on both grounds.
(1) Standing
Unlike WVDHHR, Cheatham does not contest injury; he argues that Plaintiffs McNemar
and Martell’s injuries are neither traceable to nor redressable by him. First, Cheatham argues that
Plaintiffs’ injuries cannot be traced back to PEIA because the insurance policy at issue is drafted,
created, and offered by The Health Plan. According to Cheatham, PEIA only facilitates this
contractual relationship and “do[es] not contract with these outside agencies on the basis of what is
covered under their policies.” Cheatham Mot. to Dismiss 7-8, ECF No. 24. Second, Cheatham
argues that the claims are not redressable by PEIA because the insurance policy is under the
control of The Health Plan. Accordingly, PEIA cannot change that plan even if the Court grants
Plaintiffs’ request for an injunction. As explained below, the Court rejects both arguments.
Traceability
Traceability requires a causal connection between the defendant’s conduct and the
plaintiff’s injury such that “there is a genuine nexus” between the two. Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir. 2000). However, as the Fourth
Circuit has explained, “the fairly traceable standard is not equivalent to a requirement of tort
causation.” Hutton v. Nat’l Bd. of Exam'rs in Optometry, Inc., 892 F.3d 613, 623 (4th Cir. 2018).
At the pleading stage, “general factual allegations of injury resulting from the defendant’s conduct
may suffice.” Lujan, 504 U.S. at 561.
As noted above, Defendant Cheatham argues that Plaintiffs’ injuries are not traceable to
him because the policy precluding coverage for Martell’s gender-confirming care is contained in
The Health Plan’s HMO policy. However, that does not accurately address Plaintiffs’ allegations.
Plaintiffs have alleged that their injuries can be traced to Cheatham because he only approves the
discriminatory policies (including The Health Plan’s HMO policy) and refuses to provide a
non-discriminatory alternative. Both allegations are plausible because Cheatham is statutorily
responsible for administering PEIA, including overseeing “provider negotiations, provider
contracting and payment, designation of covered and noncovered services, [and] offering of
additional coverage options or cost containment incentives.” W. Va. Code § 5-16-3(c).6
Therefore, the Court finds that Plaintiffs’ have plausibly alleged traceability.
Redressability
The same statutory authority under West Virginia Code § 5-16-3(c) enables Cheatham to
redress Plaintiffs’ injuries if such relief is granted. The Complaint requests an order “directing
Defendants and their agents to provide access to coverage for all gender-confirming care without
regard to the Exclusion[].” Compl. at p. 37(C). According to Plaintiffs, this type of order would
prevent Defendant Cheatham from contracting for private plans with a discriminatory policy,
6 Although Cheatham denies that he intentionally chooses discriminatory plans, that is a
factual dispute that cannot be resolved at the pleading stage. Even if it could, Cheatham has not
submitted any evidence supporting this argument.
prohibit enforcement of discriminatory policies in those plans, or affirmatively require him to
provide access to gender-confirming care.
Cheatham provides evidence that he does not have control over existing policies under the
PEIA’s agreement with The Health Plan.7 However, even if the Court were to accept this
assertion, Cheatham has not shown that the other proposed remedies are inadequate. Given that
Cheatham is tasked with “designation of covered and noncovered services” and “offering []
additional coverage options,” W. Va. Code § 5-16-3(c), he is statutorily authorized to grant
Plaintiffs access to gender-confirming care. Therefore, the Court finds that Plaintiffs’ have
sufficiently alleged that their injuries are redressable.
(2) Failure to State an Equal Protection Clause Claim
Cheatham’s last argument is that Plaintiffs failed to state an Equal Protection claim upon
which relief may be granted because the PEIA policy passes heightened scrutiny. In short,
Cheatham argues that there are three important government interests which are substantially
related to PEIA’s policies: (1) “guarantee[ing] the health and safety of the enrollees,” (2)
“maintain[ing] the medical standards of physicians and other entities that accept the insurance of
enrollees,” and (3) “sav[ing] taxpayer dollars from use for procedures that are not medically
necessary, or FDA approved.” Cheatham Mot. 11-12, ECF No. 24.
As Plaintiffs argue in their Response, Cheatham’s argument is improper because it relies
on facts outside of the Complaint. For example, Cheatham’s representations regarding patient
“safety” and “medically necessary [procedures]” assume facts that are neither in the Complaint nor
7 See Exhibit A, ECF No. 24-1 (“The responsibility for determining and providing
appropriate health care services in a competent manner to enrollees shall remain with the HMO
and the enrollees[,] treating physicians and other health care professionals and facilities, not
PEIA.”).
the record. In fact, the Complaint alleges the opposite: that gender-confirming care is medically
necessary and safe. See Compl. J 67. Therefore, the Court will not entertain Cheatham’s fact-based
arguments at this stage and denies Cheatham’s Motion to Dismiss (ECF No. 22.)
IV. CONCLUSION
For the reasons stated above, the Court DENIES Defendant Cheatham’s Motion to
Dismiss the Complaint (ECF No. 22), and WVDHHR Defendants’ Motion for Partial Dismissal of
Plaintiffs’ Class Action Complaint (ECF No. 23) and Motion to Dismiss (ECF No. 32). The Court
also GRANTS Plaintiffs’ Motion for Leave to file Sur-Reply (ECF No. 56).
The Clerk is DIRECTED to send a copy of this Opinion to counsel of Record and any
unrepresented party.
ENTER: May 19, 2021
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
-16-