CHARLESTON — A private health insurance company’s effort to dismiss a federal lawsuit by two public employees over the state’s ban on hormone replacement coverage was rejected Monday.

U.S. District Court Judge Robert Chambers issued a memorandum opinion and order Monday denying a motion by The Health Plan of West Virginia filed in January to dismiss a lawsuit brought by state employees Zachary Martell and Brian McNemar. Fellow state employee Christopher Fain is also part of the lawsuit.

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

McNemar, a public employee insured through the state’s Public Employee Insurance Agency, and his spouse, Zachary Martell, allege that PEIA denied them access to hormone replacement therapy. McNemar and Martell have healthcare coverage through The Health Plan – a PEIA subcontractor which also prohibits coverage of treatments for gender dysphoria.

Hormone replacement therapy often uses prescription medication, 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 this is a violation of the federal Patient Protection and Affordable Care Act, the 2010 law which is also include provisions prohibiting discrimination.

The Health Plan filed the motion to dismiss the case on Jan. 11. Their attorneys argued that since McNemar’s plan received no federal funds and therefore did not fall under the discrimination prohibition in the ACA.

“Fatal to their cause of action is that: (A) The Health Plan is not liable 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 liable to Brian McNemar because his claims are derivative of his spouse’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 evidence the healthcare provider received federal funding.

“By extending nondiscrimination protections to individuals under ‘any health program or activity,’ Congress clearly intended to prohibit discrimination by any entity acting within the ‘health’ system,” Chambers wrote. “Here, The Health Plan’s role as a health insurance provider undoubtedly implicates the health of persons falling within the scope of ACA protections.

“For example, in the instant case, Plaintiff Martell alleges that The Health Plan’s exclusion has limited his access to health care by virtue of its authority to design health benefits,” Chambers continued. “Therefore, as the gatekeeper to Martell’s health services, The Health Plan qualifies as a ‘health program’ that Congress intended to rid of discrimination.”