This class action lawsuit against the Wisconsin Department of Health Services ("DHS") and its Secretary, challenged Wisconsin Medicaid's categorical exclusion on gender-confirming treatments for transgender beneficiaries with gender dysphoria (the "Challenged Exclusion"). The lawsuit was filed in the U.S. District Court for the Western District of Wisconsin.

Plaintiffs Cody Flack, Sara Ann Makenzie, Courtney Sherwin, and Marie Kelly are transgender Wisconsin Medicaid beneficiaries who were unable to obtain medically necessary care based on Wisconsin's discriminatory exclusion. Plaintiffs, on behalf of themselves and a class of other transgender Wisconsin Medicaid beneficiaries seeking treatments for gender dysphoria, challenged the exclusion as a violation of their rights under Section 1557 of the Affordable Care Act, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and the federal Medicaid Act.

On July 25, 2018, Judge William Conley preliminarily enjoined Defendants' enforcement of the Challenged Exclusion for the two original plaintiffs, Cody Flack and Sara Ann Makenzie. In fall 2018, Plaintiffs filed an amended complaint adding the other named plaintiffs and class allegations. Plaintiffs then moved for class certification, and asked the court to expand the preliminary injunction to bar the State from denying gender-confirming treatments to any Medicaid beneficiary.

On April 23, 2019, the Court granted Plaintiffs' motion for class certification and expanded the preliminary injunction to cover all transgender Wisconsin Medicaid beneficiaries needing gender-confirming care during the pendency of the lawsuit. Under the expanded injunction, Wisconsin Medicaid was barred from applying the Challenged Exclusion to deny coverage for gender-confirming care to any transgender Wisconsin Medicaid beneficiary, and required to consider all coverage requests for gender-confirming treatments for individual medical necessity. 

On August 16, 2019, the Court granted summary judgment to Plaintiffs on all of their claims, holding that the Challenged Exclusion violates Section 1557, the Medicaid Act, and the Equal Protection Clause. In that decision, the Court permanently enjoined Wisconsin Medicaid from enforcing the exclusion against any member of the class.

On November 8, 2019, the Court entered final judgment for Plaintiffs, permanently enjoining DHS from enforcing the Challenged Exclusion, ordering DHS to publish a coverage policy for services previously excluded under the Challenged Exclusion, and directing the agency to take steps to notify transgender Medicaid beneficiaries that they may be eligible for coverage for medically necessary treatments for gender dysphoria that were previously excluded.

The State did not appeal the Court's final judgment. On December 10, 2019, Plaintiffs announced a final resolution of the case, including a $2.2 million monetary settlement, including compensatory damages to the four individual Plaintiffs and class counsel's attorney's fees and costs.

The Relman Colfax litigation team was led by Joe Wardenski, Jennifer Klar, Orly May, and Alexa Milton. The firm co-counseled with Abigail Coursolle and Catherine McKee of the National Health Law Program and Rock Pledl of Davis & Pledl, S.C.

Case Citation

Flack v. Wisconsin Department of Health Services, No. 3:18-cv-309 (W.D. Wis.)

Published Decisions

328 F. Supp. 3d 931 (W.D. Wis. 2018) (granting preliminary injunction to two individual plaintiffs)

331 F.R.D. 361 (W.D. Wis. 2019) (certifying class and expanding preliminary injunction to cover all class members)

395 F. Supp. 3d 1001 (W.D. Wis. 2019) (granting summary judgment to plaintiffs and permanently enjoining the Challenged Exclusion)

Jump to Page