Federal Court Blocks Wisconsin Regulation Banning Coverage of Health Care Services for Transgender Medicaid Beneficiaries

WASHINGTON, July 26 -- The National Health Law Program issued the following news release:

A U.S. District Court in Wisconsin entered a preliminary injunction on July 25 prohibiting the Wisconsin Department of Health Services from continuing to enforce Wisconsin Medicaid's categorical ban on medically necessary gender confirming treatments for two Wisconsin transgender residents. The plaintiffs, Cody Flack of Green Bay, and Sara Makenzie of Baraboo, are represented by the civil rights law firm Relman, Dane & Colfax PLLC, the Wisconsin law firm McNally Peterson, S.C., and the National Health Law Program.

The court in Flack v. Wisconsin Department of Health Services barred DHS from enforcing the Wisconsin regulation that has long prevented low-income transgender individuals in the State from accessing medically necessary treatments for gender dysphoria. The federal judge held that plaintiffs have been harmed by the discriminatory exclusion and are likely to succeed on the merits of their lawsuit, which alleges the Wisconsin policy is unlawful discrimination on the basis of sex under the Affordable Care Act's nondiscrimination provision (Section 1557) and the Fourteenth Amendment's Equal Protection Clause.

U.S. District Court Judge William M. Conley of the Western District of Wisconsin wrote in Flack, "[The Challenged Exclusion] creates a different rule governing the medical treatment of transgender people. Specifically, Wisconsin Medicaid covers medically necessary treatment for other health conditions, yet the Challenged Exclusion expressly singles out and bars a medically necessary treatment solely for transgender people suffering from gender dysphoria. In fact, by excluding 'transsexual surgery' from coverage, the Challenged Exclusion directly singles out a Medicaid claimant's transgender status as the basis for denying medical treatment."

The judge added, "Gender-confirming medical care may decrease mistreatment caused by being visibly gender-nonconforming. Likewise, transgender people unable to afford (or otherwise unable to access) gender-confirming surgical procedures are most at risk for discrimination and other harms."

Joseph J. Wardenski, counsel with Relman, Dane & Colfax PLLC, said the Court's decision shows that regressive and discriminatory regulations like Wisconsin's exclusion are discriminatory and harmful.

"Wisconsin's unlawful policy has prevented low-income transgender people from accessing medically necessary care because of who they are. The Court recognized that this antiquated ban violates our clients' rights under the Constitution and Section 1557's prohibition on sex discrimination. We are pleased that Judge Conley acknowledged the severe harms this policy has caused to our clients and other transgender individuals who are unable to obtain this critical and often life-saving care."

Robert Pledl, senior attorney at McNally Peterson, S.C. said, "We are very pleased that the Court will consider expanding the injunction beyond the plaintiffs and we look forward to addressing that issue. Wisconsin should abandon this discriminatory policy once and for all."

National Health Law Program Attorney, Catherine McKee said Wisconsin officials should "immediately drop the illegal and outdated policy of denying transgender individuals access to health care services they need." She added, "The court recognized that transition-related surgical treatments are medically necessary for Cody and Sara. There is strong consensus among medical and mental health professionals that these procedures are effective for many transgender individuals."

Plaintiff Sara Ann Makenzie said, "The decision made me feel like a whole person, alive and accepted, with so much hope. I want this decision to give other transgender people what it gave me: hope that they have options and a path forward to living and being accepted as who they are."

Access photos of Cody Flack and Sara Ann Makenzie here. (Photos of Flack by Adam Prochaska, photos of Makenzie by Spencer Micka Photography.)

Wisconsin is one of just 10 states with Medicaid policies that categorically and illegally exclude coverage for gender-confirming care for transgender beneficiaries.

Contact the National Health Law Program at Jeremy Leaming leaming@healthlaw.org, or Joseph J. Wardenski of Relman, Dane & Colfax PLLC at jwardenski@relmanlaw.com for additional comment and information on this case, Flack v. Wisconsin Department of Health Services.

National Health Law Program, founded in 1969, advocates for the rights of low-income and underserved people to access quality health care.

Relman, Dane & Colfax PLLC is a national civil rights law firm based in Washington, D.C. It litigates civil rights cases in the areas of housing, lending, employment, public accommodations, education, and police accountability. Our national practice includes individual and class action lawsuits on behalf of plaintiffs who have suffered discrimination and harassment on the basis of race, national origin, color, religion, sex (including sexual orientation and gender identity), disability, age, familial status, and source of income, and sexual orientation.

McNally Peterson, S.C. is a Wisconsin law firm handling litigation in an array of areas including personal injury, product liability, environmental, disability, civil rights, mental health and family law matters.