News Law and Policy

Judge Orders Wisconsin Officials to Stop Discriminating Against Transgender Medicaid Recipients

Jessica Mason Pieklo

Judge William Conley wrote that "one would be hard-pressed to identify a class of people more discriminated against ... than transgender people.”

A federal court on Wednesday blocked the Wisconsin Department of Health Services from enforcing the state’s Medicaid ban on medically necessary treatments for gender dysphoria and ordered the state to move forward with medical treatments for two plaintiffs challenging the policy. 

Wisconsin is one of ten states that deny Medicaid coverage of treatments for gender affirmation, according to court documents. Wisconsin Medicaid provides coverage for “[p]hysician services,” including “any medically necessary diagnostic, preventative, therapeutic, rehabilitative or palliative services … within the scope of the practice of medicine and surgery” that are “in conformity with generally accepted good medical practice” and provided by a physician or under one’s direct supervision, unless otherwise excluded. The Medicaid Act excludes “[d]rugs, including hormone therapy, associated with transsexual surgery or medically unnecessary alteration of sexual anatomy or characteristics; and “[t]ranssexual surgery.” 

The exclusion was adopted in 1996 and has remained in effect since February 1, 1997.

In April 2018Cody Flack and Sara Ann Makenzie challenged the exclusion, according to the lawsuit filed in April challenging the policy as unlawful discrimination on the basis of sex under the Affordable Care Act’s nondiscrimination provision, Section 1557, as well as the equal protection clause of the 14th Amendment. They claim they are being denied coverage for medically necessary treatment that was prescribed by their doctors and meets the prevailing standards of care. Flack and Makenzie allege that Wisconsin Medicaid covers the same services when medically necessary to treat conditions other than gender dysphoria in violation of both Section 1557 and the equal protection clause. 

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State officials dispute the medical necessity of the surgery for Flack and Mackenzie and argue neither would face irreparable harm from the policy. District Judge William Conley on Thursday disagreed, blocking the policy and ordering the state to process the medical requests within ten days. 

“[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,” Conley wrote.

“In short, other than certain races, one would be hard-pressed to identify a class of people more discriminated against historically or otherwise more deserving of the application of heightened scrutiny when singled out for adverse treatment, than transgender people.”

Thursday’s order does not block the policy entirely, but as it applies to Flack and Makenzie. Conley’s order suggests he’s considering blocking the policy entirely as Flack and Makenzie’s legal challenge proceeds. 

“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,” Robert Pledl, Senior Attorney at McNally Peterson, S.C. and one of the attorneys representing the plaintiffs in their challenge said in a statement announcing the decision. National Health Law Program attorney, Catherine McKee added Wisconsin officials should “immediately drop the illegal and outdated policy of denying transgender individuals access to health care services they need.”

Conley’s order gives state officials 21 days to provide the court with the likely, realistic cost of blocking the exclusion during the remainder of the lawsuit. Flack and Makenzie have five days to respond to that filing, and Conley will likely rule shortly after their submission. 

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